逮捕制度再改革的法释义学解读

Legal Dogmatic Interpretation of the Re-Reform of the Arrest System

在我国,面对逮捕条件难以把握、审查逮捕诉讼化改造难获实质性突破、短期内难以通过修法对逮捕制度进行根本变革的复杂情势,逮捕制度再改革应超越过度依赖立法式刑事司法改革的思维定势,寻求借助法释义学开拓改革空间。通过宪法维度的法释义学分析,实现逮捕由强制措施到基本权干预的转换,这不仅能为逮捕条件的再解释提供理念支持,而且有助于证成审查逮捕诉讼化改造的正当性;运用法释义学思维,可以对逮捕三要件进行阶层化重构,建构以社会危险性为核心的证明对象体系,并重新厘定证明标准。

Faced with such complex situations as the difficulties in grasping conditions of arrest,constraints encountered in litigation reform,and the infeasibility of carrying out fundamental reform of the arrest system through the revision of law in the near future,the re-reform of the arrest system in China should go beyond the traditional thinking mode that depends heavily on legislative reformation and turn to legal dogmatics to expand the reform space.Re-defining arrest as an intervention in civil rights through dogmatic analysis from the constitutional perspective can provide not only theoretical support to the re-interpretation of arrest litigation reform,but also justification for the review of conditions of arrest.In addition,through the application of legal dogmatics,the common theory of“three essential elements of arrest”can be restructured to form a system of objects of proof with social risk as its core,and the standards of proof can be redefined.What’s more,according to legal dogmatics,there is no systematic obstacle to the review of the arrest litigation reform.In a word,legal dogmatics can not only remedy the deficiencies in the legislative-style criminal justice reform,but also promote the diversification and transformation of the research method of criminal procedure law,thereby contributing to the construction of a Criminal Procedure Law interpretation community.