以社会危险性审查为核心的逮捕条件重构——基于经验事实的理论反思

Reconstruction of Arrest Conditions at the Core of the Review of Social Risk:Theoretical Reflection Based on the Empirical Facts

逮捕条件的合理化配置是抑制逮捕适用、减少审前羁押的首要环节。我国《刑事诉讼法》针对逮捕条件的立法改革呈现两种思路:一是严格逮捕证据标准,二是细化逮捕必要性要件。但实践效果表明上述改革进路都没有从根本上实现大幅度降低逮捕适用的预期目标。通过比较法考察可以发现,我国逮捕条件改革不能仅仅停留在单个要件的完善,而应当统筹逮捕三要件的功能体系,实现三要件之间"主次关系"的重构。审查逮捕须以社会危险性审查为核心,突出对程序性危险之预防,在此基础上适当提高刑罚要件,科学把握证据要件,才能使逮捕措施彻底独立于刑事追诉,回归到保障诉讼顺利进行、维护刑事程序法秩序的本质定位。

The reasonable configuration of arrest conditions is the initial link of controlling the application of the arrestment and lessening the pretrial detention. The Criminal Procedure Law legislative reform concerning the arrest conditions shows two paths： firstly,setting a high standard of the proof of arrest; secondly,detailing the necessary conditions of the arrest. But the practical effects show that the above path of reform has not realized the expected goal of decreasing the pretrial detention application greatly. It can be found via the comparison between China and foreign countries that the reform of arrest conditions cannot just stay at the place where the single element is improved but planning the three elements of the arrestment as a whole and realizing the reconstruction of ＂the Primary and Secondary Relationships＂of the three elements. The arrest examination should make the review of social risk as the core,highlighting the prevention of the procedural risk. Based on which the penalty conditions should be increased properly with the scientific way of grasping the evidence conditions in order to make the arrest independent of the criminal prosecution. Only in this way,can arrest return to its essential position of guaranteeing the progress of criminal procedure smoothly.