Study On The System Of Conditional Arrest

Under the condition of the new era,the eighteenth National Congress of the CPC put forward clear requirements to strengthen the legal supervision, promote the judicial justice, deep the reform of the judicial system, and ensure that the procuratorial organs exercise their procuratorial power legally, independently and impartially. As a legal supervision organ of the state, its various functions are closely related to the construction of socialist harmonious society, and played an irreplaceable role in actively resolving social contradictions and maintaining social harmony and stability. Criminal policy of temper justice with mercy is an important criminal justice policy of punishing and preventing crime at the current stage, and also an important pointer for procuratorial organs to implement national laws correctly. The Conditional Arrest is a system innovation implemented the criminal policy of temper justice with mercy in the review of arrest work, and a new approach promoted vigorously prosecutorial reform by procuratorial organs, which belongs to the "strict" review arrested program.The code of criminal procedure increases the punishment of crime hand after its amendment, and prominents the respect and protection of human rights more at the same time. These, compared to the "Criminal Procedure Law" in1996, strengthen the supervision and restriction of procuratorial investigation power while protecting the human rights, and make procuratorial work face much more new challenges in the procuratorial work. Especially for this new thing of conditional arrest, which has been questioned by some voices since its implementation. For example, considering the system "to capture the investigation" legal, no clear legal provisions to the applicable conditions, scope, procedure of the Conditional Arrest, and not rise to the legislative level of the National People’s Congress yet, which made the conditional arrest system face the crisis of legitimacy. In practice, the inconsistent performance standards and applicable scope exist expansion problem for the Conditional Arrest. At the same time, the review procedure is not normative, the standard of conviction have differences after the arrest, and imperfect supervision mechanism is very easy to cause the disorder of justice. Do not accuse and light punishment after arrest can not achieve a good legal effect and social effect as well. After the implementation of the new code of criminal procedure, especially about the changes of arrest conditions, a new challenge is proposed to the actual operation of Conditional Arrest.The author thinks that the Conditional Arrest in China’s legal environment is an inevitable choice basing on the current safety value and free value balance. The work system is propitious to accurately implement the statutory conditions of arrest, and prevent grasping too strictly and wide; It puts forward the hierarchical request to arrest conditions for the conviction evidence lacking crime but the case having been basically formed, embodies the principle of distinction, and it is propitious to implement the criminal policy of temper justice with mercy; Based on strictly implementing the statutory conditions of arrest, the application of arrest measures can protect investigation, crime, and maximize the protection of human rights. The author, a judicial practice woker, should realize the necessity of the Conditional Arrest in the field of criminal justice from the handle cases.This article, therefore, uses various researching methods of philosophy of right from the criminal procuratorial work practice; At first, it should analyse the definition of the name and content for the Conditional Arrest, and study on how to apply in practice the system of conditional arrest through the case. Using the comparative method inspect the dynamic development about Conditional Arrest of our country, and through the conditional arrest specific problems appeared in operation of the system, we can reflect the deficiencies about the relevant provisions on condition of Conditional Arrest in the current China’s criminal procedure law and the judicial interpretation. In the course of the study, the author also pays attention to the reference and pectination on researching results so far, and clarifies our thinking to arrest the system for conditional and the building of its legal countermeasure system; Although there are some defects of the system, through improving the scope, conditions and procedure evidence, and establishing the ex ante and ex post supervision mechanism, mechanisms for risk management and establishment of judicial relief, it can better adapt to the requirements about the criminal policy of temper justice with mercy, reach to punish the crime and protect the unity of human rights,and achieve a good legal effect and social effect.