"People's Court Daily": There is no difference between "voluntary surrender" and "automatic surrender" in cases of job-related crimes

In July 2019, the Central Commission for Discipline Inspection issued the Provisions on Discipline Inspection and Supervision Organs' Handling of Voluntary Surrender (For Trial Implementation) (hereinafter referred to as the Provisions), which stipulates the "voluntary surrender" of persons who commit crimes abusing public office. The author analyzes that the promulgation of the "Provisions" has formed a situation in which the voluntary surrender of cases of crimes abusing public office and the voluntary surrender in the criminal law overlap and have differences, combined with the 1998 Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of the Law in Handling Voluntary Surrender and Meritorious Service (hereinafter referred to as the "Judicial Interpretation on Voluntary Surrender") and other relevant provisions, there are differences in the identity of the subject, the time of surrender, and the effectiveness of the unit's surrender in automatic surrender and voluntary surrender.

I. The subject voluntarily surrendering may not be a criminal suspect or defendant in a case of crimes abusing public office

The subject of voluntary surrender may not be a criminal suspect or defendant in a job-related crime case, but a witness and other litigation participants, and the subject of the voluntary surrender is the criminal suspect or defendant; the time for voluntary surrender is stricter than the time requirement for automatic surrender; the discipline inspection and supervision organs notify the other party by telephone, that is, there is no room for establishing an active surrender, and in ordinary criminal cases, an automatic surrender can still be established in this case; in ordinary criminal cases, when the unit collectively studies the automatic surrender, the unit "automatically surrenders" with the consent of the relevant personnel when the unit collectively studies the automatic surrender. The consequences have "spillover effect" on the person in charge and the person directly responsible, while in the case of job-related crimes, unless the person surrenders himself, the consequences of the unit's surrender do not have "spillover effect" on him.

The first thing that needs to be clarified is that both this article and the previous article only discuss the "surrender" in job-related crime cases, which is the premise. After all, discipline inspection and supervision organs not only investigate and deal with cases of job-related crimes, but also investigate and deal with cases of violations of public officials' duties and cases of violations of discipline by party members and cadres. According to article 3 of the Provisions, the "voluntary surrender" referred to in the Provisions includes both the surrender of persons suspected of violating discipline or violating official duties to the discipline inspection and supervision organs, as well as the situation in which persons suspected of committing crimes abusing public office voluntarily surrender to the Supervision Organs as provided for in Article 31 of the Supervision Law. That is, according to the Provisions, voluntary surrender includes two types: voluntary surrender of relevant personnel who are not guilty of job-related crimes and voluntary surrender of persons suspected of job-related crimes. For public employees who violate the law and party members who violate discipline, because they are not "cases of crimes abusing public office", they do not fall within the scope of the previous article and this article, and they do not have much significance for the connection between law and law.

First, from the semantic analysis of words, there is no substantive difference between "automatic" and "active". In legislative technology, words without substantive distinction can be used together in different legal norms, but it cannot be assumed that the meanings expressed by these words are differentiated. Whether it is "automatic surrender" or "active surrender", the core meaning is that the surrenderer decides and implements the surrender act independently, which reflects the autonomous nature of the surrender behavior, which is different from passive surrender.

Second, from the analysis of the effectiveness of the regulatory level, it is impossible to draw a conclusion that there is a difference between "voluntary surrender" and "automatic surrender". Article 1 of the "Provisions" clearly states: "In order to standardize the identification and handling of discipline inspection and supervision organs voluntarily surrendering in the course of supervision, inspection, review and investigation, these Provisions are formulated in accordance with the "Regulations on Disciplinary Punishment of the Communist Party of China," the "Rules for the Supervision and Discipline Enforcement Work of the Discipline Inspection Organs of the Communist Party of China," and other inner-Party regulations, as well as the "Supervision Law of the People's Republic of China" and other laws and regulations, combined with the actual conditions of work." It can be seen from this that the Supervision Law is one of the bases for formulating the Provisions; although the Provisions are inner-Party regulations and the Supervision Law is a state law, the above expression of the Provisions has made it clear that the Supervision Law is one of the bases for the formulation of the Provisions, so the content of the Provisions must not conflict with the Supervision Law and other bases; moreover, the Provisions, issued by the General Office of the Central Discipline Inspection Commission, are "trial" provisions that regulate discipline enforcement and supervision, and their level of effect cannot be compared with the basic law of the Supervision Law. Since the first paragraph of article 31 of the Supervision Law stipulates that the "automatic surrender" is a lenient punishment, the Provisions are a refinement of this content of the Supervision Law.

Third, from the analysis of the content of the "Provisions" on "voluntary surrender", there is no essential difference from the spirit of the judicial interpretation on "voluntary surrender". Article 2 of the Provisions specifies the types of "voluntary surrender", and article 5 stipulates seven situations in which "voluntary surrender" is deemed. Comparatively speaking, article 2 is the most typical situation of "voluntary surrender", including the voluntary surrender of non-job offenders; while article 5 of the Provisions draws on the provision of "deemed to be automatic surrender" in article 1 of the 1998 Interpretation of the Supreme People's Court on Several Issues Concerning the Handling of Voluntary Surrender and the Specific Application of Law for Meritorious Service (hereinafter referred to as the "Judicial Interpretation on Voluntary Surrender"), and according to the characteristics of discipline inspection and supervision work, the expression has been reformed, and the bottom-up provision of "other situations that should be regarded as voluntary surrender" has been added. Comparatively speaking, Article 5 of the Provisions is more instructive in practice – because in practice there is no divergence in understanding of typical voluntary surrender circumstances. In detail, among the circumstances provided for in Article 5, in addition to the bottom-up provisions in Item 7, the four situations provided for in Items 3 to 6 have similar provisions corresponding to those in The Second and Third Paragraphs of Article 1 of the Judicial Interpretation on Voluntary Surrender. According to Article 25 of the Rules for Supervision and Discipline Enforcement Work (Trial Implementation) and Article 39 of the Supervision Law, a case filed against a person suspected of violating the law or committing crimes abusing public office requires preliminary verification procedures; according to article 16 of the Rules for Supervision and Discipline Enforcement Work (Trial Implementation), talking to and inquiring is one of the ways in which discipline inspection organs handle clues to problems, and it is also a pre-case filing procedure. Therefore, where a person who commits a crime abusing public office voluntarily confesses at the stage of the discipline inspection and supervision organs' interview and correspondence or preliminary verification, similar to the situation in ordinary criminal cases where he or she is interrogated and educated by the relevant organization or judicial organ only because of his suspicious appearance, he or she voluntarily confesses his crime. Therefore, article 5 of the Provisions draws on the provisions of the judicial interpretation that "it is deemed to be an automatic surrender", and if it voluntarily surrenders or confesses during the preliminary verification stage and during the interview and inquiry process, it is clearly stipulated that it is "deemed to be an active surrender". In summary, the content of the "Provisions" is not fundamentally different from the "Judicial Interpretation on Voluntary Surrender", but only makes different expressions in combination with the characteristics of discipline inspection and supervision work.

First, there should be no distinction between the two types of surrender subjects for job-related crimes. It is true that, according to article 2 of the Provisions, persons suspected of violating discipline or violating the law while performing official duties, including those who have paid bribes to public employees, and non-public employees who have jointly violated discipline or violated the law, can voluntarily surrender during the supervision and inspection and examination and investigation of discipline inspection and supervision organs, but because they are not suspected persons who have committed crimes abusing public office and will not enter into criminal justice procedures, the "voluntary surrender" situation provided for in the "Judicial Interpretation on Voluntary Surrender" is not applicable, and comparing the two unrelated situations is neither comparable nor of practical significance to criminal justice. As mentioned above, both this article and the previous article are limited to "surrender" in cases of job-related crimes, and do not include surrenders for non-job-related crimes or general violations of law and discipline. Exploring the relationship between voluntary surrender in cases of job-related crimes and the voluntary surrender required for voluntary surrender is conducive to resolving the issue of whether persons suspected of job-related crimes who meet the requirements of the "Provisions" can be deemed to have voluntarily surrendered after entering criminal justice procedures. If we compare the surrender of non-job-related offenders with the surrender required by voluntary surrender, it deviates from the context of this article and the previous argument, causes logical confusion, and is meaningless to practice.

Second, there is no difference in the time of surrender between the two methods of surrender. According to the foregoing, the requirements for the time of surrender in the Criminal Law are relatively relaxed, and as long as the subject of the surrender has not been controlled by the public security and judicial organs, it may be constituted; while the voluntary surrender required by supervision, inspection, review and investigation has stricter requirements for the time of surrender -- the objects of supervision suspected of crimes abusing public office can only be held before the discipline inspection and supervision organs talk, interrogate, or retain themselves during the review and investigation stage, and then believe that the subject of supervision suspected of committing crimes abusing public office has not yet had verbal exchanges with the discipline inspection and supervision organs' case-handling personnel. Including face-to-face contact and conversation exchanges, but also the use of telephones, mobile phones, WeChat, etc. for remote communication exchanges, if the case is notified according to the supervision organ's telephone notification, it means that the discipline inspection and supervision organs have begun to inquire and talk, and there is no condition for establishing an active surrender at the time node. The author believes that this view is not only unfounded by law, but also inconsistent with the standards mastered in practice, which is objectively unfavorable to the person under investigation, nor is it conducive to encouraging the person under investigation to take the initiative to bring the case to justice and change evil to good.

II. Determination of voluntary surrender and voluntary surrender

First of all, judging from the content determined in the Provisions, voluntary surrender includes both the two typical voluntary surrender situations provided for in Article 2 of the Provisions, and the seven types of "deemed voluntary surrender" in Article 5. Although Article 5 stipulates that it is "deemed to be voluntarily surrendered", the legal effect is the same as that of "voluntary surrender". According to the provisions of article 5, the time of "deeming an active surrender" may be at the initial stage of nuclear examination and when it has not yet been interviewed by the discipline inspection and supervision organs, or in the process of correspondence and conversation between the discipline inspection and supervision organs, or even in the process of absconding, wanting, or arresting. Therefore, it is not possible to rely solely on article 2 of the Provisions to think that voluntary surrender can only be "before verbal communication with the discipline inspection and supervision organs' case-handling personnel", and exclude the situation of "deeming it to be an active surrender", thus greatly narrowing the scope of voluntary surrender.

Second, judging from the cases identified in practice, the time for the discipline inspection and supervision organs to determine the voluntary surrender is not before the discipline inspection and supervision organs have contact with the person under investigation in language, as mentioned above. As mentioned above, Article 2 of the Provisions is a typical voluntary surrender, and in practice there will be no disagreement over its determination, while what is controversial is the situation in Which Article 5 "deems to be an active surrender". It can be seen from the typical cases published on the website of the Central Commission for Discipline Inspection and the State Supervision Commission (see the article "Whether These Circumstances Can Be Identified as Voluntary Surrender" in the China Discipline Inspection and Supervision Daily on February 26, 2020): When the person under investigation is interviewed by the Discipline Inspection Commission to inquire about the clues on the handling of the problem, he not only truthfully explains the content of the clues of his disciplinary violations in the hands of the Discipline Inspection Commission, but also explains the problems that the Discipline Inspection Commission does not have in his or her possession of other violations and crimes in his or her position, and the problems that he voluntarily confesses should be regarded as voluntary surrender. This typical case believes that the author believes that since the discipline inspection and supervision organs have already consulted and talked with the person under investigation, they must have contact with their language; the viewpoint of the above-mentioned typical case is not only in line with the provisions of the "Provisions" that "it is regarded as an active surrender", but also conducive to encouraging the subjects of supervision to truthfully confess the "residual crimes", and implementing the principle of "punishing the former and the latter, treating the sick and saving people", which is completely correct.

Finally, the reasons for the above-mentioned argument that it is not appropriate to give excessive preferential treatment to the person under investigation on the issue of surrender are debatable. The article held that since the persons under investigation in the supervision and investigation are all party members or state cadres, they originally have the obligation to be loyal to the party or to truthfully report the relevant situation to the organization, and based on the need to comprehensively and strictly administer the party and deepen the anti-corruption struggle, it is not appropriate to give too much preferential treatment on the issue of surrender. The author believes that this view seems reasonable, but it is actually harmful. According to the logic of this view, the "voluntary surrender" in article 2 of the Provisions should not be regarded as a lenient circumstance, because party members and cadres have the obligation to be loyal to the party and truthfully report to the organization. Party discipline is the anti-corruption rule, and the national law is a sharp weapon for punishing corruption. The report of the Nineteenth National Congress of the Communist Party of China has demonstrated our party's clear political stand of being incompatible with corruption and the principle of the rule of law that all corrupt elements and corrupt acts must be resolutely punished in accordance with discipline and law. Strictly administering the party and carrying out the anti-corruption struggle in depth cannot be separated from the rule of law. This reason mentioned above is a reflection of "moral correctness", but in judicial work it is manifested as the idea of heavy punishment and one-sided attribution of responsibility, which does not conform to the principles of judicial fairness, seeking truth from facts, and handling affairs according to law. In fighting corruption according to law, leniency should be lenient, not "preferential treatment" for public employees. What is "preferential treatment"?

Third, the reason for the difference between the so-called voluntary surrender and the voluntary surrender in the determination of the effectiveness of the unit's surrender is not established. According to the foregoing, article 6 of the Provisions particularly emphasizes that in the unit's collective research decision to voluntarily surrender, only "personnel who participated in collective research and agreed to surrender" were identified as voluntary surrenders; furthermore, it was concluded that personnel who did not express consent in the unit's collective research surrender, as long as the person truthfully confessed in the ordinary criminal case of the unit, the legal effect of establishing voluntary surrender was exactly the same as that of automatic surrender, and in the case of the unit's job-related crime, as long as the person did not agree, even if the unit voluntarily surrendered, it could not be "affected" It is determined that the person voluntarily surrendered. In the author's opinion, there are the following debatable points in this statement:

The interpretation of Article 6 of the Provisions is incorrect. Article 6 of the Provisions stipulates: "Where a unit suspected of violating or committing a crime abusing public office collectively makes a decision or the person in charge of the unit voluntarily surrenders, or the unit's directly responsible supervisor voluntarily surrenders, it shall be determined that the unit voluntarily surrendered." "In cases where a unit voluntarily surrenders, it is necessary to pursue the responsibility of relevant personnel, the personnel who participated in the collective research and agreed to surrender, the responsible person of the unit that decided to surrender, and the person in charge of the unit directly responsible for the surrender shall all be identified as active surrender." As can be seen from the above, this article emphasizes that "persons who participate in collective research and agree to surrender" should be identified as voluntary surrenders, which is an indicative provision in legislative technology, and its purpose is to highlight that such personnel should be identified as active surrenders and prevent the determination from being determined. Obviously, from the formal logic, it cannot be concluded that none of the other personnel have voluntarily surrendered.

The conclusions drawn by extension are inaccurate. According to the above, in ordinary crimes committed by units, the unit voluntarily surrenders, and the directly responsible supervisor or directly responsible personnel (hereinafter referred to as the responsible person) does not surrender, but can truthfully confess, the legal effect of establishing voluntary surrender is exactly the same as that of automatic surrender, that is, the so-called unit surrender has "contagious effect" on the responsible person; but in the unit job-related crimes, it does not have this kind of contagious effect. Contrary to this view, the 2009 "Opinions of the Supreme People's Court and the Supreme People's Court on Several Issues Concerning the Determination of Voluntary Surrender, Meritorious Service, and Other Sentencing Circumstances in handling Cases of Crimes Committed While Performing Official Duties" stipulates that in cases of crimes committed by units abusing public office, "where a unit voluntarily surrenders, the directly responsible supervisors and directly responsible personnel do not voluntarily surrender, but truthfully confess the facts of the crime they know, they may be deemed to have surrendered voluntarily." It can be seen from this that the judicial interpretation clearly stipulates that where a unit voluntarily surrenders and the responsible personnel do not voluntarily surrender in the case of a crime committed while performing official duties, the voluntary surrender of the unit has "spillover effect" on the responsible personnel, and those who truthfully confess after their return to the case can be regarded as voluntary surrender. The above-mentioned judicial interpretations of the "two supremes" are provisions specifically aimed at cases of job-related crimes, so, in the case of non-job-related crimes committed by units, if the unit voluntarily surrenders and the responsible personnel do not voluntarily surrender but truthfully confess the facts of the crime they know, can the responsible personnel also be regarded as surrendering voluntarily? So far, there are no clear provisions on this issue. Therefore, the above view of whether the voluntary surrender of the unit has the so-called "spillover effect" on the responsible personnel is unfounded.

In summary, the view that there is a difference between "voluntary surrender" and "voluntary surrender" in cases of job-related crimes has neither a convincing basis nor a need for artificial distinction, and can only cause theoretical ambiguity and bring confusion to supervision and discipline enforcement and judicial work. The reason why the concepts of "voluntary surrender" and "automatic surrender" are used in the Provisions and the Supervision Law respectively is that different legal documents choose the same kind of situation in synonym expressions, which is not necessarily that the legislator must deliberately distinguish between these two kinds of surrender behavior; whether there is indeed a difference in connotation and extension between the two, the most important thing is to combine legal analysis, and cannot be expected to be literal and artificially distinguished.

(Author Affilications:Supreme People's Court)

Source: Criminal Legal Practice