Research On The Judgment To Social Harmfulness In The Procedure Of Examination And Arrest In China

Social harmfulness is an important basis to judge whether it is necessary and applicable to arrest a suspect during the stage of investigation and arrest.Social harmfulness of arrest has been refined into five specific situations in China's Criminal Procedure Law,newly revised in 2018,which adds a paragraph emphasizing that the nature,circumstances and confession of guilt and punishment of the suspect are taken as factors to judge the social harmfulness.It provides guidance for the identification of social harmfulness in reviewing arrest.Therefore,judicial officers have rules to follow while arresting.However,due to the defects of legislation,judicial personnel's weak sense of evidence and the constraint of old administrative censorship etc,the social harmfulness examination has not been carried out in practice and the application rate of arrest is still high.Social harmfulness means potential risk,which is characterized by its provability,complexity and variability and relative certainty.Based on the empirical analysis about the judgment of arrest and social harmfulness by a representative procuratorate in City P in Province F,as to the inaccurate understanding,inconsistent judgment standards and incomplete evidence of social harmfulness on crime harmfulness,personal dangerousness and litigation controllability,this paper puts forward that it should turn from administrative review to litigation review,strengthen the evidence system by behavior harmfulness,update social investigation,evaluation mechanism,the cognizance of the bidirectional reasoning to realize the judgment path of social harmfulness of arrest : "examination-proof-certification".