CompulsorymeasuresofsupervisionofthecriminalsystemofLegislation15267

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, china's conditions of application of criminal coercive measures, monitoring procedures applicable procedures in particular, have some problems to varyin

3、g degrees. 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 rela

4、ted issues, 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

5、 related 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

6、by law. 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 b

7、elieved 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, pro

8、tecting the 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

9、interrelated and 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 c

10、onsidering whether 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 proceed

11、ings. therefore, 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 l

12、egislation improvement, 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 measu

13、res since there has 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 bu

14、t also bound to some 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 t

15、he promotion and 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 an

16、d its application 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 m

17、easures should be 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 ord

18、er to promote substantive 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 ju

19、stice shall not exceed 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 f

20、or resolving substantive 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 n

21、orms of criminal 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.

22、 this coercive measures applicable 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

23、efficiency, both to each other 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 en

24、forcement measures as a basic 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 authorit

25、y by statutory authorities. the 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 the

26、ir property rights. judicial 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 ca

27、n occur, suicide, escape, etc. 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 defendant's alleged criminal nature and extent of d

28、anger to society to adapt. not because 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 impo

29、rtant guarantee. does not restrict the power will inevitably lead to corruption, the application of coercive measures as well. according to china's criminal procedural law, the investigation organ in force the application of measures, only arrested, need to be examined and approved the prosecuti

30、on, and other coercive measures are lack 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 investigat

31、ion of cases of public security organs, 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

32、the abuse of coercive measures authority 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 surveill

33、ance and other measures, must be from the 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

34、arrest the necessity for the arrest of 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 pol

35、icy can not be neglected, an irreplaceable role. it 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. bu

36、t unfortunately, due to the law too principle, lack of basic operability, resulting 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

37、 arrest should be crime suspect is arrested, detained. therefore, it is necessary 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 a

38、uthor believes that the arrest should include both the need for meaning, one 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 "dang

39、er to society." danger to society is to bring the suspect to the community the possibility 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

40、factors that may cause the suspect to the community the danger of dangerousness is based 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

41、the fact that there is evidence that the facts speak for themselves and the crime that 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

42、 circumstances are especially serious crime, major crime. of such crimes because of their 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 b

43、ased on the alleged criminal suspects to consider the suspect nature of the social risk. for such cases, the world on some countries have made clear in the law's provisions. such as the german code of criminal procedure provides that there are important reasons to suspect that the prisoners susp

44、ected of participation in terrorist groups or organized crime, murder, homicide, genocide, crime 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 th

45、e detention order (similar to china's arrest. secondly, with dangerousness. specifically includes 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 evi

46、dence or destroy evidence, hide such acts or attempts to determine whether the suspect may destroy 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 of

47、fenders, etc. to determine the existence of criminal suspects to crimes, repeat offender, or the possibility of re-offending. the "dangerous crimes" and "dangerousness" together, constitute a "danger to society," the specific content. meet the crime or the dangerousness

48、 conditions dangerous to the suspect should be considered harmful to the society. second is to have evidence for taking bail, under house enough to prevent the occurrence of danger to society. according to china's criminal procedure law of the provisions of section 60, determined to arrest the s

49、uspect if necessary, look only at whether the suspect danger to society sex is not enough, in considering whether to arrest the suspect is 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.

50、 although the suspect has a danger to society, but the suspects released on bail or under house for enough to prevent danger to society nature, 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 mea

51、sures, rather than arrested. if the suspect has a danger to society, it needs to apply coercive measures, the first consideration should be 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 arres

52、t, 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 the 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

53、 residential surveillance, not enough to prevent danger to the society can be considered necessary to arrest: ? the suspect escape, suicide or there is evidence that may escape suicide, ? suspects have destroyed, falsified, altered evidence, interference with witnesses card, or possible acts of coll

54、usion, ? may continue to carry out criminal acts, harmful to society, ? arrested suspects could be sentenced to death, life imprisonment, 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

55、and perfection. arrest as the most severe criminal coercive measures, mandatory, litigation and the relative deprivation of a certain period of time characteristics of human freedom. including proceedings for the investigation of the performance of authorities in the investigation process, the suspe

56、ct, the defendant used the arrest, must be submitted to the authorities the power to approve the examination and approval. the right to approve 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

57、suspect, the defense counsel's advice to the decision authority, investigative agencies and criminal suspects and defendants in the litigation between the basic structure of criminal suspects and the investigation authorities and the decision authority for review in the review proceedings when t

58、he 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 review and decision authority together with the investigating authorities, unilateral decision whether criminal suspects and defendants for arrest, arrest proce

59、dures to become a one-way review of administrative procedures, approved the decision of arrest or not to approve the decision of arrest as administrative 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 decision to arrest or the arrest, the court decided to arrest when shall interrogate the criminal suspect or defendant, to listen to