刑事拘留非紧急性候审化及其纠偏. (Chinese)

Non-urgent Awaiting Trial of Criminal Detention and Its Correction. (English)

Most of the current evaluation systems for custody governance have not been incorporated into the application of criminal detention. In order to substantially promote the criminal justice policy of “less arrest and cautious prosecution and custody”, it is necessary to reflect on this. At the level of functional positioning, major countries under the rule of law outside the region strictly implement the dual separation of “compulsory attendance” and “detention pending trial” in the system of coercive measures. Taking this as a yardstick, China’s criminal detention presents a dual positioning of confusion between the two, which should be clarified and should be avoided from alienating detention as a conventional pre-emptive measure for arrest. At the field of application level, in the case of vague legislative provisions, it is necessary to combine longitudinal historical interpretations with horizontal comparative studies, and use the principle of proportionality to define “emergency situations” as the limiting conditions for the application of detention. Based on the above level, it can be found that the application of criminal detention in China presents the characteristics of “non urgent awaiting trial”, specifically manifested in high detention rates, prolonged detention, and the prevalence of the system of the direct prosecution during criminal detention. Therefore, it is necessary to reform the applicable conditions and duration of detention, promote the application of non-custodial coercive measures, and improve the sanction mechanism for illegal detention procedures in order to correct the alienation tendency of criminal detention application. [ABSTRACT FROM AUTHOR]

現行羈押治理評價體系大多未納入刑事拘留適用，為實質推進“少捕慎訴慎押”刑事司法政策，有必要對此加以反思。功能定位層面，域外主要法治國家均在強制措施體系中嚴格貫徹“強制到案”與“羈押候審”二元分離，以此為標尺，我國刑事拘留呈現兩者混同之雙重定位，應予以澄清，并避免將拘留異化為逮捕之常規前置措施。適用場域層面，在立法規定語焉不詳之情形下，應結合縱向歷史解釋與橫向比較考察，以比例原則劃定“緊急情況”為拘留適用之限制條件。立足前述層面，可以發現我國刑事拘留適用呈現“非緊急性候審化”特征，具體表現為拘留率高企、超期拘留久禁不絕、刑拘直訴大行其道。對此，應當改革拘留適用條件與期限規定、推進非羈押性強制措施適用、完善非法拘留程序制裁機制，以矯正刑事拘留適用異化傾向。 [ABSTRACT FROM AUTHOR]

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