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Zhang Luchun，bet365 app2021 master’s degree student，Law (Law)。
Abstract:In the context of optimizing the business environment，The emergence of the criminal justice policy of "Arrest less, be careful with prosecution, be careful with detention" has undoubtedly promoted the construction of a legal business environment。The issue of decustodialization of persons in charge of enterprises involved in crimes arises from the policy of “arrest less, be careful in prosecution, be careful in detention”。Strictly review the elements of arrest，Reducing arrests from the source is undoubtedly one of the effective and ideal ways to solve this problem。When reviewing the elements of arrest，The key is to grasp the social risk factors of the perpetrator。
Keywords:Scientific assessment of social risks required for non-custodial arrest
1. Raising the question
February 27, 2020，Deputy Prosecutor General of the Supreme People’s Procuratorate Chen Guoqing said at the press conference of the Joint Prevention and Control Mechanism of the State Council，"While handling cases involving enterprises，Surrender yourself、Meritorious performance，Actively confess and repent，Operators who are not too harmful to society，Generally, custodial compulsory measures are not taken according to law”。It can be seen from this，There is a policy basis for de-custodializing the responsible persons of enterprises involved in crimes。We should also pay attention to the high dependence of enterprises on the leaders of private enterprises，The development of an enterprise cannot be separated from the leading role of the person in charge of the enterprise，If the person in charge of the company is involved in a criminal case，The development of enterprises will be seriously affected，For example, the case of Zhuzhou “Prince Milk” Group。Therefore，It is necessary to detain the persons in charge of the enterprises involved in the crime。The author believes that the first step in solving this problem is how to apply arrest correctly？Therefore, this article will focus on analyzing the elements of arrest，Reducing the detention rate of corporate leaders involved in crimes from the "entry" by clarifying the elements of arrest，Through careful assessment of the social danger of the person in charge of the enterprise involved，Achieve non-custodialization as much as possible。What needs to be noted here is，The person in charge of the enterprise involved in the crime mentioned in this article only refers to the person suspected of a misdemeanor and has subjectively admitted guilt、Willingness to repent，People who objectively take active measures to recover losses and have little social harm。
2. Logical relationship between the elements of arrest
The application of arrest is closely related to the logical relationship of the three elements of arrest。About the logical relationship of the three elements，In judicial practice, this is generally treated as a parallel relationship，Do not pay attention to the order of review，Review the three elements together，Thus leading to overemphasis on evidence、Penalty Requirements，Ignoring social risk requirements。However, most opinions in the theoretical circles believe that the three elements are a progressive relationship rather than a parallel relationship，In response to this assertion，Some scholars hold the same view，Proposed by Sun Qian，Evidence requirements、Penal elements are basic elements，Social risk requirement is the core requirement。The author also agrees with the view that the three requirements for arrest are logically progressive。First，Evidence requirements are basic requirements，Evidence requirements are common to all coercive measures，Special requirements for non-arrest，Therefore we cannot use the evidentiary requirements to demonstrate that arrest is necessary，So the evidence requirements are not the key factor for us to reduce the applicability of arrest。Secondly，Although the penalty requirements are basic requirements，But its main function is filtering，Those who do not meet the criminal penalty requirements will Bet365 lotto reviewnot be judged for social danger。Because the penalty requirements of arrest are unique to arrest，Appropriate changes in the penalty requirements for arrest can reduce the detention rate to a certain extent，Reduce the workload of judicial staff in judging the social danger of perpetrators，So the elements of punishment are the elements to be considered in this article。Last，Although the "High Procuratorate Rules" (hereinafter referred to as the "Rules") provide detailed provisions on the social danger of arrest，Enhanced operability，However, due to the limitations of the law, the detailed regulations are still vague，It’s still quite difficult to operate。It is precisely because of the ambiguity of social danger，Correctly judging the social risk can greatly reduce the need for arrest and achieve the de-custody of the person in charge of the involved enterprise。Therefore，The social danger factor should be the core of the review of arrest。At the same time, social risk factors will also become the focus of this article。Anyway，The logic of judging the overall requirements for arrest is to first review the evidence requirements，Then review the penalty elements，Final review of social risk requirements。
3. Basic requirements for review and arrest
The requirements for arrest stipulated by the law include three situations: First, the evidence requirements - evidence to prove the facts of the crime；The second is the penalty element—possible sentence of imprisonment or more；The third requirement is social risk - being released on bail pending trial is not enough to prevent social risk。In this part, let’s first talk about the evidence requirements and penalty requirements，In the fifth part, the social risk elements will be discussed in detail。
(1) Evidence requirements
As mentioned before，Adjustments to the Evidence Requirements in the 1996 Criminal Procedure Law，Greatly facilitates the application of arrests by investigation agencies。2019 "Rules"，The following circumstances are stipulated for the evidence requirements，First, a crime has occurred；Second, there is a causal relationship between the perpetrator and the occurrence of the crime；Third, the evidence proving the causal relationship is verified to be true。Based on data analysis before and after the modification of evidence requirements，There is little room for discovery that the evidentiary requirement can play a role in reducing arrests，So the author has reason to believe that the evidence requirements should not be the core link in reviewing the constituent requirements for arrest。
(2) Requirements of Penalty
Based on existing laws，The penalty requirements refer to imprisonment or above，However, those with a fixed-term imprisonment of ten years or more will be arrested directly without conducting a social risk review，Some scholars call it “indiscriminate arrest”。Comparing the arrest system outside the territory can be found，Our country’s arrest system is different from those outside the country，Our country’s arrest system is more similar to the pretrial detention system outside the country。But in view of the fact that arrest has to return to the value positioning of ensuring the smooth progress of litigation，Therefore，We need to learn from foreign practices on this issue。
In view of the elements of punishment，Countries outside the region have higher standards than our country。For example，The penalty conditions for "prior detention" in the French Criminal Procedure Law are "the person under investigation shall be punished with a felony penalty or the person under investigation shall be punished with a misdemeanor penalty of 3 years or more of imprisonment"。Most of the crimes stipulated in the current criminal laws of our country，The penalties are all above fixed-term imprisonment。So the existing penalty requirements are useful for filtering arrest cases、Reducing the detention rate has little effect，So we can learn from practices outside the region，Adjust the penalty conditions。Some scholars have proposed that the elements of punishment should be divided into three years as a limit，Arrest is applicable to those with fixed-term imprisonment of more than three years，A prison sentence of less than three years is not applicable to arrest。The author thinks，Divide based on three years，The rationality remains to be discussed。According to the "Notice on Issuing Typical Cases (First Batch) bet365 casino live blackjackof the Procuratorate's Implementation of the Criminal Justice Policy of Less Arrest, Caution in Prosecution and Caution in Detention" issued by the Supreme People's Procuratorate, Case 2 - Xu's Intentional Injury Case，The procuratorate approved the arrest of Xu，The sentencing recommendation proposed when the prosecution was filed was to be sentenced to one year and eight months in prison，But this sentencing recommendation is based on Xu’s obvious subjective fault、Heinous crime、Not guilty or repentant。Based on the above analysis，Penal elements must be analyzed before social danger elements，From this we can find that if we adopt the three-year standard，Xu has been arrested because he does not meet the criminal requirements，It follows that the three-year standard is inappropriate。The author thinks，The elements of punishment should be adjusted，But the standards need to be carefully considered。
4. Core Requirements for Review of Arrest
A good judgment of the social risk requirements can effectively reduce the application of arrests，Reduce detention rate，And achieve non-custodialization to a certain extent，Therefore，For social risk requirements，The author thinks it should be clarified from two ways，One is，Further clarify social dangers through the interpretation of legal norms (theoretical level)；The second is，Help judicial authorities better examine the social dangers of perpetrators through scientific assessment mechanisms (practical level)。
(1) Theoretical level-refining the "Rules"
The "Rules" further refines the five situations stipulated in the "Criminal Procedure Law" with 8 articles，But because of legal limitations，This provision still has the problem of unclear word meaning，For example，How to identify “important evidence”？How to define the time range of "once"？Can we use the criminal law’s criteria for “starting”?？
For "Important Evidence"，There are currently two views，One view is that important evidence refers to evidence related to conviction and sentencing；Another view is that important evidence is not limited to evidence for conviction and sentencing，Can be expanded to leads。The author thinks，Since the "Rules" use "important" as a qualifier before evidence, the standard of evidence must be raised when reviewing arrests，That is, this kind of evidence should be understood as evidence related to conviction and sentencing rather than just a clue，Clues are not as real as evidence，If important evidence includes clues，Easily used as a tool for arrest。The author thinks，To achieve non-custodialization，It is appropriate that important evidence does not include clues to the case。
For "once"，The author thinks，Arrest has the function of punishing crimes，It also assumes the function of protecting human rights，There is often a conflict between punishing crimes and protecting human rights。Based on the purpose of punishing crimes，The "ever" here should include the time during criminal proceedings；Based on the purpose of protecting human rights，The "once" here should refer to before this case。The author thinks，Although the most important function of arrest is to ensure the smooth progress of criminal proceedings，But，The conduct listed in the Rules still exists in criminal proceedings，The social danger of the perpetrator is much higher than the social danger of engaging in the behavior before the criminal proceedings，Therefore，The scope of "ever" here cannot be limited to the time before criminal proceedings，Instead should include the period during which criminal proceedings are ongoing。
For "get started"，About "start" standards，The "start" stipulated in the criminal law is a subjective and objective concept，Requires objective behavior，Subjectively intentional，It is generally believed that the act of taking action means the intention to take action。So what is "starting" in criminal law judgment，The key is looking at hand behavior。Therefore，The mainstream view of criminal law，When the behavior causes reality to legal interests、Urgent、When there is immediate danger, it is considered to be "action"。The author believes that the "Rules" stipulates "prepare to commit suicide..."，Considering the reality，When the perpetrator’s behavior creates a reality for legal interests、Urgent、When it comes to direct bet365 Play online gamesdanger, the social risk can be said to be quite high，It is too late to adopt this standard。The author believes that the minority theory-subjective theory can be adopted，That is, start when the criminal intent is shown，Suicide、Self-injury usually occurs suddenly，So there is almost no time to judge in practice，So the judgment of "start" here refers to escape，That is, as long as the intention to escape is shown, he should be considered a social danger and arrested。
(2) Practical level - scientific evaluation mechanism
The above analysis is only based on the legal and normative level，Some scholars believe that in practice, the social risk assessment of the perpetrator does not include Wuye、Taking into account the population in other places，For this point of view，The author believes that the law cannot be all-encompassing，It is impossible to take all factors into account，Only the more prominent factors can be used as the inspection content of social risks。Since the subject of this article is the person in charge of the enterprise involved，In order for the company to run smoothly, we have to consider the particularity of its identity。Tong Jianming pointed out，The social risk assessment of the person in charge of the enterprise involved in the crime should focus on the guilty plea and punishment、Actively resume work and production、Carry out production self-rescue、Strive to maintain employment as an important consideration in review judgment。So in this section，The author will first introduce the two more scientific evaluation mechanisms at present，Then the above factors can be included to make a scientific assessment of the social risk of the person in charge of the criminal enterprise。
Proof of danger to society，Most developed countries adopt comprehensive assessment、Third-party assessment methods to obtain evidence of social danger。For example, in the judicial review system of pretrial detention in the United States，Pretrial service agency is objective、Neutrally collect background information on the defendant，Provide an accurate risk assessment report and a recommendation on whether to release。Currently，There are two more scientific social assessment methods:
1. "Social Risk Quantitative Assessment Form"
At present, some local procuratorates in my country have begun to adopt scientific assessment methods for the social dangers of perpetrators。For example: Jinniu District People’s Procuratorate and Public SecurityThe agencies jointly developed the "Guidelines for Collection of Evidence of Social Risks" and the "Evidence Form of Social Risks"，Performance after crime、Conditions for non-custodial coercive measures、Victim factors and other assessment dimensions，Set multiple scoring criteria，Calculate the quantitative assessment score of the actor’s social risk，As a reference for whether to approve the arrest。
2. Arrest social risk quantitative assessment model
Proof of danger to society，Most developed countries adopt comprehensive assessment、Third-party assessment methods to obtain evidence of social danger。For example, in the judicial review system of pretrial detention in the United States，Pretrial service agency is objective、Neutrally collect background information on the defendant，Provide an accurate risk assessment report and a recommendation on whether to release，So some scholars proposed passing itAlgorithm quantitatively assesses social risk。The social risk assessment model of arrest is in the preliminary development stage in our country，But there are already relatively mature risk assessment systems abroad，For example, the U.S. Federal Pretrial Risk Assessment Tool (PTRA)、UK Hazard Risk Assessment Tool (HART)。It can be found based on the current evaluation model，The quantitative assessment model of the social risk of arrest mainly predicts the social risk of the perpetrator by analyzing the factors that affect the behavioral characteristics of the perpetrator。
Traditionally, the assessment of the social danger of an actor is made by judicial staff based on laws, regulations and relevant case-handling experience，The resulting problem is that subjective factors affect the objectivity of the evaluation results。The subsequent arrest social risk assessment system will use data to ensure the objectivity of the assessment results，However, due to the subjective factors inherent in the previous ruling，As a result, the data is not objective enough and cannot effectively reflect the social dangerous situation of the perpetrator。Therefore，The common practice outside the country at this stage is to use data analysis as the core when constructing a quantitative assessment model of social risks，Supplemented by the experience of judicial staff，A combination of the two to jointly analyze the social danger of the perpetrator。At this stage, my country’s social risk quantitative assessment bet365 casino live blackjackmodel is in a period of transformation，The evaluation system is gradually reducing subjective evaluation indicators，Change to using indicators that are as objective as possible，The objectivity of evaluation results is also gradually strengthening。
5. Conclusion
Strict review of arrest conditions requires both detailed regulations from the legal and regulatory level and keeping up with the trend of the times，Combined with modern scientific and technological means to quickly、Handle the case accurately。Clearly clarifying the elements of arrest can reduce the arrest rate from the source，Let the person in charge of the guilty company return to the company as soon as possible，Avoid “finishing a case，The emergence of the problem of "ruining a business"。Assessment of social risks，We should actively seek to be more scientific、Accurate evaluation mechanism，Apply it to judicial practice，Assist judicial staff in making relatively objective judgments。The author thinks，Through the discussion on how to grasp the elements of arrest, especially how to assess the social danger，Can be helpful in reviewing arrests in judicial practice，It is possible to achieve the de-custody of the persons in charge of the companies involved in the crime to a certain extent。
References
[1]Dai Jia: "The leniency system for guilty plea and punishment should be applied as much as possible in handling enterprise-related cases"，Published in "Procuratorial Daily" February 27, 2020。
[2]Liu Jihua: "Re-examination of the Reform of my country's Arrest System"，Published in "Chinese Legal Science" Issue 5, 2019，Page 139-139。
[3]Sun Qian、Bian Jianlin、Criminal Procedure Laws of Countries Around the World· edited by Chen Weidong;Europe Volume》(Part 1)，China Procuratorate Press 2016 Edition，Page 593。
[4] Yang Yi: "Reconstruction of arrest conditions with social dangerousness review as the core - theoretical reflection based on empirical facts"，Published in "Comparative Law Research" Issue 3, 2018，Page 141。
[5] "Typical Cases of Procuratorates Implementing the Criminal Justice Policy of Fewer Arrests, Less Prosecutions, Less Detentions (First Batch)"，Published in "Procuratorate Daily" December 6, 2021，Version 2。
[6] Shi Limei: "Legal Hermeneutics Analysis of Necessary Conditions for Arrest"，Published in "Law Journal"，2019 Issue 3，Page 69。
[7] Tong Jianming: "Fully perform procuratorial duties and strive to create a good legal environment for enterprise development"，September 22, 2020，Version 3。
[8]Zhao Rongchang、Ren Hong: "The pretrial detention rate of cases dropped by more than 20%"，Published in "Sichuan Daily" July 23, 2021，Version 8。
[9] Lan Xiangdong: "The United States' pretrial detention necessity review system and its reference"，Published in "Law Journal" Issue 2, 2015，Page 104
[10] Qualcomm: "Research on the Quantitative Assessment of the Social Danger of Arrest - From the Perspective of Automated Decision-making and Algorithmic Regulation"，Published in "Northern Law" Issue 6, 2021，Page 134。
This article is a selection of outstanding articles in the first issue of "Fayuan Argument" essay competition，Due to space limitation，Comments omitted，Presented as reference，Please see [Attachment] for the original text。The content of the article represents only the author’s personal opinion，For readers to read and review。
Text/Zhang Luchun
Proofreading/Yang Zhen
