逮捕审查制度的中国模式及其改革

逮捕审查制度的中国模式及其改革

Chinese Mode of Examination System of Arrestand Its Reform

    期刊名称：《法学研究》
    期刊年份：
    作者：刘计划
    单位：中国人民大学法学院
    中文关键词：逮捕;人身自由;程序正义;审查逮捕模式
    英文关键词：arrest;personal liberty;due process;examination mode of arrest
    中文摘要：
    “侦查中由人民检察院批准、决定逮捕”，构成逮捕审查制度的中国模式，其理论基础是检察监督理论。定量分析表明，逮捕在我国刑事诉讼中被普遍适用，有违法定逮捕要件，对公正审判与有效辩护造成不利影响；定性分析表明，逮捕被普遍适用的根源在于，享有批准、决定逮捕权的检察机关实为追诉机关，其执行的实体标准、审查程序及“快捕快诉”的追诉性指导思想，挤压了取保候审等羁押替代措施的适用空间。解决逮捕普遍化问题，应依据“互相制约”的宪法原则确立法院审查模式，由法院统一行使逮捕决定权，即在检察机关初次审查的基础上，增加法院审查程序，以制约公安机关、检察机关行使的追诉权，更好地实现保障人权的刑事诉讼目的。
    英文摘要：
    According to the Article 37of the Constitutional Law of PRC, the examination system of criminal arrest with Chinese characteristic, i.e., the People’s Procuratorate approves and decides criminal arrest in the period of investigation and the People’s Court decides criminal arrest in the period of trial, is conformed, whose theoretical foundation is the theory of procuratorate supervision. From 1998, as regards the question who should have the power to decide criminal arrest, there are very hot and concentrated arguments among the communities of criminal law science and procurators. Such arguments are not accidental, but the legal reform problem deriving from China amending the constitutional law and forwarding the procedural justice.Quantitative analysis shows that arrest is applied widely in China, which violates the three constitutive requirements of detention stipulated by the Criminal Procedural Law, and has negative influence on fair trial and effective defense. Qualitative analysis demonstrates that the reason for the general application of detention is the People’s Procuratorate enjoying the approval and decisive power over detention is a prosecutorial organ, and its substantive standard and ideology in prosecution, its intentional control over non-detention rate, and the deviation of detention function push away the applicable space of alternative measures of custody, such as posting a bail and awaiting for trial with stricted liberty of moving. It peels out the natural limitation of the theory of procuratorate supervision as well.In order to solve the problem of the general application of detention in China and guarantee personal freedom in a wide extent, we should establish a system of court examination based on the constitutional principle of “mutual check”, which empower the court to conduct the power of decision over detention, that is, based on the initial examination by the procuratorate, to add an examination process by court so as to check with the investigative power of the procuratorate and the public security organ. The examination of detention by court is just the same as its hearing of public prosecution case. To conduct the uniform power over arrest by court enjoys constitutional and jurisprudential support in China. The reform is scientific, rational, pragmatic and feasible.
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