A Study On The Application Of Bail To The Court

“Criminal Procedure Law”(referred to as “Criminal Procedure Law” in thefollowing article) amendments about bail modification is not large, changes in themain contents are: an increase in bail conditions; basis for determining the amount ofsecurity principled generalization; minor changes in the form of fulfilling guarantor’sliability; increasing some terms about duty of one person, etc. Amendment startedsince2013officially, the bail modification must generate new problems in practice,and some problems in the process of applying bail have not been effectively solved inrecent years. So it increases more difficult for bail application and more challengesabout the correct implementation of “Criminal Procedure Law”. Based on this, Idecided to combine the survey data since “Criminal Procedure Law” implement in2013,and thinking about articles I collecting.“Criminal Procedure Law” implemented since January1,2013, so far more thana year. This article focuses on bail application. Because of the amendmentimplemented shortly, I avoid writing investigate defects and improving proposal in thecentral part of article, and should focusing analyzing implication problem,causes andbail application in the basis of the meaning of legal and relevant judicialinterpretations,understanding the spirit of the legislation correctly. Then the articletakes some suggestions to solve the problem. And I hope be able to contribute myefforts to academia and some reference to the substantive departments.Researching on the bail application of this article is divided into three parts,including the analysis application, the basic concept and propose solutions for bailapplication, totaling about35,000words, are briefly described as follows:The first part is a part of analysis the bail application, focusing on the applicationsituation, problems and causes.The application situation of Bail shows in three aspects: Firstly, the applicablerate and social cognition of bail overall improvement; Secondly, choice tendency ofguarantee is obvious; Thirdly, the implementation of regulatory enforcement is notoptimistic. Problems are summarized into five aspects, including process of bail beingalienated, guarantees not effective, more difficult of regulatory enforcement,omissions for the right remedy, Supervision mechanism not perfect. Based onsummed up the question, the author summarizes the causes of such problems, in threeaspects mainly: firstly, including defects of the social risk criteria and scope of the amount of margin. Secondly, work mechanism of bail produced bail applicationimproperly. Thirdly, analyze implementers from the point of the law enforcementphilosophy, supervision and sanctions.The second part is the basic concept of applies bail, focusing on the concept ofhuman rights protection and due process guiding significance for bail.In the part of protecting human rights concepts, the article proposes guidingsignificance of human rights to improving the judicial implementation, strengtheninghuman rights consciousness and improving supervision consciousness on the base ofdescribing human rights guarantees participants in the proceedings who are legallyentitled to and three judiciary undertaken protecting human rights.In the part of due process concept, the concept includes lawful and reasonableprocedures, maximizing the protection of human rights and restricting the rights toreflect the bail process. Value for bail application reflects that it is an effective way toachieve civil rights, the balance of power, legal substantive justice. Guidingsignificance of bail application focuses on two aspects, including applicationjustification and process justification.The third part is suggestion about bail application, focusing on four areas,including how to improve the working mechanism of the bail, guarantee results,supervision and oversight mechanisms.In the aspect of perfecting the working mechanism, including mechanisms intothe application process, the adjudication procedure mechanisms and social riskassessment mechanism. Application process mechanism is discussed applicants rightto relief measures, the applicant’s right to remedy the current provisions of the contentis a “high inspection rules” on page574conditions mainly, few remedies.Adjudication process mechanism is to strengthen the protection consciousness ofhuman rights and build internal approval structure in the premise of Power constraints,and supervision. Social risk assessment mechanism is from five angles to analyze themethods, the five angles include criminal law, subjective attitude, the risk imposed onlitigation activities.In the aspect of guarantees improvement, the part connects with the legitimacy,the mandatory and supportability of guarantee, and proposes methods of choosingguarantee, including process protection and conducive regulatory. And furtherelaborates related content of guarantor liability.In the aspect of supervision improvement, it is further clear the “city and county”, “place”,“meet or communicate” concept extension mainly, and analyze feasibility ofthe social institutions supervision and electronic monitoring.In the aspect of supervision mechanism improvement, the part strengthen theconsciousness of legal supervision, and corrects public authority effectively andtimely, so that the meaning the bail procedures are achieved; enhance the capacity oflegal supervision, implementation of the law accurately and correctly bail programfeatures to achieve; through the construction of internal and external informationexchange platform, in order to broaden the legal channels of supervision, it can makeprosecutors more comprehensive and objective reflect on the fact, and correctimproper behavior of bail.