China's Review Of The Arrest System Litigation Operation Thinking

Arrest is based on the coercive power of the state,which has the criminal coercive measures to deprive people's personal freedom.As the most severe criminal enforcement measures,the purpose of the arrest is consistent with the purpose of criminal prosecution,namely,control of crime,safeguard litigation and protect human rights.The arrest has two sides,preventing the suspect from recommitting crimes,obstructing litigation,restricting freedom,keeping custody,and seriously violating the rights of the suspect.Extrajudicial arrests are generally dominated by judges,and judicial review is a universally applicable international code of criminal procedure.The review and arrest system is stipulated by the criminal procedure law,and the content relationship examines the procedure,duration,effectiveness and exercise of the right of arrest.The arrest in Chinese legal context corresponds to the pending detention of foreign countries,and the discussion in this paper is also based on the pending detention Angle.The examination and arrest procedure under the legal context of our country is mentioned by the investigation organ,and the procuratorial organ reviews the decision to ensure the smooth operation of criminal proceedings and prevent the occurrence of new social hazards.Review the arrest system of our country lawsuit refers to the procuratorial organs when handling the case review arrested,investigation organ,for one,at the same time to criminal suspects and their defenselawyer as one party,the specification of the judicial case area,the opinions of the parties have been heard,weigh the appeal,on the basis of the approval of arrest or not to approve arrest decision process and the reasons,relatively open way of working,with legal attributes,in line with the two sides against the middle cutting,the basic structure of litigation is a kind of procedural referee on the exercise of power.The investigation of the arrest system has three characteristics: public examination,defense and confrontation.It is always a hot topic in the field of criminal complaint law,which involves respecting the principle of human rights,mutual restriction of power and principle of procedural justice.After the founding of the People's Republic of China,the criminal procedure law of our country has been revised from 1979 to 1996 to 2012,and the review and arrest system has been adjusted in three criminal procedural laws.The subject of the examination of the arrest system is basically unchanged,and the main body is the procuratorial organ,the judicial organ is the part and the main body is the reconnaissance organ.The specific conditions for the review of the arrest system have undergone significant changes.In March 2012,the criminal procedure law increased the interrogation of suspects' procedures,listened to the defense counsel procedure,and detained the necessity review procedure.2015 supreme inspection and the ministry of public security of social risk through clear sign documents investigation organ has the burden of proof,the procuratorial organs have review risk society obligation,this a series of changes makes censorship system of arrest of lawsuit operation has some theoretical basis.The current legislation on the review of the traditional operation mode of the arrest system: first,China's review of the ownership of the right of arrest,the constitution of our country clearly belongs to the people's procuratorate,and the part belongs to the people's court;Second,review arrest system in our country,the mode of examination: review arrest department shall practise a system of specialist review,mainly review case materials as the basic method,with involvement in investigation and review evidence for auxiliary method,at the same time a three-level system of examination and approval;Thirdly,the right of defense in the review of arrest systemis relatively limited.To set up the relief procedures of the investigation organs;Lack of judicial relief procedures for criminal suspects;It has established the improper arrest and timely correction procedure.The current legislation lays the foundation for the prosecution of the prosecution for the investigation of the arrests,but there is no clear provision for censorship and review procedures.The past practice,review the arrest system in our country have been many questions about closed security administration,fail to fight budgeting,written cutting,so the theory put forward the examination system of arrest of v.lawsuit running project.The main performance is to review the arrest operation of the closure and unidirectional;Second,the defense of the opposing sides of the two sides,the lack of equal confrontation of the litigation environment,the review of the arrest procedure reduced to a unilateral written examination by the procuratorial organ,the pursuit of excessive color;The third is that the written decision has resulted in the lack of publicity of the procedure,and the public questioning of the secret trial and artificial manipulation always exists.Comprehensive analysis of the problem: one is the review under the traditional mode of the our country arrest system against litigation participation,2 it is unfavorable to embodies openness and fairness,three of the case is not conducive to effective implementation investigation supervision.Specifically,one is the organization structure and the power operation mode the administrative color is too strong;Internal review of the arrest department lacks the independence to exercise its authority.From the outside,the lack of a neutral third party supervision of the pre-trial procedure,and the two sides have more emphasis on cooperation.2 it is due to the inevitable by the parties and the public security administration the impartiality of the written decision of the question,there is a "structural trap","in the investigation","to capture punishment" and other practical problems,to arrest the function dislocation and alienation,change the nature,from the original procedural safeguard evolved into the back of the substantive punishment.Thirdly,the procuratorial organ lacks the means of discovering channels and rigid supervision.Investigation organ holds the all investigation information,the detriment of the procuratorial organs to obtain information in a passive position,lack of mandatorysupervision measures at the same time,in addition to notice to correct,no rigid the power and the way of sanctions.Analyze the causes behind the problems: one is the legislative value orientation is focus on the pursuit of entity justice,the second is the legislative and judicial interpretation rules are relatively deficient,the third is lack of practical level working mechanism,four is the unreasonable appraisal system of inertia influence,five is the need of investigation secrets.Inspection scope of Anglo-American law system and continental law system,the system of review of arrest in Taiwan area,found that the average is "lawsuit" form,give more censored relief program and rights,most are "perpetual review" situation,set up the procedural sanctions.ACTS is not enough to do,review in our country arrest system of lawsuit run outside experience and respect for the principle of combining practical circumstances,stick to respect and protect human rights and effective crime control principle,strengthening the combination of entity justice and guarantee the justice principle,the combination of prudence principle of tolerance to arrest in combined with proportional use measures.Review arrest complete lawsuit of our country has not feasibility,theory and practice of the litigation structure analysis,the criminal lawsuit of our country is still in the process of constrained function phases flow,function structure,has not yet establish a defendant umpire lawsuit structure;From the perspective of distribution of power,China is not an integration of police inspection.From the perspective of the practice of lawsuit that all cases in the fully review arrest procedures are applicable to the lawsuit,especially suspicious cases,evidence,both in violation of the principle,the investigation of the civil law countries closed also conflicts with the law,face detection secret litigation risk arising from the public.In contrast,China's review of the arrest system partially suits the realistic foundation of the fitness subjects and the specific procedures.Therefore,review the arrest system running lawsuit is a way of judicial case,the "lawsuit" here is limited lawsuit,main is different from the previous closed unidirectional written examination way.Arrested in review system to the operationscheme of lawsuit,first,the review is to "listen" and "public" and used,to listen to,respectively,for general,concentrated review for special,listen to and,respectively,in a large number of unknown to the public opinions in writing,on the basis of gradually establish a open,direct and words of public review mode,build and multi-level judicial way.Secondly,the scope of the applicable cases is in the initial stage of investigation and the need to protect the secrets of investigation;The purpose of operation is to standardize the operation of the program to reduce the challenge to the traditional operation mode.The legal basis is stipulated in the existing criminal procedure law.Specific suspicious cases,combined with the facts,make arrest cases,whether the structure differences of legal knowledge to case,social risk controversial case with a case in violation of the provisions of a guarantor pending trial or residential surveillance,don't open a case involving trial shall be detailed analysis respectively.Third,to participate in the main body,based on the review system of arrest of lawsuit lawsuit trial run is different from the court,is different from the administrative licensing,price and other administrative hearing testimony,is different from not to prosecute the hearing;The analysis suggests that the litigation review should not be open to the public and should not invite news media to report specific cases.But according to a case need to invite representatives of NPC and CPPCC,as an independent third party without interest view audit,according to need can also be the case as an independent third party without interest view audit,to adapt to the JianWu publicly.However,it should be noted that deputies to the people's congress and members of the CPPCC are not the subjects of the case,nor the participants of the hearing,nor the public opinions on the social dangers of the criminal suspects or the specific comments.Can absorb the victim,relatives and friends to participate in,legal representatives,agents AD litem,suspect criminal suspects community residents' committees,community police,and on behalf of the relevant personnel to participate in work units,and to provide reference opinions of the dangers of society.Fourth,the author combines the background of the judicial reform and review the arrest system of lawsuit practice in recent years experience and problems of justice and efficiency as the core,is put forward to build review system of arrest of moderate lawsuit programis running,and from the place to boot,preparation,review,review procedures,examination content,examination decision sequence introduced system.Furthermore,the core element of the litigation review is the relief of results.It not only emphasizes the legality and necessity of pre-censorship detention,but also emphasizes the provision of judicial relief procedures and approaches.In this paper,the review and arrest system of the arrest system is in advance,and the necessity of detention is a relief after the fact,and the two need to be integrated and go their own way.Specific time and conditions for the review of the necessity of detention should be given to the criminal suspects,and three aspects of the strict review of the duration of detention should be strengthened.