Research On Examination And Approval Of The Arrest

Research on examination and approval of the arrest is a practical subject. The various crux exposed in the practice, firstly stems from the defects rooted in the basic system of the arrest, and relates closely with the restrictions on the work mechanism of the arrest in the same time. According to the common though of posing a problem, analysing the problem and solving the problem, this paper is devided into three parts. The first part briefly introduces the general review of arrest practice, the second part analyzes systematic predicament and mechanismic dilemma arrest practice faced with, the third part puts forward improvement suggestions.In the first part of this paper, the arrest practice is divided into two periods consisting of "crackdown" and "tempering justice with mercy" in chronological order. In the "crackdown" period, the author introduces the background information of crackdown, and expounds the negative effects, such as constitutive sin namely capture, capture the generation penalty, capture the generation surveillance etc. In the "tempering justice with mercy"period, the author introduces the connotation and requirements of the criminal policy of "tempering justice with mercy", and represent the response measures the procuratorial organs have taken and the achievements have been made, finally the author points out that the execution of the criminal policy of "tempering justice with mercy" reveals exactly the fundamental crux of arrest practice, thus laying the foundation for the second part of this paper.In the second part of this paper, the crux of arrest practice is boiled down to two aspects consisting of systematic predicament and mechanismic dilemma.In system aspect, the author analyses the three elements of the arrest based on article 60 of the current criminal procedural law successively, and points out the existing problems of the three elements and their existence as a whole are insufficient. After further analysis, the author thinks that the root of defects comes from the current position of arrest, and endow too many functions to arrest system improperly which make it couldn't bear. In mechanism aspect, the author thinks that the restrictions can be divided into external obstacles and internal obstacles. External obstacles mainly find expression in insufficient coordination and restraint among the public security organs, the procuratorial organs and the courts. Internal obstacles consist of handling mechanism with too much administrative characteristic, lack of concrete analysis, and unscientific internal assessment.In the third part of this paper, the author throw out some suggestions to resolve the above problems. Around the basic system of the arrest, the author puts forward two sets of scheme, the ideal scheme and reality scheme. Within the Ideal scheme, the author thinks that the arrest must return to the correct orientation, and dispel the character of substantive referee. Meanwhile the author suggests that the arrest should be separated from custody, and redefine the elements of the arrest. Within the reality scheme, the author thinks that the current regulations of the arrest should be improved, specifically including perfecting arrest requirements, separating arrest from custody appropriately, and giving legal remedy means to arrested persons. Around the mechanism of the arrest, the author throw out three suggestions mainly about strengthening the coordination and restraint among different judicial organs in external mechanism, and put forward five suggestions around the problems revealed on the second part of this paper.