Our System Of Pending Custody Problems And Perfection

The suspensive detention has long been a big aeipathia of criminal judicial practice in our country,On March14,2012,the fifth meeting of the11th National People’s Congress passed the "criminal procedure law of the People’s Republic of China (hereinafter referred to as the" criminal procedural law ") while the compulsory measures chapter made a significant change, at the same time, the Supreme People’s Court, the Supreme People’s Procuratorate, the ministry of public security and six ministries and commissions issued the judicial interpretation about the application of the criminal procedure law, made significant changes on the part of detention and arrest, however, these modifies do not change the alternative measures of the suspensive detention in nature, nor establish independent suspensive detention program.For this reason, this paper will analyse the nature of the suspensive detention system and the problems existing in the reality of criminal justice practice in our country, combined with modifies in the criminal procedure law and the judicial interpretation that promulgated recently,and then put forward how to perfect the suspensive detention system in legislation of our own.This paper is divided into four parts,respectively from the basic theory of the suspensive detention system,the problems existing in the suspensive detention system in our country,the comparisons and analysis about suspensive detention system from foreign countries,and how to improve the suspensive detention system in our country,these four parts are main elements of my paper.The first part is the basic theory of the suspensive detention system,it mainly contains the meaning,the purpose and the applicable principles of the suspensive detention system in detail.The meaning of the suspensive detention is that in the criminal litigation,in order to ensure the criminal proceedings will be going on smoothly,and before the judgment of the court decisions takes effect,the special authority can take compulsory measures and detain the criminal suspects or defendants in a particular place,according to specific reasons and proceedings,bring the result that their personal freedom is limited. The purposes of the suspensive detention consist of crime prevention and procedural safeguard. The applicable principles of the suspensive detention include the legal principle of suspensive detention, the principle of judicial reviewing and the proportion principle.The second part is about the problems existing in the suspensive detention system in our country,it mainly includes five problems:confusion with arrest and detention leads to the rate of the suspensive detention is too high, detention places is not independent leads to severe torture phenomenon,lack of independent suspensive detention system resulting in extended detention phenomenon seriously, the relief system of the suspensive detention is not in place leads to the basic human rights of the detainee could not be guaranteed, and poor application of alternative measures leads to universalization of the suspensive detention.Among these problems,the most and essential reason is lack of independent suspensive detention system.The third part is about the comparisons and analysis about suspensive detention system in foreign countries.Firstly,I choose the United Kingdom and the United States in the Anglo-American law system countries,and Germany and France as the representative in civil law countries,as well as Japan,because Japan does well in the the suspensive detention system,owning comprehensive experience and practice.After introducing and analysising their different practices,then I draw to some common summarizes as following:independent procedures of the the suspensive detention,neural places of the suspensive detention,clear deadline of the suspensive detention,and perfect relief mechanisms of the suspensive detention.The fourth part is how to improve the suspensive detention system in our country,based on the problems in our country and foreign experiences respectively,we can improve as follows:establish independent suspensive detention measures,neutralize the place of the suspensive detention,Clear and separate the detention deadline,Improve the relief mechanism for the suspensive detention.