I recently handled a case and learned that the assessment criteria for reviewing arrest cases have undergone significant changes compared to before. The current assessment standards of the procuratorate stipulate that regardless of the reason, the release on bail, non prosecution, or probation after arrest are all negative evaluation indicators. It is said that the purpose of such regulations is to reduce the arrest rate, but in fact, can it really have this effect? Prosecutors, in order to avoid deduction of points after arrest, will make every effort to avoid bail, non prosecution, or probation, regardless of the actual situation of the case. As with the minor crime case I am currently handling, if I plead guilty and accept punishment before the investigation and arrest, the arrest will definitely not be approved; But admitting guilt and punishment after arrest cannot change the coercive measures. In this way, the arrest rate and actual punishment rate will inevitably increase, and more importantly, it deviates from the original intention of combining arrest and prosecution.


The nightmare of combining arrest and prosecution, which I have been trying to avoid, has arrived as scheduled.


In the early stages of the in-depth demonstration and practice of the integration of arrest and prosecution, the procuratorial organs were concerned that the same prosecutor who arrested and prosecuted would mix up the standards of arrest and prosecution, creating a situation where the standards of arrest were artificially raised and the standards of prosecution were artificially lowered, and the arrest measures would hijack the prosecution behavior. Therefore, they have been emphasizing that the standards of arrest and prosecution are different and have different functions. The two cannot be replaced, mixed, or tied together. But now the procuratorial organs are guiding prosecutors to highly unify their arrest and prosecution behaviors in the form of assessment indicators.

Arrest and prosecution are two completely different prosecutorial functions. Arrest is only a compulsory measure, and its main purpose is to ensure the smooth progress of litigation. It should not be given too many functions and meanings, let alone equating arrest and prosecution. Arrest measures are taken in the early stages of investigation. For some complex cases, the evidence is far from clear and sufficient. The investigation and prosecution process after arrest will undergo many changes, and it is normal for new situations or evidence to arise. Prosecutors are human beings, not gods, and it is impossible for them to accurately predict the investigation results of a case while reviewing arrests. It is only natural to make timely adjustments to compulsory measures in response to new circumstances or evidence in the case.

It is undoubtedly unrealistic to demand that prosecutors bear the responsibility of "prosecution after arrest". For example, some time ago I had a case where the prosecutor arrested all five people in the same case due to the expert opinion provided by the investigative agency. However, during the review and prosecution process, two expert opinions were proven by the defense to be unreliable, resulting in the prosecutor having to take bail pending trial measures after the expiration of the two withdrawal periods. If the subsequent investigative agency still cannot provide a legal and valid appraisal opinion, the case can only be left without prosecution. The significant change in the case makes it legal and reasonable not to prosecute after arrest. But it is undoubtedly unfair for the prosecutor to bear the negative evaluation of not prosecuting five suspects after their arrest.

This assessment standard will only lead to two outcomes: one is that prosecutors are afraid to take arrest measures easily. If the suspect is not detained, there may be various possibilities such as collusion, destruction of evidence, and escape, which may affect the investigation process and even lead to the indulgence of the crime. In this way, the arrest measures did not serve the purpose of ensuring the progress of litigation and lost their inherent function. Secondly, after arrest, it is necessary to file a lawsuit, lower the standard of prosecution, and increase the actual sentencing rate. In order to avoid deduction of points, prosecutors will try their best to ensure that those who are arrested are sentenced to actual punishment. As a result, many suspects who could have been exempted from prosecution or given probation are still detained, and the criminal policy of fewer arrests and more cautious prosecution has become empty talk.

The requirement to file a lawsuit after arrest has made the necessity review of detention a mere decoration. According to the Criminal Procedure Law, even after a suspect is detained, the procuratorate should still review the necessity of detention. If there is no need to continue detention, the procuratorate should recommend release or change the coercive measures. The original intention of establishing the necessity review procedure for detention is to reduce the detention rate. In practice, the necessity of detention procedure is widely applied to minor criminal cases that meet the criteria for release on bail pending trial due to new circumstances and evidence, such as post arrest criminal reconciliation, confession and punishment, etc. But according to the current assessment standards, unless there is a case of innocence, detention and prosecution must continue.

The work philosophy and mode of the two departments are completely different when separating the review of arrests and the review of prosecutions. The review and arrest process only has 7 working days, and excluding weekends, it actually only has 5 days. The prosecutor's consideration is not whether to prosecute, but whether to arrest or not. As long as there are criminal facts and certain evidence to prove that the suspect did it, arrest can be made without requiring sufficient evidence. Although cases of bail, non prosecution, or probation after arrest will also be reviewed and evaluated, as long as there are legitimate reasons, such as the emergence of new evidence, new situations, etc., the quality of the case will not be negatively evaluated. At that time, the assessment criteria for reviewing arrests and reviewing prosecutions were independent, and the assessment content and focus were completely different. The acquittal or non custodial sentence after arrest did not absolutely affect the quality of arrest cases.

There are many ways to reduce the arrest rate, but we cannot ignore objective laws and use the results of post arrest treatment as a one size fits all assessment indicator, which can only go in the opposite direction. Arrest, as a coercive measure, is essentially aimed at safeguarding litigation. If the smooth progress of litigation can be ensured without detention, then detention is completely unnecessary. Although criminal policies have repeatedly advocated for fewer arrests and cautious prosecution, there are no clear and specific operational guidelines, nor are there practical institutional safeguards. Investigators still choose to arrest in situations where arrest is possible or not. After the reform of the judicial responsibility system, prosecutors can independently exercise the power to approve arrests, but the power not to arrest has not been delegated. Before making a decision not to arrest, prosecutors also need to report to their leaders and explain the reasons. The prosecutor, in order to reduce procedures and troubles, as well as to avoid potential moral hazards, simply arrested the suspect. If the principle of not arresting is truly implemented and the prosecution is cautious, a sentence of no more than three years can be stipulated. For cases where the facts are clear, the evidence is sufficient, and the confession and punishment are accepted, the prosecutor can confidently exercise the power of not arresting with the exception of arrest. This is the true implementation of the principle of less arrest and cautious prosecution in the system, rather than just a slogan.

Criminal policies such as "less arrest and cautious prosecution" and "lighter and more lenient punishment" have been the main theme in recent years, with the main purpose of helping suspects return to society to the greatest extent possible. Correspondingly, there are also systems such as criminal reconciliation and confession of guilt and punishment, which eliminate the social harm of crimes through methods such as confession and repentance of suspects, refund of compensation and payment, and obtain light or innocent sentences, thereby returning to the family and integrating into society more quickly. However, the practice of 'prosecution after arrest' inevitably blocks the path of some people's return, such as in cases of minor injury where a criminal settlement was not reached with the victim before arrest, but was reached after arrest. Those who could not have been prosecuted or had their coercive measures changed, but had to continue being detained due to the prosecutor's fear of deducting points from the assessment, which could have resulted in actual punishment in the end.

Judging the correctness of the previous litigation behavior based on the subsequent litigation results is a common assessment method, but this assessment method often considers intervention factors as necessary to determine whether there is a direct causal relationship between the previous litigation behavior and the subsequent litigation results. If the intervening factors substantially affect the formation of the litigation outcome, the responsibility of the previous litigation behavior cannot be simply determined. But now the procuratorate's assessment of arrest behavior does not consider intervention factors at all, simply matching the results with the arrest behavior and directly drawing conclusions on whether the arrest behavior is legitimate or not. This assessment method disregards the lengthy investigation and prosecution process after arrest, ignores new evidence and new situations, and abandons the pursuit of scientific and accurate assessment, as well as the protection of the rights and interests of suspects.

So, the integration of arrest and prosecution involves departments and personnel, not functions. The assessment criteria should still follow objective laws, respect the different characteristics of arrest and prosecution, and the two can only "match in appearance" but "separate in spirit"!