Research On The Necessary Proof Of Arresting

The article 59 of China's Criminal Procedure Law stipulates: Arrests of criminal suspects or defendants shall be subject to approval by a People's Procuratorate or decision by a People's Court and shall be executed by a public security organ. Thus, there are two arrest measures can be adopted: first is through the approval of people's procuratorate, second is by the people's court. With respect to the former, since the power of investigation in China is characterized by dispersive distribution, public security organs, investigation department of people's procuratotes, the state security organs, the security departments of the army and jails all have the power of investigation which is endowed by law over the corresponding criminal cases. This thesis mainly focuses on the problems related to the proof of necessary conditions of arresting when the public security organs deliver the criminal cases to people's procuratotes for its approval of arresting.In the judicial practice, whether the arrest is approved by the public security organs or reviewed by the procuratorates, among the three prerequisites of arresting regulated in the article 60, there exists a preferential weighting, which prefers evidence condition to penalty condition and necessary condition. As the core of the three procedural conditions, the necessary condition has a tremendous significance for the accurate application of arrest measures and the implementation of the criminal policy of combining punishment with leniency. Therefore, it becomes the subject title and aim of this thesis to perfect relevant regulations of this condition for the purpose of establishing a systematic mechanism of proof of necessary conditions of arresting, improving the operability and ensuring enough attention to be paid on this condition, achieving an accurate application of arrest measures and maintaining the organic unification between crime controlling and assurance of human rights.Based on the analyses related to the proof of necessary conditions of arresting and its forming reasons. This thesis makes a reflection and comes to a conclusion about it. Moreover, the writer puts forward some corresponding implementations and solutions, aims at making contributions for the establishment of proof mechanism of arrest necessity.The thesis is composed of four parts of more than 30,000 words, and the content of each part is as follows:The first part is an overview of the proof of necessary conditions of arresting, which will be extended from the following aspects respectively: 1.The connotation of the necessary conditions of arresting 2. The proof of necessary conditions of arresting. 3. The important role of the necessary conditions of arresting plays in the arrest conditions.The second part mainly analyzes the existing problems of the proof of necessary conditions of arresting in the judicial practice. The problems include: 1. "social dangerousness" was phased narrowly and it is difficult to define 2. Whether there exists a necessity of arresting or not is hard to grasp, which results in disparity of understanding. 3.It is hard to make the judicial explanation of Supreme People's Procuratorates binding. 4. Public security organs do not fully undertake the responsibility of proof. 5. Procuratorial organs fails to perform their duty strictly 6. The absence of the lawyer and criminal suspect.Based on the analysis in the second part, I will trace the source of the plight caused by proof of arresting from the aspects of system, reality and culture.To sum up what has been analyzed in the above two parts, I will provide some suggestions for perfecting the proof of necessary condition of arresting in our country. Firstly, the improvement of law, which includes the following points 1. Clarify the definition of " social dangerousness"and assessment reference factors .2.To modify the conditions of arresting. 3. To enhance the rank of judicial explanation made by the supreme procuratotes. 4.To amend relevant stipulations about criminal compensate in the State Compensation Law. Secondly, we shall make a mechanism reform, which includes several measures as follows: 1. The establishment of a bidirectional system of arrest necessity 2. To make a further clarification of the relation between public organs and procuratotes 3. To intensify interrogation and reform the method of investigation 4. To restrict the power of investigation and the right of approval of arresting after review through the lawyer's right for intervening. 5. To endow the criminal suspects with the rights to know,object and appeal. Thirdly, our concepts shall be renewed.