Study On Guarantee Way Of Guarantor Pending Trial

As an alternative compulsory measures of custody, the guaranteed pending trial has the function of guaranteeing human rights,the procedure, and the litigation efficiency. It should have been adopted a lot, but the suitable proportion of application in the judicial practice in China is not high. This violated the international protection of human rights convention that established applicable rules of compulsory measures, which is “ release for the principle, custody for exception”. Guarantee ways are the guaranteed pending trial's key, and we should improve guarantee ways to enlarge proportion. Criminal procedure law revised in 2012 although modifies a lot about the guaranteed pending trial, guarantee ways changes little. From the point of legislation present situation and the practice operation, there are still a lot of troubles in guarantee ways. To expand the use of the guaranteed pending trial, we should be based on the judicial practice and real national conditions of China, learning from foreign bail system in a dialectical point of view to reform our current guarantee ways. As long as we improve guarantee ways in this way, the guaranteed pending trial will really be a alternative measure of custody in practice.Apart from the introduction and conclusion,this paper includes three parts, and about 30,000 words in sum.The first part of this paper mentions the guarantee ways' present legislative situation and the operation. Guarantee ways' current legislative situation includes the surety guarantee and the deposit guarantee. In order to find problems, the paper analyses the guarantee ways based on the current legislative provisions. Guarantee ways' operation in practice mainly include: the applicable rate of the guaranteed pending trial varies from place to place, and appeared polarization; neither the surety nor the deposit cannot be adopted the guaranteed pending trial; supervision becomes a mere formality;directly apply to the guaranteed pending trial little, and the rate is low of after detention and so on.The second part is give priority to outside guarantee way of investigation. From the perspective of comparative law, this part simply inspect and analysis developed countries' bail ways which is release on recognizance,the guarantor bail, property bail, commercial bail and other conditions of bail under the rule of law, and emphatically introduces the commercial bail system in the United States.The last part of the main contents concerns perfect measures for the guarantee pending trial's guarantee ways. This is the focus of this paper, and is also the innovation. Concretely, it is divided into two sections:The first one is to improve the existing guarantee ways, respectively expound from three aspects of two kinds of guarantee ways,such as allowing a variety of guaranteed pending trial's guarantee ways, and improve the surety guarantee and deposit guarantee.The two is to draw lessons from American commercial bail. This is consist of five parts, including necessity of building commercial bail, the feasibility of commercial bail, the significance of building commercial bail, possible problems and obstacles to establish commercial guaranteed pending trial in our country, and some ideas of constructing commercial bail.