Research On Bail System

The bail refers to the system in which the arrested are released prior to the trial under the condition of provision of surety or acceptance of specific conditions,which is aimed to safeguard the personal freedom of the prosecuted.In the Anglo—American legal system,bail system is relatively advanced,the legislation for bail is relatively sound,and the experience in judicial practice is relatively rich and bail system of the countries in continental legal system tends to be gradually popularized.Although the guarantor pending trial system in China are similar to bail system in some ways,there exists essential differences in realty,application rate is not high in judicial practice and the role thereof is very limited,which is hard to play the role to replace pre—trail custody.The present paper makes endeavor to understand the relatively advanced bail system in western countries from origination and development, theoretical base of bail system and the compari son of bail system between the two legal systems,only in this way the advancement in foreign countries can be untilled by China.In the meantime,the construction of bail system in China should be based on social reality in China,the necessity and possibility of which should be specified.Scientific and systemic conception can have bail system rooted in China and real play of bail system can be given. The present paper is divided into five chapters.The first chapter elaborates the historical origin of bail system from the origination,development and improvement of bail system;the second chapter elaborates the value base from the following four aspects,including the protection of personal freedom of citizens,the balance between the power of the public prosecutor and defendant,the application of principle of innocence presumption and the principle of litigation interests;the third chapter analyzes the commonness and differences of bail system in major countries under rule of law in the two legal systems from the perspective of comparative law,and in the meantime discusses the inspiration thereof to the construction of bail system in China.The fourth chapter elaborates the necessity of construction of bail system in China from the aspects,such as the severity of illegal custody such as exceeding custody in judicial practice in China,and the hardship of guarantor pending trial and residential surveillance for extradition to replace the role of pre—trail custody and respect of international covenants.The fifth chapter elaborates specific measures for the construction of application range,application means,application procedures and punishment measures of bail system.There is a saying that theory is the forerunner of practice.The author utilizes this problem as the topic of his postgraduate dissertation,hoping to improve the system of pre-trail custody in China.