Research On Guarantor Pending Trial

Guarantor pending trial has existed in China since ancient times, but the nature of it has always been a criminal coercive measure. Due to some defect of the system in theory and design, there is few application of it in practice and can hardly realize the aim of human rights legislation. It is therefore of great importance for promoting research of criminal law and improving guarantor pending trial to do deeper study on how can guarantor pending trial shoud meet the demands of science, democracy, rule of law and modernization or criminal procedure, to research the relationship between it and theoretical basis, value, goal, structure, procedures and coercive measures of criminal procedure, to compare it with bail system and redefine its nature and reconstruct principles, application conditions, guarantor methods, remedy procedures and supervision.Through a track on the history and theory, analysis of reality and comparison of foreign and domestic rules and practices of guarantor pending trial, the author attempts to make the construction of the system fit the rule of law situation of China and compatible with international conventions, thus to make it reasonable in theory and feasible in practice. The whole paper is composed of the introduction and seven chapters.The introduction addresses the aim and meaning of the research, introduces present research situation and proposes to study guarantor pending trial through integrated legal research method.Chapter one, general introduction of guarantor pending trial. With the transfer of guarantor pending trial from coercive measure to a conditional right of suspects and defendants as theoretical premise, the author first proposes to take the protection of rights of suspects and defendants as a logic pivot and redefine guarantor pending trial as a right of suspects and defendants protecting them from being detained conditionally, an alteration of detention, a system that guarantees the proceeding of litigation. Secondly the author introduces the history of guarantor pending trial. Thirdly, the author points out the natures that guarantor pending trial ought to have from the"ought to"aspect of procedure law: it is a right that the suspects and defendants ought to have, which is a procedural right and conditional right. The author in the end analyzes the present situation of the designed function and actual function of guarantor pending trial and proposes that the"ought to"functions of it shall include the functions of protecting human freedom, smooth proceeding of litigation and economical litigation.Chapter two, value of guarantor pending trial. According to the nature of guarantor pending trial, the author considers that there are dual values of guarantor pending trial, the inherited value embodied in avoiding disadvantage of detention, promoting litigation efficiency and social harmony, and the outside value embodied in realizing litigation goal, pursuit of procedural justice and protecting right of action.Chapter three, principles of guarantor pending trial. Through summarizing current principles of guarantor pending trial and comparison between it and foreign bail principles, the author points out that the principles of guarantor pending trial shall be perfected on three levels: define principle of presumption of innocence in criminal procedure law, add principle of proportionality in coercive measures and further clarify the principles of guarantor pending trial: principle of protecting certain people, principle of social support, principle of honesty and principle of lawyer participation.Chapter four, conditions for the application of guarantor pending trial. Through analysis of examples, it is explained that the reasons for the mess of application conditions for guarantor pending trial are vagueness of the conditions in criminal procedure legislation and the wrong concept and execution of executors. It is summarized in this chapter that the major feature of the condition for applying bail in common law system and continental law system is mainly decided by legislation and complementarily by appropriateness and the conditions for"shall or shall not apply"bail are stipulated in codes. Combining the reality of China, the author proposes and demonstrates 13 situations where guarantor pending trial shall be applied and 7 situations where guarantor pending trial shall not be applied.Chapter five, methods of guarantor pending trial.The author addresses the problems and their causes of the current guarantor pending trial. Considering the variety of bail in Britain and American countries, it is recommended that we should learn from bail methods of foreign countries to add bail on personal recognizance and guarantor and guarantee money in criminal procedure law from the nature as a right of guarantor pending trial with the right to guarantor pending trial of defendant as core, and also expand scope of guarantors, add more forms of guarantee money, define maximum guarantee money and improve supervision of guarantee money.Chapter six, remedy of guarantor pending trial. The lack of remedy of guarantor pending trial originates from omission of legislation. Remedies are stipulated in criminal procedure laws or bail laws of common law countries and continental law countries, reflecting the principle of"where there is a right, there is a remedy". The author puts forward the proposal that we should learn from experiences of foreign countries about remedies of guarantor pending trial. It is recommended that we shall establish a sound remedy procedure of guarantor pending trial gradually through adding hearing of witnesses in deciding over guarantor pending trial, endowing applicants rights to appeal or apply to reconsider decisions that reject guarantor pending trial, endowing guaranteed people and guarantor the right to suit for confiscation or fines, prescribing in detail the right of supervision of procuratorate over the alteration or withdrawal of guarantor pending trial.Chapter seven, supervision of guarantor pending trial. Researches have reflected the major problem with present guarantor pending trial is that there are not enough or no supervision of executive bodies, which make guaranteed people or guarantors that fail to perform legal obligations free from punishment. In the author's opinion, the major cause of the problems is defect in legislation and limit of practice,another is social and family discrimination. Comparing with current guarantor pending trial system of China, the bail supervision of foreign countries is comparatively sound and advanced which is of great reference value to us. The proposals made by the author concerning supervision of guarantor pending trial include: establishing special supervising body for guarantor pending trial, endowing legal persons and other organizations obligation of assisting supervision, prescribing that electronic supervising technology may be used for supervising the guaranteed person, clarifying legal liabilities of the guaranteed person and legal liabilities of the guarantor who fails to perform guarantee obligation and establishing a network system of information of supervision of guarantor pending trial.