A Research On The Litigation Of Arrest Procedure

The power of arrest refers to the power that decides whether or not to deprive of the freedom of accused before a judge makes a judgment.As the basic right stipulated in the Constitution,personal freedom is an important part of human rights.In view of the above,the essence of the power of arrest is judicial review,which is based on the Criminal Procedure Law,exercises the power of arrest through the procedure of litigation and restricts administrative power with judicial authority.According to this,it can ensure that the basic rights of accused are inviolable.Judicial review requires neutrality,justice of procedure and relief,which makes the litigation of procedure is the inevitable choice for arrest.The litigation of arrest procedure is also based on the requirement of human rights protection,which can fit the constituent elements of procedural justice.In the procedure design,we should establish the hearing procedure with the “three-party structure”,introduce the proof mechanism,and fully protect right to defense.To clarify the essence of the power of arrest,the necessity of human rights protection and the procedure of litigation is the inevitable choice,which is the theoretical premise to promote the proceeding of arrest procedure.However,according to the analysis of the current legislation and judicial practice,the proceeding of arrest procedure has four areas difficulties: First,the subject of the power of arrest is not neutral.As the subject of the power of arrest,prosecution has inherent defects in theory.In the judicial reform,some districts adopt “integration of Arrest and Prosecution”,which can lead prosecution to annex arrest.Not only to make arrest procedure loss the proceeding,but also to make prosecution lose the neutral position of arrest.Second,arrest procedure is administrative.In 2012,Criminal Procedure Law took the arrest as the core of the compulsory measure system and made a modification on it,arrest procedure presents litigation.But revised arrest procedure is administrative essentially,does not belong to hearing procedure.Third,lack of proof mechanism.Administrative arrest procedure is not based on the principle of evidentiary adjudication,do not take proof mechanism,so the arrest procedure is lack of adducing and cross-examination.Fourth,ineffective defense.Low defense rate,effect of defense is not ideal,right to defense is not in place.In view of the above difficulties,I put forward the way to realize the litigation of arrest procedure.First,cancel “integration of Arrest and Prosecution”.Arrest is independent from prosecution.To establish arrest hearing,limit the power of arrest by the litigation of procedure,and ensure the neutrality of prosecutor as the main subject of the power.Second,analyze and reset the conditions of arrest and define the scope of arrest hearing,establish double “three-party structure” in arrest examination and pretrial conference,and take prosecutors and judges as subjects.This design is not only suitable for China's current system of arrest subject,but also for the establishment of judicial review and makes judges exercise the power of arrest in the future.Third,where there is an adjudication,there is a proof.Arrest hearing exercises the power of arrest with litigation,so adjudications are based on proof.I think there is a proof mechanism in arrest hearing which is based on the principle of evidentiary adjudication.Therefore,it is necessary to clarify the object of proof,according to it,select the appropriate way of proof,set the standard and assign the burden of proof,then establish the proof mechanism in arrest hearing.Fourth,defense in arrest procedure that is procedural defense.As the other side of arrest hearing,the defense should establish the informing procedure to protect right to procedure,and guarantee right to defense,such as rights of meeting,record and investigation.