逮捕实质条件的理论反思——兼论逮捕实质条件的立法完善

Theoretical Reconsideration about the Substantive Conditions of Arrestment——Up to the Legislative Perfection about the Substantive Conditions of Arrestment

基于无罪推定原则,国家不应该在宣布公民有罪之前羁押公民,但是,由于国家理性的限制,公民对于刑事纠纷的解决具有配合义务。这一义务的承担不是针对任意一个公民。追诉事实的可能性条件的功能就在于将负有特定配合义务的公民与其他一般公民区别开来。同时,诉讼风险决定了国家不能不惜一切代价追诉轻重不同的犯罪,追诉犯罪的严重性条件的功能就是在成本代价和惩罚犯罪的功利追求之间予以平衡。逮捕措施是程序性而非惩罚性措施,诉讼保障的必要性条件就在于准确体现逮捕措施的性质,从而具体实现逮捕措施的节约化。新一轮的立法修改,应该从上述三方面科学设计逮捕制度的实质条件,以实现羁押状态下等候审判是例外的通行原则。

Based on the principle of presumption of innocence, a nation shouldn＇t deter a citizen unless she or he is proved to be guihy. But because of the limit of the country＇s logos, the citizen has the responsibility of cooperating in resolving the criminal lawsuit, and the responsibility is not especially for a citizen at will, the function of fact possibility is to differentiate the citizen who has the responsibility of cooperation from general citizen. Meanwhile, the nation shouldn＇t prosecute a crime at all costs because of the risk of lawsuit, and the function of condition about severity of crime is to achieve the balance between cost and punishment. The arrest is not a punished measure but procedural one, the condition of necessity on lawsuit guarantee is to embody exactly the character of arrestment. Newly amendment on legislation should design the substantive condition of arrestment ace, ording to the above three aspects to achieve the normal principle that custody-for-judgment is exceptional.