Can the crime of illegal detention be released on bail pending trial?

Lawyer Zhong Gu. Com answer: yes, yes. Bail pending trial conforms to the law and there is no possibility of harm, and may be sentenced to fixed-term imprisonment of not more than three years. Relevant laws and regulations: 1. The concept and composition of the crime of illegal detention [2] refers to the act of illegally depriving others of their personal freedom by detention, confinement or other coercive methods. The object of the crime of illegal detention is the personal freedom of others. The so-called right to physical freedom refers to the right of personality whose content is that the actions and behaviors of the body are not illegally interfered, that is, the right to decide one's own physical behavior according to one's own will within the legal scope. The personal freedom of citizens is the guarantee of their normal work, production, life and study. Without physical freedom, they will lose the possibility of engaging in all normal activities. Article 37 of China's Constitution stipulates: "The personal freedom of the people of China and citizens of China shall be inviolable. No citizen shall be arrested without the approval or decision of the people's procuratorate or the decision of the people's court, and shall be executed by the public security organ. It is forbidden to illegally detain or illegally deprive or restrict citizens' personal freedom by other means. " Therefore, illegal detention is a serious deprivation of citizens' personal freedom. The object of the crime of illegal detention is any natural person who enjoys personal rights according to law. As a kind of personality right, personal freedom is an important part of personal right, which is one of the civil rights systems. The enjoyment of civil rights is based on the capacity of civil rights. Every natural person with capacity for civil rights enjoys civil rights including personal freedom according to law. Capacity for civil rights is the qualification given by law to civil subjects to engage in civil activities, enjoy civil rights and undertake civil obligations. It starts from birth and ends at death, and all natural persons have equal capacity for civil rights. Therefore, the object of the crime of illegal detention includes all natural persons (that is, people born on the basis of natural law), including innocent citizens, people with mistakes, people with ordinary illegal acts and criminal suspects. There is a view that "others" in the crime of illegal detention only refer to people who have the ability to control their own activities according to their own will, including potential people with action ability, such as children, drunkards, sleeping people and so on. But it should not include people who are unable to control their own activities according to their own will, such as infants, severe mental patients and so on. (II) Objective elements of the crime of illegal detention The crime of illegal detention is objectively manifested as an act of illegally depriving others of their physical freedom. There is no restriction on "other" here. They can be law-abiding citizens, people who have committed mistakes or ordinary illegal acts, and criminal suspects. The behavior is illegal detention of others or illegal deprivation of physical freedom of others by other means. Anyone who meets this characteristic should be considered as the crime of illegal deprivation of personal freedom, such as illegal arrest, detention, imprisonment, seizure, kidnapping, holding closed "study classes" and "isolation review". Are illegal deprivation of personal freedom. Generally speaking, it can be divided into two categories: one is to directly bind people's bodies and deprive them of the freedom of physical activities, such as binding; The other is to indirectly bind people's bodies and deprive them of physical activities, that is, to imprison others in a certain place, making it impossible or obviously difficult for them to leave or escape. The method of deprivation of personal freedom can be tangible or intangible. For example, it is an invisible method to take away a woman's change of clothes when taking a shower, so that she can't walk out of the bathroom because of shame. In addition, whether you detain others by violence, coercion or fraud will not affect the establishment of the crime of illegal detention. Illegal deprivation of personal freedom is a continuous behavior, that is, the behavior is in a continuous state for a certain period of time, which makes others lose their personal freedom for a certain period of time, not intermittently. The duration does not affect the establishment of the crime of illegal detention, but only affects the sentencing. However, if the time is too short and personal freedom is deprived instantly, it is difficult to establish the crime of illegal detention. Deprivation of personal freedom must be illegal. According to the law, it does not constitute the crime of illegal detention for the judicial organs to take compulsory measures such as detention and arrest to restrict personal freedom for people with criminal facts and major suspects. However, if it is found that people should not be arrested and continue to be detained under the pretext of not being released, it should be regarded as illegal deprivation of personal freedom. For those who are found in time, wanted, escaped from prison, committed a crime or are being pursued after committing a crime, it is a right, not an illegal deprivation of personal freedom. Taking in mental patients according to law is not illegal deprivation of personal freedom. (III) The main elements of the crime of illegal detention The subject of the crime of illegal detention can be both state functionaries and ordinary citizens. Judging from the actual cases, most of them are state workers or grassroots rural cadres with certain powers. In addition, such cases often involve more people. Have a plenty of cadres meeting collective discussion and decision; Some are approved or acquiesced by superior leaders; Have a plenty of direct planners and commanders, have a plenty of hands tied, ordered to guard. Therefore, it should be noted that only those who are directly responsible and those who have despicable motives such as framing and revenge should be investigated for criminal responsibility according to law. Other personnel should be treated differently and generally not be investigated for criminal responsibility. (IV) Subjective elements of the crime of illegal detention The crime of illegal detention is subjective and intentional, with the purpose of depriving others of their personal freedom. Negligence does not constitute the crime of illegal detention. There are various motives for illegally detaining others. Some regard illegal detention as a legal act because of poor legal concepts; Some are out of anger, revenge and persecution; Some do not investigate and study, are subjective and arbitrary, and extort confessions; Have a plenty of privileges, be overbearing; Some abuse their powers and oppress others by force; There are also some ulterior motives and other plans. Whatever the motive, as long as it has the purpose of illegally depriving others of their personal freedom, it constitutes the crime of illegal detention. If the illegal deprivation of personal freedom is for other criminal purposes, and other crimes are more severe than the crime of illegal detention, it should be punished as other crimes. Determination of the crime of illegal detention II. Identification of the crime of illegal detention (1) The boundary between the crime of illegal detention and non-crime 1. Draw a clear line between general illegal detention and the crime of illegal detention. Illegal detention only constitutes a crime if it reaches a serious level. Therefore, the nature of illegal detention should be comprehensively analyzed and determined according to the seriousness of the circumstances, the size of the harm, the motivation of private interests, the length of detention and other factors. [1] 2. Draw a clear line between illegal arrest and illegal detention. The main difference between the two is that illegal detention and arrest are in violation of the legal provisions on detention and arrest. Generally speaking, the judicial personnel decide, approve and execute the arrest according to the statutory authority and conditions, which violates the relevant procedures, formalities and deadlines stipulated by law and does not have the motive and purpose of illegal detention. Such as: general overdue arrest and arrest; Failing to handle and produce the detention certificate and detention certificate in time; Failing to notify the family members of the criminal suspect or the unit to which he belongs in time according to law; If the criminal is detained for an extended period without going through the extension formalities first, it does not constitute the crime of illegal detention. A person who is wrongly arrested or arrested due to various objective factors does not constitute a crime. (2) The crime of illegal detention and the crime of extorting a confession by torture are both crimes against personal rights, and the boundaries between them are often interrelated in practice and easily confused. The difference between them is: 1, and the main elements are different. The former is a general subject, and the latter can only be national staff; 2. The targets of crimes are different. The former is an ordinary citizen, and the latter can only be a criminal suspect accused of illegal and criminal acts; 3. The manifestations and purposes of criminal acts are different. The former illegally deprives others of their personal freedom by detention or other coercive methods, while the latter extorts confessions by torture by corporal punishment or disguised corporal punishment. If the two crimes occur together and are interrelated, they should generally be treated as felonies as implicated offenders. Non-state employees who commit detention acts such as "extorting a confession by torture" can be punished as the crime of extorting a confession by torture.