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On the Restructuring of Pre-trail Detention System in Our Country

Author: ChenShangZhi
Tutor: LiGang
School: Xiamen University
Course: Civil and Commercial Law
Keywords: pre-trail detention the guarantee of human rights social control
CLC: D925.2
Type: Master's thesis
Year: 2007
Downloads: 122
Quote: 1
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Abstract


In the process of the transit from socialist planned economy to market economy in China, the original pre-trail detention system "emphasizing the combat against suspects while neglecting the safeguard" confronts universal denouncement with the upsurge of the notion of guaranteeing human rights, because it severely encroaches the human rights of suspects and defendants. Consequently, amendments and improvements of this system are imminent. Scholars in profusion put forward the concept of reforming the pre-trail detention system in our country in the light of guaranteeing human rights, which undoubtedly poses a positive influence on promoting the guarantee of human rights in the criminal justice, but finds it rather difficult to fit in with the "soil" of Chinese law when simply copying the relative concrete Western law systems in the grave situation of social security. This essay explicates that in order to restructure the pre-trail detention system in our country, not only should we draw on the mature experience abroad, but also set our foot on the practice at home. In reality, the problems existing in the pre-trail detention are closely linked up with our social controllability, whose strength presents a minus relationship with the rate of the applicability of the pre-trail detention. As a consequence, this essay contends that the pre-trail detention system should be restructured on the condition that our social controllability is strengthened in the perspective of social controlling, the sticking point of which is to enhance the nation’s social controllability and realize the standardized administration of our society through government by law and virtue, which on one hand, is beneficial to the formation of the developed objective evidence mechanism, and on the other, to the reinforcement of the personal controllability of suspects and defendants. Only in this way can the functions of safeguarding and obtaining testimony of the pre-trail detention system be weakened. Furthermore, human rights of suspects and defendants can be guaranteed without affecting the lawsuit purpose to ascertain criminals effectively.Originalities lying in this essay are that restructuring the pre-trail detention system is probed into under the guidance of relative theories of social control, not just confined to the levels of concrete law systems. Likewise, research perspectives are broadened in which specific tentative plans of restructuring the pre-trail detention system are addressed in the light of promoting social controllability.

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