关于捕后羁押必要性审查的几个理论问题

Some Theoretical Problems of Reviewing the Necessity of Custody

羁押理由与羁押事实的区分是捕后羁押必要性审查的逻辑前提,无罪推定原则是其理论基础,无罪推定原则项下之法定原则和比例原则等两项子原则为必要性审查提供了结构性的判断标准,羁押事实之特殊性为捕后羁押必要性审查制度的建立提供了重要的现实基础。羁押必要性审查涉及合法性审查,但两者仍有所不同。在法律判断上捕后羁押必要性审查涉及事实判断和价值判断,人权保障价值追求应当成为其价值判断之重要考虑因素。

Differentiations between detention reason and detention fact are the logical premise of reviewing the ne- cessity of taking the suspected into custody. The principle of presumption of innocence, which is the theoretical ba- sis of the reviewing, includes the principle of legality and the principle of proportionality. The two principles togeth- er provide a structural judgment standard for the reviewing. The particularity of detention fact is the realistic basis for reviewing. Reviewing the necessity of taking the suspected into custody involves the legality of it, but they are different. As a legal judgment, the reviewing work involves fact judgment and value judgment. The value of safe- guard of human rights must be an important factor for considering the latter.