Practical Research Of No Approval Of Arrest

No approval of arrest is procuratorial organ performs the function of investigation supervision, and implements investigation supervising, thus it is an important means for safeguarding the human rights of criminal suspects and defendants to maintain criminal lawsuit activity strictly conducted in accordance with the law. But for a long time, the operating result of review arrest mechanism is "approval of arrest as the norm, no approval of arrest as an exception", no approval of arrest did not been applied correctly and effectively in the judicial practice. The emergence of this situation and existing for a long time, which makes the author pays comprehensive attention and survey the applicable practice on no approval of arrest system, and sought out the causes of its complex system and operation mechanism, etc.This paper takes the actual operation of investigation supervision of a grassroots procuratorate in C city as the object of observation, mainly study on the investigation, affirmation and factors influencing the application of no approval of arrest cases. All the data, cases, assessment index in this paper are the fist hand information obtained by author based on his practice and interviews at the grassroots procuratorate. Based on these first hand information, to demonstrate how the no approval of arrest is applied during the judicial practice of procuratorial organ.This paper makes contrastive analysis on the relations between no approval of arrest and approval of arrest firstly from three aspects as legal norms, practical operation and the scope of the case. In the aspect of legal norms, both no approval of arrest and approval of arrest take legal arrest condition as common precondition and applicable standard, that is the law is not only state a higher applicable standard for approval of arrest, but also state applicable condition for no approval of arrest from the and from the corresponding part. Although in the aspect of practical operation the law states two changing situations of residential surveillance and obtain a guarantor pending trial changed to arrest(practice known as "catch") and arrest changed to residential surveillance and obtain a guarantor pending trial (also called "the turn of the prison house" " turn guarantor" in practice,), but both changing situations are applied very less in practice, and no affects caused on no approval of arrest and approval of arrest. In the aspect of the case scope of application, although the law makes strict regulations on the application of conditional arrest and direct arrest, conditional arrest is likely to narrow the case scope of no approval of arrest, while direct arrest won’t affect the case scope of no approval of arrest.Secondly, this paper analyses three specific cases that applicable to no approval of arrest in practice. The first case is no arrest that does not constitute a crime, this paper not only analyses two characteristics of no arrest that does not constitute a crime applicable to practice, that is one no tendency of specific type of case, the second is no arrest that with slight circumstances, and analyzes an important cause of the low applicable rate of no arrest that does not constitute a crime is that there exists exceptional case applicable to no arrest that does not constitute a crime does not been applied. Second circumstance, no arrest that lack of evidence, This paper analyzes four points:first, in order to facilitate for lack of evidence does not capture, on the basis of legal regulations, procuratorial organ makes a further refinement for no arrest that lack of evidence in practice; Second, the procuratorial organ has a fixed method for review evidence material of capture; Third, the application of no arrest that lack of evidence has two characteristics that the suspect’s subjective intent resulting lack of evidence and bias property infringement case; Fourth, improper affirmation of evidence causes negative impact on the application of no arrest that lack of evidence. The third circumstance, no arrest of that no necessity of arrest, its applicable conditions not only applicable to those criminal suspects already constitute a crime, adopt the bail pending trial with restricted liberty of moving to prevent the criminal suspect produces social risk. But also make investigation on seven aspects as the subject of crime, criminal character, the circumstance of the crime, and criminal suspects. This paper analyzes three features applicable for no arrest of that no necessity of arrest:one is for the criminal character in no arrest of that no necessity of arrest case is slight and no specific case type tendency; second is applicable for first-time offenders, accessory criminal, show repentance performance, lighter legal punishment, and criminal suspect no harm any more; third except single circumstance with slight circumstance that applicable for no arrest of that no necessity of arrest, other conditions or causes applicable for this are two or more.Again, this paper analyzes the factors affect the application of no approval of arrest The author finds the application of no approval of arrest is the result produced by interweaving multiple factors. The criminal policy combining punishment with leniency produces positive and effects on the application of no approval of arrest, while the administration and prosecution of the current examination and approval procedure, and improper ideas of case workers, particularity of the case and so on have produced certain degree of negative effects on it.Finally, based on the above analysis, and the current judicial actuality, the author considers that the first thing required reformation is the assessment criteria of public security organ, not only to reform the assessment criteria mainly in blind pursuit of case number into the method of both case number and quality are included in assessment criteria, at the same time, the assessment criteria of blind pursuit of particular type of case should be reformed as well. Secondly it should strengthen the necessary review of the arrest and improve the reasoning mechanism of no approval of arrest.