Research On Social Risk Review In Arrest

The social risk elements in arrest have undergone great changes in the process of the rule of law in China,from focusing on criminal punishment to focusing on human rights protection.When the Criminal Procedure Law was amended in 2012,legislators refined the social risk conditions of arrest into five specific situations.Since then,the core condition of arrest review has been transformed into social danger.However,legislators have not clearly defined the factors that consider social risks.This makes the standard of social risk conditions in the practical department vague,and whether the actor has social risk cannot be accurately determined.It can only rely on the subjective experience of the case handlers,which in disguise increases the discretion of the practical department and increases the frequency of miscarriages of justice.The cases in practice are complex and diverse,and there are many factors that affect social danger.This paper divides social danger conditions into three aspects :personal danger elements,social danger elements and litigation controllability elements.The three elements are logically related and step by step.First,it is necessary to examine whether the suspect is suspected of committing a crime,that is,whether it is socially harmful.As the most severe coercive measure,arrest determines that its applicable object can only be criminals,so the first thing is to first confirm the identity of the suspect and clarify its social harm.Secondly,it is necessary to review the elements of personal danger.According to the principle of proportionality and the principle of protecting human rights,only when the perpetrator ’s criminal circumstances are bad,the degree of injury to the victim is high,and the degree of subjective malignancy is great,can arrest be applied.Finally,it is also the most core condition of the controllability of litigation.If other compulsory measures such as bail pending trial are not enough to ensure the smooth progress of the criminal proceedings,arrest measures should be taken.Through the analysis of two typical cases,this paper finds that there are still the following problems in the social risk review : First,the personal risk review of criminal suspects and defendants before the crime is not taken seriously.Second,the scope of social harmfulness factors is not clear.Third,the lack of review of litigation controllability factors limits the use of non-custodial coercive measures.Through the study of the above problems,this paper puts forward some suggestions to improve the social risk review in arrest,including :strengthening the review of the personal danger of criminal suspects and defendants before the crime,clarifying the scope of the review of social harmfulness factors,and strengthening the review of the controllability of litigation to make full use of non-custodial coercive measures.