我国《刑事诉讼法》2012年修改后,形成了通过界定羁押事实,明确羁押理由,以降低未决羁押率的新思路。调查表明,羁押事实的运用实践性强,部分背离了法定羁押事实,其主要集中在有前科、无业、情节恶劣等情形,多为预防性羁押,否定羁押的事实主要为认罪态度好、和解、赔偿等情形。推高未决羁押率的主导因素包括,以外来人员、不退赔等作为强制性羁押事实;实践中羁押事实标准明显低于法定要求;羁押事实认定受制于被害人意见;羁押事实评估随意化;羁押事实以消极、否定性事实表述为主等。然而,实践中将不认罪、不赔偿、不退赃、不和解作为羁押事实,违反了不受强迫自证其罪原则;无业等消极羁押事实与积极妨碍诉讼行为的羁押理由相关性不足;将外来人员、在本地无固定住所作为羁押事实,容易造成地域歧视。未来的改革,应当扬弃实践性羁押事实,构建羁押事实的规范化评估体系。 After the revision of the “Criminal Procedure Law” in 2012 in our country, a new way of thinking has been formed that defines the facts of detention and clarifies the reasons for detention so as to reduce the rate of pending detention. The investigation shows that the factual use of detention is strong in practice and partly deviates from the statutory detention. The facts are mainly pre-criminal cases, jobless conditions, harsh circumstances and the like. Most of them are preventive detention. The facts that deny detention are mainly pleading guilty, reconciliation, Compensation and other circumstances. The main factors that push up the outstanding detention rate include the fact that the non-refoulement of non-refoulement is the mandatory fact of custody; the de facto standard of detention is obviously lower than the statutory requirement; the factual determination of detention is subject to the opinions of the victim; the random assessment of detention facts is factual; Facts are negative, negative facts such as the main expression. However, in practice, they will not plead guilty of innocence, refuse to pay compensation, refuse ill-gotten gains or reconcile facts as a fact of detention, violating the principle of involuntary self-incrimination; the fact that passive detention such as joblessness is not relevant to the grounds of detention that positively hinders the litigation; Non-resident personnel who have no fixed place of residence as a de facto custodian will easily cause geographical discrimination. In the future reform, we should abandon the fact of custody and establish a standardized assessment system for the facts of custody.