Bail System Study

The problem whether the prosecuted can be released on bail is a major object of the criminal pretrial study, and the study of this problem embodies the civilization of criminal procedure. In this article, the author makes detail explanation and analysis on the content and principles of the bail system in China and abroad, in order to construct a more rational bail system and to advance China's criminal procedure law to a world level.This article is composed of tow parts, the introduction and four charts. The introduction deals with a basic question, why should we study the bail problem? The answer is to satisfy the need from both theoretical and practical area. The absence or vagueness of the theory on pretrial release, leads to the distortion of pretrial process. In judicial practice, the endless illegal phenomenon such as torture and extended detainment, repeatedly remind us that it is necessary to build a set of long-term correcting and preventing system, which can implement the pretrial process in micro view. Our study follows the current study pattern, which divided the study object into four parts: originality, noumenon (things-in-itself), value and function. Although these four parts are separated from each other, they have somewhat internal connection, that is, they all follow the mainline of limiting the power of government and expanding the right of individual citizen. We try to find a way of "main body vs. power or right to study the function rule of power or right, and to modify the design of pretrial process from this point of view.Chart 1 mainly deals with the originality and development of bail system. Through a highly condensation of the history of bail system, the author tries to conclude the basic threads and environment of the origination and development of bail system. The author initiates his analysis from the bail system of the old Roman type, mainly on the difference between modern bail system and old Roman bail system. Then from the point of history and nation, he concludes that: 1, modern bail system originated in Britain, and experienced the process of "power to right", which developed with the victory of bourgeois revolution and advanced to a higher level during the after-revolution period. The most remarkable achievement is 1976 bail reform law, which makes the guiding principle the rule that one should be released on bail, except he is in such a situation that he has to be detained under the law. 2, As the British expanded their colony in North America, bail system began to root in America, and experienced fully development, which gave rise to a new system called professional bail system. After Manhattanbail planning reformation, bail system in America gradually became mature, and lead to the confirmation of over costly bail prohibition rule. Meanwhile, the combination of bail system with the rules of dual process, gave much procedural protection from the covert detainment. 3, The successful practice of bail system in Britain and America, makes it spread to other case law countries or areas, and even to continent law countries. After the World War II, with the spreading of democracy ideology, bail system was recognized by international human right laws and received full development, which was marked by the reorganization by international convention on human right and political right as well as other international convention. 4, In 1980s, facing the increasingly rampant crime, case law countries began to make some limitation of bail right. In America, this trend was shown in the way of making the protective detaining statute. American courts preferred to apply the statue, and interpreted it as a constitutional statute. In British, the measures are: (1) giving policemen the power of adding certain requirements to the bail of the prosecuted; (2) extending the power of the general prosecutor. One is to extend the general prosecutor's power of denying the bail of the prosecuted who is probably to be sentenced to imprisonment. And the other is to give the prosecutor right of appeal against the bail of the potential prisoner; (3) limiting the court's discretion in denying the bail of the prosecuted who is probably to be sentenced to imprisonment. By reviewing the origination and development of bail system, we can find that: 1, Bail system does not originate from the enthusiasm for the abstract concept of free right, but from an old power system. In social practice, it gradually becomes a right of the prosecuted, only to satisfy the need from the evolution of judicial system; 2, No matter in British, or America, the development of bail system cannot be separated from that of the constitutional government. This fact could be found in many statues, such as Britain's 1689 general charter, 1679 physical protection statue and 1689 right act passed by British parliament, and even America's eighth amendment in 1789. 3, It should be accepted as a general rule that the prosecuted is free to be released on bail before trial, with the exception when the protection of social order against a second destruction as well as the physical protection of the prosecuted himself become necessary. The internal rationality of this general rule makes it spread from case law countries to continent law countries, and take a position in the forum of international law. Finally, the rule becomes a general rule guiding the criminal legislation in many countries.Chart II mainly deals with the basic content of bail system. Firstly, the author compares the connotation of bail in case law and continent law. Different culture of law leads to different interpretation of bail, which results in great divergence in the bail system of different countries. In case law countries, bail is practically regarded as a right of the prosecuted. While in continent law countries, bail is interpreted as a government power, or a coercive measure. In this instance, bail is only a measure applied when the detainment is not necessary and suspended. Then the conceptual divergence finally leads to the fact that these two kinds of countries apply designs on their concrete arrangement of bail system. Secondly, the author concludes the basic characters of modern bail system: 1, Bail is a kind of right. Through the analysis on the origination and development of bail system, we can see that bail should be a right given to the suspect and the prosecuted, though it is not a privilege. 2, Bail is a kind of release. If we say the function of detainment is to give certain limitations on the personal freedom of the prosecuted, then the function of bail should have been to recover his personal freedom. The prerequisite of bail is that the prosecuted should be released from the place where he is detained. As long as there are any limitations on the personal freedom of the prosecuted, no matter what the purpose is, he should not be considered be released on bail. 3, Bail is a kind of promise. If we say that bail is a kind of release, the first requirement of such release should be that the bailee must make his promise. In most countries, such kind of promise always goes with certain amount of money, and in some countries, it even requires guarantor; 4, Bail is a procedure. Modern bail system is not only a reflection of substantial right, but also a complete procedure. Thirdly, the author classifies the content of bail system into four categories, that is, right bail, discretional bail, bail without additional requirement, and bail with certain requirement. Then he states and interprets the relative provisions in main western countries. Fourthly, on the base of the content referred to above, the author carries out the discussion on the bail rules and guarantor rules. The bail rules mainly include the rule of payment and administration as well as return of the bail, rule of fixing the bail amount, and the rule of exceedingly high bail forbidden, as well as the rule of the bail form. The guarantor rules include the rule of common guarantor and the rule of professional guarantor. If the amount of bail fixed by the court far exceeds the rational and necessary amount that is enough to ensure the prosecuted to receive trial, the amount of bail should be considered "exceedingly high". The author mainly put his emphasis on thefunction of the professional guarantor rules in America. And he also introduces the origination and development of the Rule of Tailor, and then gives his own opinion on the critics and limitation on it. Fifthly, in order to make our knowledge more thorough, the author interprets the relative provisions for the bail system in each country, from the point of procedure, that is, divides the bail process into four stages, which are applying for bail, hearing, making decision and providing resume. Sixth, on the base of analysis on above content, the author briefly analyses punishment provided by each country's bail system in three aspects: the punishment for not arriving the court on time, the punishment for not obeying other requirements of bail, and the punishment for new crime committed during bail period.Whether the. existence of bail system is of rationality, is an important theoretical problem, which directly affects another problem that whether the bail system should be applied, and how it should be designed. After bail system, under which the prosecuted who have already been arrested could be released before trial, is spread from case law countries to other countries in the world, great changes have happened to this system in people mind, mainly because of the great divergences in each country's culture of law, or the lack of thorough knowledge to this system. Therefore, some people begin to challenge to rationality of the bail system. In Chart III, the makes further analysis on the rationality of the existence of bail system. Firstly, he analyses the legal base of bail. Then he concluded that the existence of bail is based on: 1, the full recognition to the right of personal freedom, 2, the interpretation on the no guilty deduction, and 3, the requirement of dual procedure. The first two theoretical bases originate in Britain, but the last one in America. Secondly, he analyses the function of bail. 1, It is the existence of bail system that makes sure that the prosecuted can fully exercise the right to defense which is recognized by law, and provides chances to realize the confrontation model; 2, And it is also the existence of bail system that prevents the prosecuted from torture and extended detainment committed by the prosecutor. Since the prosecuted is on bail, it becomes difficult for the prosecutor to gain the confession from the prosecuted, which makes invalid the traditional practice of convicting the offence mainly on confession. So the prosecutor had to turn to other evidence to convict the prosecuted, which impels the judiciary to its traditional pattern of thinking and conducting. Therefore, the existence of bail system have profound theoretical base, and of great rationality on theaspect of function. Thirdly, he makes economy analysis on bail system. The purpose of such analysis is to clarify whether there is a surplus between cost and efficiency of applying the bail system. From the view of legal economics, under the presumption that the condition is relatively fixed, if cost is greater than efficiency, the application of the system is not of rationality, and the contrary is true. The author carries out his economy analysis on bail system mainly from the following two points of view: the first is from the standpoint of judiciary, and the second is from that of the prosecuted. Finally, the author analyses some of the viewpoints that denies bail system. In his opinion, the theoretical foundation of such practice as denying the bail of the prosecuted with excuse and preferring to the protective detainment is wrong in itself, and the idea that bail system is irrational because of the existence of defects in certain country's bail rules or professional guarantor rules is also unpersuasive.Chart IV deals with the construction of bail system in our country. Firstly, the author analyses the failure on the bail system in our country through both the macro and micro view, and points out that the defects are not on the surface but in the internal of the system. Only by simple amendment, can such a system not realize the original purpose of its design. Moreover, some of them are structural defects that are irreparable, making our bail system fail to meet the development of modern legal system as well as the reform of criminal procedure law. Especially after the amending of criminal procedure law, the trial process gradually prefers to a partilism pattern, and the tendency of confrontation become more and more obvious, leaving China's bail system inadequate to a further degree. The approach the author prefers to is to abolish the current awaiting trial on bail system, and replace it with modern bail system. Through the analysis on the divergences in theoretical area, the author points out the necessity and practicability of constructing bail system in China, and concludes the theoretical foundation and main pattern for the construction of bail system in China. Then he sends his proposal on the specific design of bail system in recent period of time. Meanwhile, the author always follows one principle that the construction of bail system should be carried out on the base of China's national condition and with the help of the relative experience in foreign countries. On one hand, the construction of bail system in China should develop with the deep going of theoretical study; on the other hand, it should also meet people's need for democracy.There should be two stages in constructing the bail system in China:the fist is the forming stage, and the second is the modifying stage. The purpose of putting the period into two stages is to fit the graduality of China's legal system evolution, and to avoid meeting too much prohibition in practice. Specifically speaking, in the first stage, we should take the advantage of amending the criminal procedure law, and statutorily establish the basic frame and content of bail system, with the purpose of: 1, keeping the newly established bail system according with the international convention which China has enter into, avoiding the contradiction with our international obligation; 2, meeting the developing level of current criminal procedure legislation and the citizen's needs for right security, and trying to fit other particular rules as possible as it can; 3, making it a system of foresight. In modifying stage, with the continue construction of substantial content, the deciding process of bail should receive further modification, making sure that the making of decision on bail or detainment meets the requirement of dual process. In short, the bail system we will establish should be a completely procedural system.