Discussion On The Perfection Of Guarantor Pending Trail System

Guarantor pending trail system is an important enforcement action of criminal action in our country, and it is defined that in criminal action, it is a system that the criminal suspect and the accused, who are unapprehended or needed to alter enforcement action after arrest, aren't detained or temporarily released from custody when they are ordered by judicial organizations, such as people's court, people's procuratorate, public security organs etc, to provide guarantors or pay security deposit, guarantee to be brought up to court when needed and don't evade or hamper criminal action. Although guarantor pending trail is a kind of enforcement action, it plays an active part in guarantee human rights of criminal suspect ad the accused. However, guarantor pending trail system in our country has many problems and deficiencies, which have serious restraints on the function of human rights protection. This paper starts with the concept, function and actionable value of guarantor pending trail system and extraterritorial investigation of relevant systems, and investigates existing problems and reasons of guarantor pending trail system in our country and how to perfect it.Part I Summary of guarantor pending trail system. Guarantor pending trail is one of specified enforcement actions of Law of Criminal Procedure in our country, Law of Criminal Procedure of our country modified in 1996, combined with punishing crimes and guaranteeing human rights, establishes a relatively perfect system of criminal enforcement actions with main contents of summon for detention, guarantor pending trail,supervision of residence,detention and arrest. Guarantor pending trail system of criminal action in our country plays a very important part in guaranteeing smooth implementation of criminal action, reducing unnecessary imprisonment, protecting legitimate interest of criminal suspect and the accused, reducing the investment in judicial resources etc.. Analyzing the function of guarantor pending trail is mainly for preventing evasion of litigation, threatening witness and destroying evidence of criminal suspect and the accused, who may be sentenced to relatively minor penalty or relatively major penalty but of little society risk, by restricting personal freedom so as to the smooth implementation of criminal action. Looking from the actionable value of guarantor pending trail, guarantor pending trail not only guarantees the smooth implementation of criminal action, but also plays an inestimable part in the aspects of human rights protection, saving judicial resources etc.Part II Extraterritorial investigation and reference of relevant systems. In foreign countries, bail system is similar to guarantor pending trail system in our country, bailment refers to provide guarantee for people who are detained and waiting for investigation or judgment and the people are released after executing necessary procedures. It is based on presumption of innocence, it is a system that bailment is normality and custody is exception. This paper only investigates the bail systems of Britain, America, Germany and Japan. The bail systems of above four countries are all well-developed. Compared to foreign bail system, there is a great gap between foreign bail system and guarantor pending trail system in our country, many aspects can be used or reference. Firstly, legislative ideology need to be changed, the legislative ideology of bail system is from a right perspective to design system, while as a kind of enforcement action, guarantor pending trail is from authority perspective to design system and go against guarantee of human rights. Secondly, the judge should be endowed with decision-making power of guarantor pending trail so as to prevent abuse of power. Thirdly, establish responsive relief proceeding in order to benefiting to protect the legitimate interest of criminal suspect and the accused and timely correct unfair guarantor pending trail decisions of public security and judicial organizations etc..Part III Existed problem and reason analysis of guarantor pending trail system in our country. Guarantor pending trail system in our country leans to re-litigation in legislation and leans to custody in practical application. This paper firstly analyzes from the defects in legislation of guarantor pending trail. Although Law of Criminal Procedure in our country stipulates applied conditions, guarantee manners, margin collection and time limit etc. of guarantor pending trail, in the practice of law enforcement, applied conditions of guarantor pending trail are not easy to control and operability is not satisfactory. Major discretion is given to decision agency because of different individual understanding and it's hard to avoid discrepancy when implementing. In this way, the judicial corruption is easy to create which influences the seriousness of laws. The guarantee manners stipulated by law of criminal procedure are too one fold, it only stipulates the guarantee of margin and guarantor and lacks flexibility, criminal suspect and the accused who don't provide suitable guarantor or adequate margin are possibly detained so as to affect justice and fairness of laws. For margin collection, the upper limit of margin collection is not stipulated in Law of Criminal Procedure and management is confused, which provides opportunity for approving authority to collect high margin and increases the threshold of guarantor pending trail. The prescribed time limit of guarantor pending trail is 12 months, but it doesn't make clear the 12 months is the common time limit of three public security organs or the time limit of one public security organ, and the criminal suspect and the accused personal possibly suffer restricting personal freedom of 36 months. There are still many defects in legislation of guarantor pending trail in our country and this paper can't describe them in detail. Moreover, analyze from the existed problems of guarantor pending trail in application. At present, the existing problems of very low application rate of guarantor pending trail in our country, insufficient participation level of lawyers, shortage of supervision mechanisms, mistaken in law enforcement ideas etc. lead to the legitimate interest of criminal suspect and the accused largely outside the protection of the law. The due functions of guarantor pending trail are difficult to bring into play.Part IV In connection with the defects in legislation of guarantor pending trail and existed problems, make improvements from the following aspects: First is to perfect guarantor pending trail in terms of the improvement of rights protection, in application of enforcement action, assurance of litigation and assurance of human rights is a pair of principal contradiction. At the present stage, the aim of enforcement action in our country is to guarantee the smooth implementation of litigation. Therefore, monitoring and control departments in our country mostly use detaining enforcement action for criminal suspect and the accused, actions that are not detaining, such as guarantor pending trail etc., are seldom used. To a large extent, people who are suitable for guarantor pending trail can't get guarantor pending trail, rights protection for criminal suspect and the accused are neglected. An important idea of modern litigation is to pay equal attention to investigation of a crime and assurance of human rights. Respect and guarantee human rights in criminal action are the important manifestation of litigation civilization. From the principle of guarantee human rights, guarantor pending trail measure is firstly taken for criminal suspect and the accused instead of detaining them as the first choice. Second is to perfect guarantor pending trail from legislation and system: further clarify the applied conditions of guarantor pending trail; detail time limit prescription of guarantor pending trail; establish various guarantee methods; perfect the collection and management of margin; relax the threshold of guarantor pending trail for outlander; increase participation level of lawyers in guarantor pending trail etc.In a word, punishment of crimes and assurance of human rights are two inalienable aspects of criminal action aims, establishment and implementation of guarantor pending trail system is the embodiment of perfect adaptation for the two. It's safe to say that as one of enforcement actions, the proper application in judicial practice of guarantor pending trail system, on one hand, it can effectively prevent criminal suspect and the accused from detaining by mistake or delay detaining, which can better protect the legitimate interest of criminal suspect and the accused from illegal encroachment; On the other hand, a lot of manpower and physical resources can be saved for country and litigation economy principle can be better implemented. Meanwhile, defects existed objectively in practice should be solved properly so as to give full play to the effectivity of guarantor pending trail system and promote the development process of litigation democratization.