An Empirical Study On Social Risks’ Proofingin The Reviewing Of The Arresting

It is a controversial issue in both the theoretical realm and the practical realm that how to understand and apply in "social risks" conditions( which was called "necessities of the arresting" in Criminal Procedure Law in 1996) in the reviewing of the arresting. Some scholars have thought which is "social risks" includes two aspects of risks’ contents that it is the obstruction of the criminal litigation procedure smoothly and continue to do to harm to society. Some scholars have pointed out that the contents of "social risks" should be inspected from the nature of crime, the possibility of the criminal procedure guaranteeing on the rails, the possibility of continuing to crime, and criminal suspects’ and defendants’ self physiological and psychological conditions, etc. A more common view is that so-called "social risks" should include two aspects of contents of risks that it is criminal risk and personal risk. Among them, the personal risk also includes two aspects of contents what are possibilities of re-criminal and impeding the criminal litigation proceedings. Only with "social risks" of legalities, and taking a bail or residential surveillance being not enough to prohibit these kinds of social risks, the measure of arresting shall be applied.On March 14, 2012, the Fifth Plenary Session of the Eleventh National People’s Congress passed the "Decision on amending < the People’s Republic of China Law of Criminal Procedure >" where "social risks" were ruled in detail, which has been brought some of the improvements in the operability of judicial practice. However, it does not clarify clear-cut and normative regulations to a series of problems that it is the basis of evidences, degrees of proofs and procedure securities about "social risks" in the further. The Public Security Bureau yet hasn’t paid more attention to collecting and sorting evidences or materials of social risks’ proofing, which makes an analysts and review of "social risks" into the dilemma situation of "cooking a meal without rice" when the People’s Procuratorate reviews the arresting yet. In judicial practice, the scope of discretion is still being very large, situations of which it’s not encouraging for the substantive analysis and certification on "social risks".It is a whole and comprehensive process that social risks’ proofing should be analyzed and identified, and should follow generally logical rules necessarily. According to the definite fact and the behavior factor, it should be holding from the macro-levels as well as being investigated one by one at the micro-level. This article attempts to embark upon the real diagnosis to find and seize the problems of social risks’ proofing and the accounts of it. And then, putting forward some practical suggestions and making contributions to perfecting the procedure of social risks’ proofing.This article is composed of three parts:The first part is based on the relative conditions of reviewing of the arresting of the People’s Procuratorate in the Q state of the G province in the year of 2011 to the July of 2014. In this part, the relative data onto "nothing of social risks" are analyzed in the reviewing of the arresting. The emphasis has been laid on the situations of social risks’ proofing which were amended in the law of Criminal Procedure since the first day of January of 2013. Thus, finding and grasping the current dilemma of social risks’ proofing.The second part focuses on current dilemmas of social risks’ proofing has been found, and combining with its judicial practice to analysis and set forth the reasons for causing problems to social risks’ proofing.The third part attempts to drawing lessons from the contents and experience of the correlation systems under the basis of grasping the crux of problems of social risks’ proofing exactly to the greater extent. In this part, it puts forward some specific measures for perfecting social risks’ proofing in the reviewing of the arresting about the entity responsibility, the criterion setting, the regulating and the procedure designing, etc.