Procuratorial Organ Selfinvestigating Case Arrest Authority Upright Row Study Of Reform Institution

Arrest measure has been the most severe one of the five big criminal compulsion measures, it directly points at freedom of the person of the citizens. Hence, caution in exercising the right of arrest and enforcement of the supervision of the right of arrest naturally apply to the review of arresting. To guarantee citizens' rights of the person, avoiding judicial abuse, strict rules for application of the right of arrest are included in our laws. Constitution of the People's Republic of China Article 37 says:" No citizens may be arrested except with the approval or by decision of a people's procuratorate or by decision of a people's court, and arrests must be made by a public security organ. " And Criminal procedure law of the People's Republic of China Chapter I Aim and Basic Principles Article 3 says:" The public security organs shall be responsible for investigation, detention, execution of arrests and preliminary inquiry in criminal cases. The People's Procuratorates shall be responsible for procuratorial work, authorizing approval of arrest, conducting investigation and initiating public prosecution of cases directly accepted by the procuratorial organs. The People's Courts shall be responsible for adjudication. " The right of investigation of ordinary criminal cases and the right of review of arresting are exercised by two different organs to ensure the application of arresting, the most severe compulsion measure through procuratorial organs conducting judicial review of the submission of approval of the arrest from investigation organs to ensure citizens'rights of the person, avoiding absolute judicial power, which is the full incarnation of the check and balance of judicial organs in our Criminal Procedure Law. But with regard to the cases being under investigation in procuratorial organs, for a long time, registration, investigation, arresting, and indictment are conducted by one procuratorate, with the decision of one chief procurator, within one platform of power, leading to over concentration of power and the situation of "arresting taking the place of investigation" in actual exercising, shadowing the relation of supervision and restriction between the right of arrest and the right of investigation, which also results in abuse of the right of arrest, grievously infringing upon criminal suspects' rights of the person, with the rate of arresting in cases registered in procuratorial organs is far higher than in ordinary criminal cases. This situation not only goes against improvement of investigation of procuratorial organs but also against guarantee of criminal suspects' rights of the person, being denounced by our society. And how to supervise supervisors becomes a hot topic in social discussion.In early September of 2009, Supreme People's Procuratorate issued Regulations on Cases Registered in Procuratorial Organs under Province Level Shall be Reported to the People's Procuratorate at the Next Higher Level for Review of Arresting Decision (on trial), saying that all cases registered in procuratorial organs under province level shall be reported to the People's Procuratorate at the next higher level for the review of arresting decision. Opening the reform of " lifting the review of the right of arrest to the next higher level". This is a great reform of judicial arresting procedure. Some people hold that this will be benefit of the enforcement of supervision of investigation of cases registered in procuratorial organs. Some people considers that this will make for avoiding abuse of the right of arrest, being a key breakthrough of guarantee of rights of the person. However there are others who think it is a change in form but not in content, for it can not solve the problem of supervision at root. They propose handing the review of the right of arrest to People's Court. It should be mentioned that this regulation shows its vitality and value in a two-year pilot operation and in a certain degree it solve the problem of over concentration of right of investigation in procuratorial organs, as drawing people's much concern in the long term. And yet there are many left for improvement in exercising for its born procedural shortcomings, based on the innovalitiveness of the regulation by itself. This thesis starts with the relation of supervision and restriction between the right of investigation and the right of arrest, analysing the theoretical basis of " lifting the review of the right of arrest to the next higher level", the problems and the situation in its pilot operation, ending with a proposal of completion of the procedural system of " lifting the review of the right of arrest to the next higher level".