Legalization Of Retention Measures

Corruption and dereliction of duty are major practical problems that every country can not avoid.Compared with other illegal and criminal acts,corruption has more particularity and harmfulness,which makes it more difficult for administrative supervision organs and procuratorial organs to investigate and handle such cases.In view of this phenomenon,"double regulation" and "double finger" have been regarded as powerful measures to combat corruption and dereliction of duty,and play an irreplaceable role in our long-term anti-corruption work.However,the constitutionality problems of "double rules" and "double fingers" and the various non-standard acts in the specific application process make them subject to questioning and controversy from all walks of life.Under the situation of increasingly severe anti-corruption and insufficient system supply,the Central Committee of the Communist Party of China and the National People’s Congress have successively introduced the reform plan of supervision system,decided to carry out pilot work in Beijing,Shanxi and Zhejiang provinces,and provided the system text and practical experience for the establishment of the lien system.The report of the Nineteenth National Congress of the Communist Party of China clearly put forward that "two regulations" should be replaced by lien,which should be clarified by the "Supervision Law".This measure is of great significance to the realization of the legalization and modernization of national anti-corruption.However,the lien measures are still in the early stage of system construction,and the relevant legal norms are not yet perfect.As a result,there are some problems in practice,such as unclear nature,vague legal concepts and imperfect human rights protection,which still need to be explained and supplemented systematically.This article is based on combing the existing legal norms of detention measures and summing up the practical experience of the pilot areas of supervision system reform.Firstly,through a historical review of the lien measures,it is pointed out that there are different paths for the transformation of the "double rules" and "double fingers" to the lien measures.The former is the inter-system transformation of the inner-party laws and regulations to the national laws,and the latter is the internal transformation of the national law system.On this basis,the concept,characteristics and theoretical and practical significance of detention measures are sorted out and explained.Secondly,by comparing the similarities and differences of the structure of detention and arrest,the nature of detention measures is defined.From the three aspects of function orientation,system purpose and power subject,it is concluded that Lien measures are independent and a new system design with both the nature of investigation and evidence collection measures and the nature of coercive measures.Thirdly,through the analysis of the actual operation of the detention measures,the author points out that the detention measures have some problems,such as unclear boundary,unreasonable procedures and insufficient restrictions.Finally,under the background of the Party and the state’s proposal of replacing the "two regulations" with lien and the reform of the state’s supervision system,the paper puts forward the choice of the legalization path of lien measures,that is,to continuously improve the system design from the aspects of the scope control,procedure structure and system regulation of the lien measures.