The System Of The Necessity Of Post-arrestment Custody In China

For a long time, because of the blank in the legal system about detention review and oversight, the extended custody and illegal custody situation happened a lot in China. With the promotion of the concept of “respect and protect human rights” in the world, article 93, the system of the necessity of post-arrestment custody was formally added to the <<Criminal Procedural law>>in 2012.The establishment of this system is a big progress in China's Criminal Procedural Law and is also the implementation and the expansion to the idea of human rights protection in the field of criminal lawsuit. This system fills the blank of the legal system about detention review and oversight. It helps protect the legitimate rights of the criminal suspects and defendants who are put at an inferior position so as to achieve the goal of justice and the implementation of criminal policy of temper justice with mercy. Meanwhile, it is also help remit the judicial resource shortage which was caused by the high custody rate.This paper mainly from the basic theory, the situation of our country system and outside related system research and the construction of the system of our country imagine four parts are discussed :Section 1 through the concrete analysis of what is the basic connotation and nature of the system of the review of the necessity of post-arrestment custody, at the same time, through the discussion of the three theories of censorship, namely the principle of human rights protection, the principle of power balance and the principle of presumption of innocence, this paper from the theoretical knowledge level deep analysis the existence of the censorship. Section 2 mainly analyzes the current censorship in China, mainly from the subjective and objective two aspects has carried on the defect analysis, subjective aspect is the custody wisdom of our country for a long time as well as the misleading law enforcement idea, objective aspect from the review subject, review standards and focus, scope of review these a few respects are studied.. Section 3 through the study of extraterritorial related system and draw important inspiration in the aspect of system construction in China,which mainly including the neutrality and independence of review process, argue both sides of the participation in the process of review, the authority of the review conclusion, and the diversity of right remedy measures. Section 4 mainly put forward the specific idea of the development and perfection of the censorship in China: Set up the correct idea of the custody and the law enforcement; Detailed the review procedures, clear the review subject, review standards and focus, audit scope, perfecting the launcher, determine the review period, clear the review effectiveness; Establish and improve the relevant supporting measures, the main contents include setting up the risk evaluation system of the censorship, perfecting the right relief system, establishing a strict and effective appraisal system.