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by tsuyoshi kanazawa the case of a cyclist being hit and killed is still brewing. according to the latest news on september 3, the driver in question has been arrested by the procuratorate on suspicion of manslaughter. more than half a month ago, an 11-year-old boy was riding with his father and a bicycle team on a two-way road in rongcheng, baoding, hebei. he fell in the opposite lane and was run over by a car.

this incident seemed like a traffic accident, so how did it become a criminal case and the arrest was approved? in addition to the controversy over whether the driver was suspected of manslaughter, the prosecutor's decision to approve the arrest has also become a focus of attention in this case.

legally, arrest is the most severe criminal compulsory measure. if the procuratorate approves the arrest, it means that this is a relatively serious criminal case. after the arrest is approved, the public security organs will continue the investigation until the case is transferred to the procuratorate for review and prosecution.

in the criminal procedure law, in order to safeguard the order of litigation, two compulsory measures, detention and non-detention, are generally adopted for persons suspected of committing crimes. the former is criminal detention and arrest, but the maximum period of criminal detention is 30 days, and detention can only be continued after the arrest is approved by the procuratorate; the latter is bail pending trial. for both, the criminal procedure law stipulates the applicable conditions respectively.

the criminal procedure law stipulates that "if there is evidence of criminal facts and the criminal suspect or defendant may be sentenced to imprisonment or above, he shall be arrested if bail pending trial is not enough to prevent the following social dangers: (1) he may commit new crimes; (2) he poses a real danger of endangering national security, public safety or social order; (3) he may destroy or forge evidence, interfere with the testimony of witnesses or collude with others to give false testimony; (4) he may retaliate against the victim, informant or accuser; (5) he attempts suicide or escapes." the arrest "should take into account the nature and circumstances of the crime suspected of the criminal suspect or defendant, his confession and acceptance of guilt, etc. as factors to determine whether he may be socially dangerous."

the applicable conditions for bail pending trial are one of the following circumstances, namely, "(1) the person may be sentenced to probation, detention or the independent application of additional penalties; (2) the person may be sentenced to fixed-term imprisonment or above, and the taking of bail pending trial will not cause social danger; (3) the person suffers from a serious illness, cannot take care of herself, is pregnant or is breastfeeding her baby, and the taking of bail pending trial will not cause social danger; (4) the detention period has expired, the case has not been concluded, and bail pending trial is necessary."

it can be seen that for those who may be sentenced to fixed-term imprisonment or above, if bail pending trial does not cause social danger, bail pending trial is generally required. the core criterion for bail or arrest is whether there is "social danger". the judgment of this "social danger" mainly examines whether there is a real danger of breaking the law or committing a crime, such as whether new crimes will be committed, whether there is a criminal record, whether the nature of the crime is serious, whether it will retaliate against others, and whether it will hinder the normal progress of criminal proceedings.

in september 2022, the supreme people's court, the supreme people's procuratorate, the ministry of public security and the ministry of national security jointly issued the "regulations on several issues concerning bail pending trial", which clearly requires that "for criminal suspects whose bail pending trial is sufficient to prevent social danger, bail pending trial should be applied in accordance with the law." that is to say, those who meet the conditions for bail pending trial should apply for bail. from the perspective of judicial practice, bail is generally allowed for general negligent crimes and criminal suspects or defendants who may be sentenced to fixed-term imprisonment of not more than three years. for cases with greater controversy, where the suspect has extenuating circumstances and the victim has a certain degree of fault, arrest measures should often be taken more cautiously.

in this case, the charge approved by the procuratorate is negligent homicide, which is a typical negligent crime. combined with the provisions of the criminal law, the procuratorate must believe that the existing evidence can prove that the driver should have foreseen that his behavior might have harmful consequences at the time, but he did not foresee them due to negligence, or he had foreseen them but believed that they could be avoided, which led to such a result. however, due to the accidental occurrence of the case, the child who was run over suddenly fell beside the center line of the road while riding fast. at this time, the victim and his guardian had certain subjective faults. even if the driver failed to brake in time due to negligence (such as distraction while driving) or overconfidence (such as believing that he was a very good driver), resulting in consequences, his behavior may be suspected of negligent homicide, and his degree of fault and subjective malice are relatively minor.

moreover, according to the provisions of the criminal law, negligent homicide shall be punished by imprisonment of not less than three years but not more than seven years; if the circumstances are relatively minor, imprisonment of not more than three years shall be imposed. considering that the victim fell suddenly, the driver took the initiative to call for help after the accident, and the family members also actively negotiated compensation, based on the actual situation of this case, the actual danger of his committing a crime is obviously small, so he should be considered to be evaluated as "relatively minor" and not detained, and there will be no situation that requires arrest under the law.

in short, when an incident becomes a case, how to properly handle it, in addition to studying whether a crime has been established and what crime has been established, what kind of compulsory measures should be taken against the suspect is also the due meaning of judicial justice. arrest often means that the nature of the case is relatively serious. in this case, the arrest of the driver seems to be beyond the cognition of ordinary people and is inevitably questioned.

(the author is a professor of law at tongji university and vice president of the shanghai jiading district law society)