Point of View | How to Relief Victims Refuse Not Arrest
Published:
2024-07-12
This paper combs the relief ways of the victim's non-arrest decision, with a view to realizing the protection of the rights of the victim, so that the relief of the victim's non-arrest decision is legal and orderly.
If the procuratorate makes a decision not to prosecute, the victim may file a complaint with the procuratorate at the next higher level, or directly file a private prosecution with the court at the same level. However, when the procuratorate makes the decision not to approve the arrest, the criminal procedure law of our country lacks clear stipulation for the relief method of the victim who refuses to accept the decision not to arrest, which leads to the victim being despised and forgotten in the procedure of examining and arresting and becoming the bystander of the arrest procedure. When the procuratorate makes the decision not to approve the arrest, the case is shelved for various reasons and delayed for a long time, which often causes secondary injury to the victim, in order to realize the protection of the rights of the victims, so that the relief of the victims who do not accept the decision to arrest can be carried out legally and orderly.
If the 1. makes a decision not to approve the arrest because there are no criminal facts or in accordance with Article 16 of the Criminal Procedure Law, he may file a complaint with the procuratorate that made the decision not to arrest.
Article 8 of the Provisions on the Handling of Criminal Appeals by the People's Procuratorates, the following criminal appeals under the jurisdiction of the people's procuratorates shall be handled in accordance with these provisions:(I) appeal against the decision of the people's Procuratorate not to approve the arrest because the criminal suspect has no criminal facts or conforms to the provisions of Article 16 of the the People's Republic of China Criminal Procedure Law;According to the above provisions, if the procuratorate does not consider it a crime because the circumstances are obviously minor and the harm is not great; if the crime has passed the limitation period for prosecution; if the penalty is exempted by an amnesty order; if the crime is dealt with only after being told in accordance with the criminal law, if the criminal suspect or defendant has not been told or withdrawn; if the criminal suspect or defendant has died as a reason to make a decision not to arrest, the victim may appeal to the prosecutor, the prosecution department shall make a decision to handle the criminal complaint received within seven working days and inform the victim. If it decides to accept the case, it shall make a decision to review and close the case or transfer it to the criminal prosecution department within three months, and inform the victim.
If the 2. makes a decision not to arrest due to unclear facts or insufficient evidence, it may request the procuratorate to request the public security organ to approve the arrest.
According to articles 292 and 288 of the rules of procedure of the people's Procuratorate, if the public security organ should apply for approval of arrest after supplementary investigation, it shall, with the approval of the chief procurator, request the public security organ to apply for approval of arrest. If the public security organ does not request approval of arrest or if the reasons given for not requesting approval of arrest are untenable, the People's Procuratorate may directly make a decision on arrest and send it to the public security organ for execution. And article 289, if the people's procuratorate finds that there is a definite error in the decision to approve the arrest, the people's procuratorate shall revoke the original decision to approve the arrest and serve it to the public security organ for execution. If it is found that there is a definite error in the decision not to approve the arrest and it is necessary to approve the arrest, the People's Procuratorate shall revoke the original decision not to approve the arrest and make a new decision to approve the arrest, which shall be sent to the public security organ for execution. According to the above provisions, if the procuratorate makes a decision not to approve the arrest on the basis of unclear facts and insufficient evidence, and fails to approve the arrest after supplementary investigation by the investigation organ, the victim may request the procuratorate to request the public security organ to approve the arrest or request the people's procuratorate to review the decision not to approve the arrest again.
The 3. requested the public security organ to file a reconsideration or review with the people's procuratorate.
According to Article 92 of my country's Criminal Procedure Law: When the public security organ considers that there is a mistake in the People's Procuratorate's decision not to approve the arrest, it may request reconsideration, but the detained person must be released immediately. If the opinion is not accepted, it may be submitted to the people's procuratorate at the next higher level for review. The people's procuratorate at a higher level shall immediately review the decision and notify the people's procuratorate at a lower level and the public security organ for enforcement. Provisions on the Procedures for the Handling of Criminal Cases by Public Security OrgansArticle 141: If the decision of the people's procuratorate not to approve the arrest is considered to be wrong and needs reconsideration, it shall, within five days after receiving the decision not to approve the arrest, make a request for reconsideration, submit it to the person in charge of the public security organ at or above the county level for approval, and send it to the people's procuratorate at the same level for reconsideration. If the opinion is not accepted and it is considered that a review is needed, a review opinion shall be made within five days after receiving the reconsideration decision of the people's procuratorate, and submitted to the person in charge of the public security organ at or above the county level for approval, together with the reconsideration decision of the people's procuratorate, it shall be submitted to the people's procuratorate at the next higher level for review. Accordingly, the victim who is not satisfied with the procuratorate's decision not to approve the arrest may request the public security organ to file a reconsideration or review with the people's procuratorate.
The relief mechanism of the rights and interests of criminal victims is an important focus of the protection of the rights and interests of victims in the judicial field. The construction of the system can not only reflect the warmth of justice, but also show the concern of the state for the vulnerable groups. Only by unblocking the relief path of victims in each stage of criminal cases and bringing the relief methods of victims into the legal track, can we reduce the disorderly and extreme relief methods of victims and maintain social stability.
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