【作者】 王华；

【导师】 闵春雷；

【作者基本信息】 吉林大学 ， 诉讼法学， 2008， 硕士

【摘要】 我国司法实践中的长期羁押、超期羁押等问题大大阻碍了刑事诉讼的民主化进程,严重侵犯了公民的人身自由权。因此,在宽严相济的刑事政策的指导下,完善我国的取保候审制度,保障犯罪嫌疑人、被告人的正当人身自由权利已经成为我国即将进行的《刑事诉讼法》修改的任务之一。为寻求妥当的解决方法,司法界把目光投向了保释这项古老而又充满活力的制度。保释制度起源于英国,经过几个世纪的发展,现立法已趋于成熟,司法实践经验也较为丰富,其所依据的理论基础和蕴含的价值取向具有相当的先进性。但是不可否认,在实践中,这项制度并不是完美无缺的,其仍需完善。本文通过对英国保释制度的介绍,解读其依据的理论基础和蕴涵的价值取向,分析英国保释制度存在的不足,从而对照完善我国取保候审制度,以期加强对犯罪嫌疑人、被告人的权利保护,从而真正实现取保候审的诉讼保障功能和权利保障功能。更多还原

【Abstract】 After several centuries of development, British bail system have a mature legislation and the rich judicial practical experience, the theoretical basis on which they are based and the values which they are contains are considerably advanced. Undeniably, in practice, this system is not faultless, it still needs to perfect. In the view of the issues in China, such as long-term detention, extended detention, re-examine our country’s guaranteed pending trial, through the introduction of British bail system, interpretation the theoretical foundation and implication of values, analysis of British bail system’s shortcomings, thereby improve our country’s guaranteed pending trial, hoping that the strengthening the rights protection of the criminal suspects and defendants, thereby truly obtained on the litigation support functions and the rights support functions.This article is divided into four chapters, a total of 40,000 words:Chapter one is the general theory of the British bail system. The British bail system was born of the United Kingdom Norman period, for avoiding long time tremendous and judiciary pressure of the sheriff. The three regulation of the Statute of Westminster 1275, the English Bill of right 1689 and the Habeas Corpus Act 1677 constitute the basic framework of British bail system. Bail Act 1976 and the subsequent regulations formed modern bail system. The function of the Britain bail system is litigation support and rights protection. The applicable ways of British bail system are unconditional bail and conditional bail. British bail system is a procedure of based on a certain way, sequence and method to forming bail decision-making, divided into application, hearing, conviction and remedy.Chapter two is the theoretical foundation and value orientation of British bail system. Theoretical foundation of the British bail system is: The concept of rights on freedom and equality, the principle of the presumption of innocence, the principle of state power constraints and the principles of protection of human rights. The concept of rights on freedom and equality is the premise and foundation of the British bail system; the principle of presumption of innocence is the inevitable result of British bail system; the British bail system embodies the principle of state power constrains, restriction on abuse of state power; the British bail system embodies the function of human rights protection, preventing the improper detention to criminal suspects and defendants. The values orientation of the British bail system is: Firstly, the bail system is conducive to maintaining law order, by removing the arbitrary power of the state, establish a reasonable selection system for criminal suspects and defendants; secondly, the bail system is conducive to realize full benefits, not only being released on bail in the relative freedom of space to achieve their own personal interests, but also to achieve a certain extent, the interests of the community; thirdly, the bail system is conducive to promoting social justice, by guaranteeing the liberty of criminal suspects to achieve a fair case, thereby promoting the realization of whole social justice; fourthly, the bail system is conducive to realize the economic value of the litigation, which is mainly embodied in the limited judicial resources, the bail system itself determines the attributes of a lawsuit to reduce waste of resources, realizing the economic value of litigation; fifthly, the bail system not only maximize the personal rights protection of criminal suspects and defendants the personal rights and overlooked criminal punishment for a crime, but also protect the interests of the social public, and to achieve the reunification of the two, to maximize the effectiveness of the proceedings.Chapter three is the issues and prospect of the British bail system. The Britain bail system’s shortcomings are as follows: Uncertainty bail will cause people suspected of the fairness of the system; the bail time of uncertainty caused by the breach of bail conditions by bail Yi; the bail supervision negative result was released on bail people flee serious; the high cost of bail security monitoring facilities lead to the full implementation have difficult problems. These problems mainly because bail in the judicial practice, which for system implementation has some errors, it did not reach the level of perfection. The author thinks this is inevitable. Therefore, in the prospect of British bail system, the author believes that though continuous improvement of legislation and standardize the implementation of the system, the bail system will has a perfect run.Chapter four is the referential significance from the British bail system to our country’s guaranteed pending trial. In the view of existing problem in the judicial practice, re-examine guaranteed pending trial, analysis of the guaranteed pending trial’s shortcomings, through draw the provisions of the advanced nature of the system, thus improving our guaranteed pending trail. Guaranteed pending trial in China defects from legislation and law enforcement two aspects to demonstrate. In the legislative council has following major loophole: Firstly, the“social risk”standard is fuzzy; secondly, guaranteed pending trial manner has shortcomings; thirdly, repeat guaranteed pending trail is serious; fourthly, guaranteed pending trail time is not clear; fifthly, the remedy procedure is not perfect. In law enforcement, the major loophole as follows: Monitoring the implementation of measures are not in place and weak sanctions after breach of bail. The reasons of these deficiencies are for guaranteed pending trial’s function of positioning errors, so that criminal suspects and defendants’the lawsuit rights are not guaranteed. Therefore, according to the British bail system, improving China’s guaranteed pending trial mainly from the following three aspects: Firstly, reform the concept of litigation, will be guaranteed pending trial design focus shifted to the right protection of criminal suspects and defendants; secondly, improve guaranteed pending trial legislation, according to British bail system, improving our country’s legislative requirements, mainly from the following aspects: the expansion of the scope of application of guaranteed pending trial, and strict guaranteed pending trial’s form, clearly guaranteed pending trial’s agencies, clear guaranteed pending trial time, perfect remedy procedure of guaranteed pending trial; thirdly, from the spirit of the British bail system, we have to strengthening of law enforcement and increase the criminal breach of bail conditions penalties. To reduce the pressure on the judiciary through community helping and establish records management, and additional security crimes to prevent fleeing criminal suspects who violated bail conditions, thereby truly achieve its system design capabilities.Respecting and safeguarding human rights is a fundamental of modern social values, but also trends in the development of human civilization, and to safeguard the human rights of recourse modern civilization is an important feature in the field of criminal justice. In the view of our country’s current law, there are some difficulties to introduce of a comprehensive system of bail, therefore, in order to meet the requirements of the existing law, by the British bail system after an in-depth study, in-depth reflection of our country’s guaranteed pending trial’s shortcomings, from the concept of litigation, legislation and enforcement measures to improve guaranteed pending trial, with a view to achieving the real goal of rights protection for criminal suspects and defendants.更多还原