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An Empirical Analysis On The Quality Of The Arrest Cases

Posted on:2012-08-03Degree:MasterType:Thesis
Country:ChinaCandidate:Q JiangFull Text:PDF
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The review of arrest is relative to the personal freedom of the criminal suspects and the input of the judicial resources. In view of the role that arrest plays in prosecution and trial as a"kidnapper", which has a significant impact on justice of criminal proceeding, the quality of the arrest cases is crucial to the whole criminal procedure. However, low quality of arrest in the judicial practice takes a high percentage,which needs to be carefully studied. While relative researches in China are often confined to the arrest condition and review of the way of arrest, so analysis of arrest in China is limited to theoretical aspects and less in-depth practical point of view from the empirical analysis of the current arrest cases about the quality problems to find causes and ways to improve the quality of arrests. This is the meaning of this article.In addition to the introduction and conclusion, the text is divided into three parts.The first part will analyze the quality standards of arrest and its application in practice. Our law explicitly provides three elements for arrest, including element of evidence, the necessity element, and the penalty element. Accordingly, the author believes that the quality problems in the arrest cases include wrong arrest and improper arrest. Through a research in several primary procuratorates about the application of the quality of the arrest cases, the author finds that the current quality problems of arrest mainly consists of two , namely wrong arrestment and the high rate of improper arrest.The second part will analyze the causes of arrestment quality problems. There are three major reasons which affects the quality of arrest cases at present: firstly ,it is about the legal system defects. In other words, it is about the applicable conditions of arrest set by law. Specifically, the legal provisions about the necessity element, penalty element and evidence element of the arrest are imperfect, so that investigators in the review of cases often could not operate, resulting in some cases being wrongly or improperly applied the decision or approval of arrest which don't meet the conditions of arrest because of the ambiguity and non-specific feasibility of the law. Secondly, it is about the arrest mechanism, including three aspects : firstly, the current arrest review process is not standardized, which is mainly because that the authority's review is limited to paper review which makes comprehensive understanding of the cases impossible while after-arrest review lacks authentic supervise and the four-level review system is too complicated; Secondly, internal performance pressure from inspective authority leads to improper arrest when conditions are not ripe to avoid points; Thirdly ,law enforcement and inspection mechanism are so harsh that it leads much pressure to executing people under which improper arrests happen because it may not just be based on rules required by law. Lastly, it is about the problems in enforcement concept. This article will analyze biases on law enforcement separately from both the public security organs and the inspecting authority angles when putting laws into enforcement. On the one hand the long-term public security organs investigators thought the presumption of guilt, ignoring collection of evidences and distorting the function of arrest, which affects the quality of cases brought to arrest; on the other hand prosecution investigators also have the wrong idea that"criminals should be arrested","the entity, rather than the procedure", tending to cooperate with the public security organs and the courts while neglecting the duty of monitoring, which results in wrong arrest when making decisions to arrest.The third part of this article will propose reform measures according to reasons above to improve the quality of current arrest cases. Firstly, to improve the legal provisions of the applicable conditions of arrest. It is suggested that the arrest evidence element can be adjusted to suspecting element of the crime, improving on requirements by"the need to arrest"and the establishment of"the necessary arrest"proving system, meanwhile fulfill the"penalty element"of the arrest. Secondly, it is to fulfill the working mechanism of the review of arrest. First, investigators need to standardize the review process of arrest, including changes in examination way and strengthening the lawyer's role in the review of arrest; to focus on the after-arrest supervision work to strengthen the convergence work of investigation, arrest, prosecution and trial; to improve review of the trial mode of administrative examination and approval, implementing the case-handling responsibilities; the second is to reform the present assessment mechanism of prosecution, and establish a reasonable standard of evaluation items and evaluation; the third is to formulate a scientific law enforcement and inspection mechanisms. Lastly, the public security authorities and law enforcement prosecutor should change the current wrong concept and the investigators gradually get rid of"presumption of guilt"to improve the awareness of evidence, while it is necessary to understand the function of arrest correctly. Prosecution investigators must strictly adhere to arrest based on the statutory conditions, not only entities should be paying attention to , but also to ensure that the procedural justice of the case, at the same time dealing with the public security authorities both as collaborator and monitor in legal relationship correctly.
Keywords/Search Tags:quality of arrest, wrong arrest, improper arrest, assessment mechanism
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