The Research on the Criminal Compulsory Measures in China

• Main Authors: Chien-hung Chen, 陳建宏
• Other Authors: none
• Format: Others
• Language: zh-TW
• Online Access: http://ndltd.ncl.edu.tw/handle/57371617233980057028

碩士 === 東吳大學 === 法律學系 === 97 === Criminal Coercive Disposition is described as “Criminal Coercive Measure” in Mainland’s “Criminal procedure law”. According to the scholars’ opinion, the Mainland’s criminal coercive measure shall be defined as various enforcement methods that the Public Security Organs, People’s Procuratorate and the People’s Court used to restrict or deprive the right of personal freedom of the criminal suspects and defendants in criminal cases, in accordance with the law, in order to ensure the criminal proceedings conduct smoothly. Mainland’s Criminal procedure law, in chapter 6, provides five criminal coercive measures, i.e. summons for detention, guaranteed pending trial, residential surveillance, detention and arrestment. This shows Mainland’s criminal coercive measures focus on restricting people’s right of personal freedom, but don’t restrict the articles and the citizen’s properties or privacy. Furthermore, Mainland’s Public Security Organs have the decision and implementation authority of Criminal Coercive Measure, without judicial review or endowing the defendants and suspects with means of right relief. These mentioned above are all significantly different from Taiwan’s Criminal Coercive Disposition system. This paper dedicated to discuss the Mainland’s Criminal Coercive Measure system, the problems existed in practice and their causes, as well as give some suggestions on the system design and legislation reformation. And then start on in order of the following sections. Chapter I, as the introduction, outlined this paper’s study motivations, objectives, scope, methods and content structure, the whole passage was subdivided into three parts, i.e. study motivations and objectives, scope and methods, study framework and the expected results. Chapter II clarified the concept of Criminal Coercive Disposition, and made theoretical analysis of its meaning and function, and then based on allowing for people’s fundamental civil rights, indicated that its meaning not merely lied on limiting the defendants’ and suspects’ personal freedom rights to safeguard the social security, but even more important, it depended on carrying out comply with the law for the sake of protecting people’s basic civil rights; and brought out that its function was to ensure the realization of the purpose and tasks of Criminal Procedure Law ,Procedural Legal Principles and the intrinsic value of Criminal Procedure Law, as well as to protect people’s fundamental civil rights. Secondly, the author exploded the Procedural Legal Principles, the principle of proportionality and the principle of judicial writs of Criminal Coercive Disposition procedures, so as to demonstrate the Procedural Legal Principle’s restriction against judicial interpretation on Coercive Disposition procedures Disposition, the compatibility and necessity principle of proportionality principle’s request on the application of coercive disposition, and the principle of judicial writs required regulation and review against the launch of the coercive disposition. Chapter III introduced the legal system of criminal coercive disposition in Mainland and indicated the states of its development, and then demonstrated its types, enforcement subjects, legal imperatives, as well as investigated the issues arising from the practice of Mainland summons for detention, guaranteed pending trial, residential surveillance, detention and arrestment these five coercive measures. Chapter IV compared the two sides’ criminal coercive disposition procedure , and analyzed their similarities and differences both in theory and practice aspects, and exploded the problems and experiences arising from the two sides’ criminal coercive disposition procedure respectively both in theory and practice, for the sake of learning from each other and seeking for improvement. Chapter V explained the reasons for the existence of the problems in Mainland criminal coercive measures. This paper argued that Mainland criminal coercive measure procedure, in its legislation, too emphasized on exercise of state power and focused on the investigation guarantee, but lacked protection to citizen’s basic rights, and in its operation paid much more attention to the effect of detention coercive measures, resulting in serious problems such as low rate of application of guaranteed pending trial, extended detention, etc. In legislation design, it neither mapped out means of right remedies, nor adopted the judicial review mechanism. Even, the five coercive measures, summons for detention, guaranteed pending trial, residential surveillance, detention and arrestment, all have defects both in legislation design and practical operation, leading to poor maneuverability, lacking of the Mechanism of Powers Decentralization and Check-balance, and finally it can only depend on the investigators’ subjective judgment. This article therefore from the legislation and practical operation two levels, analyzed and studied the background and causes of the issues existed in Mainland’s Criminal Coercive Measure Procedures. Chapter VI made thinking and suggestions on improving Mainland’s Criminal Coercive Measure Procedures, based on the questions and analysis mentioned above, including: improve the legislation of criminal coercive measure system, increase the application of Mandatory Measures for Article; set up theoretical basis of the detention coercive measure for the exception; make clear and subdivide procedures for application of all kinds of coercive measures, enhance the maneuverability; adopt the Judicial Review System; endow the defendants or suspects with the relief rights against the criminal coercive measures. Chapter VII made a conclusion and put forward suggestions and concept about the future direction of amending the laws about Mainland’s Criminal Coercive Measure system.