Arrest Theory

Author: Sun Qian
Publisher:
Publish Date: 2001-04-01
Features: This book employs the perspectives and methods of dialectical materialism and historical materialism, approaching the subject from the angle of criminal law, to conduct comprehensive rational reflections on the arrest system. Arrest is both the most severe form of criminal coercive measure and an important strategy for preventing and punishing crime in society. Arrests emerged alongside the state and the law, embodying state violence. Since its inception, rulers throughout history have relied on it. In modern society, arrest remains a crucial means of maintaining ruling order and safeguarding human rights. However, it comes at the cost of sacrificing the personal liberty of individuals. If applied incorrectly, arrest constitutes an illegal infringement on an individual's freedom. Thus, arrest is a "double-edged sword." A key characteristic of modern states is their thorough attention to human rights protection. While arrest is not a major issue in legal systems, it is stipulated in the constitutions of every country. This demonstrates the close relationship between arrest and human rights. Through an analysis of the concept, nature, and characteristics of arrest, as well as the dialectical relationships between arrest and crime, arrest and punishment, and arrest and human rights protection, and by exploring the fundamental principles that modern arrest procedures should follow, this book constructs a theoretical framework for the arrest system and elaborates on its essential elements. On this basis, it proposes recommendations for improving China's arrest system in terms of legislation and adjudication.
Excerpt Four: The Purpose and Role of Arrest
(1) The Purpose of Arrest As one of the coercive measures in criminal proceedings, the purpose of arrest aligns with the objectives of criminal proceedings. "The purpose of criminal proceedings is the target expressed in conceptual form that is expected to be achieved through the proceedings, designed by rulers based on their needs and an understanding of the inherent attributes of criminal proceedings and their subjects."2 Some scholars in China argue that the fundamental purpose of criminal proceedings is to maintain the current ruling order of the ruling class, with the direct purpose being to realize the right to punishment and protect human rights. The fundamental purpose constrains and regulates the direct purpose, and its realization depends on the achievement of the direct purpose, which in turn relies on the support of coercive measures.3 So, how should we view the purpose of arrest? In my opinion, the fundamental purpose of arrest is to meet the need for maintaining ruling order, which aligns with the fundamental purpose of criminal proceedings. The direct purpose of arrest is to ensure the correct implementation of criminal law, realize the state's right to punishment, and protect human rights. Regarding the fundamental purpose and role of criminal proceedings, China's Criminal Procedure Law Article 1 provides a comprehensive statement: "To ensure the correct implementation of the criminal law, punish crime, protect the people, safeguard national security and public safety, and maintain the order of socialist society, this law is formulated in accordance with the Constitution." This should also be the fundamental purpose and main role of arrest. Achieving the fundamental purpose of criminal proceedings requires various procedural means and multiple stages, while arrest, due to its own characteristics, occupies a significant position in the entire criminal proceeding process and plays an irreplaceable role.
(2) The Role of Arrest From the perspective of its purpose, the main role of arrest is: preventing suspects or defendants from fleeing, preserving various evidence related to the case; eliminating interference by suspects or defendants in investigative activities, such as collusion or fabricating false evidence; and preventing suspects or defendants from continuing to commit crimes or posing threats to victims or witnesses. Ensuring the timely realization of trials, so that crimes are punished and the innocent are not subjected to criminal prosecution. Determining the facts of the crime is the prerequisite for the correct application of criminal law. After a crime occurs, without investigation and inquiry, and without sufficient evidence, it is impossible to conclude whether it is a crime or an accident, or what type of crime it constitutes and which punishment should be applied. The smooth progress of investigation, inquiry, and evidence collection generally depends on the correct application of coercive measures. Appropriately applying criminal coercive measures according to specific circumstances is a common practice in criminal investigations across countries. For example, France's Criminal Procedure Law states the purpose of arrest as follows: if the temporary detention of a person under investigation is necessary to preserve evidence or traces of objects; or to prevent them from exerting pressure on witnesses or victims; or to prevent them from colluding with accomplices; or to terminate their criminal behavior, prevent them from reoffending, and ensure they accept trial; or