How to determine the facts of an arrest and how to review the evidence at the time of arrest

1. How to determine the facts in the review of arrests.

The facts of the crime are the objective basis for sentencing, and without the facts of the crime, the crime cannot be determined, and the premise for sentencing is lost. There is a distinction between the broad sense and the Shaanxi sense of criminal facts, and the criminal facts mentioned here are criminal facts in a broad sense. The facts of a crime in a broad sense refer to the sum total of the various facts and circumstances that objectively exist in connection with the crime.

It includes not only the basic facts of the crime, but also the nature, circumstances and degree of harm to society. Therefore, the facts of the crime that serve as the basis for sentencing include the following four elements:

1. Facts of the crime. It refers to the basic facts and circumstances of the constituent elements of the crime. To ascertain the facts of a crime is to find out who is under the control of what kind of mentality, who has committed harmful acts against what kind of target, what harmful results have been caused, and what kind of legitimate rights and interests have been infringed.

2. The nature of the crime. It refers to the legal nature of the criminal act, that is, the criminal nature of an act that endangers society that has been prescribed by law and confirmed by the adjudication organ, which is manifested in what crime the perpetrator's conduct constitutes and what crime should be convicted.

3. Circumstances of the crime. There are two types of criminal circumstances in criminal law:

One is the circumstances of conviction, that is, the circumstances that affect the nature of the crime, which are necessary elements to constitute a crime; The other is sentencing circumstances, which refer to various factual circumstances other than the basic facts of the crime that affect and explain the degree of harmfulness to the society of the crime.

4. The degree of harm to society. It refers to the extent to which a criminal act causes, or is likely to cause, a damaging outcome to society. Social harmfulness is the most essential characteristic of crime.

The degree of harm to society is an important basis for distinguishing between crime and non-crime, between minor crime and serious crime, and for determining whether and how criminal punishment should be applied to criminals.

The examination of arrest only needs to be generally determined, and if it cannot be generally determined, the arrest will generally not be approved.

1. How to review evidence during arrestReview of evidence during arrest: The review of evidence during arrest should focus on the review of the nature of the evidence, that is, the review of the legality, objectivity, and relevance of the evidence, which is a general requirement, but the focus of the specific types of evidence is different.

1) The review of witness testimony should focus on the basic circumstances of the witness, the relationship between the witness and the criminal suspect or victim, whether there is an interest in the case itself, the relationship between the witness's testimony and other evidence, whether there is any evidence, and the collection of evidence.

2) The review of physical and documentary evidence is primarily to review whether the acquisition of such evidence is lawful and valid, including the channels, time, place, methods, and so forth of its acquisition, whether the evidence itself has been damaged or replaced, and whether it can reflect the objective and true circumstances of the case.

3) Review of evidence in the category of appraisal conclusions. Emphasis should be placed on examining the qualifications of appraisers, as well as whether the methods of appraisal and inspection are scientific, whether the technology and means are advanced, and whether the conclusions are correct.

4) Review of the suspect's confession and the victim's statement. Since they are parties to the case and have a direct stake in the case, their narrative of the case will be more or less mixed with some personal feelings and subjective factors. Therefore, for such evidence, emphasis should be placed on examining whether the narrative is a natural expression of the heart, whether it is logical and reasonable, and whether there are circumstances of extorting confessions by torture or accusing or inducing confessions.

2. What are the conditions for applying arrest.

1) There is evidence to prove the facts of the crime. According to the relevant provisions, having evidence to prove the facts of a crime refers to the following circumstances at the same time:

1. There is evidence to prove that a crime has occurred. The facts of a crime can be either the facts of a single criminal act or the facts of any one of several criminal acts. Criminal suspects who have committed multiple criminal acts or joint crimes may have any of the following circumstances:

There is evidence to prove that one of several crimes has been committed; There is evidence to prove that one of the multiple crimes has been committed; In a joint crime, there is evidence of criminal conduct.

2. There is evidence to prove that the crime was committed by the criminal suspect.

3. Evidence proving that the criminal suspect committed a criminal act has been verified and verified. Arrest is different from conviction in that the standard of arrest is lower than the standard of conviction, and it does not require that all the evidence proving that the criminal suspect committed the criminal act has been verified to be true, but only that the evidence has been verified to be true.

2) A sentence of imprisonment or higher might be imposed. This is a regulation about the severity of the crime. Based on the facts of the crime that have already been proved by evidence, and on the basis of the relevant provisions of the Criminal Law of the People's Republic of China, it is preliminarily determined that the criminal suspect or defendant may be sentenced to a sentence of fixed-term imprisonment or higher, rather than a light sentence such as controlled release, short-term detention, or independent application of a supplementary punishment, or that the punishment may be waived, is the requirements for arrest met.

3) The use of methods such as release on guarantee pending further investigation or residential surveillance is not sufficient to prevent the occurrence of danger to society, but arrest is necessary. Since arrest is the most severe coercive measure, it can only be applied when it is absolutely necessary.

Where it is found necessary to arrest during the review for prosecution phase, arrest may be made immediately. Where the public security organs find that it is necessary to arrest a detained person, they shall request that the people's procuratorate review and approve it within three days of the detention. Under special circumstances, the time for submitting a request for review and approval may be extended by one to four days.

For major suspects who have committed crimes on the go, committed crimes multiple times, or committed crimes in groups, the time period for submitting a request for review and approval may be extended to 30 days. The people's procuratorate shall, within 7 days of receiving the public security organ's request for approval of arrest, make a decision on whether or not to approve the arrest. Where the people's procuratorate does not approve the arrest, the public security organs shall release them immediately after receiving the notice, and promptly notify the people's procuratorate of the execution situation.

Where it is necessary to continue the investigation and the requirements for release on guarantee pending further investigation or residential surveillance are met, they are to be released on guarantee pending further investigation or placed under residential surveillance in accordance with law.

1. Relevant provisions of the Criminal Procedure Law.

Code of Criminal Procedure

Article 85: When public security organs request the arrest of a criminal suspect, they shall write a written request for approval of arrest, and together with the case file materials and evidence, and send it to the people's procuratorate at the same level for review and approval. When necessary, the people's procuratorate may appoint personnel to participate in the public security organs' discussions of major cases.

Article 86: People's procuratorates may interrogate criminal suspects upon review and approval of arrest; In any of the following circumstances, the criminal suspect shall be interrogated:

1) There are doubts about whether the requirements for arrest are met;

2) The criminal suspect requests to make a statement to the procurator in person;

3) There may be major illegal conduct in the investigative activities.

When the people's procuratorate reviews and approves arrest, it may question witnesses and other litigation participants, and hear the opinions of the defense lawyer; Where the defense lawyer makes a request, the defense lawyer's opinions shall be heard.

Article 87: The chief procurator makes a decision on the people's procuratorate's review and approval of the arrest of a criminal suspect. Major cases shall be submitted to the procuratorial committee for discussion and decision.

Article 88: After the people's procuratorate conducts a review of a case submitted by the public security organ for approval of arrest, it shall make a decision to approve or not approve arrest based on the circumstances. The public security organs shall immediately enforce the decision to approve arrest and promptly notify the people's procuratorate of the execution situation. Where arrest is not approved, the people's procuratorate shall explain the reasons, and where it is necessary to supplement the investigation, it shall notify the public security organs at the same time.

Article 89:Where public security organs find that it is necessary to arrest a person who has been detained, they shall request that the people's procuratorate review and approve it within 3 days of the detention. Under special circumstances, the time for submitting a request for review and approval may be extended by one to four days.