Study On The Conditions Of Arrest

The extensive application of arrest has been a major problem in the arrest system,although the correctness of the application of a measure does not necessarily correlate positively with its rate of application.However,arrest are temporary coercive measures applicable in emergency situations.If the rate of application of arrest is too high,it will make arrest routine.This change is contrary to the legislative purpose of arrest.It is easy to make the arrest instrumentalized,and also unfavorable to the exertion of the human rights protection function of the arrest.The conditions of arrest have direct and effective restriction on the application of the arrest.But in 2012,it has a direct and effective restriction on the application of the arrest.The amendment of the procedural law does not make any changes to the conditions of arrest,which lays a hidden danger for the wide application of arrest in practice.Therefore,this paper analyzes the defects of the conditions of arrest.Based on the actual situation of our country,this paper tries to draw lessons from foreign advanced systems and put forward some suggestions to perfect the conditions of arrest,in the hope that arrest can not only fight crime well,but also fully protect human rights.In addition to the introduction and conclusion,the full text is divided into four parts.The first part mainly expounds the current situation of the application of arrest.The author mainly expounds the present situation of the application of the measures of arrest in practice from two aspects.On the one hand,it analyzes the arrest of all types of criminal cases from the macro point of view.On the other hand,from a microscopic point of view,the application rate of arrest.According to the data collected on the website of China judge online and Pkulaw.cn,it is found that the application rate of arrest in public security organs is relatively high for criminal suspects who do not distinguish social danger,or for some suspects who are less dangerous in society.The second part mainly analyzes the problems existing in the conditions of arrest.The main problems are as follows: first,the condition of arrest removes the word urgent in legislation,which makes the urgency of the measures of arrest desalinate.The possibility of arrest being applied in both urgent and non-urgent situations,which expands the scope of application of arrest.The second is the lack of the principle of proportionality in the conditions of arrest.Although many experts and scholars believe that coercive measures should follow the principle of proportionality in order to prevent the abuse of coercivemeasures by investigative authorities,But the principle of proportionality is purposeful and necessary.And the three aspects of proportionality are not reflected in the conditions of arrest.This increases the possibility of arrest being applied by the investigating authorities.Third,there is ambiguity in the legal provisions of the conditions of arrest.The conditions of arrest do not provide a clear definition of some of the more ambiguous terms,and in that statutory condition,many estimates have been used to enhance the subjectivity of the conditions of arrest,coupled with the ambiguity of the standard of proof.This increases the scope of application of the arrest.Fourth,the logic of the conditions of arrest is more confused.The conditions of arrest juxtapose the evidence that the suspect committed the crime and the evidence that hinders the smooth conduct of the proceedings.It expands the scope of the conditions of arrest,runs counter to the legislative purpose of the measure of arrest,and increases the possibility that the measure of arrest is widely applied.The third part of the main content is to compare the relevant systems of some foreign countries.Firstly,it mainly lists the relevant contents of similar systems in four countries,such as Britain and Japan.Secondly,it mainly compares the systems of these countries.As a result of the society,There are more or less differences in economic and other aspects.There are more or less differences in the provisions on arrest without warrant,but there are also many similarities.In the contents of the conditions for arrest without warrant in these countries,the principle of proportionality is embodied.The conditions of the current offender and the suspect are distinguished,and it is stipulated that in case of emergency,there must be evidence of the crime committed by the criminal suspect,as well as evidence of obstruction of the proceedings,re-occurrence of danger,etc.In order to apply its system of arrest without a warrant.The fourth part is mainly aimed at the problems existing in the conditions of arrest,and puts forward the corresponding suggestions for perfection.The main suggestions are as follows: first of all,Establishing by legislation the conditions of urgency of arrest.Limiting the application of arrest to appropriate positions.Second is the principle of proportionality in determining the conditions of arrest in particular,determining the conditions of necessity and distinguishing the conditions of arrest in different cases.Where necessary and necessary,arrest could be able to return to guarantee the legislative purpose of the proceedings.Again,it is clear that the standard of proof of arrest is clear by clarifying the standard of proof of reasonable grounds for the conditions of arrest,in particular the different standards of prooffor current and major suspects,as well as for suspects who have committed felonies and misdemeanours.Finally,Reconstructing the conditions of arrest is mainly to reconstruct the criminal evidence of arrest and the logical relationship that hinders the evidence of litigation so as to make the measures of arrest return to the purpose of its system design.