Research On Necessity Of Arrest

As one of the most stringent coercive measures, arrest fulfills the functions of social security risks prevention and litigation guarantee by applying to personal freedom deprivation. Arrest inherits characters of overdue custody and severely restriction on personal freedom as one of coercive measures. Accordingly, arrest should be applied in necessary circumstances prudently rather than arbitrarily. However, arrest is a principal coercive measure in China criminal jurisdiction context. By comparison of Western counties, law-executor in China is prone to arrest coercive measure and inevitably the ratio of arrest application is highest among all the measures. In addition, arrest means prolong custody which causes criminal investigation substituted by arrest and no timeline of arrest until criminal cases closure.The abuse of arrest is not only detrimental to human rights, but also a waste of jurisdiction resource. How to prevent the abuse of arrest? One need to be clarified is the necessity of arrest, namely arrest in which circumstances can be applied. Arrest is applied only if it meets the requirements of necessity and the abuse can be controlled by ruled the circumstances of arrest.For a lone while, necessity of arrest is stipulated in China Criminal Procedure Law while no further comments on which situations are applied. Provision of the legislation is too principled to jurisdiction practice applying the necessity of arrest, which results in controversy understandings of the standards between public security organ and procuratorial organ. For the public security organ, the more amounts of arrest, the better for investigation since the former is the insurance of the latter. For the procuratorial organ, arrest should be prudently applied in order to secure human rights from a perspective of supervisory authority. Therefore, controversy arises between these two authorities on necessity of arrest.With the concept of human right protection deeply acknowledged, conditions of arrest are further stipulated in order to facilitate an accurate grasp of the conditions of arrest for law-executers and avoid wrongful arrest in Criminal Procedural Law was revised in2012, realizing the due roles of arrest in crimes and strengthen human rights protection. With the purpose of clarify the necessity of arrest, conditions of arrest are further detailed in three aspects, namely general social risks、arrest directly and Conditions of Transference to Arrest from Severely Violation of Rules of Bail and Residential Surveillance. Despites of the provisions, the legislation is far from enough considering complicated jurisdiction. Therefore, starting from arrest and the necessity of arrest, this thesis focuses on how to improve the application of arrest in jurisdiction practice with the views of building necessity of arrest and censorship rules in the context of revised criminal procedural law by reference to the related arrest application materials of People’s Procuratorate of Yantai Economic Zone from2006to2012from a comparative perspective by citing rules of Japan Law and German Law, typical civil law systems, and English law, typical common law systems.