Research On The Statutory Conditions For Arrest

In China, arrest is a coercive measure in criminal law, which is carried out by specialized agencies in law, and whose purpose it is to preserve evidence or to prevent criminal suspects and defendants from escaping investigation, prosecution and trial. Implementation of arrest depends on the coordination of the three agencies:public security, prosecutor, and court. As a means of maintaining social orders and securing human rights backed by state power, arrest is naturally endowed withthe dual characteristics of deprivation of personal liberty and the protection of personal freedom, which, if left unchecked, can easily be abused, resulting in illegal deprivation of the liberty of the innocent. In a modern state ruled by law, we must follow the basic principles of due process, the principle of proportionality, and the principle of protecting human rights in determining the conditions of arrest.An overview of China’s arrest system design shows that arrest and detention go hand in hand, the application of arrest is bound to take criminal suspects and defendants into custody. While in foreign countries and Chinese Taiwan and Macao, arrest and detention are usually differentiated. Applicable procedures and grounds for the two are different, but ways of remedy for criminal suspects and defendants in custody are provided. Arrest in foreign countries is similar to criminal detention and seizure in China, while detention in foreign countries is similar to arrest in China. In most countries an arrest requires the judge to issue a warrant before the law enforcement agencies can carry out the arrest under the warrant. In Chinese Taiwan, arrest and detention are also differentiated in law, the applicable conditions for the two being quite different. In Chinese Macao, there exists not only differentiation between arrest and detention, but also provisions for a unique system of habeas corpus.Currently in China conditions for arrest mainly includes three aspects, namely the elements of evidence, elements of crimes, and the elements of risk to the public, together the three elements forming the cornerstone the arrest system. In arrest conditions,the criminal-facts proposal appears unscientific, for preventive detention of people who might commit a felon or who has a possible criminal record violates the principle of presumption of innocence. Compared to other countries, in China’s arrest conditions, penalty in elements of crimes starts from a lower point. When the investigative organization submits for an arrest, they give more consideration to the collection of evidence on whether it is a crime, while few evidences are found for elements of risk to the public. As a supplement to the arrest system,conditional arrest system has aroused questioning as well as supportive voices in the law field. In a time when the spirit of ruling by law becomes increasingly popular, as the sternest of forced measures to deprive citizens’ liberty, arrest should be applied strictly by law and with more caution. Under such a social environment where the general public pay more attention to the crack-down of crimes, judicial practitioners should pay more attention to the constitutional spirit of securing human rights.For the improvement of the Chinese arrest conditions, "crime facts" should be changed as "a major crime suspects" in theelements of evidence so as to make the law terms more scientific. The range for "once deliberate crime" should be limited. In elements of crimes, more than 3 years of fixed-term imprisonment should be ascertained, and for declared penalty. Evidences should be provided for the elements of risk to the public. Finally, related procedures should be improved.In improving the review system for arrest, defenders should be allowed to participate and make statements. Ahearing procedure should be established in a proper way, and necessary censorship for custody after arrest should be improved.