检察机关羁押必要性审查启动程序研究

Study on the Starting of the Procedure of Examining the Necessity of Prosecution Agency's Custody

新《刑事诉讼法》为捕后羁押必要性审查制度确立了基本法律框架,并设置了相应的启动程序,一是依申请被动启动,二是依职权主动启动,但对于捕后羁押必要性审查启动程序的法律规定和具体操作规则尚需进一步研究。在精准把握羁押必要性审查权的基础上,可以得出这样的结论:不应该对启动羁押必要性审查的案件范围作出限制,依申请启动羁押必要性审查应该设定"前置程序",侦查机关(部门)提请批准延长侦查羁押期限并不是检察机关启动羁押必要性审查的应当情形。

The enactment of the New Criminal Procedure Law has established the legal framework for examining the necessity of post-arrest custody and has established how to start related procedures： 1. start the procedure passively in response to the application; 2. start the procedure actively because of power. However, it is necessary to make further study of legal provisions on starting the procedure of examining the necessity of post-arrest custody and detailed operational rules. Based on the correct understanding of the right to examine the necessity of the custody, we can come to the conclusion that restrictions should not be imposed on starting the procedure of examining the custody necessity according to the scope of the cases, propositional procedure should be placed on starting the procedure of examining the custody necessity in response to applications and the fact that investigative agencies apply for the extension of the custody should not be considered as the necessary circumstance of starting the custody necessity.