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Research on preventive detention

Author: XuHui
Tutor: ZhengXu
School: China University of Political Science
Course: Procedural Law
Keywords: Preventive detention Hearing procedures Pending custody
CLC: D925.2
Type: Master's thesis
Year: 2009
Downloads: 86
Quote: 0
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Abstract


Preventive detention is an important system of criminal procedure, but not the one on the current legislative system, start with its connotation of preventive detention to start. Access to the original writings of the United Kingdom, the United States, the papers and of scholars on this issue on, this article will be preventive detention defined as belonging to a pending custody, specifically refers to: the reasons for pending custody division two detention reasons one of the detention, the suspect will society be dangerous, pending danger to society in order to prevent the suspect in custody. Based on the definition of preventive detention, the article started on preventive detention within the resolution, first, to analyze its theoretical controversy exist. Including the presumption of innocence, freedom of the individual, the basic legal principles of due process to these preventive detention reasonableness of the challenges posed by one by one analysis, which demonstrated the preventive detention exists reasonable. Theoretically analyze the preventive detention of existence is reasonable, by introducing preventive detention in a number of representatives of national existence as an example, from the fact demonstrated the prevalence of preventive detention in the national criminal justice system, and through The comparative analysis between the different countries of the system, to further advance the understanding of the system of preventive detention, preventive detention is a pending custody and is pending custody more special, more likely to be thought to violate suspects The legal rights of a pending custody. Preventive detention system theory and empirical analysis, this paper describes the system of preventive detention applicable rules, the applicable rules is to prevent the preventive detention of important procedural safeguards for the abuse of preventive detention decision-making process, including important procedures - hearing system. The contents of the system mainly covers the preventive detention for the type of crime, preventive detention decision-making process, time limits, the standard of proof, the use of rules of evidence, the factors to be considered in the decision, the decision formal requirements, as well as in decision-making process for detainees enjoy the right to custody decision Remedy. Of preventive detention system, detention and arrest system, this article analyzed leading to the conclusion that even though China does not exist in the law written on the preventive detention, but in fact exist in the system of detention and arrest. preventive detention, and such de facto preventive detention and detention general setup there is no difference, and thus more likely to cause violations of human rights, is not conducive to the practice of operating. Finally, the realities of our analysis and recommendations on the basis of foreign institutional experience, the author of preventive detention to locate and applicable think we should differentiate between the pending custody right now in the legal, a separate set a system of preventive detention, and accompanied by appropriate procedural safeguards, in order to improve the application of the preventive detention system in our country.

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