However, at present, there are some problems in the application of criminal detention as a compulsory measure by public security organs:
1. Misunderstanding of criminal detention conditions and abuse of criminal detention compulsory measures.
Some policemen mistakenly believe that the conditions of criminal detention are more relaxed than before. As long as it is a criminal case, whether it is necessary or not, the suspect can be detained. Criminal detention is also applicable to all cases where measures such as bail pending trial and residential surveillance can be taken, resulting in a sharp increase in the number of criminal detainees. For example, criminal detention measures are also taken for some cases of minor injuries and traffic accidents that have been partially mediated by the civil authorities; Compulsory measures of criminal detention are also taken for some criminal suspects who suffer from serious diseases and affect their detention.
Second, replace administrative detention with criminal detention, and collect debts with administrative compulsory measures and criminal detention.
The Administrative Punishment Law promotes the procedure of administrative punishment to the height of paying equal attention to entities. The object of administrative punishment shall be informed of the right to apply for reconsideration and litigation, and shall be informed of the punishment decision before making the punishment decision. The parties apply for reconsideration and litigation, and the ruling cannot be executed immediately, and the procedures are complicated, but these procedures do not exist in criminal detention. Therefore, for fear of trouble, some individual investigators still regard criminal detention as a compulsory measure for some minor cases, rather than an administrative punishment, knowing that it is only enough for public security punishment and does not need criminal detention.
In some economic cases, in order to recover economic losses and debts, some handling units use criminal detention measures to restrict the personal freedom of the parties, and release them after the parties pay money or make up for the economic losses.
Third, there is the problem of issuing compulsory measures for criminal detention many times.
As a severe measure of deprivation of personal freedom, criminal detention should be cautious and follow certain procedures. However, in the current public security organs, as long as criminal investigation, economic investigation, public security, police station and other units handle criminal cases, the leaders of their competent bureaus have the corresponding power to issue criminal detention, which leads to the problem of issuing criminal detention many times, making this work lack of supervision.
Fourth, there is the problem of illegally extending the period of criminal detention.
Procuratorial organs, as legal supervision organs, should strengthen supervision over the application of compulsory measures in criminal detention;
The first is to implement a notification system for criminal detention cases.
First, consult with the relevant departments of the public security organs and ask the relevant departments to copy the Registration Form of Accepted Cases, the Notice of Criminal Filing or the Notice of Not Filing a Case and the Application Report of Criminal Detention. Within three days after making the decision of accepting, filing (not filing) and reporting the application of compulsory measures for criminal detention, the above materials shall be submitted to the relevant departments of the procuratorial organs, so that the procuratorial organs can strengthen their supervision over the application of compulsory measures for criminal detention.
Second, strengthen investigation and supervision.
By intervening in the investigation in advance and carefully reviewing the file, the illegal situation can be found and corrected in time. Every time a Notice of Correcting Violation is delivered, there must be a result reply. For the prominent illegal problems in a certain period, it is necessary to comprehensively suggest that the public security organs strengthen their leadership in this work. At the same time, select typical cases to report to the party Committee, the National People's Congress and the superior, so as to attract attention. In view of the typical illegal facts and illegal personnel, it is suggested that the public security organs should punish the responsible personnel.
Third, strict examination and approval procedures for criminal detention.
The public security organ should assign the power to examine criminal detention to the legal department, so that a legal department can supervise the criminal investigation department by examining the use of criminal compulsory measures in cases handled by the criminal investigation department; Second, it can overcome the multi-head examination and approval, unify the standards, and put an end to the abuse of compulsory measures such as criminal detention.
When reviewing a case, the legal department shall examine and approve the case in strict accordance with the seven situations stipulated in Article 6 1 of the Criminal Procedure Law. Criminal detention shall not be approved for those who do not meet the requirements, have insufficient evidence and have no need to arrest. Where criminal detention replaces administrative detention, debt collection or extended detention of criminal suspects, the responsible person concerned shall be investigated for responsibility in accordance with the relevant provisions of public security organs, and if the case constitutes a crime, criminal responsibility shall be investigated according to law.
Problems existing in the supervision of criminal detention measures by procuratorial organs at present and suggestions for improvement;
First, the current investigation and supervision system and its defects
In judicial practice, China's Constitution and Criminal Procedure Law endow procuratorial organs with the function of legal supervision, define the main position of investigation and supervision, and basically establish the framework of investigation and supervision system. However, the provisions on investigation and supervision are mainly scattered in some provisions of the Criminal Procedure Law, which are too general and brief and lack specific and detailed operational provisions. Mainly manifested in:
1. does not explicitly give the procuratorial organ the power to judge whether the investigation activities are legal or not.
2. The provisions of the law on the right of correction are incomplete, and its enforcement effect is not clearly defined.
3. It is not clear that the procuratorial organ has the right to punish those responsible for violations.
4. The supervision procedure of investigation activities is not perfect.
Second, improve the supervision system of criminal detention.
1, confirm the specific content of the investigation and supervision power. That is, the right to judge whether criminal detention is legal, the right to correct illegal criminal detention, and the right to punish those responsible for illegal acts. It should be emphasized that the right of error correction is the right of decision rather than suggestion, and the investigation organ must implement it.
2. In order to ensure the correct and timely exercise of the right to supervise criminal detention, procuratorial organs should be given the right to supervise and investigate and collect evidence simultaneously. And this power should extend to the whole process of investigation activities, that is, accepting cases, filing cases, requesting compulsory measures, changing compulsory measures and so on.
3. Clearly define the necessary restrictive measures. That is, if the investigation organ refuses to accept the decision made by the procuratorial organ on the basis of criminal detention measures, it can apply to the procuratorial organ at the same level for reconsideration, and if it still disagrees with the reconsideration, it can apply to the procuratorial organ at the next higher level for review, thus ensuring the strict enforcement of the law.
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