Research On The Reform Of Arrest Procedure In China

Arrest is the most severe means among all the criminal compulsory measures and is closely related to the issue of citizen rights protection. However, arrest takes national compelling force as the backing. Both the force of criminal judicature and the violence of criminal penalty destine the two sides of arrest: one is to ensure the security and public order, the other is to impair the suspect's and defendant's constitutional rights.In the West countries under the rule of law, the arrest and the pretrial detention is two different concepts, the two in the ordinary circumstances are independent, mutually separates mutually. In order to forbid the illegal arrest, the West countries under the rule of law has established the principle of legal reservation and the principle of proportionality, entrusted with has been taken into custody the human to obtain the constitution right which the person protected makes and obtains releases on bail, and gave them after to take into custody seeks the right relief the way, enable them to have the valid question submission which the opportunity will take into custody the examination which carried on for a neutral court continues, and when took into custody manifestly was, unnecessary and illegitimately as soon as possible obtains the release. Our country's arrest system has the arrest authorization institution non-neutralization, the arrest takes into custody willful and violates, the relief procedure nihility to the proportion principle and so on the basic flaw, creates this a series of problems the basic reason to lie in our country's arrest and unsettled takes into custody not yet separates, unsettled took into custody is still serious attaches in detection, prosecution criminal prosecutions and so on, the penalty moves. Therefore, the author proposed arrests the system reform to our country the basic conception, thought must establish the proportion principle, judge in our country retains the principle, the model and the transplant overseas advanced system, then the realization arrest with takes into custody separates, constructs the arrest system which a science consummates.