First, the necessary conditions are different.
1. The conditions of detention are: the object of detention is a flagrante delicto or a major suspect; There is a legal emergency.
The above two requirements are met before detention.
2. The conditions for arrest are: there is evidence to prove that there is a criminal fact; May be sentenced to more than fixed-term imprisonment; Taking residential surveillance is not enough to prevent social danger, but arrest is necessary.
The above three conditions must be met at the same time to arrest.
Second, the authority that has the power to decide on detention is not exactly the same as the authority that has the power to approve and decide on arrest. General criminal cases are decided and executed by public security organs. If it is necessary to detain a criminal suspect in a case directly accepted by the people's procuratorate, it shall be decided by the people's procuratorate and executed by the public security organ.
Third, the detention period is different. The detention period of detention is usually 10 days, and the longest is 14 days; The detention period after arrest is the whole legal time limit for handling cases.
According to the provisions of Article 80 of the Criminal Procedure Law, the public security organ may detain an active criminal or a major suspect in any of the following circumstances:
1. Being prepared to commit a crime, committing a crime or being discovered immediately after committing a crime;
2. The victim or a witness on the spot identifies him as a criminal;
3. Found criminal evidence around or at the residence;
4. Attempted suicide, escape or escape after committing a crime;
5. It is possible to destroy, forge evidence or collude with others;
6, do not speak the real name, address, unknown;
7. Suspected of committing crimes on the run, committing crimes many times, and committing crimes in partnership.
The conditions for the people's procuratorate to decide on detention are:
1, attempted suicide, fled or escaped after committing the crime;
2. It is possible to destroy, forge evidence or collude with others.
After the people's procuratorate decides to detain, it shall be executed by the public security organ.
The longest period of criminal detention is 37 days (the time limit for applying for approval of arrest can be extended to 30 days for the main suspects who commit crimes on the run, repeatedly commit crimes or commit crimes in partnership). The procuratorate must make a decision to approve or disapprove the arrest within 7 days.
Arrest procedure:
I. Request and approval of arrest
1. The public security organ requested arrest.
Article 66 of the Criminal Procedure Law stipulates: "When a public security organ requests the arrest of a criminal suspect, it shall write a letter of approval for the arrest; It shall be transferred to the people's procuratorate at the same level for examination and approval together with the case files and evidence.
When necessary, the people's procuratorate may send people to participate in the discussion of major cases by public security organs. "Thus, when the public security organ needs to arrest, it shall report to the people's procuratorate at the same level for approval, and transfer the approval letter, files and evidence.
The name, sex, age, place of origin, occupation, nationality, address, resume, crimes committed and main evidence, the charges identified and the legal basis for the arrest shall be clearly stated when approving the arrest.
When necessary, the people's procuratorate may send people to participate in the discussion of major cases by public security organs. In this way, we can know the case in advance and make some preparations for reviewing the arrest.
2. The people's procuratorate examines and approves the arrest.
If the people's procuratorate requests the public security organ to approve the arrest, it shall be handled by the examination and approval department. The examination and arrest department shall designate case-handling personnel for examination.
After examination, the case-handling personnel put forward examination opinions, and after examination by the person in charge of the examination and arrest department, they shall be submitted to the procurator-general for approval or decision. Major cases shall be discussed and decided by the procuratorial committee.
According to the provisions of Article 68 of the Criminal Procedure Law, the people's procuratorate shall examine the cases submitted by the public security organs for approval of arrest.
According to the situation, two treatments are made respectively: if the conditions for arrest stipulated in Article 60 of the Criminal Procedure Law are met, a decision to approve the arrest shall be made according to law.
And make a decision to approve the arrest, and send it to the public security organ together with the case file, and the public security organ shall immediately implement it and notify the people's procuratorate of the implementation in time;
For those who do not meet the conditions for arrest, make a decision not to approve the arrest, make a decision not to approve the arrest, explain the reasons for not approving the arrest, and send it to the public security organ together with the case file.
If supplementary investigation is needed, the public security organ shall also be notified at the same time. The public security organ shall handle it in accordance with the relevant provisions.
According to the provisions of Articles 103 and 104 of the the Supreme People's Procuratorate Rules, when the people's procuratorate examines the arrest case and finds a criminal suspect who should be arrested but the public security organ has not submitted for approval to arrest, it shall suggest that the public security organ submit for approval to arrest.
The people's procuratorate shall examine and handle the case submitted by the public security organ for approval of arrest within the time limit prescribed by law, that is, if it is detained in criminal detention, it shall make a decision on whether to approve or disapprove the arrest within seven days after receiving the approval letter from the public security organ.
Article 99 of the the Supreme People's Procuratorate Rules stipulates that a person who is not detained shall make a decision on whether to approve the arrest within 15 days after receiving the request for arrest, and the major and complicated cases shall not exceed 20 days.
According to Article 70 of the Criminal Procedure Law, if the public security organ thinks that the people's procuratorate's decision not to approve the arrest is wrong, it may request reconsideration, but it must release the detained person.
The people's procuratorate shall separately designate the case-handling personnel of the examination and arrest department for reconsideration, and notify the public security organ of the reconsideration result.
If the public security organ refuses to accept the reconsideration, it may also apply to the people's procuratorate at the next higher level for review. After the review, the people's procuratorate at the next higher level will make a decision on whether to change it, and notify the people's procuratorate at the lower level and the public security organ to implement it.
The decision of the people's procuratorate at a higher level is final, even if the public security organ or the people's procuratorate at a lower level has different opinions, it must be implemented.
The process of examining and approving arrest is also the process of the people's procuratorate performing the function of investigation and supervision.
Article 76 of the Criminal Procedure Law stipulates: "If the people's procuratorate finds that the investigation activities of the public security organ are illegal in the process of examining and approving the arrest, it shall notify the public security organ to correct it, and the public security organ shall notify the people's procuratorate of the correction."
Second, decided to arrest.
People's procuratorates and people's courts have the right to make arrest decisions on criminal suspects and defendants who meet the statutory conditions for arrest in the process of handling cases.
If the people's procuratorate needs to arrest a criminal suspect when handling a case directly accepted, the investigation department shall fill in an opinion on the arrest of the criminal suspect and send it together with the case file to our hospital for review by the arrest department.
After receiving the opinions on the arrest of a criminal suspect, the examination and arrest department shall put forward opinions within the statutory time limit, and the procurator-general or the procuratorial Committee shall decide whether to arrest or not.
If a decision is made to arrest, a written decision on arrest shall be made, which shall be executed by the public security organ, and the people's procuratorate may assist in the execution when necessary.
If a decision is made not to arrest, a decision shall be made not to arrest, and the criminal suspect in custody shall be released immediately. If it is necessary to continue the investigation, other compulsory measures may be taken.
In the process of handling cases, the people's courts have the right to arrest defendants in private prosecution cases and defendants in public prosecution cases as long as they meet the conditions for arrest and think that they should be arrested.
A written decision on arrest shall be made and submitted to the public security organ for execution.
Three. Special procedures for arrest
According to the Law on Deputies to the National People's Congress and Local People's Congresses at Various Levels, if the arrested criminal suspect or defendant is a deputy to the people's congress at or above the county level, relevant procedures must be handled regardless of whether the arrest is approved or decided.
That is, report to the presidium or standing Committee of the people's congress where NPC deputies are located for approval. If the arrested criminal suspect or defendant is a representative of a township or town people's congress, he shall report to the township or town people's congress.
Four. Execution of arrest
According to Article 59 of the Criminal Procedure Law, the arrest of criminal suspects and defendants, whether approved or decided, shall be carried out by public security organs.
Article 765438 1 of the Criminal Procedure Law stipulates that when arresting a person, the public security organ must produce an arrest warrant. The arrest warrant must be issued by the person in charge of the public security organ at or above the county level. Arrest must be carried out by two or more public security personnel.
When carrying out an arrest, the arrested person must be shown an arrest warrant and the arrest must be announced according to law. Then order the arrested person to sign or seal the arrest warrant.
If the arrested person refuses to sign or seal, the arresting person shall give an explanation. If the arrested person refuses to arrest, the executor may use instruments and weapons when necessary.
If the public security organ fails to execute the arrest or fails to execute the arrest due to the death, escape or other reasons of the arrested person, it shall immediately notify the people's procuratorate that originally approved the arrest or the people's procuratorate or people's court that decided to arrest, so as to take corresponding measures.
Paragraph 2 of Article 7 1 of the Criminal Procedure Law stipulates that if an arrest is made by a public security organ with the approval of a procuratorial organ, the public security organ shall be notified.
Article 72 of the Criminal Procedure Law stipulates that the people's court and the people's procuratorate must interrogate each other about the person who has decided to arrest, and the public security organ must interrogate the person who has been arrested with the approval of the people's procuratorate within 24 hours after arrest.
When it is found that the arrest should not be made, it must be released immediately and a release certificate issued. The criminal act has not occurred or the arrested person does not constitute a crime;
Although there is a criminal act, but the circumstances of the crime are minor, it is impossible to be sentenced to more than fixed-term imprisonment, and criminal responsibility shall not be investigated according to law;
Although the criminal act was committed by the arrested person, it is enough to prevent social harm by taking measures such as bail pending trial and residential surveillance, so there is no need to arrest, and so on.
In addition, Article 73 of the Criminal Procedure Law stipulates that if a people's court, a people's procuratorate or a public security organ finds that compulsory measures taken against a criminal suspect or defendant are improper, they shall promptly cancel or change them.
According to the provisions of the Criminal Procedure Law and relevant judicial interpretations, the arrest should be revoked or changed under the following circumstances: the arrested person suffers from a serious illness; The arrested person is 1 woman who is pregnant and nursing her baby;
The case cannot be settled within the statutory time limit, and it is not harmful to society to take the form of bail pending trial and residential surveillance;
The people's court of first instance sentenced him to public surveillance or probation and applied additional punishment separately, and the judgment has not yet taken legal effect;
During the trial of the appeal case by the people's court of second instance, the defendant has been detained to the sentence sentenced by the people's court of first instance, and so on.
If the above situation needs to be verified or tried, it can be changed to bail pending trial or residential surveillance. If the public security organ cancels or changes the arrest measures, it shall notify the people's procuratorate that originally approved it;
If the people's procuratorate or the people's court decides to arrest, cancel or change, it shall also notify the public security organ for execution.
Article 75 of the Criminal Procedure Law stipulates that criminal suspects, defendants and their legal representatives, close relatives or lawyers entrusted by criminal suspects and defendants have the right to demand that the arrest be lifted if the legal detention period is exceeded.
If the arrested criminal suspect or defendant has the conditions to cancel or change his arrest, the public security organ, the people's procuratorate and the people's court shall cancel or change his arrest in order to effectively safeguard the legitimate rights and interests of the arrested person.
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