逮捕制度改革的两条道路及其反思——以逮捕功能异化现象为立论基点

The Reflection on Two Modes of Arrest System Reform——Based on Alienated Function of Arrest

在我国司法实践中,逮捕的适用已异化为定罪的前奏,逮捕所引发的未决羁押也已异化为刑罚的预支。对此,目前存在着两种不同的改革思路:一种是否定现状,试求回复逮捕作为强制措施本质的"强制措施化"改革模式;另一种是默认现状,试求对逮捕适用程序进行诉讼化改革,以提升逮捕质量的方式减少其功能异化所造成的危害,即"逮捕诉讼化"的改革模式。前者虽在理论上具有毋庸置疑的正当性,但实践中却面临一系列障碍;后者虽颇受立法与司法实践青睐,但该种理念却以默认逮捕实体化为前提,其理论正当性却面临质疑。

In judicial practice in China, the application of arrest has been alienated as a prelude to conviction, and the custody caused by arrest has also been alienated into a advance of penalty. In this regard, there are currently two different reform ideas：One is to deny current situation, try to restore arrest to coercive measures, which is what arrest have should be. we can call this idea ＂coercive measures＂ model of arrest reform;Another is to recognize Current Situation, try to improve the e ap- plicable procedures of arrest, in order to reduce the harm of functional alienation through improving the quality of arrest. While the former has no doubt of the legitimacy in theory, but they face a series of obstacles in practice. The latter, though popular in legislation and judicial practice, treat materializd arrest as a default phenomenon, so it confront a serious doubt in theory