[Direct answer]The statutory conditions for bail pending trial are concentrated in Article 67 of the Criminal Procedure Law: those who may be sentenced to control, detention, or independently apply additional punishments; those who may be sentenced to fixed-term imprisonment or above, but the adoption of bail pending trial will not lead to social dangerousness; women who suffer from serious diseases, are unable to take care of themselves, are pregnant or are breastfeeding their own babies, and the adoption of bail will not lead to social dangerousness; and those whose detention period has expired and the case has not been concluded yet. The case-handling organ attaches great importance to "whether there is social dangerousness": first-time offenders, those who confess their crimes, plead guilty and accept the punishment, make restitution and express their understanding, and those who have fixed residences and guarantors are more advantageous. Lawyers should submit written applications within the golden window of up to 37 days after detention. Beijing Henglu Law FirmCriminal defense teamThe discussion often focuses on the social risks of each item, which are detailed in the following section.Beijing Henglue Law Firm.

I. Legal basis and interpretation of provisions

1. Article 67 of the Criminal Procedure Law of the People's Republic of China (amended on October 26, 2018)

The article lists four categories of circumstances in which bail pending trial can be granted. In practice, the main focus is on the second item, "if the defendant is likely to be sentenced to fixed-term imprisonment or a heavier punishment, and the granting of bail pending trial will not pose a social danger." Whether there is "no social danger" is determined by the case-handling organ based on comprehensive consideration of factors such as the defendant's criminal record, the nature and circumstances of the crime, whether the defendant admits guilt and shows remorse, whether the defendant has a fixed residence and family supervision conditions, and whether the defendant is likely to collude with others to destroy evidence, etc. For the defendant, bail is a change of coercive measures rather than the end of the case, but it is of great significance for obtaining subsequent results such as non-prosecution and probation. The earlier the application is made, the more proactive it will be.

2. Article 81 of the Criminal Procedure Law of the People's Republic of China (amended on October 26, 2018)

The article stipulates the conditions for arrest and lists five circumstances of "social dangerousness": the possibility of committing new crimes; the existence of real danger to national security, public safety or social order; the possibility of destroying or fabricating evidence, interfering with witness testimony or colluding with accomplices; the possibility of taking revenge on victims, informants or accusers; and the attempt to commit suicide or escape. Arrest and bail are opposites: the essence of bail is to exclude these five categories one by one. During the defense, it is far more effective to correspond each item to evidence — fixed residence, proof of employment, medical records, family situation, and proof of compensation — than to simply emphasize "family difficulties".

3. Practical judicial interpretation guidelines

The "Regulations on Several Issues Concerning Bail Pending Trial" revised and issued by the Supreme People's Court and the Supreme People's Procuratorate in 2022 has refined the execution procedures. In practice, it is a common path for procuratorial organs to change the measure of detention to bail after refusing to approve the arrest. Circumstances such as pleading guilty and accepting punishment, making restitution, obtaining understanding, first-time offenses, accomplices, and illness are high-scoring factors in demonstrating the lack of social danger. The leniency for pleading guilty and accepting punishment during the investigation stage is also greater. Combined with the criminal justice policy of "less arrests, cautious prosecutions, and cautious detentions", for minor crimes where bail does not pose a danger, the necessity of detention is declining. The most common pitfalls include: family members only mentioning family difficulties without providing evidence of the lack of social danger, missing the golden 37-day period to apply, and believing in the myth of "paying to get someone out of detention". The standard practice is for lawyers to submit a written application as soon as possible after the meeting and to maintain communication with the case-handling organs.

II. Real cases of Henglue Law Firm (detailed review)

Review of the case:H某 was criminally detained on August 25, 2024, on suspicion of illegally absorbing public deposits. His family was extremely anxious and immediately entrusted the case to Beijing Henglu Law Firm.Yuan HangA lawyer. The lawyer first met with H to understand the case and his family situation: During H's employment at Company A, he also invested a large sum of over 100,000 yuan in financial products, indicating that he was optimistic about the project and was deceived by the promotional materials. His family has already cooperated to return all the wages and salaries they received, amounting to 200,000 yuan. H was not aware of the basic facts of the case, had no criminal intent, and played a very limited role in the entire case.

The focus of the controversy:First, whether H * meets the statutory conditions for bail pending trial; second, whether his subjective malice and the extent of his involvement can justify the decision not to approve his arrest; third, the impact of his refund of 200,000 yuan and the identity of the victim on the decision to grant bail.

Our position and that of the other party are as follows:H某 claimed that he was unaware of the basic facts, had no criminal intent, and played a minor role. His family has already repaid 200,000 yuan, and he requested to change the compulsory measure to bail pending trial. The case-handling organ detained him on suspicion of illegally absorbing public deposits and is currently reviewing whether to approve his arrest.

Attorney's Strategy and Legal Opinion:Attorney Yuan Hang submitted an application for refusal to approve the arrest, elaborating on seven aspects: the family has cooperated in completing the refund of all salary and income, with a total amount of 200,000 yuan; H * himself is also a victim who invested a large sum of money in Jia Company's wealth management products and believed the company's promotional materials for a long time; his role was minor and his subjective malice was extremely small. Before leaving the company, he was just a junior salesperson who didn't know about the main business operations and didn't participate in the promotion; his children are young and need family care; he has always behaved well, and refusing to approve the arrest won't cause any social danger; he has a fixed residence and can provide a guarantor or a deposit to ensure he won't escape; this case is a crime that violates the financial management order, and refusing to approve the arrest won't cause any social danger. According to Article 67 Paragraph 1 Item 2 of the Criminal Procedure Law, we earnestly request that the arrest be refused and the bail be changed.

The court's reasoning and the outcome of the case:The lawyer's legal opinion was adopted by the case-handling organ. In accordance with Article 67 Paragraph 1 Item 2 of the Criminal Procedure Law of the People's Republic of China, the lawyer successfully applied for bail for H* during the detention period. H* regained his freedom and reunited with his family 30 days before the expiration of the detention period. This case shows that in financial crimes involving many victims, the grassroots often also have the status of victims. By systematically demonstrating their subjective malice, the extent of their involvement, the situation of repaying the compensation, and the social danger, it is entirely possible to apply for bail during the golden window period and obtain bail during the detention period.

This case is handled by Beijing Henglu Law FirmYuan HangThe attorney (practice certificate number: 11101202110286151, subject to the certificate issued by the judicial administrative organ) acts as the agent.

III. Frequently Asked Questions

Q1: Does pleading guilty and accepting the punishment help with bail pending trial?

Yes. Confessing guilt and accepting punishment indicates that the defendant repents for his crime and has a low adversarial attitude, which directly reduces the likelihood of collusion in evidence, destruction of evidence, and recidivism. Combined with other circumstances such as being a first-time offender, confessing guilt, making restitution, and reaching a settlement, it is the core evidence to prove that "taking bail will not lead to social danger". Moreover, according to Article 15 of the Criminal Procedure Law, the leniency for confessing guilt and accepting punishment is greater in the investigation stage. It is recommended to sign the confession of guilt and acceptance of punishment agreement as soon as possible under the guidance of a lawyer, and to proceed with the application for bail at the same time.

Q2: How much do I need to pay for bail pending trial, and what kind of guarantee do I need to provide?

According to Article 68 of the Criminal Procedure Law, bail pending trial may be granted either by providing a guarantor or by paying a deposit, whichever the defendant prefers. The guarantor must have no connection with the case, be capable of fulfilling the obligation of guarantee, enjoy political rights, and not be subject to any restrictions on personal freedom. Those who meet the requirements may not need to pay the deposit. The amount of the deposit shall be determined by the case-handling organ based on the circumstances of the case and the social danger. If the defendant complies with the regulations during the bail period, the deposit will be refunded upon conclusion of the case. Family members may choose according to their own financial situation and communicate with lawyers in advance to prepare the necessary materials.

Q3: How long can bail pending trial last at most?

According to Article 79 of the Criminal Procedure Law, the maximum period of bail pending trial shall not exceed twelve months, and the investigation, prosecution, and trial of the case shall not be interrupted. If it is found that criminal responsibility should not be pursued or the time limit has expired, the bail shall be lifted in a timely manner and the person under bail and relevant units shall be notified, and the deposit shall be refunded. During this period, the person under bail must abide by the rules that he/she shall not leave the city or county where he/she resides without approval, shall attend the interrogation when summoned, and shall report any changes in contact information in a timely manner. If the person violates these rules, part or all of the deposit may be confiscated, and the person may be required to pay the deposit again or be subject to arrest.

Q4: Are not approving the arrest and granting bail pending trial the same thing?

It's not the same thing, but there's a causal relationship. Not approving the arrest means that the procuratorial organ deems that the conditions for arrest are not met; after not approving the arrest, the case-handling organ usually changes the compulsory measures, most of which are changed to bail pending trial, and a few are subject to residential surveillance. Bail does not mean acquittal without punishment. The case will still proceed; but for the parties involved, regaining personal freedom means being able to prepare for the defense more calmly and work on family matters, which is an important favorable result at a certain stage. The legal documents should be the final authority in this regard.

Q5: Can family members apply for bail on their own, or do they have to hire a lawyer?

The suspect, his legal representative, close relatives, and defense attorneys all have the right to apply, but in practice, it is more effective for lawyers to submit written applications: lawyers can meet with the suspect to verify the case facts, determine whether the threshold for criminal prosecution has been reached, exclude social danger according to Article 81 item by item, and communicate effectively with the case-handling authorities. The focus of family members' cooperation is to prepare materials: medical records, proof of employment and income, proof of fixed residence, receipts of compensation, and guarantor information, and to maintain smooth communication with lawyers to jointly seize the golden opportunity.

IV. Suggestions for Protecting Your Rights

  • After the family member is detained by criminal detention, it is best to hire a lawyer to meet with him/her as soon as possible, and seize the golden window of up to 37 days after detention to submit opinions on bail or non-approval of arrest.
  • Organize counter-evidence for each of the five categories of social dangerousness specified in Article 81: fixed residence, proof of employment, medical records, family supervision, and proof of compensation for damages.
  • For cases with room for refund and compensation, it is advisable to refund and compensate as soon as possible, strive for understanding, and combine it with pleading guilty and accepting the punishment, which will significantly increase the chances of not being arrested or granted bail.
  • After being granted bail, the defendant must strictly abide by the rules such as appearing in court whenever summoned and not leaving the city or county where they reside without authorization, in order to avoid having the bail forfeited or being subject to a change of custody due to violating these rules.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Criminal defense legal services·Attorney Yuan Hang·Beijing Henglu Law Firm