Study On The System Of Review Of Arrest

The system of “review of arrest” in China has been criticized by both scholars andpractitioners for a long time. There are many serious problems existing in the practices ofreview of arrest, such as an administration and prosecution-driven procedure, the absence ofremedy procedure, and long-lasting high proportion of arrests. In order to resolve suchproblems, a number of modifications were made on the system in the Law on CriminalProcedure in2012, including a more detailed regulation on the conditions of arrest, a morecomprehensive procedure of review, a system of review on the necessity of post-arrestdetention and establishment of the system of illegal evidence exclusion. As such, the paperinvestigates the practices of departments responsible for review of arrest in sampleprocuratorates based on the new Law on Criminal Procedure and finds that there are stillproblems existing in the practice of review of arrest. Therefore, the paper aims to develop amechanism to solve the problems.The paper consists of6chapters with40，000words approximately.Chapter1introduces the background, methodology and samples of the study. With theenforcement of the new Law on Criminal Procedure as the background, case studyaccompanied with statistical analysis and literature research as the methodology and sixprocuratorates in municipal city C and province G as the samples, the paper studies on theexecution of the new Law on Criminal Procedure.Chapter2examines the execution of the conditions of arrest. The approval of arrest mustbe supported with three conditions, including:1) there is criminal evidence (short for“condition on evidence”);2) the suspect could be sentenced to imprisonment as the minimalcriminal punishment (short for “condition on minimal criminal punishment”; and3) arrest ofthe suspect is necessary rather than any other actions (short for “condition on necessity). Inpractice, the procuratorates well followed the condition on evidence, put aside the conditionon minimal criminal punishment, and misused the condition on necessity due to its width ofextension. More detailed conditions of arrest in the new Law on Criminal Procedure makesno contribution to the reduction of proportion of arrests as expected.Chapter3examines the implementation of the procedures for review of arrest. Suspectinterrogation is a critical procedure during review of arrest to protect the right of the suspect. Before the enforcement of the new Law on Criminal Procedure, almost100%of the suspectswere interrogated, but the focus of interrogation was just the execution of the procedure ratherthan the its effectiveness. Defense lawyers were less motivated to express their opinionsduring review of arrest and the procuratorates were rarely active to listen to the opinions ofdefense lawyers. As a result, no improvement was made on the prosecution-driven situation.Chapter4examines the results of implementation of the system of review on thenecessity of detention. In the new Law on Criminal Procedure, there are only principleregulations on the system of review on the necessity of arrest. The Regulation on CriminalProcedure for People’s Procuratorates (Trial) provides detailed rules and regulations, butthey are rarely executed in practice due to the absence of neutrality of the main body ofreview, the unreasonable way of start and the absence of neutrality in decision-making.Chapter5examines the execution of the rule on illegal evidence exclusion during reviewof arrest. Due to the absence of “standard procedural operations”, the rule on illegal evidenceexclusion is rarely applied in practice of review of arrest. Even if in the very few cases inwhich illegal evidences were excluded, there were still problems, such as nonstandardexecution of the rule, incomplete exclusion of illegal evidence, entry of illegal evidence intothe next procedure and lack of motivation to exclude illegal evidence.Based on the problems found during investigation, Chapter6reflects the defects oflegislation, identifies the obstacles of execution and looks for a way of reform: establish aforced mechanism of convincing explanation to arrest cases so as to strictly execute theconditions of arrest in practices; establish a mechanism of notification to defense lawyers soas to enhance their engagement during review of arrest; establish a new main body of reviewon necessity of detention through merger of related departments and clarify the force of thetiming of review start and the force of decisions so as to improve the effectiveness of reviewon necessity of detention; and detail the rule of illegal evidence exclusion so as to standardizethe exclusion of illegal evidence during review of arrest.