Discussion On The Guarantor Pending Trail System Of China

The Chinese guarantor pending trail system was developed from the Criminal Procure Law of the year of 1979, which defined that it is an enforcement measure in parallel with custody and arrest. As a compulsive measure of non-custody, the guarantor pending trail system has the qualities both of public power and of private rights, and the former outweighs the latter. The quality of public power, the emphases on the safeguard aspect of procedure and the deficiencies in the specific design of system cause that the non-custody aspect of the guarantor pending trail system can not exert its advantages and characters adequately, in the judicial practice, it is not applicable in most cases, and cannot protect the prosecuted person's lawful rights and interests. In western countries, bail is regarded as one of the alternative measures for custody, which aims at restraining the state power and realizing the procedural justice. Comparatively, the specific design of the bail system is much sounder so that it plays an important role both in safeguarding human rights and in saving judicial resources.In fact, our guarantor pending trial system have defects not only on law but also in practice, both of which are what we should change. Due to the influences of criminal judicial ideal option and the lack of a judicial examination and review mechanism and the lack of an efficient judicial remedy system, the guarantor pending trial system causing a more and more severe situation that the public security organs and procuratorates may abuse their criminal detention power or in a disguised form. Nowadays, the high rate of custody and the phenomenon of illegally prolonged custody caused by the low rate of applying the guarantor pending trial system in china are badly serious. Accordingly, the reform mentioned above is imperative under this situation. To make a compared and overall study on the bail system, and analyse the theory and litigation value of bail system, and then generalize similarities from these systems, that is, the litigation values contains equality and efficiency and so on, and the basic theory contains the freedom and human right. But it is kind of unrealistic to thoroughly transplant the foreign systems of bail into their own countries. It is more realistic and more feasible for us to refer to the system of bail to improve our guarantor pending trial system. The first step of improving the guarantor pending trial system be to reconstruct its value system, establish the principles of human rights safeguard and presumption of innocence. Additionally, we ought to improve the specific mechanism and corresponding remedy procedure of the guarantor pending trial system, such as enlarging its scope of application, increasing the methods of obtaining a bail, have to enhance the legal supervision on its, improving its remedy procedure, etc.