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Existing Problems and Suggestions in the Processing of Non-approval Arrest Review Cases

Release time: September 06, 2019

The non-approval reconsideration refers to a kind of litigation activity in which the People's Procuratorate re-examines the decision of the court to approve the arrest decision in accordance with the law in accordance with the requirements of the public security organs. The non-approval arrest review refers to a kind of litigation activity in which the people's procuratorate reviews the disapproval arrest decision made by the people's procuratorate at a lower level in order to decide whether to change the disapproval arrest decision at a lower level. 审查逮捕案件质量不断提升,普通刑事案件逮捕率总体呈下降趋势,不捕复议复核案件数量也逐年增加,然而,司法实践中复议复核程序的运行仍然存在诸如程序启动随意、程序走过场、不批捕决定说理性不强等问题。 Since the implementation of the new Criminal Procedure Law , the quality of review and arrest cases has continued to improve , and the arrest rate of ordinary criminal cases has generally declined . The number of non-arrest review and review cases has also increased year by year. However , the operation of review and review procedures in judicial practice still exists. , Procedures go through the field, do not approve the decision to say that the reason is not strong and so on. This article intends to make a few suggestions from the perspective of legal regulations and judicial practice.

I. Legal provisions related to non-approval arrest review review cases

Article 90 of the Criminal Procedure Law: When the public security organ decides that the people's procuratorate does not approve the arrest, it may request reconsideration when it thinks there is an error, but the detained person must be released immediately. If the opinion is not accepted, it may be submitted for review to the people's procuratorate at the next higher level. The people's procuratorate at the higher level should immediately review it, make a decision on whether to change it, and notify the people's procuratorate at the lower level and the public security organ to implement it.

Article 323 of the “Rules of Criminal Procedure of the Procuratorate”: For cases where the public security organs request a reconsideration of the disapproval of arrest, the people's procuratorate shall separately designate a reviewer of the arrest department to review the case, and after receiving the reconsideration letter and case file materials, A decision on whether to change is made within seven days and the public security organ is notified.

Rule 324 of the Criminal Procedure Rules of the Procuratorate: For cases in which the public security organs have requested the people's procuratorate at the next higher level to approve the arrest, the investigation and supervision department of the people's procuratorate at the next higher level should receive the written review opinion and file materials. Within 15 days, the chief procurator or the procuratorial committee shall make a decision on whether or not to change, and notify the people's procuratorate at the lower level and the public security organ to implement. If the original decision needs to be changed, the people's procuratorate that made the decision not to approve the arrest should be notified to revoke the original decision not to approve the arrest and make a separate decision to approve the arrest. When necessary, the people's procuratorate at a higher level may also directly make a decision to approve the arrest and notify the people's procuratorate at a lower level to serve it on the public security organ for execution.

公安机关在补充侦查后又提请复议的,人民检察院应当告知公安机关重新提请批准逮捕。 Rule 325 of the Criminal Procedure Rules of the Procuratorate: If the People's Procuratorate makes a decision not to approve the arrest and notifies the public security organ of a case for additional investigation, and the public security organ requests reconsideration after the additional investigation , the people's procuratorate shall notify the public security organ to resubmit Approval of arrest. 人民检察院不予受理。 If the public security organ insists on reconsideration , the people's procuratorate will not accept it. 按照刑诉规则第三百二十一条的规定办理。 Where a public security organ shall, after supplementary investigation, request approval for arrest without requesting approval , proceed in accordance with Article 321 of the Criminal Procedure Rules.

Article 136 of the "Procedures for the Procedures of Public Security Organs": For a people's procuratorate's decision not to approve an arrest, the public security organ should immediately release the suspect if it has been detained after receiving the disapproval arrest decision and issue it to "Release Certificate "and the execution receipt will be delivered to the People's Procuratorate making a decision not to approve the arrest within three days.

Article 137 of the “Procedures for the Procedures of Public Security Organs”: Article 137 of the People ’s Procuratorate ’s decision not to approve an arrest, and if there is an error that requires reconsideration, a written opinion requesting reconsideration shall be prepared within five days and approved by the person in charge of the public security organ at or above the county level. , To the people's procuratorate at the same level for review. If the opinion is not accepted and a review is deemed necessary, it should be made within five days after receiving the review decision from the People's Procuratorate and submitted for approval by the person in charge of the public security organ at or above the county level, together with the review decision from the People's Procuratorate. The higher level people's procuratorate is requested to review.

Problems Existing in the Processing of Cases Not Approved for Reconsideration and Review

(I) Imperfect and Specific Criminal Legal System

、对检察机关在作出不捕决定后到公安机关提请复议、复核的时间要加以规定,对于时间规定,现行《刑事诉讼法》没有明确规定,只在《公安机关程序规定》第一百三十七条规定:对人民检察院不批准逮捕的决定,认为有错误需要复议的,应当在五日内制作要求复议意见书报经县级以上公安机关负责人批准后,送交同级人民检察院复议。 1. The time required for procuratorial organs to submit a review and review to a public security organ after making a decision not to apprehend shall be stipulated. For the time provision, the current Criminal Procedure Law does not explicitly stipulate it. Article 17 provides that if the People ’s Procuratorate ’s decision not to approve the arrest is deemed to be wrong and needs reconsideration, it shall produce a written request for reconsideration within five days and submit it to the people ’s procuratorate at the same level for review after approval by the person in charge of the public security organ at or above the county level. If the opinion is not accepted and a review is deemed necessary, it should be made within five days after receiving the review decision from the People's Procuratorate and submitted for approval by the person in charge of the public security organ at or above the county level, together with the review decision from the People's Procuratorate. The higher level people's procuratorate is requested to review.

、证据不足不捕案件,对于补充侦查应当在多长时间内完成以及补充侦查的次数,法律并无明文规定。 2. In cases where there is insufficient evidence for non-arrest, the law does not explicitly stipulate how long the supplementary investigation should be completed and the number of supplementary investigations. Although Article 134 of the "Procedures for the Procedures of the Public Security Organs" stipulates that if the People's Procuratorate does not approve the arrest and informs the supplementary investigation, the public security organ shall supplement the investigation in accordance with the People's Procuratorate's Supplementary Investigation Outline. If the public security organ completes the supplementary investigation and believes that the arrest conditions are met, it should resubmit for approval, but it does not make clear how long the supplementary investigation should be completed and the number of supplementary investigations. In judicial practice, because the law does not arrest cases with insufficient evidence and ambiguous supplementary investigation time regulations, case handlers often have greater arbitrariness in handling such cases, resulting in some cases being shelved or lost, or because they cannot be cancelled in a timely manner. The case put the parties in a long-term uncertain social and legal relationship. On the other hand, because there are no clear limits on the number of supplementary investigations, the case is often in an iterative cycle, resulting in a waste of judicial resources.

、《刑事诉讼法》第九十条规定:公安机关对人民检察院不批准逮捕的决定,认为有错误的时候,可以要求复议,如果意见不被接受,可以向上一级人民检察院提请复核。 3. Article 90 of the Criminal Procedure Law stipulates that the public security organ may request a reconsideration of the People ’s Procuratorate ’s decision not to approve the arrest. If the opinion is not accepted, it may submit a review to the People ’s Procuratorate at the next higher level. This is a right granted to the public security organs by the law to restrict the procuratorial organs, and aims to prevent the procuratorial organs from abusing the power of disapproval of arrest and to guarantee judicial fairness. However, as a statutory non-arrest case review and review standard, "considering an error" is too abstract and relies on the subjective judgment of public security organs. It lacks specific and clear objective standards and is easily interpreted at will in judicial practice, resulting in its scope of application being Unlimited expansion. Caused the randomness of the review and review process.

(2) Different law enforcement concepts between public security organs and procuratorates, resulting in different results in handling cases

、近年来,检察机关全面贯彻宽严相济刑事政策,改变传统的“够罪即捕”理念,严格按照高检院、公安部《关于逮捕社会危险性条件若干问题的规定(试行)》要求,从罪行轻重和量刑幅度、社会危险性、有无逮捕必要、是否适合羁押等方面进行综合考量,准确把握逮捕条件,深刻践行“非羁押性诉讼”的精神实质,对于过失犯罪和轻微刑事犯罪当宽则宽,犯罪嫌疑人具备取保候审条件时,在不影响诉讼的前提下,尽可能考虑对其采取非逮捕措施。 1. In recent years, procuratorial organs have comprehensively implemented the criminal policy of leniency and strictness, changed the traditional concept of “catch enough for crimes,” and strictly comply with the requirements of the High Procuratorate and the Ministry of Public Security on Several Issues of Arresting Social Dangerous Conditions (Trial) Comprehensively consider the seriousness of the crime and the range of sentencing, social danger, whether there is a need for arrest, and whether it is suitable for detention, accurately grasp the conditions of arrest, and deeply implement the spiritual essence of "non-custodial litigation". For negligent crimes and minor criminal crimes When leniency is lenient, and criminal suspects are eligible for bail, they should consider taking non-arrest measures as much as possible without affecting the lawsuit. However, public security organs have a broader grasp on the criteria for approving arrests. From the standpoint of severely cracking down on crime, public security organs generally believe that stricter coercive measures can deter the suspect to a certain extent, and as long as there is evidence that the suspect has committed the crime, the arrest should be approved.

、检察机关和公安机关办理案件时在法律适用和相关证据的把握上存在差异。 2. There are differences in the application of law and the grasp of relevant evidence when the procuratorial organs and public security organs handle cases. Especially with regard to the necessity of arrest, different conclusions are often drawn in the same case because of different understandings, which leads to inconsistency in the application of law. For example, in the case of Zhang Moumou suspected of damaging transportation vehicles in our hospital, the objective requirements are sufficient to cause it to overturn and destroy danger, but there is a big difference between the procuratorial organs and public security organs in the judgment of "sufficient". Another example is that fraud and contract fraud require subjective intentional illegal possession. Real life is complicated and economic exchanges are frequent. Therefore, is the subjective intention of illegal possession from the beginning, or is it objectively impossible due to poor management and poor operation? Performance is difficult to judge. On the other hand, the public security organs stand from the standpoint of combating crime. Generally, they believe that arrest should be approved as long as there is evidence to prove that the suspect has committed the crime. The lack of evidence can be approved after the arrest and supplementary investigation. The procuratorial organs pay more attention to reviewing arrests. Whether the evidence in the whole case has three characteristics, that is, the analysis of legality, objectivity, and relevance.

(3) There are still some shortcomings in the reasoning mechanism of procuratorial organs regarding non-arrest cases

、根据《刑事诉讼法》规定,对于不批准逮捕的,人民检察院应当说明理由,但如何说明理由法律并无明文规定。 1. According to the "Criminal Procedure Law", the People's Procuratorate shall explain the reasons for the disapproval of the arrest, but there is no clear stipulation in the law on how to explain the reasons. In judicial practice, procuratorial organs usually reply to public security organs with highly abstract and conclusive statements such as "unclear facts, insufficient evidence", and "no arrest is necessary" in the decision not to approve the arrest. The above-mentioned reasoning of the procuratorial organs is too mechanical, does not really explain the specific reasons for disapproving the arrest, and the communication with the public security organs about whether the case meets the arrest criteria is insufficient. It will be difficult to convince the public security organs of the procuratorial organ's disapproval arrest decision, which will cause unnecessary Review.

、补充侦查提纲内容不够规范。 2. The content of the supplementary investigation outline is not standardized. According to the Criminal Procedure Law, public security organs should be notified of the need for supplementary investigations for disapproval of arrest. In judicial practice, if an arrest is not approved due to unclear facts or insufficient evidence, the procuratorial organ will generally list the matters that need to continue the investigation, and will be transferred to the public security organ together with the disapproval of the arrest decision. The supplementary outline of the investigation has a certain explanation. The role of arrest grounds. However, the contents of the investigation outlined in the supplementary investigation outline are usually too concise, which can neither explain the reasons for not arresting, nor are they conducive to supplementary investigations by the public security organs after the case is not arrested.

几点建议 Three, some suggestions

(I) Further improve the criminal legal system

、对复议、复核申请权作出适当的限制。 1. Make appropriate restrictions on the right to review and review applications. It is necessary to ensure that public security organs exercise their right to review and review applications in accordance with the law, and seriously review and review procedures to avoid abuse of the right to apply.

、对检察机关在作出不捕决定后到公安机关提请复议、复核的时间在《刑事诉讼法》要加以明文规定。 2. After the procuratorial organ makes a decision not to arrest, the time for the public security organ to submit a review and review shall be clearly stipulated in the Criminal Procedure Law. Regarding the time requirements, the current Criminal Procedure Law does not explicitly stipulate, but only in Article 137 of the "Procedures of the Public Security Organs" stipulates that if the People's Procuratorate decides not to approve the arrest, and considers that there is an error and requires reconsideration, it shall Opinions for reconsideration requests made within the day shall be submitted to the people's procuratorate at the same level for reconsideration after being approved by the person in charge of the public security organ at or above the county level. Requests beyond this period will not be accepted in principle.

、对于证据不足不捕案件补充侦查的时间及次数应在《刑事诉讼法》中加以明确规定。 3. The time and number of additional investigations for cases of insufficient arrest without evidence shall be clearly stipulated in the Criminal Procedure Law. The current law does not explicitly stipulate the time and number of supplementary investigations for cases with insufficient evidence and no arrests, resulting in the quality of supplementary investigations by public security organs is not high. It will be in a cycle for a long time, which will inevitably cause unjustified waste of judicial resources. It is recommended to draw on the provisions of Article 171 of the Criminal Procedure Law on the supplementary investigation at the review stage. For cases of supplementary investigation, the supplementary investigation should be completed within one month. Supplementary investigations are limited to secondary inspections.

(2) Improve the communication and feedback mechanism between public security organs and procuratorates, and expand communication channels

、审查逮捕工作中,检察机关与公安机关往往在执法理念上存在不同,公检机关可以采取召开联席会议、定期通报典型案例等形式,增加双方交流执法理念和办案技巧的机会,交流成果可以形成高效的指导方案,为公检机关办理案件提供相对实用的“工具书”。 1. In the review and arrest work, prosecutorial agencies and public security agencies often have different law enforcement concepts. Public inspection agencies can take the form of joint meetings and regular reports of typical cases to increase the opportunity for both parties to exchange law enforcement concepts and case handling skills, and the results can be exchanged. Form an efficient guidance plan to provide a relatively practical "reference book" for the public prosecutors to handle cases.

、公安机关应当根据《刑事诉讼法》的规定,按照接案、立案和侦查的具体情况,科学合理地设置案件质量考核标准,不应当机械的规定不捕案件未经复议或者复核的即给予扣分或其他相应处罚。 2. Public security organs shall set scientifically and reasonably the quality assessment standards of cases in accordance with the provisions of the Criminal Procedure Law, and in accordance with the specific circumstances of receiving, filing, and investigating cases. They shall not be mechanically prescribed. Penalties or other appropriate penalties. Secondly, the public security organs should collect more evidence to prove whether the criminal suspects are necessary for arrest in the investigation and transfer them to the procuratorial organs with the case. The procuratorial organs should listen more to the opinions of the public security organs during the examination of the case, and request timely intervention in the investigation before approving the arrest, and more communication during the review process, and resolve the disputes about the case before the release of the decision not to approve the arrest.

(3) Procuratorial organs should improve the reasoning system for disapproval arrests, and standardize the mechanism for conducting investigations and obtaining evidence

If it considers that “the facts are unclear and the evidence is insufficient”, it should make a standardized supplementary investigation outline, and set out in detail one by one the evidence in the dossier that is lacking and must be retrieved to confirm the facts of the case. Article 6 of the People's Procuratorate's "People's Procuratorate's Review of Quality Standards for Arrest" provides oral or written reasons to the public security organs; if it believes that it "does not constitute a crime", it should be justified and based on the constitution of the crime, the identification of the evidence, and the legal basis. Local analysis and comprehensive elaboration should be based on law and reasoning, so that public security organs can understand the problems in non-arrest cases.

(IV) Procuratorial organs should improve early warning mechanisms for risk assessment of non-arrest cases

On the one hand, for cases where the victim may not accept the no-arrest decision, the case handler should do a good job of risk assessment and early warning in accordance with the law. The "import and export" of the case management department as the procuratorial organ should fully and thoroughly understand the risk information when sending and receiving the case, and provide timely feedback to the case handlers. On the other hand, hotspot sensitive cases that involve the interests of many people, sharp conflicts between the parties, the parties have petitioned or may be petitioned, and social concerns should be assessed for risks when reviewing and reviewing and not approving arrests, preparing precautionary plans, and handling hotspot sensitive cases carefully and properly. Avoid intensifying or inducing new contradictions due to improper enforcement of law enforcement, and ensure that contradictions are prevented and resolved from the source.

作者: 西安铁路运输检察院李航艳编辑:祝长英) (Author: Xi'an Railway Transport Procuratorate Li Hangyan Editor: Zhu Changying)



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