Research On The Litigation Of Arrest After Review In Criminal Procedure Law Of China

In the In the Criminal Procedure Law of China,arrest after review refers to the procedure that the People's Procuratorate makes the decision to approve the arrest or not according to the situation after reviewing the case which is submitted by the Public Security Organ or the Investigation Department of Procuratorate.During arrest after review process,the People's Procuratorate will supervise the process of arresting criminal suspects conducted by the Investigation Department according to the law on behalf of the nation.However,in the process of arrest after review,there are many problems which have existed,for example,the process just focuses on the formality while ignoring the content,it is filled with administrative means,the criminal suspects are lack of relief channels and so on.In this regard,it is the inevitable trend for judicial reform to introduce the litigation into the arrest after review procedure.The basic characteristics of litigation for the arrest after review include: firstly,it is necessary to establish the mechanism in which the three parties-prosecutor,defendant and referee are all involved.Secondly,as the centralized referee,the procuratorial organs must provide the defendant with complete opportunities for defense.Thirdly,if the suspect disagrees with the arrest decision,he should be provided with relief channels.On the one hand,the author finds out there are problems existing in the specific system of litigation,including being lack of a unified hearing system for arrest after review,being lack of adversarial challenges between the defendant and prosecutor for arresting after review,being lack of defense intensity for the lawyers,being lack of the improved relief measures for the criminal suspect and so on.On the other hand,the author also puts forward the measures to improve the arrest after review according to the problems existing in litigation reform.The paper is divided into four parts.The first part is about the overview of the litigation reform for arrest after review.The author makes a brief description of the current legislative status quo of arrest after review procedures in China and analyzes its relevant theoretical basis.The second part points out the problems existing in arrest after review procedures in China.Firstly,the arrest after review process is lack of adversarial challenges,the procuratorial organswill hear the lawyers' opinions unilaterally and it does not reflect the adversarial challenges between the two parties.Secondly,the lawyers' defense intensity is not enough,the arrest after review is finished in short term and there is low intervention rate of lawyers,all of which have affected the establishment of an equal three-party structure.At last,the relief measures for the criminal suspect are not improved without giving full play to the role of necessity review for detention.The third part is about sorting out the extraterritorial arrest after review system.After carrying out study on the arrest after review systems in the Chinese law system and Western law system,the author finds out that the right for arrest after review mostly belongs to the court,then,some measures adopted in the extraterritorial systems are discarded and some are preserved according to the national conditions of China.The fourth part puts forward the ways to improve the litigation reform for arrest after review.Firstly,improve the lawyer-participation mechanism for arrest after reform.Set up the lawyer on-duty system.At the same time,to enhance the lawyer intervention rate,the arrest after review period must be prolonged.Secondly,establish the hearing linkage for arrest after review.The hearing procedure for arrest after review can be defined as the activity in which the preside of the procuratorial organ will listen to the opinions of the investigators,suspects and their defenders,as well as other personnel related to the litigation in terms of whether the criminal suspect should be arrested or not.Thirdly,improve the post-relief mechanism for the arrest after review cases,refine the system for public review of necessity of detention and the regular review system,conduct the litigation reform for the necessity of detention.