Research On The Legislative Perfection Of The Bail Pending Trial System In China

The bail pending trial system is a compulsory measure of criminal proceedings which is ordered by the public security organs to order the suspect or defendant to provide guarantor or pay the deposit,and to issue a guarantee to ensure the smooth progress of criminal proceedings.It plays an important role in the criminal justice system and has its own advantages.However,in judicial practice,it is found that there are some problems in the legal provisions and application of the bail pending trial system,which need to be solved urgently.Therefore,it is necessary to analyze the difficulties in the application of China’s current bail pending trial system as soon as possible,actively seek solutions and improve the relevant legislation of the bail pending trial system.This study is divided into three parts:The first part first examines the legislative evolution and current legal provisions of China’s bail pending trial system,and then analyzes the defects of China’s bail pending trial system in legislation and application through the current legal provisions and their judicial application.On the one hand,the legal provisions of the bail pending trial system are not clear and too general.For example,the applicable conditions are too broad and the scope of discretion is too large;The scope of application is narrow and inconvenient to operate;There are no provisions on the rights and remedies of the guarantor.On the other hand,in judicial practice,the application rate of China’s current bail pending trial system is low,mainly due to the fact that the concept of "presumption of guilt" of public security and judicial organs still exists,emphasizing substance over procedure,cracking down on crime is still in the primary position,the proportion of detention and arrest is large,and the proportion of bail pending trial is small.The decision-making power of obtaining a guarantor pending trial is in the hands of the public security,procuratorial and legal organs,and there is a lack of corresponding external restriction mechanism.Therefore,it is necessary and urgent to improve the relevant legislation of China’s bail pending trial system.The second part analyzes the specific legal provisions of the extraterritorial bail system in terms of applicable conditions,scope of application and judicial relief,summarizes the common points of the extraterritorial bail system,and makes a comparative analysis with China’s bail pending trial system,Thus,it is concluded that the relevant legislation of extraterritorial bail system has certain enlightenment and reference significance for the legislative improvement of China’s bail pending trial system.However,when improving the legislation of our bail pending trial system,we should proceed from the actual conditions of our country,take the essence of the legislative experience of bail system abroad and remove the dross so as to establish a bail pending trial system that matches the criminal justice system in China.The third part puts forward some suggestions to improve the legislation related to the bail pending trial system from the aspects of concept and specific details.In terms of concept,to improve the bail pending trial system,the relevant legislation should strictly implement the principle of presumption of innocence,change the judicial personnel’s view of litigation law,and adhere to the concept of "people-oriented";In terms of specific details of the system,we should refine the provisions on the decision procedure of obtaining bail,pursue due process,expand the scope of application of obtaining bail,further improve the guarantee mode of obtaining bail,clarify the time limit of obtaining bail,improve the right relief ways of the person awaiting bail,introduce judicial review procedures,strictly standardize the implementation of regulatory measures,strengthen supervision and management and other specific measures.