The Research On Penalty Element Of Arrest And Application Of The Penalty Element In Our Country

Arrest,as one of the most severe measures in the system of compulsory measures,is closely linked with custody in the judicial context of our country.The arrest should be used with extreme caution in the course of criminal prosecution,as the nature of the arrest requires.If not carefully applied,arrest will do irreparable harm to criminal suspects and defendants.The premise of scientific application of arrest is to set up scientific and reasonable material elements of arrest.However,as one of the material elements of arrest,penalty element of arrest has been in an awkward position in practice,failing to achieve its legislative purpose.Based on this,this paper takes the penalty elements of arrest as the research object.This paper contains five parts:In the first part,the author discusses the theoretical basis of penalty element of arrest.The legislative purpose behind the penalty element is analyzed in this section to restore the value of legislation and its legitimacy basis.The legislative purpose of the penalty element is to limit the application of the arrest to a proper scope,to exclude social harmfulness and crime that is less likely to prevent litigation from the scope of the application of the arrest on the level of penalty element.And its legitimacy basis is the value pursuit of justice and the logical requirement of the principle of proportionality.The concept of justice requires that the application of arrest must be limited to "necessary evil",the scope of which is ruled by the penalty element;and the principle of proportionality requires that arrest should be an exceptional measure.A clear distinction about whether the crime is applied to arrest or not is made by penalty element from the point of view of the possible penalty,and it is the logical requirement of the principle of proportionality.In the second part,the author discusses the legislative norms and comparative interpretation.The legislative context of the penalty element in our country is firstly summarized in this part,and the specific provisions of criminal penalty in the legislation is introduced.Secondly,the penalty element in the system of extraterritorial pending detention is examined.The mechanism of the separation of custody from arrest is more often used in extraterritorial legally developed countries.The substantive condition of the application of pretrial detention is legality of arrest and the the necessity of detention,and for other countries,the part which is similar to the contents of the condition of arrest is mostly stipulated in theirlegality condition of arrest.For example,in the civil law system,its penalty element of pending detention is contained in the distinction between misdemeanor and felony;and in the Anglo-American law system-based "arrest-preposition doctrine" judicial practice,the penalty element is not put forward alone as element of pretrial detention,but included in the conditions of the arrest,through the setting of preposition of arrest,with the penalty element to limit the pending detention.In the third part,the author made an empirical investigation and analysis.The author uses the data statistics,investigation questionnaire and interview to make quantitative and qualitative analysis of the present situation of the application of the penalty element in practice.Practical research includes both a statistical data of the arrest of the nation and the author's investigation into Y procuratorate and its subordinate prosecutors during the internship on the city of C.Through the empirical research and investigation of the operation and application of the penalty element in practice,the author finds that the penalty element is basically in a virtual state during the stage of investigation and arrest and the application effect is poor.Although the rate of arrest declined,it still in the high position;the proportion of light punishment after arrest is large;investigation organs,criminal suspects and defenders can not work in the review procedures of penalty.In the fourth part,the author analyzes the reasons behind the present situation of application of the penalty.In the case of legislation,the threshold for "sentence of above imprisonment" is too low,resulting in a number of crimes that should not be applied to arrests to be included in the scope of arrest;the infeasibility of the standard of proof,cause the application of the penalty element a kind of subjective discretionary activity;from the judicial review,the lack of administrative inspection mode,reasoning mechanism and the pretrial sentencing mechanism lead to dummy penalty;and the weakness of alternative measures of detention and the aspect of the judicial conception is also closely related to the dummy penalty element.The fifth part.On the basis of the above four parts,the author puts forward the suggestions of perfecting the penalty.From the legislative level: the author suggests raising the threshold of penalty and setting the standard of "may be sentenced to more than three years imprisonment".It is also necessary to restrict the condition of custody of felony;strengthen the objectivity and discrimination of the standard of proof;construct the pretrial sentencing review mechanism and gradational proof standard,and enhance the operability ofthe proof of the penalty.From the mechanism level,the author proposes that it is necessary to construct the litigation review mode,strengthen the reasoning mechanism of the penalty element,enhance the rationality of the penalty element,and ensure the full participation of the investigation organs,criminal suspects and the procuratorial organs in the examination of the penalty.At the same time,it is necessary to strengthen the scientificalness of evaluation standard of the quality of arrest,improve the alternative measures of detention,build a social participation-oriented guarantor pending trial mode and corresponding risk assessment mechanism.Finally,transform the work concept of the judiciary officer and build the professional ethics of the prosecutor to increase endogenous power of the application of the penalty element.