Research On The Procedural Examination Of Arrest

For a long time,the examination and arrest,as an important criminal procedure,has been operating in a highly administrative mode of examination and approval.Within the time limit for handling a case,the undertaker,in combination with the materials and evidence on the case file,prepares an opinion for examination and arrest,which shall be submitted to the head of the Department and the deputy chief procurator for examination and approval.Based on the results of the three-level examination and approval,the undertaker shall decide whether to arrest the criminal suspect or not.In the whole process of handling a case,the undertaker does not even need to meet with the criminal suspect,and directly issues the opinions of the criminal suspect,which are taken to the detention center by the forensic police,so that the criminal suspect can "sign the opinions" and then complete the procedure.This closed review mode also leads to the high number of non-prosecution,acquittal and probation after arrest,and arrest seems to be the appendage of investigation.Based on this,we need to re-examine the functional orientation of the examination and arrest.As an important part of the criminal procedure,the examination and arrest directly determines whether the criminal compulsory measures restricting the personal freedom of criminal suspects should be applied.We should construct a mode of "trial in court" in which both parties participate,so as to make the procedure of examination and arrest judicial.In 2009,the Supreme People's Procuratorate issued the Work Plan for Deepening Procuratorial Reform for 2009-2012,proposing that "conditional local procuratorial organs may also try out a mechanism of examination and arrest similar to the hearing procedure for hearing the opinions of investigators and criminal suspects and lawyers face to face in disputed cases".From 2015 to 2016,the High Procuratorate issued Opinions on Promoting Public Procuratorial Work in an All-round Way and Outline of the Development Plan of Procuratorial Work in the 13th Five-Year Plan Period.It reiterated that it was necessary to explore the establishment of a litigation-style review and arrest system around the transition from examination and arrest to judicial review.So far,it has been ten years since the reform of arrest procedure was put forward.However,after ten years,the reform is still in the stage of full development.In practice,many local procuratorates do not want to change,will not change,reform is facing greater obstacles,the effectiveness of litigation review is not obvious.Today,with the comprehensive reform of the internal organs of procuratorial organs,"the integration of arrest and prosecution" has brought new issues to the reform of the procedure of examining and arresting.The procuratorial organs must maintain independence and neutrality on the basis of "the integration of arrest and prosecution and the whole process",and make verdicts that convince the parties.Therefore,we should construct a more scientific and reasonable structure of the arrest litigation review,establish the standard of proof of social danger,clarify the scope of participants and the principles that should be followed in the arrest litigation review,improve the corresponding rights relief measures,and make the reform of the arrest litigation review follow rules and regulations by strengthening the top-level design.Regulations can be followed.By introducing the pilot cases of the reform of the procedure of arrest review in various places and drawing lessons from the trial mode of detention courts abroad,this paper explores the operation status of the procedure of arrest review system and its realistic predicament from the theoretical and practical levels.At present,there are many problems in the reform of the procedure of arrest review.First,the neutral status of prosecutors is difficult to guarantee.Obstacles:prosecutors are judges in the stage of examination and arrest,while prosecutors exercise prosecution power on behalf of procuratorial organs in the stage of prosecution and appearing in court to support public prosecution.How to maintain the independence and rigor of the procedure of examination and arrest under the premise of integrating multiple roles has become an urgent problem to be solved.The second is the contradiction between procedure openness and investigation secrecy.It is difficult to balance.The procedure of arrest procedural review requires openness and transparency,while investigation secrecy requires that the procedure and content of investigation should not be made public.In view of the need of investigation secrecy,investigation organs will naturally be reluctant to carry out the reform of examination and arrest procedural form.Thirdly,the elements of proof of social danger are absent,which still exist in China.Without an objective,impartial and authoritative social risk assessment institution,investigators are lazy in collecting evidence on whether criminal suspects are socially dangerous or not,and the essential elements of arresting litigation-style review are absent.Fourthly,the defense rate of lawyers is very low in the investigation stage,the "two constructions" model of litigation-style review is difficult to construct,and the lawyer element is absent.The quality is uneven,many cases are difficult to produce substantive argumentation effect in the stage of examination and arrest,and the main elements of arrest litigation review are missing.Fifth,the procedure of arrest litigation review is complicated,and the time limit of arrest review is relatively short.There are contradictions between the two.Based on the problems faced by the reform of the procedure of examination and arrest,the article focuses on the current "integration of arrest and prosecution" pattern,reshaping the two-way trial pattern of examination and arrest with rigorous programming,so that both sides of investigation and defense can participate in the process of examination and arrest on an equal footing.Firstly,the prosecutor's duty of neutral review should be maintained,and the principles of neutrality,voluntariness,lawyer's participation and direct speech should be clarified,so as to strengthen the internal supervision and restriction of the prosecutor's powers and powers.The second is to clarify the types of cases applicable to arrest litigation review,excluding cases involving state secrets,business secrets,personal privacy and some joint crimes where suspects have not been brought to justice.In order to balance the relationship between the public hearing review and the conservative investigation secret,the scope of participants in the arrest litigation review should be strictly limited.Thirdly,we should establish a social risk assessment mechanism to provide objective reference for arresting criminal suspects by quantifying the social risk of criminal suspects.Fourthly,the effective participation of defense lawyers should be clarified to ensure that lawyers fulfill their duty of "effective defense".Fifth,we should further improve the procedure design,give full play to the system effect of intervening in advance to guide investigation and evidence collection,and avoid the waste of judicial resources and the delay of litigation procedure.