Bail And Research

A guaranteed pending trial is a kind of compulsive means by which thePublic Security Organ, the People's Procuratorate and the People's Court demandthat the criminal suspect or the defendant provide a guarantor or pay money toguarantee they can't escape or impede investigation, prosecution or trial. It playsan important role in protecting the smooth proceeding of the criminal procedureand the human rights, and enhancing the efficiency of the criminal procedure.Modification and perfection of the system of a guaranteed pending trial, whichhas played a historic role in normalizing the operation of the system, was madein the Criminal Procedure Law passed in 1996. But as a result of the limitation ofconception and technology, the present system of a guaranteed pending trial hasits defects and shortcomings, and its effect in application is not satisfactory.Because of the people's awareness of fights, the present system of a guaranteedpending trial has showed its defaults and shortcomings and can't meet the needof development. It's necessary to modify and perfect the present system of aguaranteed pending trial to keep up with the development of the society. Theorieshave the function to guide people's action in practice. The author, in this thesis,carries out a research on the general principle of the system of a guaranteedpending trial, analyzes the present situation of the system of a guaranteedpending trial on the basis of a full investigation and borrowing of the westernsystem of bail, and makes some suggestions on the perfection of the system of aguaranteed pending trial.Apart from the introduction part, there are another four parts in this thesis, asfollows:PartⅠis the general principle of the system of a guaranteed pending trial,including the concept of the system, the historical development and the value ofthe system. The system of a guaranteed pending trial is a general term for thekinds of a guaranteed pending trial, the persons to implement it. Our bail systemenjoys a long history, which goes back to the slavery society in Xi-zhou. Fromancient times, modem times, till now, our bail system has witnessed its perfection.Since the establishment of the New Government, definite terms are involved in the Criminal Procedure Law of the People's Republic of China, the concemedInterpretations and Regulation. The value of a guaranteed pending trial isembodied as follows: 1. the procedure value—to protect the criminal procedure;2. the human rights value—to protect the being-free rights of the suspects, thedefendants and the common human rights from being infringed; 3. the efficiencyvalue—to enable the public security organs and judicial organs to make thingsclear, further to reduce what is spent in detaining suspects and defendants.PartⅡis the bail system in the West study on the system. In the westernlaw-govemed countries, what is compared with our guaranteed pending trial isthe bail system. The bail system which originated from England has developedto some extent after hundreds of years of development. The bail system is basedon the body rights are free from infringement, the people are to be presumedinnocent and the procedure is to be reasonable. The bail system is classified intobail for rights and judgment bail, property and non-property bail. The bailprocedure should include investigation, oyer, judgment and relief, etc. Thesuspects and defendants should be punished if they are not on court punctually,commit crimes again or breach other terms on bail. However, for decades, caselaw countries have begun to set limitations on the rights for bail, so it is obviousthe rights for bail tend to be limited. The bail system is recognized by a series ofinternational documents, and considered as the fundamental system in theInternational Human Rights Law. The bail system in the West tells us thecriminal judicial power and the procedural rights of people should be distributedand handled reasonably and on balance.PartⅢis the analysis of our present situation. While our system ofguaranteed pending trial is quite reasonable, it has defects, as follows: 1. high rateof detention, the system is rarely used; 2. the scope where the bail can beapplicable is very limited; 3. the guarancy measures are limited; 4. the defects ofthe procedure; 5. the duration for guaranteed pending trial is too long; 6. theinefficiency in exchange between the decisive branch and executive branch.What causes the above problems in our system is the different ideas, falseunderstanding of the concept of compulsory measures, and the disability ofjudicial supervision power in pretrial procedure. PartⅣis the perfection of our system. Improving our system of guaranteedpending trial is a process where the bail system should not be used all at once. Itis not definitely regulated in the Criminal Procedure Law, so we should catch therevision chance to make more definite terms in legislation. When necessary, jointinterpretations should be made by the Public Security Organ, the People'sProcuratorate and the People's Court. In basic theory, firstly, we should set upmodem law-governed ideas, realizing the transfer from power-centered idea torights-centered idea, from presumption of guilt to presumption of innocence.Secondly, we should direct the execution of compulsory measures by thepower-limit idea. Thirdly, we should set up the proper judicial restraint principlein pretrial procedure. To improve the system of guaranteed pending trial, thefollowings are to be taken: 1. widening the scope; 2. perfecting the guarancymeasures; 3. perfecting the procedure; 4. the duration should be strictly limitedand varied with different cases; 5. further contact between the decisive andexecutive branch. To make the revised system efficient, we must take reforms onthe compulsory measure: Firstly, perfecting the compulsory measures system.Secondly, separating arrest from detention, improving the judicial reliefprocedure for arrest. Thirdly, make detention the compulsory measure separatedfrom arrest under the judicial power.