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The Need To Improve Conditions On The Arrest

Posted on:2012-06-01Degree:MasterType:Thesis
Country:ChinaCandidate:Y SunFull Text:PDF
GTID:2216330371450731Subject:Law
Abstract/Summary:PDF Full Text Request
The arrest of a state under the name of the coercive measures, by its very nature is deprived of personal freedom in exchange for the convenience of state criminal prosecution, so it is a two-edged "sword"-use it properly, then the two benefit individuals and society; use of properly, then the two individuals and society suffer. Commensurate with the importance of the right order, must adhere to arrest exception, strict control of the application of the arrest. Is precisely the need to arrest exception to the arrest of the embodiment in law. Conditions as the conditions need to arrest the negative factors, the system is the core of the arrest. The modern rule of law principle of proportionality based on the presumption of innocence and the necessity of arrest have been strictly limited. In contrast to China, the need for conditions to some extent be empty, and the arrest as a matter of principle rather than the exception, the crime organization that is a judicial practice of fishing practices. Arrest caused by the application of universal human rights for criminal suspects abuse, the judicial authority of the damage and weaken the credibility of the judiciary, as well as a waste of resources and so on national proceedings disadvantages are also obvious.The purpose of this paper is the necessity of the arrest conditions apply our analysis of the status quo, combined with the theory of criminal proceedings, and to learn from advanced foreign enactment of legislation, put forward the necessity of improving the conditions of arrest specific proposals, hoped that the arrest of the review have some benefit in practice.This text is divided into four parts, the first department discusses the need to define the meaning of arrest from the arrest of the context of the need to proceed from the purpose of arrest and the arrest of the characteristics of both the need to elaborate the content of the arrest, and discusses the necessary conditions in the conditions of arrest system, an important position, emphasizing the need for a concentrated expression of the nature and characteristics of the arrest, the necessity of the condition that the core conditions of arrest. The second part analyzes the necessity of our conditions apply to the arrest and causes of the status quo, that since the theory, legislative, judicial and other aspects of various reasons, resulting in the necessity of judicial practice, the conditions applicable to the arrest of "two high and one low" situation, that the arrest rate, high rate of arrests light punishment, no arrest necessary to apply the low rate, and the resulting human rights violations, the damage of justice, a waste of judicial resources, such problems can not be ignored. The third part of the system need to compare the arrest of foreign study, from the necessary conditions, criteria and decision processes of three face Germany, France, the United States and other countries need to arrest the system are described, and concluded that its common for the need to improve our system of arrest has important reference. The fourth section presents the need to improve China's arrest of an initial system concept, starting with the need to arrest and no arrest of considerations necessary to rule out both positive and negative factors to determine the meaning and necessity of the arrest criterion, followed from the standard of review, burden of proof, and the lawyers involved, review, relief system designed to arrest and so the need for judicial review mode, and finally proposed to improve the arrest of alternative measures, the improvement of means of implementation, non-compliance sanctions, were proposed.
Keywords/Search Tags:arrest of necessity and conditions of arrest, judicial review
PDF Full Text Request
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