1. Can the bail be refunded?
The handling of deposits is a legal act that determines the ultimate ownership of deposit property. According to the provisions of the new Criminal Procedure Law, in criminal proceedings, the judicial organ will decide to return all the deposit or confiscate all the deposit according to the different performances of the criminal suspect or defendant during the period of bail pending trial. Specifically, if the criminal suspect violates the guarantee obligation, the judicial organ will make a decision to confiscate the deposit and serve it on him. The deposit he has paid will be turned over to the state treasury according to law, and the receipt will be attached for future reference. The other is that the criminal suspect or defendant did not violate the guarantee obligation during the bail pending trial. After the bail pending trial is completed, the above authorities will return all the deposit to him.
Second, the application of bail bond
The bond for bail pending trial refers to a certain amount of cash paid by the public security organ to ensure that the criminal suspect does not hinder or evade criminal proceedings when deciding to get bail pending trial. Bail pending trial is a very serious criminal compulsory measure. In criminal proceedings, the judicial organs must strictly follow the relevant provisions of the new criminal procedure law, accurately define the specific application object of the deposit, reasonably determine the amount and scope of the deposit, and strictly manage the payment, collection and handling of the deposit, so that the legal system can meet the scientific and standardized requirements in the operation process.
(A) the specific application of the restricted object
According to article 5 1 of the new criminal procedure law, only criminal suspects and defendants in criminal proceedings can apply for bail pending trial, and they also need to meet the following conditions:
1, may be sentenced to public surveillance, criminal detention or independent application of supplementary punishment;
2, may be sentenced to more than fixed-term imprisonment, taking bail pending trial will not cause social harm.
(two) the principle of determining the amount of the deposit.
For a long time, China's laws have not stipulated the deposit for obtaining bail pending trial. In practice, the degree of social harm of various cases is different. In addition, China has a vast territory and uneven levels of economic development. Therefore, it is difficult to achieve the uniformity of the deposition amount. Accordingly, the author believes that when grasping the amount of deposit, we should learn from the reasonable provisions of relevant foreign legislation, combine the successful practices of China's judicial circles in this regard, and determine it according to the following principles without violating the legislative intent of "realistic guarantee" and "possible punitive" deposit.
1, the principle that a felony is lighter than a misdemeanor
Theoretically speaking, the social harm of felony should be obviously greater than that of misdemeanor. Accordingly, criminal suspects and defendants may be subject to more severe criminal sanctions, and the risk of judicial organs deciding to obtain bail pending trial will also increase. Therefore, the amount of deposit is significantly higher than that of misdemeanor. For example, both of them are crimes against property. Because robbery infringes on dual objects, when deciding to apply bond to the suspects and defendants involved in the case, the amount is higher than that of ordinary theft cases.
2. The principle that high-income people are higher than low-income people.
The level of citizens' economic interests reflects the living affluence of specific social members. In order to make the legislative equality and judicial justice of the deposit system as harmonious as possible, it is obviously necessary to determine a constant deposit index when applying for bail pending trial for criminal suspects or defendants with different wealth levels. In this regard, in my humble opinion, no matter who decides to apply the deposit to fixed income, regardless of the income, the amount and range should be determined based on the upper limit of their actual income for six months and the lower limit of their actual income for 1 month. For those who have no labor income, they can flexibly adopt the method of "PICC" to obtain bail pending trial. When juvenile criminal suspects and defendants decide to get bail pending trial, this principle can naturally be adopted depending on whether they have interests or not.
3. The principle that healthy people are higher than the infirm.
Paragraph 2 of Article 65 of the new Criminal Procedure Law stipulates that "a criminal suspect or defendant who should be arrested is suffering from a serious illness, or a woman who is pregnant or breast-feeding her baby may be released on bail pending trial". This provision potentially shows the extent to which the physical health of a criminal suspect or defendant may cause damage to criminal proceedings. From this, it can be inferred that healthy people fail to fulfill the guarantee obligations stipulated in Article 55 of the new Criminal Procedure Law in the process of obtaining bail pending trial, and may bear greater responsibilities than those who are seriously ill, pregnant and breastfeeding. Therefore, as a punitive deposit, the collection range is correspondingly high.
(3) Management of bail bond
The management activities of margin include the payment, collection and disposal of margin. It is an important link in the application of bail pending trial, and the judicial organs must conduct management in strict accordance with the following provisions.
1, payment
In different stages of criminal proceedings, such as investigation, prosecution and trial, it is necessary to decide to obtain bail pending trial, and the case-handling organ at that stage of the proceedings shall order him to obtain bail pending trial according to his functions and powers. The specific amount of the deposit drawn up by the case undertaker (or collegial panel) shall be signed and approved by the person in charge of the above-mentioned organ. In order to facilitate the execution, before the order is announced to the criminal suspect or defendant, the confirmed cash deposit (in RMB as the legal payment currency) should be collected in full from himself or his close relatives or other people who are willing to pay on his behalf. At the same time as announcing the decision to obtain a guarantor pending trial, he shall be ordered to fill in the guarantee letter for obtaining a guarantor pending trial (minors may be filled in by their legal guardians) to ensure that they fulfill their guarantee obligations during the period of obtaining a guarantor pending trial before obtaining a guarantor pending trial.
2. Charging
A strict financial management system should be established for the deposit collected;
(1) Establish a special deposit account, and the financial department of the judicial organ shall list the subjects separately.
(2) The procedures for collecting the deposit shall be complete, with vouchers and documents. The specific method can use triple special receipts, in which: one is signed by the payer, the other is attached to the case file by the case handler, and the other is kept by the financial department for future reference.
(3) Deposits collected shall be audited by the person in charge and delivered to the deposit bank one by one in a timely manner for unified custody in case of withdrawal.
According to different legal systems and judicial practices, the provisions and procedures for returning bail are different. Generally speaking, if the defendant is sentenced, the bail can be refunded according to the law. The restitution procedure usually includes the following steps: first, the defendant or his agent needs to submit a written application to the relevant court with relevant certification materials; Secondly, the court will review the application and consider relevant factors, such as whether the defendant complies with the bail conditions and whether there are other circumstances; Finally, the court decides whether to refund the bail according to the results of the review. It should be noted that the restitution procedures may vary from region to region and specific circumstances, so it is recommended to consult local lawyers for accurate legal advice and guidance.
Legal basis:
Procedures for public security organs to handle criminal cases:
Chapter VI Compulsory Measures
Section 5 Arrest
Article 133 A criminal suspect who has evidence to prove the facts of the crime and may be sentenced to more than fixed-term imprisonment shall apply for approval of arrest if bail pending trial is not enough to prevent the following social dangers: (1) He may commit a new crime; (two) there is a real danger of endangering national security, public safety or social order; (three) may destroy or falsify evidence, interfere with the testimony of witnesses or collusion; (4) It is possible to take revenge on the victim, prosecutor or accuser; (5) attempting to commit suicide or escape. If there is evidence to prove that there are criminal facts, which may be sentenced to fixed-term imprisonment of more than 10 years, or if there is evidence to prove that there are criminal facts, which may be sentenced to fixed-term imprisonment of more than 10 years, or if the crime is intentional or the identity is unknown, it shall apply for approval of arrest. When the public security organ requests the people's procuratorate to examine and approve the arrest in accordance with the provisions of the first paragraph, it shall explain the reasons why the criminal suspect is socially dangerous.