试论隐性超期羁押的原因与规制

On the Causes and Regulation of Hidden Extended Detention

摘要: 隐性超期羁押存在于刑事诉讼的不同阶段，以外观合法实质违法的状态存在，成为了办案人员任意羁押的法律规避，出现隐性超期羁押的原因归结于内部思想观念陈旧、个人能力较差等和外部法律制度存在漏洞、监督缺失等，为有效规制隐性超期羁押，需要转变诉讼理念、弥补立法不足、强化监督实效、推动责任落地，进一步探究办案期限与羁押期限分离、羁押比例性、审查羁押和看守所独立等制度。

Abstract: Recessive extended detention exists in different stages of criminal proceedings. It exists in the form of legal appearance and substantive illegality, which has become the legal evasion of arbitrary detention of case handlers. The reasons for the emergence of recessive extended detention are attributed to the old internal ideas, poor personal ability and so on, as well as the loopholes and lack of supervision in the external legal system. In order to effectively regulate the recessive extended detention, it is necessary to change the litigation concept, make up for the lack of legislation, strengthen the effectiveness of supervision, promote the landing of responsibility, and further explore the system of separation of case handling period and detention period, proportionality of detention, review of detention and independence of detention center.