I. Overview of voluntary surrender
Surrender is a criminal law discretion system. According to the provisions of the first and second paragraphs of Article 67 of the Criminal Law of People's Republic of China (PRC), voluntary surrender can be divided into general voluntary surrender and special voluntary surrender. Generally speaking, surrender refers to the act of criminals voluntarily surrendering themselves after committing crimes and truthfully confessing their crimes; Special surrender, also known as.
"Quasi-voluntary surrender" or "voluntary surrender for remaining crimes" refers to the behavior of criminal suspects, defendants and criminals serving sentences who have taken compulsory measures to truthfully confess their other crimes that the judicial organs have not yet mastered. Based on the consideration of judicial practice, this paper only takes general surrender as the research object.
The essence of surrender is to make the criminal hand himself over to the state for prosecution after committing a crime, which can prove that the criminal's personal danger is reduced, so as to enjoy the system and policy of lighter, mitigated punishment or even exemption from punishment. On the one hand, the creation of voluntary surrender is a penalty discretion system that takes into account the important functions of punishing crimes and educating criminals to reform their punishment, so that the realization of the purpose of punishment can be extended to the stage after the implementation of criminal acts and before conviction and sentencing to a certain extent, which is conducive to criminals to start self-reform earlier and help them turn over a new leaf; On the other hand, it can reduce the difficulty of solving a case by the investigation organ, make the case handled in time, save judicial resources, and thus achieve the effect of social prevention.
Second, the conditions for surrender.
According to the law, surrender needs to meet two conditions at the same time, namely, surrender and truthful confession.
(1) surrendered voluntarily. Surrender is the premise of surrender, which refers to voluntarily surrendering directly to the public security organs, people's procuratorates, people's courts or other relevant organs and organizations when the criminal facts or suspects are not discovered by the judicial organs, or when the suspects are not interrogated or taken compulsory measures.
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The Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in Handling Cases of Surrender and Meritorious Service (hereinafter referred to as the Interpretation) stipulates seven other situations that should be considered as surrender.
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On the basis of explanation, the Supreme People's Court's Opinions on Several Specific Issues Concerning Handling Surrender and Meritorious Service (hereinafter referred to as "Opinions") further clarified the essential attribute of surrender, that is, "seven situations stipulated in the explanation should be considered as surrender, which reflects the initiative and voluntariness of criminal suspects' surrender." The initiative here refers to putting the suspect under the control of the judicial organs when there are many choices such as escape and concealment, which embodies the independent choice of bringing him to justice. Voluntary refers to the criminal suspect's voluntary surrender to the judicial organs, emphasizing the criminal suspect's willingness to take the initiative to bring him to justice.
Although some cases are listed in the above opinions, legislators can't always take into account the subtle differences in reality because of the lag of the law. According to the development direction and spirit of criminal policy, anything that conforms to the nature of voluntary surrender and is not negative can be regarded as voluntary surrender. For the specific situations that have been encountered or may be encountered in judicial practice, we will discuss them in depth in the following.
(2) truthfully confess. After the criminals turn themselves in, only by truthfully confessing their criminal facts can they prove their sincere repentance and reduce the harm to society. Therefore, truthful confession is the core condition of surrender. According to the Interpretation, truthful confession refers to the fact that a criminal suspect truthfully confesses his main criminal facts after voluntarily surrendering himself. In the Opinions, there are more specific enumerated provisions on truthful confession.
It should be noted that if the facts of the crime cannot be completely confessed due to subjective and objective factors, but the main or basic facts of the crime have been truthfully confessed, and the nature and circumstances of the crime can be determined accordingly, it should be considered as a crime of truthfully confessing. However, if the main criminal facts are concealed in the process of confession, or buck passing and self-help, it is intended to evade sanctions; Or do whatever you want, shelter your partner; Or deliberately distort the nature of the facts, conceal important information, avoid the important, try to get away with it, and try to reduce the guilt. , does not belong to truthfully confess their crimes, can not be established to surrender.
Third, the consideration of the plot of surrender
The circumstances of surrender can be roughly divided into motivation, time, way, the severity of the crime, the degree of truthfully confessing the crime and so on. According to the criminal law, criminals who surrender themselves may be given a lighter or mitigated punishment. Among them, if the crime is minor, the punishment may be exempted. Therefore, even if it is determined that criminals have surrendered themselves, it is necessary to comprehensively consider the above factors in order to finally determine the degree of leniency for criminals.
(1) motivation. The motives of surrender are different in practice, but the ultimate goal is mostly to lighten or mitigate punishment. It has always been in judicial practice.
The policy rule of "surrender without asking the motive", but the establishment of surrender cannot be necessarily related to leniency. Hubei Provincial Higher People's Court
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For example, when considering the plot of surrender, we can't be lenient with the act of maliciously using surrender to escape legal sanctions. Malicious voluntary surrender refers to the perpetrator's malicious use of voluntary surrender system to evade legal sanctions in order to achieve its illegitimate purpose. Specifically, after committing a crime, the perpetrator voluntarily surrendered himself to reduce his guilt, but deliberately committed a crime with worse means or more serious circumstances.
. Although the criminal's behavior meets the conditions of surrender, it is extremely subjective and vicious, which cannot prove his sincere repentance and reduce the social danger, which is contrary to the essence of surrender. Therefore, in judicial practice, we should be cautious about the lenient treatment of malicious surrender.
(2) time. The time of surrender is self-evident for the consideration of sentencing. Although both of them can be established, it is obvious that the former has more positive significance for saving judicial resources, building a good social order and appeasing victims, and the range of lighter and mitigated punishment should be greater than the latter.
(3) method. There are no legal restrictions on the way to surrender, and many scholars have classified it. More influential than that, there are four ways to surrender: pro-head, substitute head, send head and accompany head. There are also provisions in the Interpretation: it is not out of the initiative of the criminal suspect, but is persuaded and accompanied by relatives and friends to surrender; If the public security organ notifies the relatives and friends of the criminal suspect, or after the relatives and friends take the initiative to report the case, it shall also be regarded as surrender. In practice, if the above situation occurs, we should consider the criminal suspect's own attitude towards surrender, compare the nature of surrender, and finally determine leniency.
(4) the severity of the crime. The "Opinions" stipulates that although there are circumstances of surrender and meritorious service, the circumstances of the crime are particularly bad, and the consequences of the crime are particularly serious. The defendant is subjectively vicious and personally dangerous.
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You don't have to be lenient. In judicial practice, it has been reached that criminals who commit serious violent crimes will not be lenient even if they surrender. Although surrendering can prove to some extent that criminals sincerely repent and reduce the harm to others and society, serious violent crimes themselves have exposed the great danger and destructiveness of criminals to the public. I believe that criminals have to take too much risk. For the benefit of society and more people, we can only choose leniency for the circumstances of surrender of these criminals. Therefore, the severity of crimes committed by criminals also affects the discretion and disposal of the plot of surrender.
(five) truthfully confess the extent of the crime. As mentioned above, truthful confession is the core of surrender, and the Interpretation and Opinions also make detailed explanations and provisions on truthful confession. After the establishment of a truthful confession, the higher the degree of confession, the finer the plot and the higher the degree of agreement with the evidence held by the investigation organ, the more it can reflect the criminal's determination to repent and help save judicial resources. Accordingly, the greater the leniency of criminals, the more conducive they are to actively accept reform and return to society.
Fourth, the situation and understanding encountered in judicial practice.
(1) Determination of surrender. As mentioned above, the standard of voluntary surrender is the initiative and voluntariness of the criminal suspect.
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The Opinions in 2008 also regarded the situation of waiting at the scene knowing that others reported the case, not resisting arrest when arresting, and truthfully confessing the facts of the crime as automatic surrender. This explains the reason for voluntary surrender. On the one hand, the criminal suspect voluntarily indicates the identity of the criminal suspect and truthfully confesses the facts of the crime, which belongs to automatic surrender; On the other hand, knowing that others reported the case, waiting for the investigation organ to ask and truthfully confess on the spot is also a manifestation of voluntary surrender. along with
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Take Ma Moumou's intentional injury case in Xiangyang City, Hubei Province as an example. Ma Moumou had a dispute with Shen's mother and daughter because his neighbor's tricycle hit his own wall, which turned into a fight. Ma Moumou hit Shen's mother and daughter on the head with a brick, causing one minor injury and one minor injury. Ma Moumou knew that the other party called the police and waited at his house. After the police took him away for investigation, Ma actively cooperated and truthfully explained the crimes committed. The procuratorial organ found that the act of truthfully confessing knowing that the other party was waiting for the police at home during the investigation had the plot of surrender, and the court decision also recognized it. Coincidentally,
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The intentional injury case of Wang in June is also this type. Wang had a dispute with Zeng in the shop where he worked. Later, Wang hit Zeng's head with a hammer used at work, causing minor injuries. After the store called the police, Wang waited for the police to arrive in the store. Although this way of surrender is obviously different from the traditional way of surrender, the essence is to consider the criminal suspect's attitude of pleading guilty and repenting of his criminal behavior. As long as he can directly or indirectly put himself under the control of the investigation organ as mentioned above, he should set up an automatic surrender. In addition, in judicial practice, the investigation organ verbally summons and calls the suspect to investigate, and if the suspect can voluntarily obey, it can also be used as the basis for the identification of the suspect's automatic appearance in court. Because summoning is not a compulsory measure stipulated by law, the actor has a great choice whether to appear in court after summoning. Being able to appear in court shows that he is subjectively prepared to accept punishment and has the subjective purpose of confessing and repenting and accepting punishment.
, in line with the essence of automatic receipt. It should be noted that under the circumstance that the suspect will abscond immediately after receiving the notice, which will cause serious difficulties to the follow-up investigation, the suspect should be given the opportunity of oral summons, which is not only fair in form, but also conducive to his active cooperation and reducing the waste of judicial resources.
(2) Identification of truthful confession. Truthful confession is more objective than voluntary surrender. As long as the criminal suspect truthfully confesses the facts of the crime and does not shrink or exaggerate the facts, it should be considered as meeting the conditions for truthfully confessing his crimes. Whether the confession of a criminal suspect conforms to the real situation needs to be comprehensively considered in combination with evidence and testimony. For example,
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In the robbery of Wenmou A and Wenmou B in Xiangyang City, Hubei Province, the victim Chen was stopped by Wenmou A and Wenmou B while riding a bicycle to buy braids in Shaolou Village, Taipingdian Town, fancheng district City, Hubei Province. Wen Moujia held a homemade short-barreled shotgun against Chen Moumou, and Wen Mouyi forcibly searched Chen Moumou and took it away.
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Yuan, after the incident, the two fled the scene with guns and money. Wen Mouyi was arrested and brought to justice that year, while Wen Mouyi fled for a long time until
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Voluntary surrender in June. In the case that physical evidence, witness testimony, victim statement and co-defendant Wen Mouyi's confession can form a complete chain of evidence, Wen Mouyi still insists on deliberately distorting the key plot of the case in order to plead guilty lightly. In the end, neither the procuratorial organ nor the judicial organ found that he had surrendered himself. This situation is also a typical manifestation of surrender in practice, but it is not established.
(3) Transfer of administrative cases to criminal cases. With the continuous development of society, the cases and types of cases encountered in judicial practice are more complex and diverse. There will be cases where the perpetrator did not truthfully confess when filing an administrative case, and whether the case can constitute surrender after it is changed from an administrative security case to a criminal case. For example, when the victim's injury identification is inconclusive, the public security organ usually treats the case as an administrative case after accepting it, and the actor does not truthfully state the facts on the grounds that the consequences of the case are not serious or his own responsibility is reduced. After the victim's injury identification constitutes a minor injury or more, the public security organ turns the case into a criminal case, and the criminal suspect realizes the seriousness of the problem and automatically arrives at the case and truthfully confesses. Should the suspect surrender at this time? This kind of situation is common in judicial practice, and it is still of practical significance to think seriously. The author believes that the above situation should be considered that the criminal suspect has the plot of surrender. First of all, although the suspect did not make a truthful confession before, the case was classified as an administrative case at that time. Even if he doesn't truthfully confess, it doesn't affect his truthful confession of criminal offences. According to the second paragraph of Article 54 of the Criminal Procedure Law of People's Republic of China (PRC), evidence materials such as material evidence, documentary evidence, audio-visual materials and electronic data collected by administrative organs in the process of administrative law enforcement and case investigation can be used as evidence in criminal proceedings. From this, it can be concluded that verbal evidence such as witness testimony, victim's statement and criminal suspect's confession needs to be collected again before it can be used as the basis for finalizing the case. Therefore, if a criminal suspect has made a false confession in an administrative case, it will not affect his surrender. Secondly, the prerequisite for surrender is automatic surrender, which needs to be met according to the provisions of the Interpretation.
The time node is "before interrogation and compulsory measures are taken". The interrogation here should be limited to the interrogation in criminal cases, so as to reach a degree commensurate with the failure to take coercive measures. The criminal suspect accepted the telephone notification from the investigation organ and truthfully confessed, which met the appearance requirements of surrendering himself. Finally, according to the nature of surrender, that is, the criminal suspect voluntarily surrenders to the country after committing a crime, which proves that his personal danger is reduced, it is also in line with the nature of surrender to identify this kind of behavior, which is also conducive to timely stop loss, so that the victim can get compensation in time and minimize social harm.
(4) Surrender of negligent crime. According to Article 67 of China's Criminal Law, there is no restriction on the establishment of voluntary surrender, that is, all crimes stipulated in the specific provisions of the Criminal Law do not exclude the establishment of voluntary surrender. In this regard, after the perpetrator commits a negligent crime, as long as his behavior meets the establishment requirements of surrender, it should be recognized as surrender according to law. Although some scholars believe that an actor has the obligation to report according to the law, it should not be considered as surrender after the crime. Taking the crime of causing traffic accidents as an example, Article 70 of China's Road Traffic Safety Law stipulates that in the event of a traffic accident on the road, the driver of the vehicle should stop immediately to protect the scene; If personal injury or death is caused, the driver of the vehicle shall immediately rescue the injured and report to the traffic police on duty or the traffic management department of the public security organ in time. Based on such legal provisions, some scholars believe that the behavior of waiting for the police after committing a crime is an act of fulfilling legal obligations, not surrendering, but it can be given a lighter punishment. The author believes that the provisions of other laws do not conflict with the criminal law, and it is not an either-or relationship. Although the actor's reporting behavior is to fulfill his obligations in administrative law, it also fully conforms to the appearance and essential elements of surrender. Compared with other departmental laws, criminal law is the most mandatory; Therefore, we should treat all situations equally in order to maintain the unity and coordination of the application of the legal system and promote the fairness and justice of justice and law enforcement. If it is not enough for the perpetrator to stay at the scene to fulfill his obligations in administrative law, what should he do if he takes the initiative to bring the case to justice after escaping? This will inevitably lead to the confusion of the criminal law system and is not conducive to timely rescue of the injured. In judicial practice, the act of leaving the scene after the accident and waiting for the police to intervene in the investigation also belongs to surrender. For example, in
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In a traffic accident in Yue 'an, Anmou collided with a pedestrian Guo because of improper operation while driving a motor vehicle, and the latter died on the same day after being rescued by the hospital. After the accident, An called immediately.
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Call the police and actively cooperate with the police investigation. Both the procuratorial organ and the judicial organ confirmed his surrender.
Verb (abbreviation of verb) conclusion
The system of voluntary surrender is widely used in judicial practice. The application of voluntary surrender conforms to the criminal judicial policy of combining leniency with severity and the principle of modesty in criminal law, and maximizes the unity of legal, political and social effects. The exploration of voluntary surrender system is not only beneficial to the punishment and reform of criminals by the state and society, but also provides guidance and reference for judicial workers to face complex cases in practice, which has important practical significance.