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On the bail system

Author: NiuMingMing
Tutor: SongYingHui
School: China University of Political Science
Course: Procedural Law
Keywords: Bail system Human rights Of custody Right to bail
CLC: D915.3
Type: Master's thesis
Year: 2006
Downloads: 128
Quote: 1
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Abstract

The bail system is to protect the suspect, the defendant's personal freedom as a value orientation, the presumption of innocence and the concept of natural rights as the theoretical basis, to ensure that the judicial order and the maintenance of social justice, a criminal justice program is premised on the protection of human rights important system. Bail system, a comprehensive, systematic exposition and analysis, comprehend and understand the system behind the operation mechanism for our system of compulsory measures and the construction of the bail system, to promote the improvement of China's criminal procedure system has a very important significance. This paper is divided into an introduction, body and conclusion of three parts, a total of four thousand words. Introductory part: Questions and path. Generally our custody, no need to custody extended detention has been quite serious, and released on bail this coercive measures not well suited to study the fundamental reason is because of defects in the design of the system of criminal coercive measures, it is difficult to to achieve the requirements of the modern concept of rule of law \I found that the superiority of the bail system is based on it has a reasonable kernel, as well as system design, the perfect system for China's coercive measures \So, I bail system as the research object and retrieve various modern country under the rule of law on the provisions of the bail system, comprehensive system of bail, the system described and analyzed, and a profound understanding of the basis and understanding of the philosophy behind the implication of the institutional , trying to convert it or transformation that is to build a system suitable for China's national conditions, China's bail system, to make it with our goal of building a modern nation ruled by law compatible. The body part is divided into five chapters, the main contents are as follows: Chapter 1 Overview bail system. Section I is the meaning of the bail system. Bail is the release system to provide security in the person who is arrested or specific conditions. However, the study found, vary based on the different legislative ideas and litigation traditional, Two Schools bail meaning: common law countries bail be understood as a right, and civil law countries defined as custody kinds of alternative measures. Section II History of the bail system. The main macro broad clues and context of the emergence and development of the bail system, attempts to explore the bail system and development of the basic clues with the external environment. Is not difficult to see through the introduction of this section, the punishment of crime and the protection of human rights has been run through the main line, the bail system in any country is the contradiction between the two coordination forward. The second chapter is the content of the bail system. Abandon the practice of each country, a large segment of the author, instead of using the method of classification, to the contents of the bail system elaborated a comprehensive, systematic analysis. The first section applies for bail object and applies to the case, according to the Court the discretion of the size of the bail process as well as the limitations of the exercise of the discretion whether or not to bail divided into the right to bail and bail discretion, and were applicable to them, object, gave a detailed narrative of the applicable conditions and exceptions. Section II of bail conditions, the bail is a conditional release system, so bail conditions. But as long as the person was released on bail to automatically appear in court, the court would be no need to attach other conditions, so called \reliability, often the court would like to add a number of conditions, namely conditional bail. The third quarter, including money for bail guarantee bail, a statement of the release as well as a guarantor. Modalities bail guarantee is very important, because it suspects to some extent, whether the defendant can be released on bail, if bail guarantee application will achieve a reasonable bail \and protection of human rights, \The fourth quarter for the bail procedures. Bail program is divided into application hearing, ruled that four stages and relief. Through various countries, especially Britain and the United States release on bail program tomorrow, we can easily see a system in order to give full play to its proper function, the improvement of the program is essential. The third chapter is the theoretical analysis of the bail system. The first section is the theoretical basis of the bail system, that the principle of the presumption of innocence and the concept of natural rights. Special emphasis on the rights of the concept of natural rights is the freedom of the individual, but also the kind of freedom, refused to intervene in the highest interests of society is to protect the natural rights of each individual, so the legal obligation to protect the citizens of the right to establish the bail system, is to make custody become the exception, as much as possible to protect the natural rights of citizens; principle of the presumption of innocence is the theoretical basis of which the bail system and development. Bail, on the one hand, the principle of the presumption of innocence implied content, adhere to the principle of the presumption of innocence, it is bound to allow the implementation of the bail system. On the other hand, the implementation of the bail system is in criminal proceedings, the full realization of the manifestation of the principle of the presumption of innocence. Second section of the bail system functional analysis, and summed up the bail system constraints and limitations of state power to protect the basic human rights of the function; protection litigation smooth functionality; curb the function of extorting confessions by torture; inhibit the function of extended detention; ensure the rights of the defense to be realized and functions to ensure that the right to a fair trial can be achieved. Chapter bail system and custody battle of the orientation of the system. The bail system and custody system, in fact it is the same problem, the condition is often custody on bail exceptions. The first section through the analysis of the two is essentially the bail system and custody system represents the different values behind them is the confrontation of state power and individual rights. Exercise, necessary to protect suspects summing up the lessons of history, the basic human rights of citizens than the constitutional concept of state power has been established to restrict the powers of the custody rights of personal freedom and other rights has become a trend of the development of the world coercive measures . Therefore, the right to bail as to determine the rights of the international norms. However, in this regard from the concept to the institutional and modern country ruled by law can not be compared, in order to rationalize our custody, I advanced practices in some countries elaborated through a second, learning from them. The fifth chapter for the construction of our bail system. A serious impediment to our view of the defects of our bail system in order to protect the human rights focus of criminal justice reform process, I believe that China should build the bail system. Analysis Section 1 released on bail defects. Released on bail from the legislative concept to the design of the system, there are defects, making it difficult to play its proper function. More important, from the \the need for analysis. Due to the bail system defects have been irreparable, so the introduction of the bail system is imperative. And the introduction of the the bail system specification judiciary, to curb unreasonable detention needs, but also to respect international legal norms, and to fulfill the needs of the international legal obligations. The third quarter to build the base path of the bail system. Should first build based on the idea that in order to protect human rights as a fundamental value of the target, and established the principle of the presumption of innocence, as well as the mandatory punishment restrictions apply to the concept and the principle of proportionality, to pave the way for the introduction of the bail system. Secondly, on the design of specific systems, reconfigurable system with the bail system of compulsory measures. Specific ideas: the limits of coercive measures: summons, detention, arrest, detention, bail will locate in the custody of alternative measures to ensure smooth action premise, expand the application of the bail, so bail become the principle of custody be the exception. The fourth quarter for the specific design of the bail system. The author based on China's national conditions, and learn from foreign advanced system on the basis of a comprehensive Construction of the bail system. The conclusion: The overall evaluation of the bail system. Bail system, although there are limitations of its own existence, but based on it is consistent with the modern concept of rule of law, protection of human rights restrictions unreasonable detention powerful on the specific design of the system reflects the principle of procedural justice and litigation efficiency, so that the modern system of bail forceful measures to protect the rights of the criminal justice.

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