批捕权归属的再思考

我国检察机关拥有批捕权的体制既是长期司法实践的惯性使然，更重要的是这种体制契合检察监督理论体系，是检察机关实现法律监督权的重要方式。但检察机关行使批捕权存在正当性疑问。法院行使批捕权并不会使法院产生预断，也不会影响批捕效率，还可大幅降低高羁押率。因此，我国应建立法院行使批捕权模式。法院行使批捕权，应从批捕机关的设置、批捕审查方式、逮捕证明标准以及救济程序等方面进行建构。

Rethinking the Right to Arrest

The reason of the prosecutors having the right to arrest lies in the long-term judicial practice and, more importantly, that it fits the theory of the prosecution supervision and is an important way of implementing the right of legal supervision. However, there is doubt on the prosecutors’ right to arrest. If the court had right to arrest, the court would not prejudge the cases, nor affect the efficiency of the arrest. Moreover, such model would reduce the high rate of arrest. Therefore, we should establish the system that the courts have the right to arrest. In order to estab-lish such system, we had better to improve the method of examination, the proof standard and the procedure of relief.