Difference between revisions of "China Criminal Defense Manual - Pretrial Preparation"

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#When the Procuratorate does not approve the request for arrest or decides not to prosecute, requiring the case to be reviewed once more, public security organs can place the suspect on bail pending trial without the lawyer having to apply for bail (Article 63, paragraphs 5 and 7 of the Rules on the Procedures for Public Security Organs in Handling Criminal Cases).
 
#When the Procuratorate does not approve the request for arrest or decides not to prosecute, requiring the case to be reviewed once more, public security organs can place the suspect on bail pending trial without the lawyer having to apply for bail (Article 63, paragraphs 5 and 7 of the Rules on the Procedures for Public Security Organs in Handling Criminal Cases).
  
What methods exist for applying for bail pending trial?
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==='''What methods exist for applying for bail pending trial?'''===
  
 
'''CPL Article 53 provides for two ways to obtain bail pending trial: (1) through a guarantor; or (2) through a deposit in security.'''   
 
'''CPL Article 53 provides for two ways to obtain bail pending trial: (1) through a guarantor; or (2) through a deposit in security.'''   
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*Has a fixed domicile and steady income.
 
*Has a fixed domicile and steady income.
 
#Bail guaranteed by property (security deposit):  Under the bail system, the proper authorities have the criminal suspects or defendants deposit a security along with a written pledge promising not to evade investigation, prosecution and trial and promising to appear as soon as summoned during the course of bail.  According to the CPL and relevant judicial interpretations, the suspects or defendants should deposit the security in the form of renminbi (RMB) with the minimum amount being 1,000 RMB.  The amount of the security shall be determined by the decision-making body, which will take into account how much of a threat the suspect or defendant poses to society, the nature and circumstances of the case, the financial situation of the suspect or defendant, and the state of local economic development.  The security deposit shall not be excessive.
 
#Bail guaranteed by property (security deposit):  Under the bail system, the proper authorities have the criminal suspects or defendants deposit a security along with a written pledge promising not to evade investigation, prosecution and trial and promising to appear as soon as summoned during the course of bail.  According to the CPL and relevant judicial interpretations, the suspects or defendants should deposit the security in the form of renminbi (RMB) with the minimum amount being 1,000 RMB.  The amount of the security shall be determined by the decision-making body, which will take into account how much of a threat the suspect or defendant poses to society, the nature and circumstances of the case, the financial situation of the suspect or defendant, and the state of local economic development.  The security deposit shall not be excessive.
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==='''What conditions must a guarantor satisfy? What happens if the guarantor fails to meet his obligations?'''===
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CPL Article 55 imposes the following obligations on a guarantor:
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#To supervise the guaranteed person in observing the provisions of CPL Article 56;
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#To immediately report to the executing organization when finding that the guaranteed person is likely to commit or has already committed an act in violation of CPL Article 56. 
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The guarantor shall fill out a letter of guarantee and add his signature or seal to it.  When the guaranteed person acts in violation of CPL Article 56, and the guarantor fails to report him in a timely manner, a fine between 1,000 RMB and 20,000 RMB shall be imposed on the guarantor by the executing organization.  When the failure constitutes a criminal offense, the guarantor shall, according to the law, be investigated for criminal liability.
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What conditions must a client satisfy in order to remain released on bail pending trial? What happens if the client fails to comply with the conditions of release?
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CPL Article 56 provides the legal obligations that must be met by the criminal suspect or defendant on bail pending trial:
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#The defendant cannot leave his city or county of residence without the permission of the executing organ;
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#The defendant must be present in court when summoned;
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#The defendant cannot interfere with the witnesses giving testimony;
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#The defendant must not destroy or falsify evidence or tally confessions.
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If the suspect or defendant being released upon bail pending trial violates the above provisions and has already made a security deposit, the security deposit shall be confiscated, and taking into account different circumstances, he shall be ordered to write a statement of repentance, make another security deposit, provide a guarantor again, or be subject to residential surveillance or arrest. 
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Regarding the determination to make an arrest due to breach of bail, the Supreme People's Procuratorate provided further clarification and ruled that suspects who perform the following actions shall be arrested:

Revision as of 15:56, 20 April 2010