未决羁押与人权保障若干问题研究

Research on Some Problems of Pretrial Custody and Guarantee of Human Rights

本文从分权制衡理论的角度提出控制未决羁押权滥用的若干思考:建立逮捕与羁押的司法审查机制,将逮捕与羁押决定权从承担追诉职能的警检机关转移给处于中立地位的法院;实行逮捕的令状主义规则,建立逮捕与羁押相分离的体制;重塑我国看守所管理体制,将未决羁押场所从公安机关分离出来,改由处于超然地位的司法行政机关管理;完善未决羁押阶段律师的辩护制度,真正实现控辩平衡、诉辩对等。

The essay researches on the pretrial custody system and its present operation in our country, introducing its successful practice from some western countries. To control the abuse of pretrial custody in our country, the essay,according to decentralization balance theory, puts forward the proposals as follows：to establish the judicial review mechanism for the arrest and detention, and endow the neutral law courts with the power to decide on detention; to practice the legal doctrine of arrest writs or warrants and build the mechanism of the separation of custody from arrestment; to reconstruct the administration system of loekups or houses of detention, separate them from the public-security departments and transfer them to be under the management of the detached administrative departments of justice; to improve the system of advocacy in the pretrial custody phases to make sure the balance of charge and defence.