逮捕条件的证明规则——以侦查阶段审查批准逮捕程序为视角

The Proof Rule for Arrest Procedure-from the Perspective of Examination,Approval and Arrest Procedure at the Stage of Investigation

侦查阶段的逮捕环节是一个三方参与的特殊程序。因为审查逮捕时侦查行为尚未终结,所以逮捕环节有着不同于审查起诉阶段和审判阶段的证明规则。逮捕环节的证明对象就是逮捕的三个实体性要件,即事实要件、刑罚要件、社会危险性要件。事实要件和刑罚要件的证明具有紧密的联系,应达到清楚可信的证明标准,侦查机关承担举证责任,在证明方法上属于自由证明;对于社会危险性要件的证明应允许品格证据和倾向性证据的准入,应达到合理根据的证明标准,举证责任由侦查机关承担,在证明方法上也属于自由证明。对于逮捕三要件的证明规则的分别阐述,有利于逮捕制度逐步走向诉讼化格局。

Arrest, as the most severe compulsory measure against a person, its application is in relation to the protection of the human rights enjoyed by criminal suspects and defendants. The arrest during the investigation time is a special procedure involving three parties. Because the investigation of arrest has not yet ended, the arrest has different rules of proof from the prosecution stage and the trial stage. Since the proof at the stage of arrest needs three conditions ： facts, penal provision and danger to public security. The proof of facts and penal provision is closely related, and should reach the standard of clear and credible proof. The investigative organ bears the burden of proof, which belongs to the free proof in the method ; the proof of the social dangerous elements should allow the access of character evidence and inclined evidence, should reach the standard of proof with reasonable basis, the burden of proof should be borne by the investigative organ, and also belongs to the free proof in the method. The separate elaboration of the proof rules of the three elements of arrest will help the arrest system move towards litigation gradually.