Research On The Justification Of Arrest Procedure In China

Along with the introduction of documents related to arrest system,the conditions of arrestment has been increasingly specific and practicable.However,arrest system is still lack of due process,since problems like high rates of arrestment,detention and light punishment afterward are remained unsettled;In addition that the administration characteristics in examine and arrest system is strong and the faultiness of regulation about social risk;Last but not least,the censorship system of custody after arrestment and relief mechanism fail to take in effect.Apart from the introduction,this paper is comprised by four parts: The theme of this paper is to study the legitimacy of arrest procedures,which is divided into three sub program.We would concentrate more on the process of examination and approval of arrest,as well as the application of it,rather than the court decision-making stage.In order to ensure the legitimacy of the review stage of the arrest and the integrity of the discussion,it would also be reviewed the mechanism of the necessity of the censorship system of custody after arrestment.The first part is to analyze the faultiness existing in our arrest system.China currently apply the three level pattern of examine and approval within the office of the public prosecutor,in which the prosecutor plays dual functional role,resulting in the lack of publicity and neutrality of the arresting procedure,as well as the lack of neutrality and objectivity of the court's decision.However,due to the "actionable nature" of justice organizations,the due rights of litigant participant cannot be guaranteed.Moreover,there is no considerable rationality and publicity in the element “social risk” in examining and arresting procedure,thus leading the faultiness of element of arrestment;Ultimately,because of lack of punishment regulations to judicial personnel,sanction mechanism toward wrong arrestment still lacks effective restriction.The second part illustrate the relevant provisions of the foreign arrest procedure.After comparative analysis of civil law countries and common law countries concerning about its justification of writ of arresment and necessity of detaining after arrestment,we can find out what we can take lessons from.The judicialized review mechanism of the arrest system and the relief measures the litigation participants may resort to can certainly be used for reference the improvement of the relief mechanism of participants in our nation.The third part will discuss about the value of the due process of arrest system,which can guarantee the participants' right to know and to participate,as well as protect the criminal suspect or defendant's participation right and right of defense,thus reducing unnecessary detention and the rate of pre-trial detention,saving the judicial resources and strengthening the transparency of procedure,ultimately improving the credibility of justice.The fourth part is about measures to promote China's arrest due process.The author argue that though the establishment of public hearing mechanism,the administrative characteristics of arrest review procedure can be eliminated;Promote the operability and rationality of the arrests elements through the improvement of the necessity of detention mechanism;Through the improvement of detention review mechanism after the arrest,ulteriorly protect the relevant rights and interests of parties involved;Promote the progress of relief mechanism by offering the defendant the right to appeal;Moreover,give protection to the detainees and their close relatives as well as victims to ensure their lawsuit right to know,to participate and to express opinions and realize the justification of arrest procedures.