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法律之所以确立检察机关为羁押必要性审查的主体,既是基于我国现行司法体制的考量,又是由检察机关法律监督的地位所决定,更是检察官客观公正义务的应有之义。但具体应当由检察机关内部哪个部门来行使这项审查权力,理论界和实务界素有争议,从羁押必要性审查制度的内在价值和实际操作的可行性出发,立法机关应当将权力赋予公诉部门。
The reason why the law establishes the procuratorial organ as the main body of the necessity examination of detention depends not only on the consideration of the current judicial system of our country but also on the legal supervision status of the procuratorial organ. It is also the proper meaning of procurator’s objective and fair obligations. However, which department within the procuratorial organ should exercise this power of censorship should there be any controversy between the theoretical and practical sectors. Starting from the intrinsic value of censorship of detention necessity and the practicality of the operation, the legislature should give power to the public prosecutor department .