| The so-called non-arrest,refers to a function and power of the prosecution to review the case that submitted by the public security organs,customs anti-smuggling departments,the state security organs and other investigating organs or the subordinate prosecutors,if it does not meet the conditions of arrest,according to the law,to not approve the arrest or decide not to arrest.It is self-evident that the non-arrest is the important power of the procuratorial organs to protect the criminals' personal freedom from unlawful infringement,to implement the criminal policy of temper justice with mercy,and to realize the supervision of investigation.But,due to China's current conditions for the arrest of legislation is still inadequate,the legitimacy for arrest review process is not sufficient,the operating mechanism of arrest review and the relevant supporting measures to implement not in place,so that non-arrest,in practice,have not get a good use,the value and function for the non-arrest have not been effectively played.“Arrest as the principle,non-arrest as an exception” still constitutes the current situation of China's review of arrest.Although there have some theory and practical explorations for the arrest,but in general,the study is not systematic and comprehensive,the relevant countermeasures and measures also failed to effectively solve the present situation of China's high rate of arrest.The empirical study on the issue of non-arrest,contribute to clarify the conditions for non-arrest,to regulate the procedure of non-arrest,to improve the operation mechanism of non-arrest,and to perfect relevant supporting measures,For realizing the value and function of non-arrest,and play its function in the supervision of investigation and human rights protect,have great importance.In addition to the introduction,the text is divided into three parts,the full text of a total of 44000 characters.The first part is an empirical study on the application of non-arrest about the C province.From the data of C province procuratorate area in January 2013 to February 2016,Since the January 1,2013,there has been a certain degree of improvement in the rate of non-arrest(the number of non-arrests/the people concluded),especially in the absence of social danger.In 2013,the rate of non-arrest in C province was only 3.27%,In the year to February 2016,the rate of non-arrest even reached 21.05%,before and after the promotion of nearly 18 percentage points over the same period,non-arrest due to no social danger up by nearly 15 percentage points.The same period,after arrested by Procuratorial organs of the C province not to prosecute 18 people,the verdict was not guilty 16 people(In 2013 after the arrest of absolute non-prosecution of 9 people,8 people not guilty;in 2014 after the arrest of absolute non-prosecution of 3 people,4 people not guilty;in 2015 after the arrest of absolute non-prosecution of 6 people,2 people not guilty;1-2 months in 2016,no absolute non-prosecution,2 people not guilty).Each year the number of light Imprisonment Sentence(put under surveillance,take into custody,probation,supplementary punishments,exemption from criminal punishment)after apprehension has went beyond the total number of the arrest more than 10%(In 2013,the light Imprisonment Sentence after apprehension is total 5302 people,accounting for 26.35% of the total about approve and decide to arrest;In 2014,the light Imprisonment Sentence after apprehension is total 2732 people,accounting for 17.06% of the total about approve and decide to arrest;In 2015,the light Imprisonment Sentence after apprehension is total 2119 people,accounting for 12.14% of the total about approve and decide to arrest;1-2 month in 2016,the light Imprisonment Sentence after apprehension is total 257 people,accounting for 9.90% of the total about approve and decide to arrest).Part of county and city,light punishment and sentenced to under three years in prison is the number reached more than 80%.This means that a large proportion of cases that do not meet the conditions of arrest are approved or decided to arrest,practical application of non-arrest is serious Insufficient.The second part analyzes the reasons for insufficient application of non-arrest.Judging from the operation situation of the procuratorial organs in C Province,the key problems exist in three types of non-arrest in practice mainly for: non-arrest due to no guilty,attach importance to the crime,think little of penalty;non-arrest due to lack of evidence,evidence review is not standardized,the control to the key evidence is lack,attach importance to the verbal evidence,think little of physical evidence;non-arrest due to lack of risk to the public,lack of the review of necessary conditions,and insufficient attention.There are four main factors that influence the application of non-arrest: firstly,the legislation of conditions of arrest,such as the conditions of arrest,the review of the evidence,the necessity of arrest,is not clear.Secondly,the legitimacy of review procedure of arrest is insufficient.In our country,the basic task of three organs in criminal proceedings is the same.They shoulder the important task against crime,and is a part of the assembly line for combating crime.such as,the approving to arrest department put the power of arrest review and the power of hot pursuit in one body,prosecutors lack of objectivity and neutrality;there is no complete right to approve arrest,can not be able to decide to bail according to the application or authority;the suspect party does not have the right to apply for bail.Thirdly,in the practice,operation mechanism of arrest review is not perfect.The three levels of examination and approval mechanism to encourage the arrest or obstruction of non-arrest for the arrest restrict the application of non-arrest;the current assessment mechanism under the guidance of improper concept of achievement view further force investigators to make a decision to arrest.Fourthly,lack of alternative measures of detention that to ensure appearance in court.Alternative measures of detention,such as Bail,is not perfect,the bail can not guarantee the implementation,facing the embarrassing situation which can not effectively ensure the suspect to appear in court.The third part puts forward some suggestions to improve the application of non-arrest.In view of these problems existing in the application of non-arrest in our country,we should solve these problems from the following aspects: firstly,to further clarify the conditions of arrest.Clarify the penalty element of arrest,evidence examination and judgment,and the scope of necessity element of non-arrest.Second,adhere to the due process of review and arrest.In terms of configuration for powers,strengthen the supervision power of the procuratorial organs,weakening the power of restricting each other,separate the power of arrest review and the power of hot pursuit,the maximum guarantee of objectivity and neutrality of the prosecutor;to perfect procuratorate organs the power to approve arrest,give procuratorial organs the power according to the application or authority to decide to bail,give the suspect party the right to apply for bail.Thirdly,improve the operational mechanism of the review of arrest.We should reform the three level examination and approval mechanism,and gradually devolve power to ensure the independence of the prosecutor handling the case.Fourthly,perfect the measures to bail which ensure the suspect appear in court.Improve the bail alternative measures of detention by the use of modern technology,and enhance operability for practice. |
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