Arrest Necessity System Research

Arrest temporarily deprived of personal freedom of suspects and defendants, is the most severe one of the system of criminal coercive measures of our country. Arrest necessity requirements as a condition of arrested the negative, is the core of the arrest of elements. Accurate and appropriate decision to arrest the necessity of the elements, can play a role of its safeguarding the smooth progress of the criminal lawsuit; Ignored, fause arrested the necessity of the elements, will be infringement of personal freedom of criminal suspects, defendants, produce a lot of disadvantages This article intends to comb through the criminal procedure law in 1997 and 2012, the new revised criminal procedure law provisions on arrest of necessity, defining the arrest necessity connotation, Analyze the necessity to arrest system in the legislative and judicial problems and its reasons, reframe the necessity of arrest system in our country, in order to reduce the high rate of arrest, safeguard citizens’personal freedom.In this paper, a total of more than thirty thousand words, including preface, text, conclusion, references, and thank you, in which the body is divided into five parts, the main contents are as follows:The first part of this article studies the basic theory of set up the system of arrest necessity. The concept and the necessity of defining the arrest necessity determined to arrest the elements in the arrest of the position and role of the three elements, come to arrest necessity requirements is the core of the arrest conditions requirements. According to the basic spirit of the principle of presumption of innocence and the basic requirement of the proportion principle, before anyone without a court trial found guilty, are not deprived of their liberty, to arrest the implementation of the compulsory measures must strict proportionality, can’t just apply to the criminal suspect or defendant.The second part, the paper discusses the arrest necessity elements in the criminal procedure legislation evolution. Necessity of arresting the criminal procedure law in 1997 is not defined in detail, the principle and general legislation in judicial practice to arrest necessity of nothingness, arrest, cannot have the effect of limited arrest necessity of no arrest apply rate is low.2012 newly revised criminal procedure law of the social risk is defined and identified the five specific situations, help the judicial staff to grasp the connotation of the arrest system of necessity, correctly apply the arrest necessity requirements, thus solving the problem of high rate of arrest in judicial practice.In this paper, the third part of defining the meaning of arrest necessity. The new revised criminal procedure law in 2012 has been clear about the social risk of five specific situations, the author carries on the analysis from the aspects of crime risk and personal risk, think together they constitute the social risk. Clear criteria to judge social risk of arrest necessity judgment plays an important role. At the same time, the arrest of necessity should also include the connotation of arrest and to obtain a guarantor pending trial compulsory measures, the relationship between "criminal procedural law" the regulation is to meet the revised arrest under the premise of other conditions, only taking pending trial is not enough to prevent the social risk arrest the criminal compulsory measures.In this paper, the fourth part analyzes the necessity to arrest system defects, and the impact on the judicial practice. About arrest necessity, legislation, general principle, there is no clear the burden of proof and proof standard; Lack of judicial procedure, the investigation organ in to arrest necessity of arrest in books and the books lack of instructions and proof, the department in charge of examination and arrest when reviewing arrest, tend to ignore the necessity requirement, structure of sin that capture; Absence of guarantee relief mechanism, the system, not only lack of arrest necessity of relief system, and the law applicable to the criminal suspect arrested in the judicial authority say inadequate enforcement measures. Shortcomings lead to high arrest rates, low arrest necessity for rate, rate of high light arrested after probation.In this paper, the fifth part puts forward the Suggestions of perfecting our country’s system of arrest of necessity. Argues that, from the concept in the legislation and improve the system of our country arrest the necessity on the judicial process. The judicial personnel must carry out the criminal policy of tempering justice with mercy, emphasis on "not necessary" arrest don’t catch. The necessity of legislation should be clear to arrest the burden of proof and certification standards. Judicial proceedings should reform the existing security administration review process, set up to arrest the necessity of judicial review. Bail enforcement measures, play its replacement function.