The Study On Hearing Procedure Of Review Arrested

Arrest is one of statutory criminal coercive measures, it can deprive and restrict the liberty of criminal suspects and defendants who meet the conditions for arrest through the legal process. It takes advantage of state power to ensure the smooth progress of criminal proceedings. For a long time, our procedures of review arrested have strong administrative and mysterious features. Decision to arrest or not made by the prosecutors handling the case in accordance with the approval of three levels. Prosecutors only review the written case files submitted by the investigating authorities. Defense lawyer and the suspect can not effectively participate in this process, this form can not show the openness and transparency of the review process. Therefore, construction of hearing procedure of review arrested is the inevitable choice.Hearing procedure of review arrested is able to form a tripartite presence situation that prosecutors decide cases,the investigating authorities, suspects and their defense lawyers issued opinions whether the arrest is necessary. The modify of the review procedure for arrest in 2012 Code of Criminal Procedure make the foundation of the hearing procedure of review arrested. In judicial practice,many parts in our country have tried hearing procedure of review arrested. It is a urgent problem how to unified, scientifically standardized the hearing procedure of review arrested and how to maximize its value. Based on the operating conditions in practice, this paper describes the background and theoretical basis of the hearing procedure of review arrested, analyze its problems and defects, and design the review hearing program.In addition to the introduction and conclusion, this paper encompasses three parts, and about 30,000 words.The first part is the interpretation of the review arrested hearing procedure.From a practical background, our current procedure of review arrested exist some shortcomings, such as one-sided, closed and the lack of right to relief.In this framework that we highlight the administrative approval and weaken the judicial property of powers of arrest, it is highly questioned the legitimacy of the arrest procedure and impartiality of the decision to arrest. The exploration of the hearing procedure can make up for current procedure of review arrested effectively. Procedure participation, procedure openness and protection of human rights provide theoretical support for the construction of the hearing procedure of reviewarrested. we further demonstrate the scientificity and the legitimacy of the review arrested hearing procedure.The second part is the investigation of the review arrested hearing procedure in practice. First of all, this paper briefly introduce the exploration of the hearing procedures of the review arrested in practice. Many local prosecutors are trying to use hearing procedures to review arrests, and because of their work the standardization of the hearing procedures is gradually realized. We look into the Procuratorate in District B of C City, learn the running status and specific process of hearing procedures in this procuratorate. Secondly,we summed up the practical effects of the hearing procedures, such as increasing judicial transparency, promoting openness of the procuratorial work; protecting the right of the defendant to participate in the review, Achieving balance lawsuit; getting comprehensive information about arrests, and contributing to to the fairness of the decision to arrest. Finally, based on operating situation that the procuratorate in District B use hearing procedures of hearing procedure of review arrested, we analyze the problems and difficulties. The ideas, for example "Pay more attention to results while underrate procedure ", "Pay more attention to fighting crime while underrate protection of human rights," still exists. The dominant position of the suspect has not been completely established. The operation method of hearing procedure is imperfect. There are some problems such as the restriction of application, the lack of participants involved in the case, and the defects of setting procedures. There are some other factors that further restricted the widely usage of hearing procedure of review arrested. Whether prosecutors can make a fair judges, whether the defense function is restricted, or the judicial resources are protected.The third part is specific design for the construction of the review hearing procedures. On one hand, we learn from some foreign experience in custody hearings, on the other hand, based on China’s judicial practice, based on the litigation concept including presumption of innocence and Due Process,we try to establish the operation method of hearing procedure that consist of three side “Charge, Defense and Judgment ”.In order to adapt to the gradual reform of review procedures,we determine applicable scope of the hearing procedure. It should cover the cases which the suspect meets the conditions for arrest;the cases which there are clues or evidence that may exist extorting confessions by torture and other illegal activities in the investigation; the cases that are significant, difficult, and complex. We define scientifically hearing participants. Suspects should be mandatory to participate, the other participants’ invitations depend on the particular circumstances. To avoid the disadvantage for the suspects, we reaffirm that the investigating authorities should take responsibility of proof in the hearing procedure. We optimize the hearing procedure that can objectively determined whether the suspects need to be arrested, by prosecution and the defense cross-examination and debating. Objectively determined whether the suspect arrested necessity The cross-examination by the prosecution and defense debate.Giving the suspect the right to refused to accept the arrest decision and to apply for reconsideration, review by relief system. In addition,we prepared a package of measures to promote the further improvement and development of hearing procedure, such as to strengthen the objective obligation of the Prosecutor, to protect the right of lawyers to participate, to perfect the system of interpret laws and describe truth.and to establish a risk assessment mechanism about arrest.