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

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:Examination and approval for bail pending trial: After receiving the written application for bail, the relevant authority shall examine the application and reply within seven days.  For applications that are rejected, the lawyer may request a review of the decision or apply to a higher authority for re-examination.
 
:Examination and approval for bail pending trial: After receiving the written application for bail, the relevant authority shall examine the application and reply within seven days.  For applications that are rejected, the lawyer may request a review of the decision or apply to a higher authority for re-examination.
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==='''What is the lawyer's duty after the application for bail pending trial is approved?'''===
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After the application is approved, the lawyer must:
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#Direct the defendant on how to abide by CPL Article 56;
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#Explain to the defendant the importance of abiding by these provisions and the consequences of violating them;
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#Explain to the guarantor the legal consequences for the guarantor if the defendant violates the provisions;
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#Ask the relevant authorities to lift the bail pending trial when either the statutory time limit for bail has expired or upon discovery of new circumstances requiring bail to be lifted.
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==='''Under what circumstances can bail pending trial be lifted, terminated or altered?'''===
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According to CPL Article 58, the public security organ, People's Procuratorate and People's Court shall promptly terminate the bail pending trial period upon the expiration of the bail pending trial period or upon discovery of circumstances that clear the suspect of criminal liability.  The authorities must terminate the bail period upon closure of the case.  The expiration of the statutory time limit is an important requirement for lifting of bail.  The criminal suspect, his legal agent, close relatives, lawyer or other defenders have the right to request the above organizations to lift the bail if the bail has exceeded the statutory time limit.  CPL Article 58 stipulates that the period for release upon bail pending trial granted by the People's Court, People's Procuratorate and public security organs must not exceed 12 months. 
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The alteration of bail refers to bail being changed to arrest or residential surveillance, as a result of the violation of certain legal provisions during the bail period.  In litigation practice, circumstances leading to alteration of bail mainly consist of the following:
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#Evidence indicating that the defendant's behavior may lead to a punishment greater than the previous set term of imprisonment;
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#Evidence that bail is not adequate to prevent the person from posing a danger to society;
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#Evidence that the suspect on bail should have been arrested but was approved for bail due to serious illness, and at present, the illness has been cured;
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#Once the legally prescribed time period for the nursing or recovery period has concluded for a female, who should have been arrested but was approved for bail in order to breastfeed her baby or to recover from an abortion procedure;
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#If the guarantor demands to retract his letter of guarantee and be relieved of his legal obligations.
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According to CPL Article 56, if the bailed suspect violates the relevant regulations, the relevant authorities may alter the compulsory measures.  After alteration, the original bail period will expire.  The public security organ, People's Procuratorate or People's Court shall, at the same time, refund or confiscate the security deposit.  If the original bail had a guarantor, the guarantor shall be notified that he is relieved of his legal obligations.
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==='''Conclusion'''===
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If a client meets the applicable conditions for bail, the criminal defender should make every effort to secure the client's bail as early as possible.  Although the right to bail pending trial is often overlooked in China, more frequent applications will insure that more eligible defendants can avoid unnecessary detainment pending trial.  The right to bail is a right that, if exercised, can greatly enhance the criminal defender's ability to prepare and present an effective defense at trial.

Revision as of 16:03, 20 April 2010