On The Improvement Of The Practice Of Obtaining Guarantor Pending Trail In China

As one of the non-detaining criminal enforcement measures, granting guarantor pending trail is a very constructive practice for punishing crime as well as protecting suspect's human rights. Some scholars pointed out that implementing such a practice appropriately as much as possible is very important for protection of the human rights of suspects and/or defendants, alleviating the confrontation between suspects and/defendants'and law enforcement department, it is also important to reduce the litigation cost and reduce inappropriate additional work load of law enforcement departments, and to increase the awareness of responsibility of law of the suspects and/or defendants.However, granting guarantor pending trail practice in China has apparent weaknesses and deficiencies and its implementation degree is not good as we expected due to both conceptual and technical reasons. As citizen's awareness of human rights is increasing, the weaknesses and deficiencies are incompatible with our actuality and therefore it is very imperative to improve and perfect such practice in China. Theoretical conclusions are directive to our practice, this thesis tried to research the general principal of the practice of granting guarantor pending trail, on top of which, the research and reference the bailing practice in western world have also been done, in order to make a sound analysis of the current status of such practice in China, and finally, to make some suggestions to improve and perfect such practice in China.Apart from Abstract and Conclusion, This thesis has 4 parts as below: Part 1:General principals of granting guarantor pending trail, which consists of below 4 angles, a) Guarantor Pending Trail refers to a kind of coercive measure that enforced by People's Court, People's Procuratorate or Public Security Authorities to criminal suspects or defendants, asking them to ensure immediate report upon summon, and no escape or obstruction against investigation, prosecution and trial by providing guarantor or bail money and Letter of Guarantee, b) In this part we have studied the applicable areas and their implications of Guarantor Pending Trail practice in China. Guarantor Pending Trail system in China is a package of laws, rules and regulations that stipulating scenarios, applicable subjects, requirements, and procedures that concerns Guarantor Pending Trail practice in China, which was established to realized the purpose of criminal procedures. c):The litigation relationship and value of our country's Guarantor Pending Trail practice has been studied from legal perspective in this thesis. The relationship of relevant laws, subjective and objective those laws and their contents have been analyzed, d) Based on the general understanding of the value of law of current theoretical community, analysis has been done as regarding to the value of Guarantor Pending Trail from different perspectives as order, Human Rights and benefits, in an effort to research the very essence of the existence of Guarantor Pending Trail.Park 2:The Historical legislation of Guarantor Pending Trail and its constructive implications in China today. The First, Concept and history of granting guarantor pending trail, to try to have a full historical picture of the development of such practice in China's history. The characteristics of this practice in ancient West Zhou, Nanbei Dynasty, Tang, Soong Dynasty and end of Qing Dynasty and beginning of ROC have been studied, also, the influence of the former USSR on granting guarantor pending trail practice in China's legal system after the foundation of People of Republic of China was also studied and how eventually China's current Guarantor Pending Trail was established in 1996 when Criminal Procedural Law of China was experienced an overhaul. The second, In western countries, the counterpart to our Guarantor Pending Trail practice is Bailing System. The Bailing practices in British, US, Germany and Japan were analyzed when study the bailing system of western countries. Bailing was originated from British and have become very complete and somewhat perfect after centuries'development. The fundamental of bailing is the presumptions of innocence for any suspect before he/she is confirmed as guilty and innocent people should have freedom. Finally, comparison has been made between Guarantor Pending Trail of China and Bailing in foreign countries. The fundamental legislation philosophy, concept and applicable scope of Bailing is foreign countries is apparently different from Guarantor Pending Trail in China. However, Guarantor Pending Trail in China has some advantages comparing with its counterpart in foreign, we need to evaluate the position and importance of Guarantor Pending Trail in Criminal Procedural Law in China.Part 3:In this part, analysis of the deficiencies of the legislation and practices of our current Guarantor Pending Trail system. The deficiencies of legislation are:a) Ambiguity of applicable area and subject; b) lack of Supervision mechanism to the department that managing Guarantor Pending Trail practice; c) punishment to the violation of Guarantor Pending Trail practice is weak and therefore not deterring; d) Ambiguity on the expiry time of Guarantor Pending Trail; e) Whether lawyers has Guarantor Pending Trail rights is not clear; f) Amount and approach of Guarantee deposit collection not defined; g) Stereotyped Guarantor Pending Trail requirements that hard to achieve.The weaknesses of our current Guarantor Pending Trail practice are:a) The rights of requesting Guarantor Pending Trail has been underused; b) No standardized granting requirements; c) Complicated procedures within law enforcement departments; d) Conflicts between law enforcement mechanism and Guarantor Pending Trail practice; e) Maximization of Investigation period, Verifications period and casing handling period after Guarantor Pending Trail; f) Value Misunderstanding, detention is the principal and guaranteeing is just an exceptional; g) Imbalance of the applicability of Guarantor Pending Trail; h) supervision and management of Guarantor Pending Trail is becoming facial and less effective.The main reason for such deficiencies and weaknesses is mainly due to the lack of strictness of legislation, misinterpretation of Guarantor Pending Trail and, functional deficiency of law-enforcement-verification prior to trial.Part 4:Solutions have been given on where and how to improve the system of Guarantor Pending Trail in China. It is the good timing for China to make amendment to Criminal Procedural Law of China and there is no doubt that Guarantor Pending Trail is one of the focal point of the amendment. We should take this opportunity to re-organize all relevant laws, regulations and interpretations that related to Guarantor Pending Trail practice to improve the perfectness of Guarantor Pending Trail in China.A) Improving and perfecting Guarantor Pending Trail in China should not deny our current system completely, rather, we need to take a continuous approach to achieve continuous improvement yet keeping the continuity of current law/regulations. We need to establish the appropriate law governing concept in China by changing out-dated criminal related law enforcement value, embedding the value of presumptions of innocence, and protecting human rights in the minds of all law enforcement officers.B) Appropriate legislation if the fundamental for Guarantor Pending Trail practice, it is necessary to address the weaknesses and deficiencies listed in part 3 thru legislation.C) It is suggested to establish neutral institutions to verify the applications for Guarantor Pending Trail, and the authorities of such institution should be related but having some restriction mechanism to other law enforcement departments. Such institution can adapt the paces and efforts of improvement and perfection of such system in China.D) It's suggested to establish a corresponding system in response to the reform and improvement of such system to make changes, such as improving the awareness of human rights of citizens by institutionalizing China, establishing comprehensive social insurance system, mobilizing all the resources in the whole society to supervising the monitoring to suspects/defendants, at the same time, all law enforcement departments should have enough communication to ensure there is no looseness, no leak of managing every suspect/defendant.