The Normative Interpretation And Implementation Path Of The Criminal Justice Policy Of Less Arrest And Cautious Prosecution And Cautious Detention

In April 2021,less arrest and cautious prosecution and cautious detention was officially elevated to the national criminal justice policy.This significant change has put forward a new proposition for procuratorial organs to perform their duties and treat from the source in the new era.The procuratorial organ,as the decision maker and executor of the criminal procedure,plays an irreplaceable role in implementing the criminal justice policy of less arrest and cautious prosecution and cautious detention.Therefore,it is of profound theoretical value and practical function to give full play to the leading role of the procuratorial organ and truly activate the policy and system attributes of less arrest and cautious prosecution and cautious detention.This article mainly applies comparative analysis,literature analysis and combining theory with practice to demonstrate the practical problems existing in the system of arrest and detention and non-prosecution,and on this basis analyzes the possible factors restricting the policy,in order to be beneficial to the implementation of the criminal justice policy,highlighting procedural justice and judicial modesty,from the perspectives of updating thinking concepts,perfecting theoretical rules and improving supporting mechanisms.This paper consists of five parts except for the introduction and the conclusion:The first part clarifies the concept definition and value connotation of the criminal justice policy.The criminal justice policy emphasizes that the procuratorial organ should strictly grasp the applicable conditions of arrest,give full play to the function of censorship of detention necessity,and reasonably apply the non-prosecution discretion.At the same time,the rich value of less arrest and cautious prosecution and cautious detention in the aspects of meeting the modesty of criminal law,improving litigation efficiency,strengthening objective justice,and highlighting judicial tolerance further illustrates the necessity of implementing the criminal justice policy.The second part is the establishment of the criminal justice policy has its profound theoretical basis and practical background.First of all,theory of modernization of China’s system and capacity of governance,theory of procedural fairness and justice and the peoplecentered theory provide theoretical guidance for the criminal justice policy.Secondly,the easing trend of criminal crime and penalty structure,the introduction of a series of new systems,such as the system of leniency on admission of guilt and acceptance of punishment and the current trend of technology-enabled justice have laid a solid practical foundation for the criminal justice policy.The third part describes the relevant data of the Supreme People’s Procuratorate show that the problems in judicial practice have not been fundamentally improved,such as high arrest and prosecution rate,detention to the end,overtime detention,overcrowding detention house.And their negative effects on the function of criminal proceedings,human rights protection and judicial efficiency can not be ignored.These judicial malpractices and litigation harms deviate from the value connotation of less arrest and cautious prosecution and cautious detention and become the biggest dilemma to realize the policy.For this reason,the root of the less arrest and cautious prosecution and cautious detention established as the national criminal justice policy is the timely correction of the generalization of arrest,detention and prosecution.The fourth part is based on the realistic problems of arrest,detention and prosecution.Then analyzes the possible influencing factors from the dimensions of concept and system.First of all,the lag of judicial concept,case handling mode and public opinion risk are the preemptive obstacles.Secondly,the defects of theoretical rules and institutional mechanisms are the key obstacles,which include the design of arrest system lacks operability,the system of nonprosecution discretion is unsound,the supporting mechanism is not imperfect and the judicial management system has limitations.The fifth part is to implement the criminal justice policy.It is a systematic project,which needs to be improved from the aspects of thinking,social governance and system.Firstly,we must uphold the scientific judicial concept and case handling mode,strengthen the work of interpreting law and disclosing documents,and issue typical cases.Secondly,we should improve the relevant system and supporting mechanism.We must clarify the relationship of the three requirements of arrest and explore the quantitative assessment of social risk,perfect the proof mechanism and litigation reform of the arrest review procedure,improve the system of detention necessity censorship from the scope and conclusion in order to release the efficiency of the system,promote the reform of the separation of investigation and detention so as to return to the original function of procedural guarantee of arrest.We should take the necessity of prosecution as the standard and expand the scope of application of conditional non-prosecution,construct the hearing system of non-prosecution and gradually delegate the right of decision of non-prosecution.We should improve the supporting mechanism including the enforcement effect of non-custodial compulsory measures and the protection of litigation rights.In addition,we should also optimize assessment indicators and judicial responsibility to provide a lenient and inclusive judicial environment for procuratorial performance.