Research On The Preventive Detention And Perfection Of China’s Arrest Conditions

The task of criminal proceedings is not only to punish and control crimes,but also to protect the human rights of criminal suspects and defendants.Arrest is the most serious criminal compulsory punishment that infringes on individual freedom in our country,which intensively reflects the conflict and balance between the two.The work report of the Supreme People’s Procuratorate in 2021 pointed out that paying attention to the rule of law is a basic requirement for prosecutors across the country.It is necessary to continue to deepen the implementation of the judicial concept of "less arrests,prosecution and detention",and promote more and better use of non-custodial compulsory measures.In the "Criminal Procedure Law" Article 81 of the arrest necessity conditions,five kinds of social dangerous situations are listed.However,if you observe carefully,you will find that the first two situations are essentially different from the other three.The perpetrator’s entity risk prevention is not a pure preservation procedure.This kind of detention to prevent crimes and dangers is equivalent to preventive detention in other countries or regions under the rule of law.However,our country has not differentiated and perfected the application.As a result,this kind of general regulations cannot meet the expectations of the public for the protection of human rights.In practice,it is because of the rough legislation that the relevant personnel are suspected of abusing arrest and detention.And this obviously violates the concept of "less arrests and caution".In order to facilitate the discussion in the same context,this article uses the first two preventive conditions in arrest as a reference,uses the preventive detention system as the research content,introduces its concepts and characteristics,and refers to the current legislative status and application status of Taiwan in my country.Refine my country’s preventive detention regulations,solve the problems in custody in our country,and offer my own superficial suggestions.This article contains four chapters.The first chapter starts with the basic theory of the preventive detention system,and first clarifies the definition of preventive detention in this article,that is,based on the presumption of the personal danger of criminal suspects,to prevent them from causing serious threats to social security and public order.A criminal compulsory measure of detention;secondly,it introduces the characteristics of preventive detention.In addition to the statutory,compulsory and procedural properties that are shared as compulsory measures,preventive detention is also preventive and exceptional.Prevention specifically refers to the prevention of the danger of detainees from committing harmful acts or even crimes.Finally,the purpose of preventive detention and relatively concentrated theoretical controversy are introduced.The purpose of preventive detention is to control crime through advance prevention,to meet the actual needs of the general public for safety,and to regulate the use of power by judicial personnel.Achieve a balance between punishing crimes and protecting human rights.The theoretical confrontation point of preventive detention is whether preventive detention violates the presumption of innocence,whether it violates due process,and whether it is punitive in advance.In these three aspects,the author has conducted a more detailed review of the views.The second chapter elaborates and sorts out the legislative status,related cases and reform measures of the preventive detention system in Taiwan.Taiwan is one of the few areas in the world that clearly stipulates the preventive detention system in the criminal procedure law.Both sides of the strait are influenced by ancient Chinese judicial practice and can learn from the efforts made by my country’s Taiwan region in the preventive detention system as inspiration and reference.The third chapter discusses the current situation and existing problems of my country’s preventive detention system.First,it clarifies the relationship between preventive detention and arrest in our country.Custody is a continuous state after arrest,and preventive detention is mainly the legal five societies of arrest.The first two contents of the dangerous condition.That is to say,there are reasons for detention in our country to prevent danger,but because of the rough generality of the regulations,a series of problems to be solved in practice have emerged.Secondly,it introduces the necessity of preventive detention in our country.The general provisions of arrest can be differentiated in detail and combined with the detention necessity review system to balance the defense of society and the protection of human rights.The fourth chapter is to put forward some suggestions on the perfect application of preventive detention in our country.First,at the level of the preventive detention system,clarify the scope of application and identification standards,implement a quasijudicial review mechanism on the basis of the procuratorial authority’s power to make detention decisions,establish hearing procedures to improve accurate judgments of danger,and pay attention to the current detention Necessity review system is integrated,and the detention period is limited.Secondly,the use of current big data and cloud computing technology,with the help of artificial intelligence to establish a risk assessment system,can greatly improve the degree of control over the danger and the necessity of detention,and assist judicial personnel in making judgments.Lay emphasis on the improvement of the detention environment even,and protecting the legitimate rights of detainees other than freedom.