The Study On Review Procedures Of Pretrial Detention

Detention is the deprivation of the personal freedom of the suspects and defendants. It is a harsh criminal coercive measure. To prevent the detention mistake and guarantee the personal freedom of citizens, modern states rule by law establish the strict pretrial detention review program. The neutral judge, with the participation of the accuser and the defender, makes the decision on whether carrying out detention for review with the litigation method. The Chinese Criminal Procedural Law revised in 2012 has improved the people’s procuratorate procedure of examination and approval to arrest, which theoretically endows the right to dissent on arrest for the suspects and their defense lawyers. However, this kind of examination procedure is not conducted in the presence of both investigative authorities and suspects, but a kind of "administrative examination and approval" pattern. This procedure lacks of confrontation like the litigation review procedure, so it is difficult to prevent erroneous arrest that may cause illegal detention and ultimately aggress the personal freedom of citizens. To meet the need of rule of law and building a socialist country ruled by law, including legalization in criminal justice, prevention errors in custody, implementation of criminal justice and safeguard on citizens’ fundamental rights, it is essential to improve the pretrial detention review procedures through legislation. This paper starts from modern criminal litigation concepts of power restriction, right guarantee and just procedure, explains the theoretical foundation of pretrial detention review mechanism, takes the legislative experience of the pretrial detention review program of western countries as reference, analyzes major problems in the Chinese pretrial detention review program and proposes the legislative suggestions on improving Chinese detention review program.There are four parts in this paper:Part 1:it explains the concept and property of pretrial detention as well as the theoretical foundation of pretrial detention review program.Part 2:it mainly introduces the pretrial detention review program of two major legal systems of the UK, the US, France and Germany, analyzes their similarities and differences in terms of the review subjects, review substantive conditions and the subsidiary routes of pre-trial detention and points out the reference significances of overseas experience on improving the Chinese pretrial detention review program.Part 3:It introduces the legislative status of Chinese pretrial detention review program and points out major problems in the pretrial detention review program.Part 4:it proposes the legislative suggestions on improving Chinese pretrial detention review program from 5 aspects of constructing the pretrial detention judicial review program, establish the pretrial detention hearing review method, improve the pretrial detention review content, clarify the pretrial detention demonstration standards and establish the pretrial detention subsidiary mechanism.