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To Perfect the Mechanism of China’s Pre-sentence Custody

Author: LiuZuo
Tutor: SongQiang
School: Hainan University
Course: Criminal Procedure Law
Keywords: pre-sentence custody perfect the mechanism human rights guarantee procedural justice
CLC: D925.2
Type: Master's thesis
Year: 2010
Downloads: 134
Quote: 0
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Abstract


Pre-sentence custody is a measure which is widely used during the criminal proceedings. Under the concept of heavy tradition of marxism in China, pre-sentence custody plays a decisive role in the punishment of crime and maintaining social stability. With the vigorous development of the human rights movement in the early 20th century, the continuous improvement of our socio-economic level, as well as the enhancement of people’s legal consciousness, the re-awareness and reflection of China’s pre-sentence custody mechanism is promoted. Meanwhile, with the continued rising calls of Chinese Criminal Procedure revised, the improvement of China’s pre-sentence custody mechanism has also become a hot spot of concern.From an international perspective on the regulations and the development of the pre-sentence custody, the pre-sentence custody has become a stand-alone program mechanism. The guiding philosophy of the pre-sentence custody embraces equal ideas emphasis on punishment of offenders and human rights guarantee, the practice of pre-sentence custody follows the principle of presumption of innocence, combines the principle of proportionality and of necessity, discards the concept of "implementation of the punishment in advance", and embodies the concept of the modern civilized criminal procedure.In this area, China, on the one hand, promotes the development of the domestic theory, on the other hand actively participates in international cooperation, and signs a series of treaties or agreements which aim to promote the legislative progress, the judicial civilization and law enforcement standard, such as "the Covenant on Civil and Political Rights". As a rising power country, China has the responsibility to work together with other countries on the exploration of theoretical and the improvement of practice. With a view to achieve the value of such a mechanism to the punishment of offenders and the human rights guarantee, and make new contributions for human progress.In addition to the introduction and conclusion, this article is divided into four parts:Part I makes a basic theoretical analysis on the pre-sentence custody mechanism. This part firstly interprets the conception and the main features of the pre-sentence custody mechanism, and then analyzes the value of the pre-sentence custody mechanism. Part II makes an investigation on China’s status pre-sentence custody mechanism. This part firstly analyzes and judges the practice and legislative status of China’s pre-sentence custody mechanism, and then draws out the key issues and their formation reasons of China’s pre-sentence custody mechanism.Part III makes an investigation and evaluation on pre-sentence custody mechanism abroad. This part firstly sums up the common practices of different countries on the pre-sentence custody mechanism, which lays the groundwork for the discussion below, and then makes an evaluation of national experiences abroad, finally draws some inspirations which benefits the mechanism of China’s pre-sentence custody.Part IV focuses on the improvement of the mechanism of China’s pre-sentence custody. Through the three parts exposition above, this part draws a conclusion that the need for and the need to adopt ideas and principles to perfect the mechanism of China’s pre-sentence custody. Through leaning other counties’advanced experience, this part brings forward a series measures of improvement of our country’s pre-sentence custody.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Code of Criminal Procedure
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