Judicial Cognizance Of Social Risk During Arrest

Social risk is defined in the Criminal Procedural Law (1996) as the necessity of arrest. How to understand and judge the ’social risk’ during the arrest examination has been a controversial issue in both academia and practice. The arrest examination has three main preconditions:the evidence condition, punishment condition and social risk. Series of clear regulations and proverbial methods to define the former two conditions have been identified through yeas of practice. Only the’social risk’ is still full of discretions in its judgment. And a clear definition of social risk is always ignored in the practice.Judiciary staffs have to evaluate the social risk before they make any decisions on what compulsory measures/procedures to be applied on criminal suspects or defendants. Such social risk evaluation is always based on what the criminal suspects have done and what might happen in the future according to their previous actions. And social risk evaluation consists of several parts:1) possibilities that the criminal suspect or defendant brings about to the society;2) the possibilities the criminal suspect or defendant refuse to fulfill the criminal suit obligations either negatively or positively; and3) the characteristics of provability, complexity, variability and relative certainty.The Criminal Procedure Law Legislation has modified the conditions of the arrest examination for three times. The definition of social risk has also experienced several revisions, from ’social harm’ to ’necessity for arrest’ and finally to’social risk’. Each revision that we mentioned above either represents accumulation of a great deal of judicial practice and also their extraction to a law. It provides applicable legal ground for the investigators from the procuratorial authority to make decisions to arrest.Arrest examination is an essential function of procuratorial authority. The investigation and supervision department of the procuratorial authority made decisions whether take the action of arrest according to the arrest examination, which have to both conducted the punishment of criminations and protected human rights. This thesis analyse in which way to perceive the social risk in practice according to the Criminal Procedure Law and the Widely Rules. It proposes some ideas to further clarify social risk in arrest examination:to relieve the contradiction between to stabilizing mission and accurately application of social risk, to establish review mechanism of risk society, and to refine the investigatory mechanism after custody and arrestment.