The Study On The Alteration Of Arrest

The compulsory measure is designed to ensure the smooth implementation of criminallitigation through the way of restrict or deprive of criminal suspects or defendants freedom. Ifproperly used, compulsory measure will has the advantage of fixed, preservation of evidenceand effective control of the criminal suspect. But if used improperly, it is easy to cause theunprovoked violations of liberty, from the Public Power. Therefore, apart from dividing thecompulsory measure step by step, the law should regulate some regulatory mechanism of thecancellation, alteration, and repeal of compulsory measure. In a broad sense, the alteration ofarrest is refers to the arrest will be altered, cancelled and repealed due to legal reasons, theoriginal application of compulsory measure is improper, lack the necessary conditions ofcontinued application or application errors. According to the" Criminal Procedure Law" andthe relevant judicial interpretation, the alteration of arrest in the legislation is very important,but not to be taken seriously in the judicial practice and theoretical study. The arrest of changecan not get the correct, timely and effectively implemented, aggravate the seriousness of theproblem of pretrial detention. Therefore, the thesis mainly discussed the relevant issues of thealteration of arrest, and it will be beneficial to the reformation and perfection of compulsorymeasure. The full text is divided into four parts, about thirty thousand words.The first part of the thesis mainly discusses the theoretical basis of the alteration of arrest.The article thinks: alteration of arrest has reasonable existence value and realistic foundationfrom the point of view of the protection of human rights and the fight against crime. On theprinciple of the presumption of innocence constraints, the arrested person enjoy the personalfreedom from arbitrary violations of constitutional right, and National Power should berestricted to ensure its legitimacy. Therefore, the arrest of implementation must have necessity,proportionality and humanitarian, the alteration of arrest is established based on this.The second part of the thesis describes the present judicial situation of the alteration ofarrest. The article elaborates the judicial operation situation of the alteration of arrest from thepublic security organs, procuratorate and the detainee three aspects. Because of lackingeffective restriction mechanism, public security organs have the tendency to arbitrarilyexercise power. procuratorial supervisory power presents weak state, unable to effectivelysupervise the alteration of arrest. The detainee is in a passive position, the right of defense andthe right of relief are not effective exercised. The third part of the thesis analysises the reason of the alteration of arrest. The articlepoints out: it is difficult to effectively implement the arrest alteration, the essential reason isthe deformation of the relationship between the procurator and the police that caused by theinvestigation power expansion under the principle of " cooperate with each other andrestriction ".While the non independent custody measure makes the application of custodylack review basis and review procedures, increased the difficulty of the arrest alteration. Inaddition, in the " stability overrides everything " environment, the inherent defect of replacingdetention measure and the restricted right of defence lawyer constitute the real reason of thedifficulty of arrest alteration.Fourth part of the thesis put forwards the reform proposals of the alteration of arrest. Thearticle emphasizes: under the premise of keeping the existing political system pattern,according to the gradual path, strengthening the prosecutorial supervision of effectiveness;refining the implementation conditions, procedures and remedies of the arrest alteration;enhancing exchanges and cooperation between the public security organs and theprocuratorial organs. At the same time, it has a positive impact on the arrest alteration throughreforming the corresponding alternative custody measures and improving the right of defenselawyer.