Probing On Jurisdiction Of Arrest Inspection And Ratification

The jurisdiction of arrest inspection and ratification is set up to smooth criminal procedure and to protect human rights in the meantime. In ter5ms of most western countries, not only the English-American Law System countries, but also the Continental Law System countries, their procedure organization presents a "triangle" status, namely the three parts of accusing, defending as well as judging participate jointly even during the investigation process before court trail. As the judge owns the jurisdiction, the police and the procurator must apply to him before enforcement measures. Therefore, the jurisdiction of arrest inspection and ratification is executed by judge in western countries.The law of China grants the jurisdiction of arrest inspection and ratification to the procuratorial organ due to its legal situation as the law supervising organ. The procuratorial organ realizes effectively investigation and supervision by supervising the operation of law, carrying out the jurisdiction of arrest inspection and ratification as well as participating criminal procedure. By this means, the procuratorial organ can ensure a smooth criminal procedure on the one hand, and can protect at2 most the arrestee's legal right on the other hand. Considering characteristics of contemporary political system and criminal procedure system in China, to entrust the procuratorial organ the jurisdiction of arrest inspection and ratification is in line with our state and juridicial practises. However, it exists some disadvantages in our system of arrest inspection and ratification, which influence the exertion on jurisdiction of arrest inspection and ratification by the procuratorial organ. Such disadvantages reveal mainly as follows: Firstly, the deficiency on legislation. In the process of enforcement measures, the channel on appealing for help hasn't been stipulated for arrestees. In certain degree, it limited the exertion of arrestee's legal right. Secondly, the artificial expansion of "participation in propre time" leads to obscure distinctions between the right on investigation and the right on arrest inspection and ratification. Moreover, to use the unreasonable "unarresting ratio" in the practice has hampered the fair performance on the jurisdiction of arrest inspection and ratification by procuratorial organ.According to the dispute on jurisdiction of arrest inspection and ratification by theorists, and also in view of deficiencies exist in the operating process of arrest inspection and ratification, the writer believes that the system of arrest inspection and ratification should be reformed for ensuring human rights and juridicial fairness. The reform should be consisted in following major aspects: Firstly, to separate throughly the right on investigation from the right on arrest inspection and ratification, to abandon "participation in propre time". Secondly, to introduce hearing system in the process of arrest inspection and ratification. Thirdly, to grant lawyers necessary authority namely advancing the lawyer's participation time in criminal procedure in order to ensure better the arrestee's legal right. Fourthly, to establish the detention inspecting system after arrest.