Approved The Arrest Of The Power Should Belong To Who?

Arrest is the most severe compulsory measure, but it is only applied to people who are not convicted. So, the use of arrest is called "pre-justice". Whether arrest is applied properly or not is related to both the carrying on of criminal procedure and the protection of human rights. The jurisdiction of arrest is a procedural jurisdiction. Which agency has the jurisdiction of arrest determines whether arrest is applied properly or not. Different from most of the other countries, the procurator has the jurisdiction of arrest in China. The jurisdiction of arrest is controversial in both practice circle and theoretical circles in China, bearing different academic perspectives. This thesis sets out from the meaning and nature of the jurisdiction of arrest, and analyzes the academic perspectives. After research of the legislation and practice, there is a conclusion that, the jurisdiction of arrest should be attributed to the court in the future, but now it should be maintained to the procurator with more sever power restriction.In addition to the preamble and the conclusion, the paper is divided into four parts, about 30,000 words.PartⅠ: Ontology approval of arrest, including its concept and nature. From the importance of the arrest itself, raises the issue of the right of approving arrests discussion. Approval of arrest has the right configuration to protect the interests of the citizens from willful violations, which sets the tone for the full text. It pointed out that The jurisdiction of arrest is essentially a procedural jurisdiction. Through analysis of its objects applied, operating process and the stage being, jurisdiction of arrest had obvious characteristics of the procedural jurisdiction. Procurator organs, the organ who has the jurisdiction of arrest acts as a judge.PartⅡ:Empirical investigation and theoretical research of the approval of arrest. Empirical Investigation is threat the law and its implementation of the inspection itself as a target. The study shows that there are several major problems in the operation of China's approval of arrest. Firstly, some detainees are not constrained by the approval of arrest restraint. Secondly, the process of the arrest's approval is not in public and criminal suspects can not effectively participate in them; Thirdly, too many arrests are approved and detention is extended too arbitrary, leading to many unnecessary detention; Fourthly, there is the lack of judicial relief after the approval of arrest procedures, thus undermines the protection of the rights of suspects. In the latter part, there is theoretical analysis by angle of power constraints and procedural fairness .The research pointed out that in China's operation of arrests, there is a lack of power constraints and procedural fairness, thus violating the rights of criminal suspects who are reduced to object of litigation.PartⅢ: Relevant academic perspectives. This section describes the four representative views, and analysis them one by one .The first view is from the point of justice, proposed the neutral Court to have the jurisdiction of arrest. Objectively speaking, this vies is a more ideal but less feasibility recently. The second view supports the courts and people's procurators to share the right. Specifically, when the investigation is implemented by the procurator, the court should take charge of the arrest approving, thus to fill the shortage. The third category is that the Jurisdiction of arrest is part of the right to legal supervision, so Jurisdiction of arrest r is still left to the procurator. When the investigation is implemented by the procurator, the superior organ should take charge of the arrest approving, thus to fill the shortage. The fourth category is to maintain the now-using method. Focused on problems that arose in practice, they advised some reforms to enhance the restraint.PartⅣ: View of the author. Ideal state is to attribute the power to the courts who exercises neutrally. The author proved the view from three aspects. Firstly, the procurator's exercising the power is not quite reasonable, leading to defects such as extorting confessions by torture and extended detention. Secondly, power constraints, justice and international responsibilities; urge us to attribute the power to the courts. However, the idea has advocated some suspicions, so the author finally responds to those challenges in detail.PartⅤ: Sound reform measures for current. Attributing the jurisdiction of arrest to the Court is the ideal state, which can enable a more comprehensive and effective protection of the rights of criminal suspects. However, due to current conditions and other reasons, China's reform can not be accomplished in overnight attempt. The idea is to maintain the status quo based on: the existing constitution should be followed; the procurator is sophisticated in the approval, some amendments can be taken to deuce the defects. Finally, against this amendment to the Criminal Procedure Law, the author put forward the sound reform plan. That is to raise the procurator organs level in the cases investigated by procurators. Before the approval of the arrest, the procurators should meet the criminal suspect and give him the chance to participate, the right to sue, thus strengthening constraints to the jurisdiction of arrest...