On The Improvement Of The System Of Obtaining Guarantee And Pending Trial In China

Although China's Criminal Procedure Law and related judicial interpretations have formed a basic framework of the System of Obtaining a Guarantor and Pending Trial (as referred to'the System'hereinafter) and have played a certain role in Chinese judicial practice, yet the current System in China has many problems to be overcome. The author, starting from discussing the problems of the current System, tries to seek the solution to the problems and to give suggestion on improving it.Firstly, the concept of the System in this dissertation is defined in a general understanding as an enforcement measures in which the public security organs, the People's Procuratorate or the courts order the suspects or accused, who are not in custody, to make a guarantor or payment to ensure that within a certain period of time goes to a kind of, in order to prevent them from escaping from detection, prosecution or trial. On the basis of the above definition, the characteristics of the System are argued to be preventive, temporary and procedural. The summary of the characteristics of the System may give a limit to the application of the System where the function of this system may be achieved and further improved. The introduction of the current System can make it impossible to improve the function the System according to the theories of the application of the System, the protection of human rights, due process, and litigation efficiency. The author argues the functions of the System in three main points as protecting the proceedings, protecting the human rights, and saving legal resources, which are related to the philosophy of rule of law in due process, human rights protection and litigation efficiency.Secondly, a certain degree of comparison of the System has been made in this dissertation between in China and in Western countries. Although there are no such systems as the System of Obtaining a Guarantor and Pending Trial in a sense of criminal procedure law in Western countries, similar rules known as the Bail Systems play the same role in those countries. Therefore, it is important to compare the System in China and the bail systems in Western countries. Of course, this dissertation does not just stop at the level of comparison of the two systems. In an interview with some of the comparative sociology of law on the basis of academic point of view, this dissertation will be more in-depth level of society, to social development perspective to observe the changes in different systems. The British bail system is introduced at first as the UK is the country of the origin of modern bail system. Due to social changes and the protection of human rights concepts deeply rooted among the United Kingdom through "Westminster Law," "habeas corpus" and the "bill of rights", a complete sense of the word bail system has been gradually established. The bail system has been improved gradually by "Criminal Justice Act" and the "Bail Act 1976" in the UK. The legislation tradition of the United States is basically originated from the UK, however the bail system in the United States developed in a different way from the UK because of the different social environment after the independence. The bail system in the United States has been developed as a system to protect human rights and to stress the due process through the Eighth Amendment of the Bill of Rights(1789), the Justice Regulations and other legal documents. Other countries, such as Germany, France and Japan, have provided for the system of bail in the criminal procedure laws, which reflect the different social conditions of the specific development. Three main conclusions which can be the three main points for the suggestion to improve the System may be drawn by examining the bail system of Western countries: One is that the theories are different , another is that the sphere of the application of the System in China is slightly narrower than the bail system in Western countries, and the third is that the measures of the System in China is simpler than the bail system.Thirdly, the regulation, base, social conditions for the legislation and application of the law in regard to the System has been detailed and four main points of the deficiency can be presented as follows. First, the scope of the application of the System is narrow and the condition for the application is still vague. Second, the measures for the implementation of the System are too few which is not suitable for the development of the socialist market economic in China. It is necessary to increase other forms of property by way of security while applying the System. Third, there is a serious lack of procedural safeguards for the application of the System. Although China's Criminal Procedure Law provides for a wide range of applicants, applicants can not participate in the decision making process and the decisions making is totally depended on the police, the procuratorate and the courts by regarding their own interests. In addition, the enforcement measures of the System are not provided for in the law which may result in neglect of criminal suspects'or the accused' rights. Fourth, there is no punishment for the breach of guarantor by the criminal suspects or the accused in the relevant provisions of China's Criminal Procedure Law, which makes the System not be widely used in practice.Finally, five suggestions for the improvement of the System has been put forward by the author in this dissertation on the basis of comprehensive analysis, comparison with Western countries, and the shortcomings of the current System. First, the protection of the rights of the suspects and the accused should be the core of the reform of the System by reflecting the concept of human rights, due process and efficiency. Second, the conditions for the application of the System should be clarified by extending the scope of application. Third, a diversified bail guarantees should be adopted to improve the System. Fourth, it is necessary to enhance procedural safeguards to the application of the System by making the applicants be able to fully participate in the process of bail release decision-making. Fifth, the punishment for the violation of the regulations relating the System should be strengthened. The punishment of the breach of law should be appropriately increased so as to deter criminal suspects or the accused adequately.