As a legal system, bail originated from the British habeas corpus act of 1679. The current British Bail Law 1976 stipulates that bail is a right that litigants should enjoy, and defendants have the right to apply for bail from the time they are detained to the time they are sentenced. The Oxford Law Dictionary gives an authoritative explanation of the bail system. [2](P78) It can be seen that bail pending trial refers to a litigation system in which once a detainee or his guarantor promises to perform, he is summoned to participate in the litigation and allowed to be released. Meaning: (1) The applicable object is only the criminal suspect or defendant who has been detained. (2) The core is to release the detainees and restore their personal freedom. (3) The condition is that the detainee must be present when he is arraigned, tried or awaiting a verdict when he is released. The basic spirit of bail is that the detainee promises to fulfill some obligations and enjoys the right to freedom.
The nature of bail is a litigation right of the defendant, and some countries even stipulate it as a constitutional right, based on the principle of presumption of innocence. For example, Japanese law clearly stipulates that the right to bail is protected by the Constitution. [3](P69) Another example is American law that bail system is an important litigation system derived from the principle of presumption of innocence. Its central idea is to strictly limit the compulsory litigation measures that restrict the defendant's series of civil rights, especially personal freedom. Not only should it be used with caution, but even if it is adopted, it should be ended as soon as possible. [4](P239-24 1) Therefore, Chinese scholars generally believe that the bail system has three basic concepts: freedom, presumption of innocence and protection of rights. [5]
Second, the scope of application and guarantee methods of bail pending trial
(a) the scope of application of bail
1, common law
Article 3 142 of the Federal Bail Reform Act 1984 of the United States stipulates that detainees are entitled to bail under any circumstances, except the following circumstances: (1) Violent crimes; (2) The maximum penalty is life imprisonment or death penalty; (3) Law1September 5 1980, Law on Prohibited Articles, Law on Import and Export of Prohibited Articles and Article 10 stipulate that the maximum penalty is 10 years or more; (4) Having committed the above two or more crimes. In practice, even if the suspects and defendants commit the above crimes, they still have the opportunity to get bail. [6](P307-3 1 1) The British Bail Law 1976 stipulates that criminal suspects and defendants have the right to bail except for the following circumstances: (1) Treason; (2) fugitives; (3) Having the same criminal record as the alleged crime; (four) after being released on bail, in violation of the provisions of the bail, not to appear in court on time for review. [7](P 17 1) However, in judicial practice, anyone arrested by the police will generally be released on bail soon, unless there are sufficient reasons to prove that it is necessary to continue detention. [8](P33 1) It can be seen that the scope of application of bail in common law countries is very wide.
2. Continental law
In France, detainees or their lawyers can be released by attending court proceedings when they promise to fulfill the summons; At the same time, the law also stipulates that a person charged with a felony or a current misdemeanor shall be sentenced to fixed-term imprisonment of more than one year, or other misdemeanor shall be sentenced to fixed-term imprisonment of more than two years. If the obligation of judicial control is not enough to help the trial or security, the detention period may be temporarily detained or extended. [9] In this regard, some scholars pointed out that the pretrial detention system of criminal suspects and defendants in France has not been significantly reduced, but only shortened the time of pretrial detention. [1 0] (p609) The scope of application of bail in Taiwan Province Province is relatively narrow: (1) Those who commit the most serious crimes are sentenced to fixed-term imprisonment of not more than six months, criminal detention or fines; (2) pregnant for more than seven months or less than one month after delivery; (3) Suffering from diseases that are obviously difficult to recover after being released on medical parole. [11] (p101) also stipulates that once the bail conditions disappear, the suspect can still be taken into custody.
3. Japanese law
According to Articles 344 and 89 of Japan's Criminal Procedure Law, bail shall not be granted in the following circumstances: (1) those who have been sentenced to fixed-term imprisonment or above (excluding suspended sentence); (2) The defendant has committed the crime of applying the death penalty, life imprisonment or fixed-term imprisonment of at least one year; (3) The defendant is sentenced to death, life imprisonment or fixed-term imprisonment with a maximum penalty of more than 10 years; (4) The maximum penalty for the defendant's habitual behavior should be three years or more or fixed-term imprisonment; (5) There is considerable reason to suspect that the defendant may conceal criminal evidence; (6) There are sufficient reasons to suspect that the defendant may harm the victim or other people who are considered to have necessary knowledge in the trial of the case, as well as the body and property of the relatives of the above-mentioned people, or may commit terrorist acts against these people; (7) The name or address of the defendant is unknown. [3](P69-7 1)
It can be seen that the different provisions of the two legal systems and Japanese law on the scope of application of bail reflect the differences in their litigation concepts. In common law countries, detention is regarded as a means to protect the person because of the traditional emphasis on individual rights and the pursuit of presumption of innocence and protection of rights, but in principle it should not be used for the purpose of obtaining evidence. Therefore, the scope of application of bail is relatively loose, and almost all detainees have the opportunity to get bail. On the other hand, the civil law emphasizes the truth of the entity and finds out the truth of the case through official investigation procedures. Therefore, pretrial detention is not only a way to protect people, but also a way to preserve evidence or objects, or a way to prevent them from exerting pressure on witnesses or victims, or the only way to prevent them from colluding with criminals. [9] Therefore, the scope of bail is strictly limited with many conditions attached. Japanese law has its own characteristics in the application of bail: first, the scope of application of Japanese law is smaller than that of common law countries and much wider than that of continental France countries; Secondly, in terms of types, apart from the right bail, it also stipulates discretionary bail and compulsory bail; Finally, in the object of application, Japanese law stipulates that bail is only applicable to the accused after prosecution, not to the criminal suspect before prosecution. [3] (page 69)
(II) Guarantee method
There are four types of guarantee methods: guarantee, guarantor's guarantee, property guarantee and mixed guarantee of guarantor and property. In the specific application, some only stipulate one kind, for example, there is only one kind of guarantee in Britain; Some have multiple regulations, such as four in the United States.
1, bond guarantee, means that the detained person will be released as long as he promises to attend court proceedings when summoned or complies with some additional conditions. In practice, it is divided into unconditional bail and conditional bail. The former only requires the suspect to issue a letter of guarantee that will not hinder the investigation and avoid the trial, and sign the letter of guarantee to be released home. The latter means that in addition to signing the letter of guarantee, the suspect must also express his willingness to abide by additional conditions, such as who is not allowed to contact during bail, who is not allowed to leave the residential area, and report the situation to the local police regularly. Therefore, in the face of more and more calls for the application of property insurance today, some scholars lamented when commenting on the British bail system, "British bail does not need to pay money, but it is actually just a credit guarantee. [8](P332)
2. Guarantor's guarantee refers to a way of bail when a third person comes forward to ensure that criminal suspects and defendants do not interfere with investigation or evade trial, or when a third person supervises them to abide by one or more conditions. The guarantor's duty is to supervise the behavior of criminal suspects and defendants and report the situation to the court regularly.
3. Property guarantee means that the detainee must pay a certain amount of property or money before he can be released on bail. For example, Item 2 and Item 3 of Article 3 142 of the United States 1984 Bail Reform Act stipulates that when the defendant is granted bail, he must take out bail, property or property ownership certificate or money recognized by the judge as collateral. To determine the amount of property, we should consider the nature and circumstances of the crime, the probative force of evidence, the defendant's character and property, and stipulate a considerable amount sufficient to ensure the defendant's presence. [ 12]
4, the guarantor and property mixed guarantee, refers to the detainees in the request for bail, not only to provide a guarantor, but also to pay a certain amount of property to allow bail. According to American law, when a detainee cannot provide property, he can ask his solvent guarantor to provide property or pay a certain amount of money as a guarantee. At this time, it constitutes a joint guarantee between the guarantor and the property. As for the amount of property or bail, it is generally decided by the court to ensure that the trustee can appear in court within a reasonable range, but it must not violate the provisions of Article 8 of the federal constitutional amendment: "It is forbidden to pay too much bail." How to determine the specific amount is not clearly defined by law. In practice, the practices of different States are different, and some States temporarily determine the economic situation of the parties according to the case; According to different types of crimes and various situations, some states have made different forms of bail in advance, so that the parties can "sit in the right place". [7](P2 12)
Thirdly, the procedure of bail.
(1) application
1, application period
The time limit for applying for bail is more specific, such as the provisions of American law, the time limit for pre-trial and waiting for execution of judgment or appeal. [7](P2 12) is somewhat general. For example, French law stipulates that "the investigating judge can be requested to release him at any time." [9] Other countries stipulate that you can only apply for bail pending trial after prosecution, and criminal suspects are not allowed to apply for bail pending trial before prosecution, such as Japan. [3] (page 68)
2. Applicant
It is generally believed that both detainees and their defenders have the right to apply for bail upon request. Anglo-American law does not clearly stipulate whether other litigants and their close relatives have the right to apply for bail pending trial. Japanese law stipulates that in addition to the detainees and their defenders, the defendants' legal representatives, assistants, spouses, immediate family members, brothers and sisters, etc. You can apply for bail. In addition, in Japan, the system of stopping the execution of custody before prosecution for criminal suspects is functionally consistent with bail. [ 13](P58)
(2) Approval or decision
Different countries have different regulations on the institutions that have the power to approve or decide bail. The Federal Bail Reform Act 1984 of Taiwan Province and the United States stipulates that judicial personnel, judges of the court of first instance or federal courts have the right to approve or decide bail. In terms of specific procedures, some cases need to be tried before bail is granted or decided, such as violent crimes, and the maximum penalty is life imprisonment or death penalty. [6] (P310-31) The British Bail Act 1976 stipulates that judges of police stations, magistrates' courts and criminal courts have the right to approve or decide bail, and no other organ or individual has the right to exercise it. In France, the power to grant or decide bail is exercised by the examining magistrate or the judge of the court of appeal. When deciding bail ex officio, the pre-trial judge shall listen to the opinions of the public prosecutor of People's Republic of China (PRC). If the prosecutor requests bail, the examining magistrate shall make a decision within five days. [ 10](P620)
In addition, French law clearly stipulates the time limit for examination and approval, such as five days for the pre-trial judge, twenty days for the criminal review court, ten days for the first trial and twenty days for the second trial respectively. If no decision is made at the expiration of the time limit, the judicial control of the party concerned shall be lifted or the temporary detention shall be revoked. [9] This plays an important role in effectively protecting the rights of detainees, preventing judicial personnel from delaying passively and improving litigation efficiency.
(3) revocation of bail
Under normal circumstances, if the trustee abides by the bail conditions, the bail for participating in the litigation on time will be automatically released. According to the federal law of the United States, if the bailed person deliberately fails to appear in court according to the conditions of release, or deliberately violates the court order and does not surrender to serve his sentence, the judge will revoke his bail and remand him in custody. At this time, in addition to confiscating bail, the judge can also confiscate the designated property and turn it over to the state treasury to prosecute for contempt of court. If the trustee is released on the basis of the guarantor's guarantee, when he commits a crime again, the guarantor can hand him over to the judicial organ, and the judge can decide whether to revoke his bail and exempt the guarantor from the guarantee responsibility in whole or in part. In addition, those who cannot appear in court or surrender due to force majeure, and who appear in court or surrender immediately after the force majeure is eliminated, may be exempted from punishment. [6](P3 15-3 17), in France, when there are different opinions on the decision to revoke bail, the prosecutor of the Republic of China has the right to protest and the trustee has the right to appeal. Japanese law also has specific provisions. [3](P72-74)
(A) the difference between the bail system and the bail system in China.
Bail pending trial is one of the compulsory measures in China, which has the following differences compared with the bail system:
1, with different properties and purposes.
Bail pending trial refers to a compulsory measure taken by public security and judicial organs to prevent criminal suspects and defendants who have not been arrested from evading investigation, prosecution and trial, and to order them to provide a guarantor or pay a deposit, and issue a letter of guarantee to ensure that they are on call. In nature, bail pending trial is to limit the personal freedom of criminal suspects and defendants who are not harmful to society in a moderate way. Its purpose is to ensure that the public security and judicial organs effectively exercise their judicial power and ensure the smooth progress of litigation. Bail system is to confirm and protect the rights of detainees. Its purpose is to treat detainees as innocent people and restore their personal freedom as soon as possible, which is the concrete embodiment of the principle of presumption of innocence.
2, the scope of application is different
According to the existing laws and relevant judicial interpretations, the scope of application of bail pending trial is mostly limited to minor criminal cases, and the restrictions on the applicable conditions, methods and decision procedures of bail pending trial further hinder the realization of the rights of criminal suspects and defendants to bail pending trial, resulting in a very low rate of bail pending trial. The scope of application of bail is relatively wide and the bail rate is very high.
3. Different guarantee methods.
According to the current laws and regulations, there are only two ways to guarantee bail pending trial: guarantor guarantee and bond guarantee, which cannot be used together. At the same time, it stipulates additional conditions such as not leaving the place of residence, arriving at the case in time, not destroying, not forging evidence, and not colluding with confessions. There are four ways to guarantee the bail system, and the content of property guarantee in China is wider than that of deposit guarantee.
4. Approval and supervision are different.
Regarding the approval of bail pending trial, according to the existing laws, the public security and judicial organs have the right to approve or decide on bail pending trial. In terms of supervision, there is a review procedure within the public security department. [14] In the bail system, apart from the British police, only the court has the right to approve or decide bail. Prosecutors only have the right to suggest and supervise, but the court should listen to their opinions when approving or deciding bail.