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On The Expansion And Application Of The Bail Pending Trial In China 's Criminal Proceedings

Posted on:2013-07-12Degree:MasterType:Thesis
Country:ChinaCandidate:L M XiangFull Text:PDF
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The system of guaranteed pending trial in China is highlighted in the field of criminal procedure. The Decision on the Revision of the Criminal Procedure Law of the People’s Republic of China was adopted at the Fifth Session of the Eleventh National People’s Congress on March14,2012. It provided more careful and more operational provisions of pending trial related content on the basis of the original. But in essence, the amendment of the Criminal Procedure Law only improved the current system of guaranteed pending trial to some extent. However, all sorts of malpractices in theory and practice have remained unsolved.In the criminal procedure of China, guaranteed pending trial is one of five legal compulsory measures, its function is to ensure the criminal suspects, defendants do not escape or impede the criminal investigation, prosecution and trial, and appear before the court when necessary. But in the judicial practice, the application of guaranteed pending trial is not ideal, the function of guaranteed pending trial has not fully realized, investigative organizations tend to facilitate the prosecution, adjudication organ tend to facilitate the trial, rarely grant guaranteed pending trial.In the criminal procedure of western developed countries, the bail system is similar to guaranteed pending trial system, but there is a substantial difference between them. In the traditional Anglo-American Legal System countries, the suspects, the defendants are generally able to bail, in addition to some special circumstances. As one of the alternative measures for custody, the purpose of bail is to protect the suspect, the defendant’s freedom, which is one of the basic human rights, to restrict the state power, to realize procedural justice. After a long development, in the concept of support, the setting of program and the construction of system and some other aspects, the bail system is already quite mature, it is an important part in the criminal procedure. Compared to the bail system,the current guaranteed pending trial system in the criminal procedure of our country is still recognized as a compulsory measure of the state organs, rather than the basic right to protect one’s freedom.The article proceeds from the bail system of legal system developed western countries, analyze the similarities and differences of bail system and guaranteed pending trial system in Deep level, and sets out from the current situation, tries to find out the existing problems of the guaranteed pending trial system in our country criminal procedure, and put forward a feasible direction for the reform. In the western developed countries, as a non-detention measure before trial, bail is widely used and plays a very important role in criminal procedure. While in China, the guaranteed pending trial system is constructed base on the crime control values, which is far different from the universal concepts of bail system and the criminal justice rules of the United Nations, therefore also affected the practical running effect of the guaranteed pending trial system. In practice, the main problems of the guaranteed pending trial system include:inaccurate legislative idea, system vulnerability, imperfect clause design, and the actual implementation is also difficult and confusing.After the amendment of the criminal procedure law in2012, guaranteed pending trial related content was made more meticulous, more operational on the basis of the original. As China’s non-detention measure, guaranteed pending trial will play a greater role in criminal procedure. The author thinks, the problem needs to be solved urgently upon guaranteed pending trial is the expansion and the application of guaranteed pending trial. We should draw lessons from the mature experience of the bail system, on the basis of the perfection and reconstruction of the original values theory of guaranteed pending trial, make guaranteed pending trial to play its due role. In the present and the future of criminal judicial practice of our country, solving the problem of the expansion and the application of guaranteed pending trial, which is not only conducive to fighting against criminals, but also helpful to protecting the basic human rights of criminal suspects and defendants, putting an end to exhorting confession by torture and extended custody.
Keywords/Search Tags:guaranteed pending trial, baiexpansion, application
PDF Full Text Request
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