Research On Review System For The Necessity Of Detention

As a criminal compulsory measure which may cause serious violation of citizens’personal freedom right, pending detention is strictly controlled by the legislation of manycountries on its provisions. To ensure the effectiveness of control, most countries have set uperror correction and relief programs after the suspects and defendants are under pendingdetention in addition to the rigorous review before the suspects and defendants are thereunder,forming the prior and post dual control on pending detention. Before the implementation ofthe new criminal procedure law in our country, notwithstanding the prior and post dualcontrol on pending detention, the post control model reviewed by the case handling organsthemselves is basically failure state. Under the circumstance that the suspect is arrested whenthe suspect basically constitutes crime under prior control and may be sentenced to at leastfixed-term imprisonment and there is lack of post control to provide relief, high rate ofdetention, detention to the end and extended detention and other phenomena are almostinevitable. Although facilitating the state in prosecuting the criminals, this situation violatesthe principle of presumption of innocence and the purpose of pending detention forpreventing crime and safeguarding litigation, reflected the prior punishment function andfacilitating the detection function, so does the basic application principle of pending detention,making pending detention in our country more focus on serving the purpose of prosecutingthe criminals, while ignoring the respect and protection of human rights. In reality, it is oftenseen that the suspect and defendant are detained without the necessity of detention, thepersonal freedom right of the prosecuted cannot be fully and effectively safeguarded and thestate detention power cannot be effectively restricted in prosecuting the criminals. However,the criminal procedural law or even pending detention is established to endow the stateauthority with the power in prosecuting the criminals in the form of law so as to ensure thatthe crime can be effectively verified and investigated and on the other hand to restrict the stateauthority from abusing power and safeguard the citizens’ legal rights when prosecuting thecriminals. This embodies the values of controlling criminals and safeguarding human rights,which often conflict with each other. The good criminal procedural system needs to makereasonable balance between the two values so as to satisfy people’s expectation on justice. Itis obvious that the establishment on pending detention system in the old criminal law fails tobalance the conflict between the two values. Therefore, the new criminal law provides thebasic requirement for respecting and safeguarding the human rights and makes adjustments on the specific design on pending detention, refining the necessary conditions for arrest,enhancing the prior control on arrest, adding the review system for the necessity of detentionand improving the post control system for pending detention.As a new system for post control on pending detention, review on the necessity ofdetention paves a new way for turning the scale of the old criminal law in the failure to makepost control on pending detention. However, how to have the system play the role of thesystem in restricting the state power from abusing pending detention, achieving the role ofsafeguarding the personal freedom right of the prosecuted to meet the requirement forprocedural justice and in the meantime making it not interfere the smooth development of thestate in prosecuting the criminals require to be repeatedly explored in the practice and theory.This thesis begins from the basic theory for pending detention, researches and analyzes theconcept, nature and value of the review on the necessity of detention, explores the subject andcontents thereof, analyzes the status quo of the system in the practical application by referringto the theoretical basis thereof and finally proposes the thought for its development andimprovement.