On The Necessity Of Arrest And Its Review

Arrest,as the most severe criminal coercive measure,deprives criminal suspects and defendants of their personal and property rights.According to relevant statistics,a criminal suspect can be legally detained for 157 months from the investigation stage to the end of the trial,and in some cases can be detained indefinitely.However,in the long-term judicial practice,the judiciary pays too much attention to the evidence conditions and punishment conditions of the arrest,resulting in neglect of the necessary conditions.In 2012,Article 93 of the Criminal Procedure Law set up a new review system for the necessity of detention after arrest.Article 81 of the Criminal Procedure Law,in 2018,clarifies five situations of necessity of arrest.Received widespread attention.The first part of the article took the opportunity of the 2018 Criminal Procedure Law revision as an opportunity to discuss the status and role of the essential elements of arrest in arrest.Due to the characteristics of necessity and the reasons in the current legal system,arrests are extremely easy to be abused.It is the research focus of this article to clarify the connotation of the necessity of arrest at the substantive level and to ensure equal participation of the prosecution and the defense at the level of procedure setting.The second part of the article explores the connotation of necessity from the substantive level and discusses the judgment criteria.First of all,this article believes that the necessity of arrest means that if the criminal suspect and defendant are not arrested,they may actively carry out actions that hinder the smooth progress of the lawsuit.Then,according to the specific circumstances of Article 81 of the Criminal Procedure Law,it is divided into general arrests,preventive arrests and felony arrests,and the controversial regulations are analyzed through comparison with the advanced legislation outside the region.Most of all,it puts forward the abstract judgment and concrete judgment of necessity,and analyzes how to make the necessary judgment.The third part of the article discusses the impact of the "unification of arrest and litigation" model on the neutrality of arrest,the transformation of litigation and the possibility and necessity of the participation of the defense from the procedural level.Public hearings are reviewed to promote litigation reform.Since the necessity of arrest has the characteristics of predictability,dynamics,complexity and so on,there are also multiple proof modes for the proof of necessity.This article advocates the use of free proof rather than comprehensive evaluation.The fourth part of the article is to analyze the problems in the necessity system of post-arrest detention from the substantive and procedural level,and put forward relevant improvement suggestions from the aspects of review content,review mechanism and rights relief.