Compulsory measures of supervision of the criminal system of Legislation15267

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1、Compulsory measures of supervision of the criminal system of Legislation System of Criminal coercive measures in Criminal proceedings not only an important component of the system, which runs through the entire Criminal proceedings, and because the pArties directly related to personal rights, proper

2、ty rights, and many other constitutional rights, and become the focus of attention. From the Criminal Procedure the relevant provisions of Law, Chinas conditions of application of Criminal coercive measures, monitoring procedures applicable procedures in pArticular, have some problems to varying deg

3、rees. In order to make our system of criminal coercive measures to truly guarantee the smooth progress of criminal proceedings, punish crime and to protect human rights the best combination between, I believe that it is necessary criminal enforcement measures in China to further reflect on related i

4、ssues, and how to further the legislative reform and improve its application procedures, monitoring procedures and other issues make some of. First, build a sound legislative measures of the value of criminal trends Other related criminal coercive measures including mandatory measures, directly rela

5、ted to civil rights, property rights. To say that the process of how a country the rule of Law, rule of Law and civilization, including the degree of civilization, how the judiciary is often concentrated expression of personal rights of citizens of the country, property rights can be protected by La

6、w. Therefore, in such a background, the system of criminal coercive measures perfecting legislation, I believe, should take the following six aspects: ? ? protection of human rights should improve the criminal coercive measures as an important objective of the legislation system. Is generally believ

7、ed that the fundamental purpose of criminal coercive measures is to achieve the purpose of criminal proceedings. According to Article 1 of the Criminal Procedure Law provides that criminal proceedings purpose is to ensure the correct implementation of the Penal Code, punishing crimes, protecting the

8、 people, the protection of national security and public safety, maintenance procedures for a socialist society. should be said that the purpose of criminal proceedings in our country, both contain the idea to punish crimes, also contains the idea of human rights protection, the two interrelated and

9、inseparable, united in the whole process of criminal proceedings, including the application of coercive measures in criminal. However, needless to say, in judicial practice, the status of the two is not balanced . whether investigating authorities, prosecution or judicial staff in considering whethe

10、r to apply compulsory measures, the first work from their own needs, consider more the investigation, prosecution, trial needs. This idea not only in practice , but also theorists also expressed that the fight against the enemy, punishing crime, the main task of the criminal proceedings. Therefore,

11、the rule of law in the modern context, with the rule of law, social civilization and progress of civilization and the rule of law, the prosecution is to carry out the Constitution and the law the responsibilities entrusted to explore measures to improve the criminal enforcement of legislation improv

12、ement, the full realization of the purpose of criminal proceedings, we must strengthen the rule of law concept of human rights protection. ? ? public order and individual liberty should the organic unity of the system of compulsory measures to improve the legislation. Coercive measures since there h

13、as been present in the maintenance of public order and individual liberty among the contradictory unity of opposites. On society the pursuit of public order, and sometimes had to some people the cost of the loss of personal liberty, the pursuit of individual freedom, social order but also bound to s

14、ome extent. This is the contradictory nature of the performance. At the same time, under certain conditions under the loss of personal liberty will lead to the establishment of public order, the establishment of good social order, individual liberty and will play an active role in the promotion and

15、protection. This is the contradictory unity of expression. in criminal proceedings, In the specification and application of coercive measures in order to promote community safety and individual liberty to achieve uniform conditions of this contradiction is a complete legal system and its application

16、 and supervision procedures. Therefore, only by modifying the relevant laws and regulations to further standardize the criminal the application of coercive measures to achieve social order and individual liberty secure the unity of this contradiction, improve the criminal coercive measures should be

17、 an important goal of the legislation. ? ? entity justice and procedural fairness must unify in the Legislation of coercive measures. Human society and the judicial practice of the costs of that entity justice and procedural fairness of the organic unity of procedural justice in order to promote sub

18、stantive justice, is to achieve public order and personal liberty the only way the unity of opposites. procedural justice is a basic requirement, that is, the pursuit of substantive justice can only be limited to within the range of procedural fairness. the pursuit of substantive justice shall not e

19、xceed procedural fairness. without due process entity of any of the referees, are very difficult to have authority. and procedural justice on the premise that we must have strict laws and regulations, and norms in the pursuit of substantive justice within. This is essentially also for resolving subs

20、tantive justice and procedural fairness a basic requirement of conflict. This system of compulsory measures in the Legislation, in the specification process and application of coercive measures, whether it requires us to apply for what kind of measures, must strictly adhere to the norms of criminal

21、procedure law, adhere to the law the basic procedures. ? ? to balance fairness and efficiency. Belated justice is unjust, whether it is procedural fairness, impArtiality or entity, should be within a reasonable period of time can be achieved, otherwise no justice at all. This coercive measures appli

22、cable in, it is pArticularly prominent. just the existence and application of coercive measures is the fundamental basis of fair and efficient you can make the tree of evergreen, you can make mandatory measures in criminal proceedings, the role of its head. fairness and efficiency, both to each othe

23、r include, Also check each other, both interdependent and support each other, only to achieve the organic unity between the two can be achieved to set the value of compulsory measures of action. Legitimacy of the need for adaptability ? ? should reform and improve the enforcement measures as a basic

24、 requirement. Legality principle that any citizen to take coercive measures must be consistent with the requirements of the law. Of compulsory measures for criminal suspects, must have statutory requirements, through legal procedures, the decision by a statutory authority by statutory authorities. t

25、he principle of necessity that the judiciary in determining whether a criminal suspect or defendant to take coercive measures must be maintained as far as possible does not apply coercive measures, as much as possible do not limit their personal freedom, not restrict their property rights. judicial

26、officers in deciding whether to take measures of its, the first not to consider the needs of their own work, but what reason is there, there is no need for coercive measures to uphold the If you do not coercive measure, not enough to prevent harm to society, collusion can occur, suicide, escape, etc

27、. hinder the criminal proceedings against the behavior of social security cases, the only coercive measure. adaptability principle that the the strength of the coercive measures taken should be with the suspect, the defendants alleged criminal nature and extent of danger to society to adapt. not bec

28、ause the needs of their own work, that the suspect, the more stringent measures as possible. ? ? should strengthen supervision and control, according to the law applicable to enforcement measures, as to achieve substantive justice and procedural fairness of the important guarantee. Does not restrict

29、 the power will inevitably lead to corruption, the application of coercive measures as well. According to Chinas Criminal Procedural Law, the investigation organ in force the application of measures, only arrested, need to be examined and approved the prosecution, and other coercive measures are lac

30、k of appropriate and effective supervision. from abroad situation, the police authorities to arrest and criminal suspects involved in other types of personal and property rights enforcement measures shall be subject to judicial review procedures, and investigation of cases of public security organs,

31、 in addition to arrests for examination and approval should be brought to the prosecution, the imposition of additional measures are free to determine and perform, lack the necessary procedures for external oversight and relief. Therefore, to prevent detection the abuse of coercive measures authorit

32、y to protect the legitimate rights and interests of citizens, on the investigating authorities to limit or deprive citizens of their liberty, property rights other than the arrest of coercive measures, such as detention, bail pending trial, residential surveillance and other measures, must be from t

33、he proceedings strengthen supervision. Second, efforts to standardize arrest procedures, improve the system of law to arrest, to establish a comprehensive system of modern arrested (I want to improve the conditions for arrest by law, and strengthen measures to arrest the necessity for the arrest of

34、the role. Criminal proceedings in our country, the need to arrest known as how to apply the arrest, capture and use of a small fishing policy of watershed in the arrest of the application of measures, especially in the implementation of criminal policy can not be neglected, an irreplaceable role. It

35、 and Elements of Crimes and penalty elements together, constitute the arrest of criminal proceedings in the three elements. Meanwhile, the arrest is the need for measures to arrest one of the principles must be adhered to. but unfortunately, due to the law too principle, lack of basic operability, r

36、esulting in the application of the provision in the arrest did not play its due role in the regulation and control, although a considerable part of the alleged crime, but not harmful to the society, or do not have the risk of arrest should be crime suspect is arrested, detained. Therefore, it is nec

37、essary to re-awareness of this issue and to be perfect, to make arrests truly personal liberty and social order between the protection of human rights and protection of the balance between criminal proceedings leverage. The author believes that the arrest should include both the need for meaning, on

38、e is a danger to society, and second, there is evidence to bail, under house enough to prevent this danger to society. The two combine to form a complete arrest the need for legal connotation. First, we must have a danger to society. Danger to society is to bring the suspect to the community the pos

39、sibility of new hazards, it is different from the social harm. The specific contents include two aspects, namely, risk of committing crimes suspects and dangerousness. crime is the risk of crime suspects based on factors that may cause the suspect to the community the danger of dangerousness is base

40、d on personal factors may suspect the risk to the community, Both together constitute the legal connotation of danger to society. First of all, with the offense dangerous. That criminal suspects were arrested for the fact that there is evidence that the facts speak for themselves and the crime that

41、the criminal suspect who may bring the danger to society. This mainly refers to the state has or is likely to continue or bring serious harm to public safety, criminal, or other criminal nature of particularly bad circumstances are especially serious crime, major crime. of such crimes because of the

42、ir special nature or circumstances, itself shows that the suspect may be new to the community dangerous. Therefore, it can be said, with this kind of danger to society, that have the need to arrest. This fact is based on the alleged criminal suspects to consider the suspect nature of the social risk

43、. For such cases, the World on some countries have made clear in the laws provisions. such as the German Code of Criminal Procedure provides that there are important reasons to suspect that the prisoners suspected of participation in terrorist groups or organized crime, murder, homicide, genocide, c

44、rime of intentional injuries the circumstances are especially serious arson or explosive offense, even if there is no escape, destroy evidence or other evidence of prejudice abandoned, still pending before the detention order (similar to Chinas arrest. Secondly, with dangerousness. Specifically incl

45、udes two aspects: First, may prevent the risk of criminal proceedings. This includes according to the behavior of criminal suspects, such as whether the run after committing a crime, whether there is evidence or destroy evidence, hide such acts or attempts to determine whether the suspect may destro

46、y or falsify evidence or to destroy or falsify evidence. Second, the possible risk of recidivism. that is the nature of the offense, and whether criminal suspects, many crimes, repeat offender, repeat offenders, etc. to determine the existence of criminal suspects to crimes, repeat offender, or the

47、possibility of re-offending. The dangerous crimes and dangerousness together, constitute a danger to society, the specific content. Meet the crime or the dangerousness conditions dangerous to the suspect should be considered harmful to the society. Second is to have evidence for taking bail, under h

48、ouse enough to prevent the occurrence of danger to society. According to Chinas Criminal Procedure Law of the provisions of section 60, determined to arrest the suspect if necessary, look only at whether the suspect danger to society sex is not enough, in considering whether to arrest the suspect is

49、 necessary, but also needs to consider the following factors: First, the bail for the suspect, under surveillance, is sufficient to prevent danger to the society. Although the suspect has a danger to society, but the suspects released on bail or under house for enough to prevent danger to society na

50、ture, then the arrest of suspects not necessary. Second, in order to prevent danger to society, should first consider the release on bail or prison for living measures, rather than arrested. If the suspect has a danger to society, it needs to apply coercive measures, the first consideration should b

51、e given bail or for monitoring living, only in the application for bail, under house enough to prevent danger to the society, need to be identified with the arrest, and then to consider measures for the arrest. In summary, I believe that it is necessary to arrest by the need to revise and improve th

52、e law, the need to strengthen arrested for role in the arrest. For there is evidence that the suspect has the following 5 kinds of circumstances, and to take bail residential surveillance, not enough to prevent danger to the society can be considered necessary to arrest: ? the suspect escape, suicid

53、e or there is evidence that may escape suicide, ? suspects have destroyed, falsified, altered evidence, interference with witnesses card, or possible acts of collusion, ? may continue to carry out criminal acts, harmful to society, ? arrested suspects could be sentenced to death, life imprisonment,

54、or the light punishment 5 years in prison for the crime, ? other possible social dangerous situation. (B Review of the Construction of the arrest process defects and perfection. Arrest as the most severe criminal coercive measures, mandatory, litigation and the relative deprivation of a certain peri

55、od of time characteristics of human freedom. Including proceedings for the investigation of the performance of authorities in the investigation process, the suspect, the defendant used the arrest, must be submitted to the authorities the power to approve the examination and approval. the right to ap

56、prove the arrest of the organs in the decision whether to approve the arrest, the investigating authorities shall also examine the reasons for the arrest and the suspect, the defense counsels advice to the decision authority, investigative agencies and criminal suspects and defendants in the litigat

57、ion between the basic structure of criminal suspects and the investigation authorities and the decision authority for review in the review proceedings when the form of checks and balances to ensure that the approval of the decision to arrest or not to approve the fairness of the arrest. to avoid rev

58、iew and decision authority together with the investigating authorities, unilateral decision whether criminal suspects and defendants for arrest, arrest procedures to become a one-way review of administrative procedures, approved the decision of arrest or not to approve the decision of arrest as admi

59、nistrative decisions. This is essentially a process just basic requirements. However, in our review of the provisions of Code of Criminal Procedure arrest procedures, but did not give the suspect, the accused should have the right to review does not require approval of the prosecution in the decisio

60、n to arrest or the arrest, the court decided to arrest When shall interrogate the criminal suspect or defendant, to listen to his own defense and their defense lawyers, defense views, so that prosecutors approved the arrest of the review process, the lack of the right to defense and balance of power

61、s between the investigating authorities. So, I think, revise and improve the Code of Criminal Procedure on the review of the arrest procedure, should face criminal activities, arrest of action as the characteristics specified in the review prosecutors approved the arrest, the suspects were in custod

62、y, the suspect must be questioned . Interrogation of the task is not only to further verify the facts and evidence, but also to listen to their excuse to listen to it that the innocent Zuiqing reasons. lawyers engaged in the review of their arrest, that is applying for bail, residential surveillance

63、 the right to make it in the review process with the investigating authorities to arrest the formation of checks and balances between litigation. Third, efforts to revise and improve the detention system, legislation to strengthen oversight of detention for From the provisions of Code of Criminal Pr

64、ocedure regarding the detention and the judicial practice in recent years, Chinas system of detention in criminal proceedings, there are some problems, should be revised and improved accordingly. (A prolonged detention, and detention, detention in custody for a period not included in the investigati

65、on period of detention by the public security authorities to decide and implement, lack of supervision and control procedures should be improved. Under the provisions of section 69 of the Criminal Procedure Law, the public security organs to be the need to arrest the person detained, it shall within

66、 3 days after the detention, to draw the Peoples Procuratorate for examination and approval. In special circumstances, to draw the time of arrest for examination and approval may be extended 1 to 4 days. the prosecution shall, upon receiving the public security organs to arrest within 7 days after the book made