（Abstract）

Due to the severity of the deprivation of physical freedom during criminaldetention，its abuse has received close attention within the InternationalCovenant on Civil and Political Rights（CCPR） and from the UN Human Rights Committee，which both emphasize the protection of human rights. As far as criminal procedural system and judicial procedure are concerned，judicial control is the most important means among the different methods of controlling criminal detention.

One of the characteristics of the criminal detention system in China is that we are lacking a Habeas Corpus system as stipulated by the criminal judicial standards in the CCPR. The fact that criminal detention in China lacks judicial control is manifested in the following two aspects，one is that criminal detention is not subject to judicial review，and the other even more important aspect isthat the judicial body cannot review the legality of the criminal detention after the suspect has been detained. However，in accordance to International Covenant on Civil and Political Rights，“anyone who is deprived of his libertyby arrest or detention shall be entitled to take proceedings before a court”，in orderthat court may decide on the lawfulness of his arrest or detention. Those countries with well-developed legal systems of criminal procedure practice separate systems of arrest and detention. That is，arrest is only a compulsory restrainingmeasure to hold a criminal suspect or defendant until he/she is to appear beforethe court，and whether or not he/she is to be put under criminal detention，isfor the judicial body to decide after review. Under this system，their judicialcontrol of detention is different from ours. Because of the combination of arrest and detention in China，the importance of judicial review towards criminal detention is increasingly apparent. Apparently，under this system，appropriate judicial control after the arrest is even more beneficial in order to realize two goals through judicial control，one of which is to review the legality of criminaldetention，and the other which is to reduce the wide use of criminal detention.

What is important is not whether the name of the person or organ controlling criminal detention has the word “judiciary” in it or not，but rather that whenthis person or organ controlling criminal detention is determining the legalityof the detention，it is employing a judicial procedure. In addition，it shouldprovide an appropriate procedural guarantee for the defendant when it comes to the questions of the deprivation of his/her liberty. Since the procuratorial organ shoulders the responsibility for the prosecution in criminal proceedings，which to a certain extent is identical to the investigative responsibilities of thePublic Security Bureau during criminal proceedings，it is a question whether a prosecutorial organ，when deciding or reviewing the legality of criminal detention，really possesses a judicial nature independent from the administration. Moreover，when China’s prosecutorial organs are deciding or reviewing the legality of criminal detention，the applied procedures are absolutely devoid of any judicial qualities，and will not be able to provide basic judicial procedural guarantees to this case of deprived freedom. Considering the above reasons，in order forcriminal detention to achieve effective judicial control，it is necessary to establish a mechanism that empowers the court to review the legality of criminal detention.

We need to have a better understanding of the significance of judicial control to criminal detention. Habeas Corpus，namely the mechanisms of the court toreview the legality of criminal detention have two main meanings. One is a procedural meaning；it provides opportunity for the detainee to appeal，as well as afair judicial channel for reviewing the legality of the criminal detention. Theother is a substantive meaning；for we can reduce criminal detentions through judicial review，which is beneficial to the realization of the rule prescribed bythe CCPR that “it shall not be the general rule that persons awaiting trial shall be detained in custody”. In my view，the procedural and substantive meanings of court review of the legality of criminal detention are interrelated，but theycannot replace each other. On the one hand，because the court can review the legality and necessity of criminal detention，and although this may realize the procedural meaning of review of criminal detention legality，but this does not imply the inevitable realization of the substantive meaning. Substantive effects，such as elimination of illegal criminal detention，reduction and even removal of unnecessary criminal detention，and thus realize with the goal that “it shall notbe the general rule that persons awaiting trial shall be detained in custody”，can not be simply resolved. Therefore，we should not be satisfied by only theestablishment of a system of court review of the legality of criminal detention.On the other hand，elimination of illegal criminal detention and reduction of unnecessary criminal detentions can possibly be realized through other channels.However，even if the principle that “it shall not be the general rule thatpersonsawaiting trial shall be detained in custody” is realized，this does notguarantee the realization of the procedural meaning of court review of criminal detention. Obviously，the procedural justice that can only be manifested through judicial procedures in an independent and fair judicial organ will have difficulties in being realized through other organs by other means.

Improving the necessary regulations related to the system of controlling criminal detention in our Criminal Procedure Law is not equal to entrusting the court with the review of criminal detention. Instead we need to prescribe a wholeset of fair procedures and appropriate principles，which must be adhered to by the court when reviewing the legality and necessity of criminal detention. Thiswill then be beneficial to the realization of the procedural and substantial meanings of the court’s review of the legality of criminal detention. The court’s review of criminal detention should go through a judicial procedure. If the rulestowards arrest should be like the presently effective Criminal Procedure Law in China，then any decision or approval of the arrest by a judicial organ can onlybe the result based on reviewing written data. There is even a possibility that the results of the review is based on the unilateral declaration of the arresting body，which is contrary to the basic principle that review of criminal detention should be conducted through a judicial procedure，and the above decision or approval should not be treated as judicial review at all. As far as the basic demand of a procedure of judicial review on criminal detention is concerned，it should include the necessary relevant contents，for instance，the judicial body must hear the opinions of both the prosecution and the defendant before being ableto render a judgment and decision on the legality of criminal detention，Therefore，the participation of both the prosecution and the defendant at the hearing should be an essential factor to the procedures of court when reviewing criminaldetention. The lack of such factor will result in the inability of judicial review to effectively control the implementation of criminal detention，and not to mention，realizing the procedural and substantive meanings of reviewing the legality of criminal detention.

Translated by Xiong Qiuhong

Edited by Otto Malmgren