Difference between GUARANTY and BAIL - Khác biệt giữa BẢO LĨNH và ĐẶT TIỀN ĐỂ BẢO ĐẢM

When a person is charged/ prosecuted with a criminal offence, he or she will be considered the accused/ defendant and will be detained until the Court’s judgment.

In such case, there are two common ways to prevent the accused/ defendant from being held in pre-trial custody and make him or her eligible for release such as Guaranty and Bail (otherwise called the deposit of money for release).

So, what is the difference between these two measures. Let's learn about it in this article:

ITEM	GUARANTY	BAIL
Nature	They are preventive measures in lieu of pre-trial detention.
	- Guaranty is a case where an individual, entity or organization gives a guaranty to help the accused/defendant release before trial. - Guaranty is the use of trustworthiness and criminal history of an individual, entity or organization giving the guaranty.	- Bail is a case where the accused/defendant, by himself or herself, or any third relative, deposits money as a bail to help that accused/defendant be freed before trial.  - Bail is a measure which, by nature, affects the material life of the person depositing money without relying so much on the trustworthiness or criminal history of his/her own.
Bases for application	+ Characteristics of the crime and degree of danger to society posed by the crime + Criminal history of the accused/defendant.	+ Characteristics of the crime and degree of danger to society posed by the crime + Criminal history and property status of the accused/defendant or his/her relative.
Application conditions	- With regard to a guarantor that is an entity or organization: + The entity or organization may give the guaranty to the accused or defendant who is under its management + The entity or organization giving the guaranty must make a commitment endorsed by the head of that entity or organization. - With regard to the guarantor that is an individual, if + That individual must be at least 18 years old; + That individual must have good criminal history, strictly comply with laws and earn stable income; + That individual must have necessary and sufficient conditions for management of the person receiving the guaranty He/she may give the guaranty to the accused/ defendant who is his/her relative, and in this situation, there must be at least two persons giving the guaranty. + The person receiving the guaranty must make a written commitment certified by the competent authority of the commune, ward or townlet where that person resides, or by the host entity or organization of that person. As agreed upon in this written commitment, the entity, organization or individual receiving the guaranty must undertake that the guarantor is bound to prevent the accused/defendant from violating obligations defined in clause 3 of this Article. The entity, organization or individual giving the guaranty shall be informed of facts about the criminal case in relation to its guaranty.	This measure may be applied if the following conditions are fully satisfied:  - The accused/defendant commits crime for the first time; clearly provides his/her place of residence; makes sincere confession and shows repentance;   - The accused/defendant has the financial capability to put up bail as required by laws. If the accused/defendant who is a minor, or suffers mental disability, has no money or has an inadequate amount of money to put up sail, the financial capability of his/her legal representative shall be considered; - There are sufficient grounds for ensuring that, after being set free, the accused/defendant appears in response to a summons served by the criminal prosecution body, does not destroy or conceal evidence or hinder investigation, prosecution or trial;   - Release of the accused/defendant does not cause any adverse impact on social security and order; - This measure is not applied to the accused/defendant falling in the following situations: + The accused/ defendant commits one of the crimes such as infringement upon the national security, undermining of peace, fighting against humanity and war crime; + The accused/defendant commits the most serious felonies; + The accused/defendant commits the serious felonies, such as intentional infringement upon the human life, health, dignity and reputation; drug crimes, corruption or infringement upon the economic management order; theft of property, kidnapping for appropriating property, forcible appropriation of property, property robbery and theft of property without the use of force or violence; + The accused/defendant is detained if he/she is arrested according to a warrant or a wanted notice; + The accused/defendant is a professional criminal; + The accused/defendant is a drug addict; + The accused/defendant is an organizer of organized criminal activities; + Criminal act causes negative public opinions.
Commitment	The accused/defendant released under the guaranty or on bail must make a written commitment to performing the following obligations: - Appear in response to a citation, except when unexpected events occur or objective reasons exist;    - Not to flee or continue to commit crimes; - Do not buy off, coerce and induce others to make false statements, and provide documents stating false information; do not destroy, forge evidence, documents or objects in criminal cases or disperse property related to criminal cases; do not threaten, control or revenge witnesses, victims, criminal denouncers and their relatives
		Relatives of the accused/ defendant depositing money as a bail must undertake in writing that they are bound to prevent the accused or defendant from violating the aforesaid obligations, and in case of any violation that may arise, the monetary amount which has been deposited shall be remitted into the state budget. The prescribed amount that may be deposited as a bail Based on the nature and the degree of danger to the society of the offense, the criminal history of the accused/defendant and the financial capacity of the accused/ defendant or of the lawful representative of the accused/defendant who is a juvenile or mentally disabled person (hereinafter referred to as lawful representative), the investigating body, the Procuracy or the Court shall decide on the specific amount of money that the accused/defendant is bound to deposit as a bail,  but shall not allow such amount to be less than: -Twenty million dong bail for misdemeanors -Eighty million dong bail for the least serious felonies; -Two hundred million dong bail for the serious felonies;
Actions against breach of commitments	Where the accused/defendant violates obligations agreed upon in a commitment, - The accused/defendant shall be detained; - If any entity, organization or individual giving the guaranty lets the accused/defendant violate any committed obligations, depending on the nature and seriousness of violation, the monetary fine subject to laws shall be imposed.	Where the accused/defendant violates any committed obligations, - The accused/defendant shall be detained; - The deposited amount of money shall be forfeited and remitted into the state budget. If the accused/ defendant fully abides by the committed obligations, the Procuracy and/or the Court shall be obligated to return such bail amount.
Authority	- Heads or Vice Heads of investigating bodies at all levels shall be vested with authority relating to these measures. In either cases, the decision must be ratified by the Procuracy at the same level before entry into force; - The Chief Procurator and Vice Chief Procurator of the Procuracy, the Chief Procurator and Vice Chief Procurator of the Military Procuracy at all levels shall be vested with authority relating to these measures - The Chief Justice, the Vice Chief Justice of the People’s Court, the Chief Justice and the Vice Chief Justice  of the Military Court at all levels; the Council of Judges, shall be vested with authority over these measures; - The presiding judge shall be vested with authority over these measures.
Term	Term of guaranty/ bail shall not exceed the time limit for investigation, prosecution or trial in accordance with regulations in force.
	The period during which a person serving a prison sentence is released under a guaranty shall not be greater than the period from the sentencing date to the date on which that person serves his/her prison sentence.	The period during which a person serving a prison sentence is released on bail shall not be greater than the period from the sentencing date to the date on which that person serves his/her prison sentence.

In conclusion, both measures can help the accused/defendant stay out of prison.   However, since each measure has its advantages and disadvantages, decision which measure is preferred should be made depending on actual circumstances and conditions.   You can take a look at certain advantages and disadvantages of these two measures:

ITEM	GUARANTY	BAIL
Advantages	- Do not need any monetary amount. - Only beg any entity or organization or relative to agree to make a guaranty by using their trustworthiness and criminal history.	- Do not need endorsement by any entity or organization. - Put up bail by the accused/defendant's placing his/her money if he/she is able to do so. - There have been instructional documents on application of this measure.
Disadvantages	- There have not been any document specifying and elaborating application of this measure. - In case of individual guarantee, there must be at least 02 persons agreeing to issue the guaranty.	- A large and unlimited amount of money may be required.

Legislative bases:

- 2015 Criminal Procedure Code;

- Circular No. 17/2013/TTLT-BTP-BCA-BQP-BTC-VKSNDTC-TANDTC.