Attorney Shao Shiwei | If Released on Bail Pending Trial, Will I Still Be Detained?

Special Declaration: This article is an original work by Attorney Shao Shiwei. It reflects only the personal views of the author and does not constitute legal consultation or legal advice regarding specific matters. For article reprints, legal consultations, or professional exchanges, please add: sswls66

In practice, clients frequently raise this question; therefore, we provide a consolidated response herein.

I. What Does 'Release on Bail Pending Trial' Mean?

It refers to a compulsory measure in criminal proceedings whereby judicial authorities, such as public security organs, people's procuratorates, and people's courts, order criminal suspects or defendants who have not been arrested or whose compulsory measures need to be changed after arrest, to provide a guarantor or pay a security deposit, and issue a letter of guarantee ensuring their availability upon summons, thereby refraining from detaining them or temporarily releasing them from detention. This measure is specifically executed by public security organs.

 

II. Why Is One Released on Bail Pending Trial (Instead of Being Detained)?

1. The potential sentence may be relatively light, such as in cases of drunk driving (dangerous driving) or the crime of aiding information network criminal activities.

2. Considerations of social danger. For individuals who are elderly, weak, ill, disabled, or pregnant, or where judicial authorities deem that releasing the actor on bail pending trial will not pose a social danger (for example, in rape cases, release on bail might pose certain risks to the victim).

3. Where detention is approaching its statutory time limit.

4. Other circumstances considered by judicial authorities in practice.

(1) Risk of collusion (e.g., co-defendants are at large).

(2. The case requires auditing (e.g., determining whether the subject matter involved in the crime of illegal business operations constitutes illegal publications).

(3) The evidence held by the public security organ is insufficient, and it is uncertain whether the actor’s conduct constitutes a crime.

(4) Detention centers are at capacity (e.g., during the pandemic, due to limited space in detention centers, parties who should have been detained might instead be released on bail pending trial or placed under residential surveillance).

(5) Cross-regional case handling (e.g., Shanghai police handling a case involving a party residing in Hainan).

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III. What Is the Direction of the Case Upon Expiration of the Bail Pending Trial Period?

1. The public security organ releases the party from bail pending trial and dismisses the case, thereby concluding the matter.

2. The public security organ transfers the case to the procuratorate, which places the party on bail pending trial during the review for prosecution stage. After reviewing the case, the procuratorate makes a decision not to prosecute, thereby concluding the matter; or, after reviewing the case, the procuratorate returns the case file to the public security organ, which then dismisses the case, likewise concluding the matter.

3. After placing the party on bail pending trial during the review for prosecution stage, the procuratorate transfers the case to the court. The court continues the bail pending trial for the party. Upon trial, the court renders a not-guilty verdict for the party, thereby concluding the matter.

4. The court continues the bail pending trial for the party. Upon trial, the court renders a guilty verdict imposing a non-custodial sentence (e.g., sentencing to public surveillance or declaring a suspended sentence). After the judgment becomes effective, the party will not be imprisoned (community correction shall be implemented in accordance with the law).

5. The court continues the bail pending trial for the party. Upon trial, the court renders a guilty verdict and imposes a custodial sentence (in practice, the author has encountered cases where the party remained on bail pending trial until judgment, but was ultimately sentenced to fixed-term imprisonment of ten years or more).

Clients often ask lawyers to determine which outcome is most likely after being informed of the potential directions of a case involving bail pending trial. However, this must be analyzed based on the evidence on record and the specific circumstances of each case.

Furthermore, the attitude of judicial authorities toward a case is a dynamic process, not static. How this process evolves demonstrates the value of legal counsel (shifting from guilty to not guilty, from heavier to lighter charges, or from custodial sentences to suspended sentences).

 

IV. Does Release on Bail Pending Trial Require Payment?

Note: The term 'payment' mentioned here does not refer to seeking influence through improper connections.

Whether to grant release on bail pending trial is a decision made by judicial authorities after evaluating the specific circumstances of the case, assessing whether the party poses a social danger, and determining the likelihood of escape, collusion, or destruction of evidence.

Since only lawyers may meet with parties during detention, lawyers can submit opinions to judicial authorities based on these meetings, demonstrating the party’s innocence, lesser culpability, or lack of social danger, thereby assisting the public security organ in its assessment.

If the public security organ agrees to release the party on bail pending trial, this will involve either a personal guarantor or a monetary security deposit. A personal guarantor refers to providing a guarantor who supervises the party released on bail. A monetary security deposit refers to paying a security deposit, with a minimum amount of RMB 1,000 (RMB 500 for minors). If the party does not violate relevant regulations during the bail period, the security deposit will be refunded at the bank upon presentation of the notice releasing the party from bail pending trial or other relevant legal documents at the end of the bail period.

 

V. Precautions During the Period of Bail Pending Trial

Be available upon summons, and report any travel outside the city or county. Violation may result in detention; please take note.