An Empirical Study On The Temporary Protective Restraint Measures In Criminal Proceedings

In recent years,the number of psychiatric patients in our country has been on the rise year by year.When those patients suffer a mental attack,they can easily exercise dangerous behaviors that harm not only themselves,but also others due to their lack of abilities of identification and behavior control.The Code of Criminal Procedure,introduced in 2013,establishes the compulsory medical procedure as a special process,provides specific regulations on the application and enforcement of the compulsory medical treatment for the mentally ill victims,and plays an active role in defending the personal and public safety of citizens.However,China's legislation on criminal compulsory medical procedure started quite late,neither the relevant regulations are well elaborated.As the process goes deep,many problems emerged gradually during the judicial practice.In particular,the temporary protective restraint measures have been arousing much controversy in both theory and practice.The temporary protective restraint measures were integrated into the legal field when the medical science intersects with the law in the development.The subject of this implementation is the public safety agency,which is unique;the applicable object is a mental ill person who bears no criminal responsibility,which is specific;and the application of these measures not only guarantee the health right and the public interest of psychiatric patients,but also facilitates the operation of the coercive medical procedure,thus a plurality of the aims is acknowledged.There is much controversy over the nature of these measures in the theoretical circle,but according to the purpose of these measures and the definition of all kinds of coercive measures in existing laws,they should be defined as administrative coercive measures.By analyzing the 56 cases of compulsory medical treatment handled by procuratorial office of X City in J Province for five years,it can be seen that the temporary protective restraint measures still face some problems in the judicial practice,such as the lower specificity of the applicable conditions,the imprecision in the implementation period,the inconsistency in the execution place and the imperfection of the management system.On the basis of studying the legislation and theory from theforeign countries and Taiwan of China,combining with the reality of judicial practice in our country,it is necessary to improve the temporary protective restraint measures in the criminal compulsory medical procedure of our nation.It has to be made clear that the longest period of temporary protective restraint measures shall not exceed six months,and that the execution place shall be the Ankang hospital of the public security organs or the specific mental hospital established by the provincial government.There is a need to improve further the relevant management system,refine the relief and supervision mechanism for the measures,and straighten out the relationship with other coersive measures and sentence offset.