New Theory On The Procedural Structure Of Custodial Coercive Measure

To establish the procedural structure of custodial coercive measure,the first of all is to define the meaning of custodial coercive measure.This paper considers that the detention measure,arrest and the assigned residence residential surveillance system all mean the custodial coercive measure.Presently the mainstream of theory considers that the censor and approve of the arrest which is conducted by the procuratorate means the legal surveillance of investigation and is suited to the position of procuratorate.However this paper considers that in the custodial coercive measure system that does not mean the reasonable structure while the detention measure is usually considered as a temporary measure,which becomes an appendage to the arrest measure.The illogicality of the procuratorate owns the power to censor and approve the arrest measure lies not only the stance of accuse which means the lost of being objective but also in the character of the power of surveillance means no right of substance dispose.In China,approving of custodial measure means the substance disposes while the legal surveillance has no power to manage it.Lastly,for the assigned residence residential surveillance system,this paper considers that is the black hole of the procedural structure of custodial coercive measure,and should be abolished.Under the basis of that,this paper considers that we should redefine the connotation of procuration and judicial power to achieve the procedural structure of custodial coercive measure.Firstly,since the constitution does not designate whether the arrest certainly includes custody,that means the method of separation of the arrest and custody is reasonable.Furthermore we should reform the detention measure systematically through authority,time limit to make that as a procedural conduct and mean the significance of inform.And in general the arrest conduct should be approved by the procuratorate while in case of emergency the arrest can be enforced without warrant but that should be authorized afterwards.Secondly,For the long-time custody the procuratorate should examine the application.If that is in line with the law regulations the procutatorate should put forward to the court to decide whether to operate a trail to approve the detention.