The Predicament And Breakthrough Of Custody Necessity Examination Under The Mechanism Of Arrest And Prosecution

The purpose of detention necessity review system is mainly to solve the current situation of excessive detention rate and protect human rights.In recent years’judicial reform,the Supreme People’s Procuratorate requires reducing the rate of pre-trial detention,realizing less arrest,cautious detention and cautious prosecution,and establishing the litigation concept with the principle of non-detention and the exception of detention.Therefore,the review system of detention necessity has played an important role.With several reforms,the examination system of detention necessity has entered a new stage.After the reform of the integrated mechanism of arrest and prosecution,the examination system of detention necessity has been influenced to some extent.By discussing the relationship between the ongoing reform of the integration of arrest and prosecution and the review of the necessity of detention,we can find that under the influence of the mechanism of the integration of arrest and prosecution,the review system of the necessity of detention has unique advantages and encountered new problems.Under the review mode of the arrest department,due to the natural advantages of the arrest department,the necessity review of detention has several advantages compared with the past.First of all,it is converted into decisive review in the stage of review and prosecution,so the review results have rigid effect.Secondly,the review method is more comprehensive,which can give full play to the flexible adoption of various review methods by the department of arrest and prosecution,so it is more effective.Thirdly,from the data point of view,the adoption of the review results is strong,which is conducive to the realization of the purpose of the necessity review of detention.Finally,it can be connected with the system of confession and punishment,and realize the benign interaction of two-way promotion.However,the examination mode of the arrest and prosecution department has also encountered difficulties.First,because the neutrality of the review subject is difficult to be guaranteed,there may be situations where supervision cannot be guaranteed.Second,the ambiguity of the review standard leads to the situation that similar cases cannot be handled similarly in practice.Third,it is still not enough to link up with the lenient system of confession and punishment.Fourth,the lack of relief in the examination results makes it difficult for detainees to safeguard their rights.Fifth,matching measures are still insufficient,so non-custodial measures are rarely taken.In view of the above predicament of the necessity review of detention under the system of arrest and prosecution,its breakthrough path mainly includes five aspects.First,establish internal and external supervision mechanisms to fully guarantee the neutrality of the review.Second,set the social risk assessment standard and clarify the review standard.Third,improve the effective connection between confession and punishment,and take it as an important factor in the examination of the necessity of detention.Fourthly,the relief mechanism of examination results should be established to protect the rights of detainees.Fifth,improve the non-custodial measures,and build supporting measures consistent with the examination mode of the arrest and prosecution department.The above methods can solve the practical dilemma of detention necessity review at the level of practice.