On Conditional Arrest

Since the enactment of the Supreme People’s Procuratorate of "the People’s Procuratorate for Examining the quality standards of Arrest (Trial)" to establish a system of conditional arrest, the system has always been in controversy among community of the theory and practice, which focuses on the legality and legitimacy of conditional arrest. The approval party thinks conditional arrest does not go beyond the bottom line of the law, which is in line with the conditions laid down by the Code of Criminal Procedure on arrest while the disapproval party believes it is contrary to the Criminal Procedure Law and other legal provisions on the conditions of arrest so it breaks the law, and is not legitimate.The legitimacy and legality of conditional arrest are of two different natures. Legitimacy is to evaluate from the regulation of the law to analyse whether it is legal while legitimacy is analyzed from the point of view of rationality to examine the compliance with universal justice value. Conditional arrest is in accordance with the arrest standards of Criminal Procedure Law and the regulations of the law, and it also has the legitimacy:First, the conditional arrest is the need to build the standard of the proof hierarchy. With the advance of the case, the standard of proof at all stages should be gradually progressive. As a compulsory measure, stage of the proceedings of the arrest determines the standard of proof must be higher than the filing, investigation stage, lower than the review of the prosecution and trial stages, conditional arrest is of great significance to build this level of standard of proof. Second, conditional arrest meets the criminal policy of combining punishment with leniency to the trial practice that emphases more on the severity of distinction within the limits prescribed by law:For the allowable catch or minor criminal cases, it applies "wide" criminal policy generally non-arrest; for some major cases, the arrest is necessary, it apples "strict" criminal policy, resolutely arrest. The conditional arrest reflects the "severity" of the criminal policy. Third, conditional arrest has general features such as avoiding detection, prosecution and trial and preventing the suspect, the defendant from the implementation of activities to stop the investigation, to deter criminals and to encourage the masses to fight actively against criminal acts in order to play a role in crime prevention; Fourth, conditional system can also play an active role in the special period of special crime; Fifth, conditional arrest meets the universal regulations in the international legislation on the arrest.It is essential to establish the conditional arrest system and beneficial to settle the difficult problems of non-performance and non-arrest and helpful to strengthen coordination and mutual supervision between the investigative and prosecutorial authorities and able to achieve the unity of the punishment of crime and protection of human rights. It is also useful attempt of dynamic justice in the procuratorial organizations.Since the implementation of conditional arrest system and with the joint efforts around the investigative and prosecutorial authorities, it constantly tends to improve and functions well in the fight against serious criminal offenses and maintaining social stability. Meanwhile, in practice there are many issues to be addressed, for example, the procuratorial organizations take the local public security situation as a reference:some cases with a significant impact in the region as a major case to employ the conditional arrest resulting in artificially magnified scope of the conditional arrest application. Again, in accordance with the provisions of the "quality standards", decision of the conditional arrest should go through the procuratorial committee for discussion, but in practice, due to relatively complex procedures of the start of the procuratorial committee, the conditional arrest decision of some cases is made with no discussion of the procuratorial committee.In order to standardize the practice of operations China’s conditional arrest system should be established. First, for the scope of application of the conditional arrest, conditional arrest only applies to intentional homicide, robbery, rape, drug trafficking, fire, explosion, putting the hazardous substances and other serious criminal offenses, criminal syndicate, corruption and bribery, severe economic crime and other crimes be sentenced to life imprisonment or more severe punishment. Second, the application of conditional arrest should meet three conditions:first, the conditions of evidence, the facts proved by evidence obtained by the investigation organization has basically constituted a crime, but because of other factors that draw the arrest is not perfect and fixed, a complete chain of evidence can be formed in the provisions of time. Second, guilt conditions. Conditional arrest is applied to suspects who can be sentenced to life imprisonment and death. Third, the necessity of conditions, from the angle of considering the arrest of the criminal proceedings as a guarantee the smooth progress, judge the suspect’s danger to society, to take bail, residential surveillance to prevent danger to society. The third, the application of the conditional arrest must go through certain procedures generally review of the investigative organizations at or above the county level should be transferred to the People’s Procuratorate at the same level, after receipt of the reported catch materials, designated investigators will inspect, once the conditional arrest decision is made, it should be for the record, and do a conditional arrest after the decision guidelines for supplementary investigation, it should also be reviewed on a regular basis according to the supplementary investigation to decide whether to revoke the decision of arrest. Finally, to establish supporting mechanisms of conditional arrest, such as arrests in the triage mechanism and relative human rights relief mechanism, including the arrest of the hearing mechanism before the making of the conditional arrest decision after reconsideration, review mechanism to revoke the decision of conditional arrest, state compensation mechanism, the establishment of the attached conditions to arrest the police seized after the decision convergence mechanism, including the mechanism of supervision and investigation of the procuratorial organizations and of the guide and inspect mechanism.