Suggestions for improving the system of administrative detention

1) Emphasize the principle of participation and give the right to a hearing.

Procedural due process is one of the important principles of modern rule of law. "The minimum standard of due process of procedure is that a citizen must have the opportunity to exercise his right to be heard and to be informed before the decision is to be affected by the decision.

The procedures for administrative detention should be improved to a certain extent. The proper nature of the administrative detention procedure is greatly undermined by the fact that the parties have only the right to be heard and to be heard, and not to request a hearing. "The essence of the hearing system is that it gives the counterpart the right to self-defense to resist illegal or improper administrative acts of administrative organs and ensure that their legitimate rights and interests are not infringed upon.

2) Strengthen the principle of judicial review.

Administrative detention, as a type of administrative act, is a specific administrative act, and according to the provisions of the Criminal Procedure Law, the counterpart may initiate an administrative lawsuit against the change of act. However, this kind of review is only an ex post facto review and cannot remedy the rights of the counterparty to the greatest extent. In view of the particularity of the right to personal liberty, it is advisable to introduce a system of ex-ante supervision, that is, after the public security organ makes a decision on administrative detention, the judiciary should decide whether to allow the detention.

The advantage of this is that, on the one hand, it restricts the power of the public security organs, and on the other hand, it protects the rights of the counterpart and strengthens the judicial power. Of course, it should be noted that this kind of prior examination is only a preliminary examination, and generally only examines whether the procedure is legal, and if it is legal, the judiciary will issue a writ allowing the execution of administrative detention, and if it does not comply with the procedure, it will not be issued. Moreover, the judicial ** who issues the writ here cannot of course be a judge in the post-event supervision, that is, in the administrative proceedings, and there should be a distinction between the two.

In fact, Britain and the United States have done just that, such as the United States, which has a special magistrate. This approach is worth learning from China.

3) Emphasizing the principle of proportionality in administrative detention.

The principle of proportionality, also known as the principle of necessity or the principle of balance, refers to the fact that the intensity of administrative compulsory measures and administrative punishments must be commensurate with the seriousness of the person subject to enforcement's violation of the law, and cannot exceed the necessary limit. In administrative law, whether it is an administrative activity that formulates universal rules or a traditional administrative act, it should be regulated and constrained by this principle, and its legitimacy should be judged accordingly.

Specifically, the principle of proportionality includes three sub-principles: the principle of the adaptability of administrative measures to the purpose; the principle of necessity with minimal possible intervention; The principle of appropriateness prohibits excess. For the principle of proportionality in administrative detention, it is necessary to emphasize the adaptability between the seriousness of the illegal act and the intensity of punishment, which is equivalent to the principle of "proportionality of criminal responsibility and punishment" in administrative detention.

In practice, it is not possible to be detained for 15 or 20 days at every turn, just on the grounds that the counterpart has a bad attitude.