谈隐性超期羁押问题及其解决

On the Bottleneck of Concealed Overtime Detainment and Its Breakout

在司法实践中,许多本身适合取保候审个案因办案人员营造继续羁押理由或规避法律规定被隐性超期羁押。基于惩罚犯罪和人权保障之间的平衡,应促进在羁押状态下取保候审的适用。应确立以原则和例外相结合的取保候审启动条件体系,完善羁押状态下取保候审变更条件体系,确立在取保候审申请权构造中多元主体参与机制,确立对办案机关拒绝适用取保候审的司法救济程序。

In judicial practice, many suspects or defendants who accorded with the condition of obtaining a guarantor pending trial were overtime detained by concealed way because the personnel handling the eases fabricated the reason of detainment or evaded legal provision. Obtaining a guarantor pending trial shall apply actively under the situation of detainment considering the balance between punishing the crime and protecting the human rights. Concretely, concerning obtaining a guarantor pending trial, it should establish an inkiative condition system combining the principle with exception, complete the variational condition system under the situation of detainment, create a multiple body mechanism of the structure of the right to apply, and constitute the judicial remedy procedure when the organ handling the cases refused to apply obtaining a guarantor pending trial.