Differences And The Reasons Of The Arrest System Between The Cross-strait And The Inspiration To Reform The Continent Attorney

The rule number86,269of the new Criminal Procedure make the process ofarrest much more clear for Procuratorate, which will change the examine structure ofarrest from the two sides structure into tripartite structure, but this has a substantialitydifference to the reform of the1997Taiwan detention examination system. It’s justthe improve about investigation and supervision in investigating and prosecutingapparatus in the mainland, while in Taiwan, it’s involve the power transfer betweenthe prosecution and the court system, therefore the reform in the mainland belongs toarrest lawsuit reform-oriented reforms but in Taiwan, it’s belongs to the judicialreform.The difference in the reform nature is not the only difference, the vast differencesalso exist in other aspects of the arrest process, which include the referee neutralityand defendant equivalence and so on. One of the main reason that cause the differenceis that Taiwan has a very strong feature about the independence of the judiciary,especially the judges, not only the judge has an independence rule but also there areclearly stipulate to protect their identify and job promotion both in the Constitutionand the organization law, the financial for different level courts is by the centralunified deployment, Prosecutor independence is not so strictly like the judge, Butexcept the procuratorial integration and general restriction of justice, the judge inTaiwan is much more independent in some aspects such as identity protect than themainland. Second, Taiwan use the review of custody reforms as the civilprotection-oriented, therefore during the detention review process, the defendant anddefense counsel were given full powers to defense, if a prosecutor need to require theapplication, he must strictly according to the objective and neutral, requiring thecriminal police under the supervising of the prosecution, strict regulation investigativetechniques, adopted the judge retention policy, Asked a judge to implement theprinciple of hearing, Custody review shall be for the trial. But in the process ofexamination reform the mainland, the most direct purpose is to strengthen theinvestigation supervision, this is the practice from Prosecutors in mainland which as a legal supervision organ. Therefore, in the process of amending the new criminalprocedure one hand is to set the prosecutors in arrest procedures arraignment, onthe other hand continued to expand the self-determination compulsory investigativetechnique in the public security organs, this also prove that the current judicial reformin the mainland still hovering between the protection of human rights and the fightagainst crime. In addition, emphasis on the nature of the prosecution’s legalsupervision too much will cause prejudice to the civil rights protection. Three, thereare different driving forces for judicial reform on both sides, due to the opening of thepolitical system in Taiwan, so most of the reform approach is "bottom-up", while inthe mainland, due to weakness in the overall adoption of civil society organizations,most of the reform use the way “top down” in the overall adoption. This also led tothe Taiwan region is better than the mainland, whether in the reform process, theresults of reform.To solve these problems, the mainland should continue to self-examinationunder the political framework, to eliminate resistance about the reform, The first thing we need to do is to locate errors for the investigating and prosecuting apparatus. Use the prosecutorial system in Taiwan as a reference, set the civil rights protection as the fundamental starting point to re-establish prosecutorialpositioning. In the second place, to recognize the current social situation in the continent we must to adhere the strengthen and improve top-level design andtry to make it better.