The Research Of The Distribution And Restriction Of The Decision-Making Power To Arrest

Arrest is the severest criminal precautionary measure in our country, its applicability not only means that a long time custody procedure has started, also marked the public power has intervened to the basic rights of all citizens. Making arrest decision is a important countermeasures to prevent and punish crimes, it also can maintain the ruling order and protect human rights. The People’s Procuratorate and People’s Court can exercise the decision-making power of arrest in our country, People’s Procuratorate decide arrest cases is mainly about the public security organs(including the state security organs, prisons and custom suppress smuggling departments and the security departments of the army with the power of investigation)after investigation and request approval of arrest, also includes procuratorial organs prosecutor-investigated cases or procuratorial organs think the public security organs to sue but need to arrest cases; The People’s Court decide arrest cases include a case of private prosecution needs to arrest defendant and the public prosecution case but not arrest the accused. And China’s arrest program must include the application of custody, so the custody decision subject is People’s Procuratorate and People’s Court, that’s very different from the two law system, because their custody decision only belong to the court. The judicial power " phase distribution " configuration mode and the China’s " Operation flow type " criminal litigation structure have a deep relationship. In China’s judicial illegal phenomenon still happens despite repeated prohibition, such as inquisition by torture, evidence of violence, extended custody, pretrial detention rate is too high, arrest instead of investigation, etc. It is mainly because of our country’s arrest decision distribution and balance system has many problems, as a result the judicial power without restriction and criminal pretrial procedure can not guarantee the defendant’s basic rights from infringement of arbitrariness. Of course, along with the present criminal judicial reform work is further deepened, we improve the system and have some preliminary results, for example, the duty crime arrest decision " Put on a level" system," Exclusionary Rule of Illegally Obtained Evidence " entitle People’s Procuratorate to remove illegal verbal evidence in the phase of examination and approval of arrest, etc. The establishment of these mechanisms play a positive role on the restriction of arrest decision power, but constrained by the current judicial status, how to optimize and reform the pattern of distribution of arrest decision, it is a complex and difficult work in the criminal judicial reform. Thus this paper will analyzes arrest decision power’s concept, theory and history, then through the comparison of extraterritorial distribution and balancing system of arrest and custody decision power, the paper will summary some beneficial experience for our country. Finally, through the empirical investigation, find out the existing problems, and then put forward the ideas on how to improve. In particular, the structure of the paper is as follows:Chapter One, the overview of the arrest decision power. Firstly, this chapter will define the concept of the arrest decision power, specify the power range can include approval of arrest and decided to arrest. Then, study the arrest decision power system’s historical evolution and summarize the rational function of it. Last, to arrest decision power and procuratorial power, legal supervision power, executive power and judicial power and other powers of the dialectical relationship between were compared, account for the process of the exercise of arrest decision power has a variety of power attribute.Chapter Two, the exercise principles of arrest decision power’s distribution and restriction. This chapter analysis the national laws and sum up the relevant system, then combine with the ideal position and practical means state, put forward the principles and make it as a guiding criterion of our country’s arrest decision power system. The principles includes principle of rule of law, the principle of justice, judicial review principle, the principle of modesty and effective relief principle.Chapter Three, the extraterritorial arrest decision power’s distribution and balance system of comparative. This chapter first is to carry on basic theoretical investigation, to explore the origin of decentralization concept and its development, finally form the state power. Secondly, inspect the system of foreign judicial practice level, mainly includes the police arrest (custody) application or decision mode, the prosecutor arrest application or decision mode, the judge arrest (custody) decision mode. At last, the extraterritorial investigation has brought some enlightenment.Chapter Four, assessment about the distribution and restriction system of China’s current arrest decision power. This chapter first summarizes some existing problems. The main problems can be divided into two: Procuratorate mode and Court mode. The former includes investigation of cases directly accepted by the People’s Procuratorates is hard to ensure neutrality, arrest decision procedure is judiciary administration-rization, internal supervision is not enough and lack of supervising counterparts, powers and duties difficulty in unification for investigation of cases directly accepted by the People’s Procuratorates, the party’s relief program lacks openness and effectiveness, the right of the people’s supervisor is empty. The latter includes the jurisdiction is difficult to guarantee fair, the implementation of criminal indemnity could be affected, and the arresstee cannot seek the judicial relief. Then discuss the reason of present problem, in order to make the reform of China’s arrest decision power system more practicality.Chapter Five, perfect the conception of distribution and restriction system of our country’s arrest decision power. This chapter first describes there are some different design ideas between the academia and practice circles to perfect the system. Then, put forward the idea about how to improve the system, the idea includes the court’s arrest decision power of cases of public prosecution should be cancelled and establish the authority of People’s Procuratorates exercise arrest decision power, two dimension design of relief procedure, the new idea about perfect other balance mechanism such as perfect the procedural mechanism of People’s Procuratorate to remove illegal evidence in the examination of the arrest, pre-trial custody places neutralized reform, perfect the restriction mechanism of investigation procedure by lawyer.