Research On Arrest System Under The Background Of Judicial Reform

As one of the most stringent compulsory measures in criminal proceedings in China,arrest has played a very important role in ensuring the smooth progress of criminal proceedings,effectively punishing crimes and maintaining social order.The measure of arrest is the restriction of personal freedom without trial,which is not consistent with the requirement of presumption of innocence in legal principle.In order to prevent the excessive pursuit of the results of arrest in the process of criminal prosecution,resulting in judicial acts that arbitrarily restrict or deprive the accused of personal freedom,the United Nations criminal justice norms and extraterritorial countries under the rule of law have detailed procedures for arrest and postarrest detention relief.In the process of criminal investigation,the application of compulsory measures reflects the intervention of national public power on the private rights of the accused.In practice,the arrest measures in our country not only have the instrumental value of ensuring the smooth progress of litigation,but also have the substantive punishment function of restricting personal freedom.Arrest not only involves the personal freedom of the suspect,but also affects the prosecution activities of conviction,which is even called "arrest centrism" by some scholars,which shows the importance of arrest.In the context of issued a number of opinions on improving the judicial responsibility system of the people's courts and people's procuratorates,requiring judges to be judged and judges to be responsible;people's procuratorates are required to decide who is responsible for handling cases.In practice,the excessive pursuit to prevent the result of being held accountable for the approval of arrest has caused a great impact and challenge to the exercise of the right of arrest.The opinions on promoting the Reform of the trial-centered Criminal procedure system on October 10,2016 proposed that it is necessary to establish and improve the supervision mechanism for compulsory measures,strengthen the people's Procuratorate's examination of the necessity of detention after arrest,and improve the system of protecting the rights of the parties,defenders and other participants in the proceedings.On July 22,2016,the Central Committee examined and adopted the pilot Program for the Reform of the leniency system for pleading guilty,pointing out that it is necessary to improve the leniency system for pleading guilty in criminal proceedings,which has had a great impact on the systems of arrest,prosecution,trial and legal aid.The Criminal procedure Law also takes the guilty plea and punishment of criminal suspects as a factor to evaluate the social danger.At the beginning of 2019,the Supreme people's Procuratorate implemented the "integration of arrest and prosecution" mechanism from top to bottom,in which the same public procurator was responsible for not only approving or deciding the arrest,but also prosecuting,which impacted the neutrality and independence of the exercise of the power of arrest.it has caused the abnormal phenomenon that "either non-arrest can avoid responsibility,or resolutely sue after arrest",but also weakens the positive significance of the abuse of investigative measures under the control of arrest.These are the important adjustment factors and the profound social background for further promoting the reform of the arrest system.Therefore,it is of great theoretical significance and practical value to choose the main problems and reform direction of the operation of arrest power under the background of judicial reform as the research theme.This paper is divided into four chapters.The first chapter is an introduction to the arrest system under the background of judicial reform.First of all,in the overview of the arrest system,it defines and explains the concept,scope and theoretical basis of the arrest system,and determines the research object and scope of the arrest system.Secondly,it briefly introduces the main contents of judicial reform related to the arrest system.This paper analyzes the requirements and influence of the trial-centered litigation system,the judicial responsibility system,the leniency of pleading guilty and punishment,the integrated mechanism of arrest and prosecution,and the reform of the national supervision system on the arrest system.Finally,it summarizes the reform and development of the arrest system under the background of judicial reform.the main manifestations are as follows: the further change of the judicial concept of arrest,the refinement of arrest conditions,the gradual return of the standard of proof of arrest to the law of investigation,the increase of the relief methods of arrest,the enhancement of the litigation attribute of arrest and the great change of the arrest system of job-related crimes.The second chapter is an empirical study on the implementation of the arrest system under the background of judicial reform.First of all,the problems existing in the implementation of the arrest system are analyzed,such as the rising trend of non-arrest rate is obvious,the proportion of doubtful non-arrest is increasing,the quality of examination of arrest is worrying,and the allocation of procurators' power of approval and non-approval is not equal.Secondly,it analyzes the implementation of the arrest system in the reform of the leniency system of pleading guilty to punishment,which shows that the rate of non-arrest in cases applicable to pleading guilty is slightly higher than that in other cases in the same period,but the change in the rate of non-arrest in criminal cases is not obvious,and the impact on the evaluation of social danger is insufficient.Finally,through the analysis of the arrest system in the reform of the integrated arrest and prosecution mechanism,it is found that the public prosecution tendency of arrest is obvious,and while the proportion of cases without approval of arrest increases,the rate of non-prosecution after arrest also increases correspondingly,and the number of people who do not approve arrest after reconsideration and review is larger than that of the same period last year,and there are greater hidden dangers in the quality of cases of non-approval of arrest and approval of arrest.This reflects the outstanding problems in the application of arrest conditions,standards and procedures.The third chapter is about the main problems of the arrest system under,such as judicial responsibility system and promoting the trial-centered litigation system,has an all-round impact on the arrest system,involving the subject of exercising the power of arrest,arrest conditions,arrest standards,arrest procedures and so on.At present,the main manifestations of the weakening of the standardization of the application of arrest conditions are as follows:the "core" effect of evidence conditions is increasingly strengthened,the examination of penalty conditions is weakening day by day,and the examination of social dangerous conditions is more virtual.There is still a big gap in the judicialization of the examination and arrest procedure,the problem of neutrality of the procuratorial organ as the subject of arrest is more prominent,the problem of insufficient litigation of the arrest review procedure has not substantially changed,and the degree of participation of the accused party has been reduced.After the implementation of the judicial responsibility system,the internal restriction mechanism of the arrest decisionmaking procedure has not yet been established.After the reform of the judicial system,the function of the arrest relief system has been impacted accordingly,mainly as follows: the problem of the lack of neutrality of the subject of detention relief is more prominent,and there is still a large gap in the rigidity of detention relief.there is still a big deficiency in the protection of the right of detention relief.In addition,this chapter also provides a broad field of vision for an objective and comprehensive analysis of the problems related to China's arrest system by comparing and analyzing the arrest or detention systems of common law and civil law countries,combined with the norms of international criminal justice and the relevant precedents of the European Court of Human Rights on detention.The fourth chapter,the suggestions to further improve the arrest system.On the basis of comparing and drawing lessons from the extraterritorial judicial system,in accordance with the requirements of the United Nations criminal justice standards,combined with the problems existing in the implementation of the current arrest system,on the basis of putting forward the general idea of the reform of the arrest system,this paper puts forward some suggestions on how to improve the arrest system from seven aspects: First,it proposes to further deepen the rational understanding of the impact of judicial system reform on the arrest system,including the theoretical understanding of promoting trial-centered litigation system reform,judicial responsibility system reform,integration of arrest and prosecution reform,and lenient reform of pleading guilty and accepting punishment.The second is the general idea of the reform and improvement of the arrest system,specifically the principles,values,paths and other aspects that should be followed.The third is to establish a system of arrest conditions with social danger as the core,make clear the core orientation and independent value of the conditions of social danger of arrest,specify whether there is social danger or not,and appropriately improve the conditions of penalty.Fourth,to improve the hierarchical standard system of proof of arrest,first of all,we should clarify the nature of "quasi-judicial proof" of arrest proof,perfect the hierarchical proof system,and establish the reasonable proof standard of factual elements and penalty elements.adopt the dominant proof standard for the social dangerous conditions,and establish the social risk assessment mechanism.The fifth is to improve the procedure of litigious examination and arrest,mainly from two aspects: the significance of implementing the reform of litigious review of arrest and the construction of the procedure of litigious examination of arrest.Sixth,improve the judicial relief measures for arrest,explore the construction of a compound detention relief subject system with the court as the core,and improve the judicial relief procedure.Finally,the paper also puts forward some suggestions on how to improve the alternative measures of bail pending trial and residential surveillance,that is,defining the functional orientation of bail pending trial,appropriately expanding the scope of application of bail pending trial,and constructing diversified ways of obtaining bail pending trial.We will increase the intensity of punishment for those who violate bail pending trial.At the same time,establish a review system for residential surveillance,improve the implementation of residential surveillance and increase the penalty responsibility for violating residential surveillance regulations.