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車鏞碩 경북대학교 법정대학 1975 法大論叢 Vol.13 No.-
This study has been undertaken firstly to define the meaning and the purpose of the bail in general, secondly to make clear the statutory right to bail in the light of the constitutional provisions of so-called due process and equal protection, thirdly to analyze and criticize the conditions under which the bail as a matter of right is excepted, fourthly to find various issues in the procedure of bail administration and offer some suggestions to them, fifthly to review some criticizms to the bail system and suggest bail reforms, and sixthly to research the present administration of the bail reforms, and finally to propose a few alternatives to the present system, offering some opinions for expediting the utilization of the bail. This writer has pursued normative approaches, the methods adopted in the comparative study of legal system and in part empirical approaches needed in the behavioral sciences. The present bail system classfies the two catagories of bail, the bail as a matter of right and the bail as a matter of discretion. The traditional right to freedom before conviction permits the unhampered preparation of a defense and serves to prevent the infliction of punishment prior to conviction. Though the right to bail is not an unqualified right to freedom, the bail as right in Korea is severely limited, for the exceptions to the right are made upon fear that the accused will tamper with evidence and will commit a different crime and also made under the conditions that the accused is charged with an offense punishable by imprisonment for more than ten years. It is not consistent with the accusatorial principle but with inquisitorial system in the criminal procedure. Even under the present Iaw which does not authorize the arrested suspect to have the legitimacy of the arrest examined by a judge, bail is not permitted before the institution of prosecution. Hereupon the writer has suggested nine items of proposal for the bail reform, for examples, to inform the accused of the bail right, to reform the conditions of the exception to the bail as of right in correspondence to the accusatorial procedure, to release some kinds of the accused on personal recognizance, to make the flight of the accused on bail another crime, to study the adoptability of bondsman system, to establish a kind of pre-bail committee and to grant release on bail even before the institution of prosecution.