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The Balance and Value Conflict of Pending Custody

Author: YangZhengLi
Tutor: WanYi
School: Shanghai Jiaotong University
Course: Legal
Keywords: Pending custody Protection of human rights conflict balance
CLC: D925.2
Type: Master's thesis
Year: 2008
Downloads: 158
Quote: 1
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Abstract


Custody means"a measure that the judicial organizations detain the arrested suspect or the defendant at the detention house or other regulated Place and limit his or her Personal freedom". Criminal Custody is closely related to human rights.Fundamentally the purpose of custody is to protect human rights, while custody itself will lead to violate human rights.It is a common task faced by the future scholars of Chinese human rights law and criminal procedure law to find a suitable contact point between these two aspects, we object to merely protecting human rights of the collection and ignoring protection of individual rights. We also object to too much emphasis on protection of individual rights without considering the interests of the whole society. Thus, it is necessary for us to find such a contact point.It is unnecessary to conceal that there exists a serious problem of high custody rate, long-term custody and overdue custody in our country, which puts an obstacle to the process of Chinese criminal procedure democratization. Though non-custody measures such as " qubao houshen (post a bail and await trial with restricted liberty of moving) are regulated in criminal procedure law ,the actual practice rate is not high. With the fast speed of Procedure democratization progress, more and more attention is paid to the protection about personal freedom and rights of citizens. Not only must the trials be ensured to carry on smoothly, but also few cases of custody and protection of the Person all freedom of the suspect and the defendant must be realized. Combination of these two aspects is the best choice.This paper sates the inevitability to conflict between these two aspects by analyse of pending custody system and connotation of human rights. Considering the reason ability of pending custody and the importance of human rights protection, this paper mainly studies how to balance between these two aspects, followed by analysis of the problem existing in current pending custody system about our country. Finally the paper puts forward some preliminary suggestions about reforming and improving current pending custody system for our country from the perspective of system designing and lawmaking.

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