On The Power Of Approval Of Arrest

Arrest is the severst criminal precautionary measure which deprives the suspect or the defendant of personal freedom .Thus the procuratoratete should apply to the arrest carefully and the ambit of arrest must be grasped strictly. That is to say the power approval of arrest should be exerted accurately. When the investigative organization need arrest the suspect, it must submit the case to the procuratorate. Then the procuratorate can decide to arrest the suspect or not. This is the power of approval of arrest .Its natures can be concluded as nationalism ,restrictiveness and surveillance. If this power runs legally and accurately, it will be able to punish crime ,protect human rights, supervise the investigation and guide the investigation.Which subject of the power can own the power of approval of arrest is a controversial problem in China.Some schollars advocate handing the power of approval of arrest to the court. Some scholars advocate delivering it to the procuratorate. From the equality beween accusation and defense, the status of the court and the function of the court, the power of approval of arrest should be taken by the neutral and independent court. But there are many barrier factors such as legislation, manpower, physical resources need to be overcome to construt judicature review mechanism at the present time. So it is practicable to grant the power of approval of arrest to the procuratorate because of its legal situation as the law supervising organ and the practice that the court is a independent department in China.All people who own powers are apt to abuse power.Absolute corruption results in absolute power. So the power should be practised separately. Only under this premise can the procuratorate exercise the power of approval of arrest .It must restrict the investigative organization to implment power restrict power. In order to realize right restrict power, the procuratorate must guarantee that the suspect can run its right adequately. In order to smooth punishment the criminal and to protect human rights in the meantime, the procuratorate must strictly follow the condition of the power of approval of arrest to run the power. In general, the condition of the power of approval of arrest in our courtry is unscientific and faint. Therefore ,it should be improved ulteriorly. It means that the proof and penalty condition in the condition of the power of approval of arrest should be modified and the necessity condition should be took shaped by the way of enumeration. So that the funcition of the power of approval of arrest can be worked out and the scientific and practical standard can be provided for the practise of the power of approval of arrest.Not only should the power be restricted, but also shoud be standardized by procedural control. Because the judicial review of the approval of arrest is blocked ,the hearing of approval of arrest must be introduced to strengthen the procedural control. So that the power of approval of arrest can be practised legally and benignly. The hearing of approval of arrest is a process of deciding the approval of arrest by hearing .The judicial democracy require this procedure. And this procedure can perfect the supervisory mechanism to the procuratorate and guarantee the judicial justness. And it also can fulfill the publicity of the profession of the procuratorate and promote the construction of the of the procuratorating system.