逮捕必要性审查:实践探索与机制完善

A Review of the Necessity of Arrest: Practical Exploration and Mechanism Perfection

逮捕必要性审查机制包括审查模式、审查内容、审查标准、审查阶段4部分内容。刑事诉讼法修改前我国逮捕必要性存在审查模式行政化、追诉化、书面化,审查内容缺少证据支持,审查标准模糊难执行,审查阶段局限于审批时限等一系列问题。羁押比例原则、程序正义理论、宽严相济刑事政策是我国逮捕必要性审查改革的理论根据,实践中各级检察机关的积极探索为逮捕必要性审查改革积累了经验。目前我国宜采取书面审查加讯问被追诉人为原则、听证式审查为例外的模式,实现社会危险性判断内容的类型化,根据相对逮捕标准的规定建立逮捕必要性评估模型,实现逮捕必要性审查与捕后羁押必要性审查的有机结合。

The review mechanism of the necessity of arrest includes modes, contents, standards and stages. Before the amendment of the Criminal Procedure Law, there were a series of issues with regard to the necessity of arrest, such as the review modes being administrative, review contents being lack of evidence support, review standards being vague and hard to be carried out. review stage being confined to time limit, etc. Custody pruportion principle, procedure just theory and the criminal policy of temper justice with mercy constitute the theoretical bases of the reform on the review of arrest necessity, and the active explorations by procuratorial organs at all levels have accumulated rich experience for the reform. At present, it is appropriate for us to adopt the mode which adheres to the principle of combining a written review with interrogating the accused, and taking hearing-type review. as exception. It＇s also necessary to classify the types of social danger, establish the mode of necessity evaluation in accordance with stipulations on arrest standards, and organically integrate the review of the neeessity of arrest with the necessity of custody after arrest.