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System Of Arrest: A New Theory

Posted on:2014-01-01Degree:DoctorType:Dissertation
Country:ChinaCandidate:J F ZhangFull Text:PDF
GTID:1226330395493920Subject:Criminal Law
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Pretrial arrest is one of the most serious and powerful measures in the criminaljustice system. It is also one of the most widely used in throughout the legal process.Its widespread use in conjunction with the potential for the human rights of the suspectto be violated has made the pretrial arrest system a central focus of public discourseand academic research. In addition to existing criminal law, the new Code of CriminalProcedure emphasizes respect for and protection of human rights. Upon its completion,the system of pretrial arrest and related legal procedures establishes a new set ofconditions for pretrial arrest; reforms the investigation and detention process, confirmsmandatory investigations and reviews, and stands as a breakthrough in the in realm ofalternatives to pretrial arrest and post-bail residential surveillance (and the related legalprocedures therein). It is designed to increase the legitimacy of arrest in China’s legalsystem. On this basis, the author looks at Western countries’ systems of arrest incombination with China’s current judicial and national status quo. This paper discussesthe system’s theoretical foundation, process of completion, procedural design, andpractical execution as well as alternative measures to arrest, in the pursuit of increasingthe legitimacy of arrest in the People’s Republic of China. The paper is divided intofive chapters:Chapter1: The legitimacy of arrestThe first chapter discusses the theoretical foundation of arrest. The laws of thePRC do not differentiate between the state of arrest and the state of pre-trail custody,the latter is simply a default state that follows the former, and hence the basic theoriesinvolved in arrest and pretrial custody are highly similar. When discussing thetheoretical foundations of arrest and pretrial detainment, the two are essentiallyindistinguishable. Through the application of theoretical games and the introductionand analysis of several additional theories, the author points out that arrest is a“double-edged sword” which serves as an optimal solution at the collision point ofnational sovereignty and the restraint of government power, utilitarianism and theprotection of human rights, the search for truth and the presumption of innocence. The legitimacy of arrest lies at the equilibrium of these elements. When it becomesunbalanced, arrest becomes a weapon to wield against the interests of the defendant.Thus, the proper use of arrest must be in accord with the legal principles of detainment,the proportional principles and the principles of final detainment. The established legalprocess, legal conditions and legal standards, place the practice of arrest within a legalframework, and increase the legitimacy of its use.Chapter2: The substantial elements of arrestThis chapter discusses the substantive requirements of the review of arrest. Thesubstantive elements of arrest include conditions regarding evidence, sentencing, andas well as other mandates. Different conditions of the burden of proof and the standardof proof are not the same. The burden of proof lies primarily with the investigativebodies, and all evidence must meet the clear standards of good evidence. Sentencingconditions must be in accord with clear and convincing standards. The necessaryconditions of proof must meet the general standards of probability. The suspect and thecouncil of the suspect bear a secondary burden of proof, primarily concerning illegalhindrances, criminal responsibility, and the rightful exclusion of illegal evidence aswell as related procedural and substantive issues. Only by requiring investigativeauthorities provide preliminary evidence materials or clues which conform thestandards of evidence, can a standard of reasonable doubt be formed. The new Code ofCriminal Procedure strengthens the review of arrest, the necessary conditions for arrest,and the proper use of arrest.Chapter3: The procedural design of arrestThis chapter discusses the proper process of arrest. The author, beginning with thecurrent status of arrest in the PRC, looks at the arrest and pretrial detention reviewsystems of Western countries. Upon the theoretical basis of a legitimate process,neutrality of the judiciary, the investigation conducted by the prosecution andsupervision department must, throughout the entire legal process, treat the suspect as adefendant. These bodies must design a thorough review of the legal process of arrest,especially with regards to the exclusion of illegal evidence. This also indicates that theuse of conditional arrest is more serious and must have more stringent controls than thepractice of general arrest. They must also provide recommendations regarding the problems that exist throughout the process of extended detainment.Chapter4: Mandatory post-arrest reviewThis chapter discusses the arrangement for mandatory post-arrest reviews. Thenew Code of Criminal Procedure mandates a review of detainment. The mandatoryreview of detainment remains a blank page. The Criminal Laws of the SupremePeople’s Procuratorate state that the content of the review should be designed inaccordance with the conditions of the case. The author points out “the three stage threereview” model’s different stages. From practical application to judicial decision, theauthor follows the stages of the mandatory review, points out its applicability, andoutlines the scientific distribution of judicial resources. The statute clearly indicatesthat pretrial detainment review is not the same as the mandatory detainment reviewproposition. Detainment and pre-trail detainment is led by this stage, whereas themandatory detainment review acts as a review of the legality of the process as a whole.Only after further clarification on this topic in combination with the suspect’s reliefprocedures, can the mandatory detainment review have a meaningful role in the legalprocess. Clarification is also required on the return to supplementary investigation, thediscovery of new accusations, the identity of the suspect being unclear, administrativeerrors that lead to the period of detention being recalculated, and other specialcircumstances. Questions regarding the substance and effectiveness of investigativebodies’ mandatory detainment reviews are central points of this paper.Chapter5: Alternative procedures to arrestThis chapter discusses the completion of alternative legal options that could lowerthe use of arrest. The completion of alternative options should lower the arrest rate.This chapter looks at the measures of the criminal justice system, the issue of warrants,detainment, the issue of bail, post-bail residential surveillance, and arrest. The authorprimarily discusses release on bail and residential surveillance, and analyzessubstantive nature of residential surveillance. She also points out that residentialsurveillance is only a marginal measure that occurs after arrest and after bail, and thuscannot become a meaningful alternative to arrest and must be developed alongside asystem for collateral obligations. Only then can release with bail become a meaningfulalternative to detainment. Through empirical investigation on a legal and realistic basis,a related bail system can be established. The central review of bail and residential surveillance are all designed for use by investigative bodies and supervisorydepartments.The increase in the PRC’s arrest rate has received widespread attention. Legalreform in the previous period has already brought about a series of legal adjustments;the arrival of the new Code of Criminal Procedure will push the use of arrest in thePRC to a new level of legitimacy. This paper begins with the status quo of the PRC,and then studies the advanced concepts used in Western countries in combination withthe legal practices in the PRC. The structured phases of litigation and the delegation ofprocedural responsibilities to each judicial organ will allow the procedure of arrest tobe more legitimate.
Keywords/Search Tags:Arrest, Proof of the substantial elements, Hearing procedure, Mandatory review ofdetainment, Release Upon Bail Pending Trial
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