On The Conditions Of Arrest

The conditions of arrest are the sum of the premise and elements that must be satisfied when the judiciary wants to arrest someone; it is the basic standard to measure legality of an arrest. The conditions of arrest are the behavior guidelines used by the judiciary for an arrest, and also it is a restriction mechanism for preventing the abuse of power. The Theory of Power Restriction, Protection of Human Rights and Economics of Law are the three main basic theories for the formation of the conditions of arrest.Currently, there are some problems existing in the conditions of arrest in our country, which are the inadequate understanding on the theory and the defective design of rules. We need to improve it through a comprehensive study of the conditions of arrest. In theory, the traditional legal scholars consider the conditions of arrest as substantive conditions. In another word, they thought that the conditions of arrest just include the evidence condition, the punishment condition and the danger condition; the formal conditions are not the part of the conditions of arrest. In recent years, along with the deep research on the conditions of arrest, we start to realize that the formal conditions should be integrated into the concept of arrest conditions. The full content of the arrest conditions must be composed of the substantive conditions and the formal conditions. Neglecting the significance of formal conditions will impede us from getting rid of the inherent idea that is"the tool value"of the criminal prosecution, despise its function to restrict power and protect human rights, thus lead to the negative effect for us to study legal procedure's value. Therefore, to reform our country's conditions of arrest, the first step we should do is to redefine the conditions of arrest, and then grasp the conditions of arrest by analyzing the formal conditions and the substantive conditions.Speaking of the legislation, the concrete provision related to the conditions of arrest is still imperfect in the law, and the revisable space is large. Compared to the developed western countries, the set of conditions of arrest in our country is unscientific. The formal conditions and the substantive conditions are both have certain flaws. We can present some proposals for our country's reform by comparing the similarities and differences between Common Law System countries and the Civil Law System countries. Specifically, in the aspect of formal conditions, the stipulation is oversimplified, and the disposition of authority to sign and issue the warrant of arrest is also unreasonable. In the aspect of substantive conditions, the stipulation about the punishment condition and the danger condition is too abstract, and not advantageous for the actual operation, even possibly leads to the abuse of discretion. In conclusion, both formal conditions and substantive conditions are facing the same problem which is the adoption and the balance of the power of arrest. In addition, the stipulation of"the conditional arrest"causes a new situation in the conditions of arrest. How to solve these problems effectively is a common challenge for the Legislature and the Judiciary.