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???(Chen Wei-Dong),金昌遵(번역자) 동아대학교 법학연구소 2009 東亞法學 Vol.- No.43
Inspection of Detention is originated in Europe, and UN Committee against Torture has accelerated its global establishment by studying the institution and drafting relevant instruments. Liaoyuan City experimented the institution in order to further the study on it. Over 20 trained inspectors examined the places of detention in accordance with operating rules, interviewed randomly selected detainees and filled the forms of inspection. The external safeguarding mechanism can make the places of detention open and transparent. Its supervision is more independent because the inspectors are selected from the public. The institution is economical and thus easy to generalize. It covers wide spectrum and is able to prevent torture in greater areas. In China, foundation has been laid for the establishment of the institution: protection of human rights being incorporated in the Constitution, similar systems in laws and regulations, and ideas of public participation in judicial management. But when transplanting the institution into Chinese legal system, the selection of inspectors and check of their power should be paid great attention to, economic and conceptual difficulties should be overcome and the neutrality of places of detention should be elevated.
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宋英輝(Song Ying-Hui),金昌遵(번역자) 동아대학교 법학연구소 2009 東亞法學 Vol.- No.43
Criminal procedure law amended in 1996 established discretionary nonprosecution decided by inspecting authority and regulated definitelyits applied situation and correlated proceedings. Discretionary nonprosecution bears the functions of procedure diverging, improving criminal procedural efficiency, deploying rationally judicial resource and so on. Lots of factors in system or outside lead to extreme lack of application of discretionary nonprosecution. Change the traditional idea of attaching importance to beating crime in direction of harmonious society thought. At the same time, perfect criminal procedure law, establish correlated measure, and reform checking and appraising mechanism inside of inspecting authority, to make more use of discretionary nonprosecution.
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汪建成(Wang Jian-Cheng),金昌遵(번역자) 동아대학교 법학연구소 2009 東亞法學 Vol.- No.43
The arrest in China consists of the act of arrest and the subsequent detention. The requirements for arrest are that there are evidences showing the facts of offense, that the offense is punishable by imprisonment and more severe punishments, and that it is necessary to have the offender arrested. The procuratorate has the power of approving arrests; it makes the decision to approve or disapprove after examining the facts. The problems concerning arrest in China are that the requirements for arrest are not quite operative, that the rate of approval and the rate of custody are always very high, and that the rate of guaranteed pending trial is low. China may experiment to innovate conditioned arrest. The academic circle raises diverse voices on its connotation, legality and the range of “major cases”. The conditioned arrest itself, however, is an innovation on the method of examination and approving, which does not lower the standards of arrest requirements. It is favorable for the establishment of case diversion system and it is possible to accelerate the advent of judicial review in China. During the course of reform, the standardization must be achieved; the extension of application should be avoided, and the relationship between the procuratorate and public security organ should be properly dealt with.
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樊崇義(Fan Chong-Yi),金昌遵(번역자) 동아대학교 법학연구소 2009 東亞法學 Vol.- No.43
An empirical study on reformation of interrogation procedure in investigation is propitious to impel interrogation procedure in investigation to standardization and justification. The direct function of an empirical study on reformation of interrogation procedure in investigation is to keep extorting a confession by torture within limits, strengthen safeguarding rights of the interrogated and restrain withdrawing a confession, to improve criminal procedural efficiency. An empirical study on reformation of interrogation procedure in investigation also has indirect functions like changing the method of criminal proof from oral confession in chief to physical evidence in chief. In addition, empirical study possesses methodology meanings of overthrowing the studying habits of analyzing in criminal procedure.
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