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The Research On The Problems Of Proving The Existence Of Necessity Of Arrest

Posted on:2012-03-06Degree:MasterType:Thesis
Country:ChinaCandidate:J LiuFull Text:PDF
GTID:2216330371954185Subject:Law
Abstract/Summary:PDF Full Text Request
The necessity of arrest, one of the three conditions of arrest, is the premise and the basis of ensuring the appropriate application of arrest. Whether the application of the element of necessity of arrest is appropriate or not, it is closely related to the quality of the act of arrest and the protection of the arrestors'human rights. At present, review on the necessity of arrest exists in name only, which is one of the reasons why in our country the rate of arrest remains so high and the punishment on the arrestors is becoming lighter and lighter. This article is to analyze the problems on proving the existence of necessity of arrest and its causation by means of investigating and doing research on the application situation of proving the existence of necessity of arrest in T country of Chongqing province, and to figure out corresponding blameless measures in order to reduce the application rate of arrest and to better protect the citizen's human rights.The necessity of arrest means the act of arrest shall only apply by meeting the following conditions at the same time: (1) those suspects or defendants meet the conditions of evidence and penalty; (2) the application of bail, residential surveillance and so on to them would not be sufficient to prevent the occurrence of danger to society, (3)it is necessary to arrest. Since the arrest is the most stringent enforcement measures, it is very easy to inflict harms on the arrestors'human rights when applying improperly, therefore, we should fully make use of the necessity of arrest. In practice, the application situation of the necessity of arrest is not satisfactory, always the review on the necessity of arrest exists in name only, resulting in the arrest rate remains high.By means of analysis on the data on arrest of Prosecutor's Office in T County in recent three years, the judgment results on cases of arrest, as well as analysis on the data based on questionnaires, it is found that the arrest rate is always very high in T County, the proportion of non-arrest cases with no necessity to arrest to total non-arrest cases is comparatively low; it is very serious for imposing light punishment on arrestors after arrest, personnel in charge of the case have always been overlooking the element of necessity of arrest, and been vulnerable to other factors. It is also found that once a case reaches a criminal settlement, it would always not be approved to arrest in the name of with no necessity of arrest, but in practice the rate of the criminal settlement for minor criminal cases is still very low. Proving the existence of necessity of arrest can not play its due role, for which there are several main reasons as follows: Firstly, there are still a lot of public security investigators and the public having mistaken cognition on the function of arrest. Secondly, the evaluation mechanisms of police office and prosecutor's office are not scientific. Thirdly, released on bail and residential surveillance have their own shortcomings, and do not actually perform the role of non-custodial coercive measures. Fourthly, review on the necessity of arrest by prosecutor's office have some problems. Fifthly, it always lacks of follow-up regulatory measures when a case is decided not to arrest for lacking of necessity of arrest.Based on the analysis on the causations to the existing problem on the necessity of arrest, the following improvement measures are raised up as follows: Firstly, to change the traditional wrong concept, and to unify the public security's cognition on the necessity of arrest. Secondly, to improve the current evaluation mechanisms of police office and prosecutor's office and to formulate more scientific and rational evaluation measures. Thirdly, to improve the bail provisions on legislation to make bail to play its due role. Fourthly, to establish two-way reasoning systems on the necessity of arrest. Fifthly, for some minor criminal cases, to strengthen the criminal settlement before requesting for approval of the arrest. Sixthly, to make sound follow-up regulatory measures on non-arrest case for lacking of the necessity of arrest.
Keywords/Search Tags:arrest, the conditions of arrest, the necessity of arrest
PDF Full Text Request
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