作　者：林喜芬
关键词：审前羁押； 高羁押率； 一押到底； 司法数据
摘　要：

羁押率高和羁押/诉讼期间合一是中国刑事审前羁押的两大特征。通过对全国和个别检察机关审前羁押率的分析，并将之与域外司法数据进行比对，可以发现：中国审前羁押率（捕诉率）自1997年至2016年呈现逐渐下降的趋势，但与国际刑事司法准则中“以羁押为例外”的法治原则相比，我国刑事审前羁押实践仍有进一步完善的空间。结合法律规范和一些二手文献，可以发现，我国羁押/诉讼期间合一的制度安排确实可能导致嫌疑人被“一押到底”，但零星的数据显示，我国刑事审前羁押的平均期间较之其他国家更短。仅作事实层面分析，这可能是因为“高羁押率”和“一押到底”客观上可迫使嫌疑人供述，进而促使刑事程序增速。

China’s Pretrial Detention System: A Comparative Analysis with Other Countries
 

Lin Xifen （Shanghai Jiao Tong University）

Abstract:In China’s Criminal Procedure Law, pretrial detention is neither an independent, coercive measure, nor subject to judicial review. According to CPL (1979, 1996, 2012), there are five legal coercive measures to restrict or deprive the accused’s personal liberty: compulsory summon (or forced summon), guarantor pending trial, residential surveillance, custody and arrest. Compulsory summon, guarantor pending trial and residential surveillance are far less frequently used coercive measures to restrict personal liberty of citizens, while criminal custody and arrest are the main coercive measures related to detention.
High rate of detention and detention through the whole proceeding are two main characteristics of China’s pretrial detention in practice. Using the national level data and a local level data of pretrial detention in China, this current research indicates that the pretrial detention has been declining during the period of 1997 to 2016. However, compared to the data of pretrial detention in western countries, China’s pretrial detention rate is still high.This is discordant with the rule of law principle, “detention of suspects as an exception”. It is noteworthy that the pretrial detention rate in some of the western countries, such as America, is not as good as those in other western countries.
Through analysis of legal norms, it suggests that the weak post-arrest detention review system can indeed  make the defendant be detained through the whole criminal proceeding. However, sparse data showed that the average term of detention in China is shorter than those in western countries. Only for factual analysis, this may be because the “high custody rate” and “the odds to be detained during the whole proceeding” can objectively force the suspects to confess, and thus promote the speed of criminal process in practice.
Yet,the so-called “high efficiency” may mean that the criminal process is too simplified and speedy to make sure the high quality of case-handling and to safeguard the defendant’s procedural rights. Logically, due to the excessive pursuit of high conviction rate, although it shortens the duration of case-handling and pretrial custody, but is largely based on the constraint of the fundamental rights of the accused. Furthermore, the so-called “high efficiency” model can be the soil of illegal inquisition by torture, and lead to a series of miscarriages of justice. It also fully embodies the criminal justice as a paradox: on the one hand, it might be a good thing that the system of “detention through the whole proceeding” which is stipulated in the Criminal Procedure Law did not cause the suspect in custody for too long, but on the other hand, we should also pay attention to the mechanism behind this high-speed operation as well as the sacrifice of due process of law.
 

Key words:pretrial detention; high rate of detention; detention through the whole proceeding; judicial data

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