| Arrest means that legal enforcement agencies completely deprive criminal suspects or defendants of freedom within a certain period of time and send them to the designated place for custody. It is the most severe compulsory measure in the Chinese criminal procedure law system at the present. Arrest is an important way to maintain the order of ruling and protect human rights. However, it achieves its positive role through sacrificing of one’s personal freedom, which is the embodiment of the state violence. If we do arrest incorrectly or improperly, it will greatly infringed people’s basic rights. Therefore, in order to ensure that arrest is well applied, the laws set different arrest procedure from other compulsory measures. The jurisdiction of approval, decision, and execution of arrest belongs to three separative departments. The procedure of reviewing arrest mentioned in this article occurrs in pre-trial, it means both the normal cases and the on-duty cases investigated by procuratorate must be reviewed by relevant departments of procuracy to prevent improper arrest or wrongly arrested, thereby infringing on the legitimate rights and interests of criminal suspects. Review of arrest procedures has been points educational world research hot spot, the program involves many points principles, including the defendant balance principle, program participation principle, the principle of human rights protection, the principle of power balance, and so on. In the past few decades, the Chinese procedure of reviewing arrest have been strongly criticized that the review is mostly based on the files, which is writtening, mysterious and administrative. Therefore academics suggest we should start the liitigant reform of the procedure of reviewing arrest.In addition to the theoretical discussion, the innovation in the procedure of reviewing is in progress by the practical deparments. Both in legislative and practical departments has been committed to the reform of review of arrest operation mode, and launched a series of practice exploration of innovation system, including: Firstly, the system of interrogation of criminal suspects. From the implementation of 1996 criminal procedure law, supreme people’s procuratorate began to issue documents, including:“about in strengthening the interrogation of criminal suspects arrested for review cases work opinion", review of the people’s procuratorate arrested quality standard(trial) ", "strengthen the review arrest listen to the opinions of the criminal suspects confession and defense work(try out)", such as regulation review shall interrogate the criminal suspect arrested process, and under certain conditions can listen to the opinions of the lawyers, to safeguard of the right to defence on part of the criminal suspect and participation. From a written review to interrogation, reviewing arrest procedures litigation reform from road trip. Secondly, the system of lawyers. 2003 supreme inspection, issued the supreme people’s procuratorate on the inspection work of provisions to prevent and correct the detention, the lawyer to listen to opinions for the first time in the file system, and then pass on the people’s procuratorates to ensure lawyers practice in accordance with the provisions in the criminal prosecution, the lawyer’s supreme people’s procuratorate on further strengthening the security work of notice and other documents, in the process of the investigation and examination and prosecution shall be fully listen to the views of the entrusted a lawyer. But due to the lack of defender lawyer during the investigation of the status and the corresponding litigation rights, the above provisions does not implement, lawyer advice to review the decision to make a larger did no material impact. Third, the people’s supervisor system. In order to strengthen the supervision of prosecutorial power operation, the highest inspection issued in 2003 on the investigation of cases directly accepted by the people’s procuratorates of the people’s supervisor system regulations(try out) ", the first people’s supervisor system, stipulated by the people’s supervisor to supervise’s procuratorate to handle the duty crime cases. Fourth, on-duty cases "in the level of" review system of arrest. For a long time, our country’s duty crime case review of arrest procedures has remained the same procuratorates on-duty cases since model, in this case, the people’s procuratorate arrest decision neutral objectivity is doubtful. Supreme people’s procuratorate issued "about the following people’s procuratorate at the provincial level initiate an investigation of the case is decided by the people’s procuratorate at the next higher level for review of arrest regulations(try out)" in 2009, giving the power of reviewing arrest of on-duty cases to a people’s procuratorate at the next higher level.The above system modification and practice embodies the tremendous progress in our country in recent years, however, there are still many unsolved problems of the procedure of reviewing arrest system in our country. Firstly. the arrest rate is too high these years, according to data from the criminal cases of more than 80% of the country’s arrest rates are still high. Secondly, the law is not perfect lead to review the arrest investigation. Our points according to the provisions of the procuratorial organ may, when necessary, to participate in the public security organ for the discussion of major cases, arrested on-duty criminal cases investigation department also can early intervention in investigation, such provisions greatly detract from the relevant departments of the right to review arrested neutrality. Thirdly, did not inform the provisions of the criminal suspects arrested reasons after catching the relief mechanism is not perfect, is not conducive to carrying out the principle of human rights protection. Last but not least, the administrative way of reviewing arrest has not been changed yet, both in normal cases and in on-duty criminal cases.The above problems have been lasting for a long time,so that academics put forward the review of the hearing system, namely in the process of review the arrest, arrest decision related facts and evidence and applicable law issues such as listen to participants in the proceedings, interested parties and other specific system of social public opinion. Although most scholars can reached consensus on the unity of the hearing procedure, but still have considerable controversy for the body of the hearing. Some scholars think should draw lessons from the experience of western countries judicial review system, the right to review arrested under court, more objective and fair. Procuratorial organs as the prosecution organs, the conflict with the criminal suspect is natural, is determined by the review to make arrests, lack the necessary neutral detachment. However, the current situation in our country, keep the right to review arrested by the procuratorial organ has legitimacy. Because, according to the relevant laws and regulations in our country, procuratorial organ is not only the judicial organs is legal supervision organ, review the arrest is the embodiment of the procuratorial organs shall perform their supervisory functions, is legal. Second, the existing shortage of judicial resources in our country, the judge handling the pressure, if again into a trial court alone, both in manpower and considering the reality. Finally, our country is always done by prosecutors arrested examination work, accumulated considerable experience, so continue to the right to review arrested by the procuratorial organs scientific and reasonable. Since 2011, the procuratorial organs across the country are arrested has carried on the review of the hearing practice exploration. Such as zhejiang jiaxing nanhu district people’s procuratorate to formulate the "interim measures for review phase arrest hearing", rules of jurisdiction has significant influence, difficult complex and controversial cases involving five kinds of situations, the investigators and the criminal suspect and the lawyer or legal representative, the victim and his agent arrest hearings can be held to the procuratorial organ to apply for review. Suqian sucheng district people’s procuratorate arrested since 2011, when the trial hearing procedure in more than a year, applicable to not arrest decision after the hearing procedure of a total of 47 cases of 75 people, no one to review the case. 2012, jiading district, Shanghai, people’s procuratorate formulated the "minor cases review arrest hearing method", to have a significant impact, difficult complex, the lesser case hold hearings, listen to the investigation organ, such as the criminal suspect or the victim views. Corner of pingwu county, sichuan province people’s procuratorate formulated the "reviewing arrest public hearing system" for regulation, pengzhou people’s procuratorate formulated the "review case public hearing system(try out)" arrest, qianwei’s procuratorate formulated the "review phase arrest system of public hearings(trial), other provinces such as shanxi, anhui, zhejiang, shandong, jiangsu, xinjiang and other provinces, municipalities and autonomous regions of local people’s procuratorate formulated the related system.All in all, promote arrest necessity for review by the public prosecutor two-way reasoning to various opinions, form a triangle hearing architecture, effectively reflect the procuratorial judicial authority and impartiality of law enforcement activities.Chinese criminal procedure law was amended a lot in 2012, aiming to respect and protect human rights. Such as refinement of the arrest conditions, the provisions of the review of arrest shall interrogate the criminal suspect in several situations, has been clear about the lawyer counsel position in investigation phase, the review phase arrest lawyers intervention system, etc., but in practice running full swing review of arrest without hearing procedure into laws. To some extent, these improvements can enhance the lawsuit sexual characteristics of the review of arrest procedures, but still maintain the basic way of procuratorial organs unilaterally to obtain information, it is difficult to reflect the lawsuit confrontational, so the censorship arrest hearing procedure has its irreplaceable unique value. In 2014 the fourth plenary session of the party’s 18 made strategic plans for promoting the rule of law, including displaying the procuratorial work new requirements are put forward for the procuratorial organ, reviewing arrest hearing procedure and was entrusted with the brand-new significance.In the context of a new round of judicial reform, review the arrest of hearing procedure not only fit the points to modify the core idea, also can meet the demand of the reality of judicial credibility of ascension, and also followed the policy guidance of the mass line. Last but not least, it also meet the requirements of opening procuratorial affairs.Over the past few years, there are lots of problems during the operation of arrest hearing for lack of unified laws, value of review of arrest during imprisonment and so on. Such as only procuratorate has the right to decide whether start the hearing; the scope of hearing is not clear; details of the hearing process have not been clarified regulation and so on. How to formulate a reasonable and effective review arrest procedures, the function of the hearing play to maximize, justice and efficiency is the key. Therefore, the author combines the new background of the judicial reform and practical operation experience and problems of hearing recent years, aiming justice and efficiency as the core, and puts forward the divided review ing arrest s hearing procedure from the point of application, starting, participants, process detials, relief mechanism. |
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