我国取保候审制度的反思与重构

取保候审是一种由《中华人民共和国刑事诉讼法》规定的刑事强制措施。具体说来是指由公安机关、人民检察院或人民法院决定,公安机关具体执行,责令符合法律规定条件的犯罪嫌疑人、刑事被告人提出保证人或者交纳保证金,保证随传随到的刑事强制措施。当前的取保候审率低使得这项强制措施在司法实践中执行情况并不理想。取保候审常常被作为国家权力手段而非公民的基本权利来对待,我国取保候审制度的重构应该借鉴西方保释制度,将取保候审视作公民的一项基本权利。

The Introspection and Reconstruction of the Bail Pending Trial with Restricted Liberty of Moving System of China

The bail pending trial with restricted liberty of moving is a sort of criminal coercive measure that is stipulated by the Criminal Procedure Law of the People′s Republic of China.Speaking concretely,it is a criminal coercive measure that compels the criminal suspects,criminal defendants that meet the conditions as provided by law to provide a guarantor or pay the bail so that can guarantee them to be brought up to court when needed.And it is decided by the Public Security Organs,the People′s Procuratorate or People′s Court,specifically administered by the Public Security Organs.But the thing that should draw our attention is that the implementation in judicial practice is less than satisfactory because of the low rate of the bail pending trial with restricted liberty of moving.It is often treated as a means of state power instead of citizens′ fundamental rights,so the reconstruction of our country′s bail pending trial with restricted liberty of moving system should take western′s system as reference and treat it as citizens′ fundamental rights.