Arrest Substantial Elements

The substantial condition of arresting is the basic standard in the implementing of arrest measure, and the premise and foundation of guaranteeing the carrying out arrest correctly, and if it is installed reasonably concerns whether the arrest institution's setting up is reasonable and just, it also concerns whether the arrest measures will be misused in practice, also it concerns whether the citizen's human rights will be protected well. Nowadays, our country's substantial condition of arresting is unreasonable in legislature and not used properly in practice. This essay will give a thorough analysis of the problems of substantial condition of arresting, then I will give some reasons, and lastly, I will give a reconstruction to our substantial condition of arresting, and I hope that it will reduce the rates of arresting, and protect a free man's freedom.This paper adds up to more than 30,000 words, excepts the preface and conclusion, it is divided into four parts, and the main contents is introduced as follows:The preface part mainly discusses the necessity of studying our country's substantial condition of arresting. The arresting in China is different with other country's, and the detention is the natural result of arresting, so it intervenes the citizens' freedom seriously, and have to be controlled by the law strictly. The substantial condition of arresting is one of the important measures to control arrest. However, our substantial condition of arresting is made badly and abused in practice, and this is the main reason of the abusing of arresting . How to perfecting the substantial condition of arresting, and let it have the function of controlling arrest and protecting human rights, is the thesis of this paper.In the first part of this essay, I will discuss the starting point and general principles of designing the substantial condition of arresting. According to the principle of innocent presumption, anybody will be treated as a innocent man in the law, so they should have freedom. But detention will deprive the citizen's freedom forcefully, and it has the same effect to jail somebody, so it conflicts with the principle of innocent presumption. At the same time, detention violate the citizen's basic rights just like some other public law measures, so it has to be controlled by the legal principle and proportion principle.In the second part of this essay, I will give a conclusion to the features of our substantial condition of arresting. In the comparison with Western countries, we will find there are three features of our substantial condition of arresting, high standard in evidence, no difference in penalty, the necessity condition is too general.In the third part of this essay, I will analysis the existing problems and reasons in our substantial condition of arresting. Our substantial condition of arresting is unreasonable in legislature, it conflicts with the principle of innocent presumption,the rule of suit and the principle of proportion; it is simplified in practice, there are tendency of "arresting when it will be guilty", the prosecutor put the emphasis on the evidence condition, and ignores the penalty and necessity condition. The legal standard of arresting is replaced by the practice standard of "arresting when it will be guilty", and this is the result of many factors. The prosecutor is under the pressure of unreasonable standard of wrong arrest, also they are influenced by their sound traditional judicial idea of "strike firmly, and protect little", and also because the case's quality object and test standard in the internal part of procuratorate, they make this "simple choice" because they want to satisfy their interest and harmonize to the environment.In the fourth part of this essay, I will reconstruct our substantial condition of arresting. For the clear and explicit of the internal rank order of our substantial prerequisite of arresting, I will change the three prerequisite into four: suspect condition,penalty condition,dangerous condition and necessary condition. Compare with the original conditions, the main changes are: change "the offense truth"to "huge suspect"; change "above the imprisonment"to"above three years' imprisonment", list the meaning and standard of "social dangerousness"clearly, also emphasis the relates and difference between the necessary condition and dangerous condition.