Criteria for determining voluntary surrender after compulsory measures have been taken

Author: Zhang Yi, lawyer at Beijing Dongwei Law Firm, defense lawyer for job-related crimes and economic crimes

In criminal cases, among the sentencing circumstances determined by the "Sentencing Guiding Opinions on Common Crimes (Trial Implementation)" of the Supreme People's Court and the Supreme People's Procuratorate, if it is said which circumstance has a lower threshold for determination, a large degree of leniency, and can benefit most people, "voluntary surrender" may be the first circumstance that both the criminal suspect/defendant and his family members and lawyers will think of.

According to the provisions of the first and second paragraphs of article 67 of the Criminal Law, voluntary surrender is divided into general voluntary surrender and quasi-voluntary surrender, and the applicable circumstances are inconsistent, but there is no difference in the effect of leniency. Generally, voluntary surrender refers to voluntarily surrendering after committing a crime and truthfully confessing one's own crime. Quasi-voluntary surrender refers to criminal suspects, defendants, or convicts who are serving sentences who have been subject to compulsory measures, and truthfully confess other crimes that the judicial organs have not yet grasped. For quasi-voluntary surrender, the difficulty lies in distinguishing between "other crimes".

In this regard, this paper sorts out the existing judicial interpretations, documents and guiding cases, summarizes the criteria for determining "other crimes" in quasi-voluntary surrender, and the "other crimes" in the criminal law provisions are refined into "different kinds of crimes" and "the same kind of crimes", which constitute quasi-voluntary surrender of different kinds of crimes, and do not determine the non-determination of the same kind of crime. Therefore, there are the following criteria for determining quasi-voluntary surrender: the first step is to determine whether the crimes are the same, and the non-determination of the same crime shall prevail; the second step is to determine whether the crime already in the hands of the judicial organ is a selective crime, and if it is a selective crime, it is still not determined to be a voluntary surrender; the third step is to determine whether it is closely related to the crime already controlled by the judicial organ in law and in fact, and if there is a close connection, it is still not determined to be a quasi-voluntary surrender. See figure below.

Regarding the above criteria for judging, Professor Zhang Mingkai believes that "the judicial interpretation seems to understand the provisions of the criminal law only from a formal point of view, does not consider the substantive basis of the voluntary surrender system, and is also suspected of contradicting itself; after confession has become a statutory mitigating circumstance, the above-mentioned judicial interpretation leads to the incompatibility between confession and voluntary surrender; not only that, the judicial interpretation also expands the scope of "the same kind of crime", resulting in some those who voluntarily confess different kinds of crimes, and do not establish voluntary surrender. This practice of restricting the interpretation of criminal law provisions in favour of the accused and lacking substantive reasons is difficult to endorse in this book. He also put forward 6 views that should be regarded as quasi-voluntary surrender, including: "If a criminal suspect or defendant who has been subjected to compulsory measures truthfully confesses the main crime or more important crime of the same kind of crime that the judicial organs have not yet mastered, he shall surrender himself to the whole case; the criminal suspect or defendant who has been taken compulsory measures shall truthfully confess the same kind of crime that the judicial organs have not yet mastered, and if the same crime confessed needs to be punished together, the crime confessed shall be deemed to be voluntary surrender; the perpetrator shall be taken compulsory measures because of crime A. However, if you voluntarily confess to crime B that is related to crime A, regardless of whether crime A is established or not, it shall be regarded as voluntary surrender to crime B. (Criminal Law (Part 1) (Sixth Edition), by Zhang Mingkai, P738)

The list of judicial interpretations, documents and Guiding Cases on Quasi-Voluntary Surrender is as follows:

1. Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in Handling Voluntary Surrender and Meritorious Service (FaShi [1998] No. 8, May 9, 1998)

Article 2: In accordance with the provisions of the second paragraph of criminal law article 67, where criminal suspects, defendants, or convicts who have been sentenced to compulsory measures truthfully confess crimes that the judicial organs have not yet mastered, and that the crimes already in the judicial organs' possession or are different from those already in the judicial organs' possession or have been determined by the judgment, they are to be deemed to have voluntarily surrendered.

2. Notice of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Determination of Sentencing Circumstances such as Voluntary Surrender and Meritorious Service in Handling Cases of Crimes Abusing Public Office (Fa Fa [2009] No. 13, March 12, 2009)

　1. Regarding the determination and handling of voluntary surrender

Paragraph 4: Where there is no automatic surrender, but there are any of the following circumstances, the theory of voluntary surrender is to be made: (1) the criminal truthfully confesses the crime that the case-handling organ has not mastered, and it is a different kind of crime than the crime already in the hands of the case-handling organ; (2) the criminal facts targeted by the clues held by the case-handling organ are not established, and the criminal confesses the same kind of crime outside this scope.

3. Notice of the Supreme People's Court on Several Specific Issues Concerning the Handling of Voluntary Surrender and Meritorious Service (Fa Fa [2010] No. 60, December 22, 2010)

III. Specific determinations regarding "other crimes of oneself that are not yet known to the judicial organs" and "different kinds of crimes"

If a criminal suspect or defendant voluntarily and truthfully confesses to the judicial organs other crimes during the period when compulsory measures are taken, whether the crime can be found to be already in the hands of the judicial organs shall be treated differently according to different circumstances. If the crime has been wanted, it should generally be judged by whether the judicial organ is within the scope of the release of the wanted notice, and if it is not within the scope of the release of the wanted order, it shall be deemed to have not been mastered, and if it is within the scope of the release of the wanted order, it shall be regarded as already in possession; if the crime has been entered into the national public security information network database of fugitives, it shall be regarded as already in possession. If the crime is not wanted or entered into the national public security information network fugitive information database, the criterion should be whether the judicial organ has actually mastered the crime.

Criminal suspects or defendants who truthfully confess to other crimes during the period when compulsory measures are taken, and whether the crime is the same crime or a different kind of crime as the crime already in the judicial organs' possession, should generally be distinguished by crime. Although the charges of other crimes that are truthfully confessed are different from the crimes already held by the judicial organs, other crimes that are truthfully confessed to other crimes that are already in the hands of the judicial organs are optional crimes or are closely related to the law or fact, and if compulsory measures are taken for accepting bribes and then confessed to the act of seeking benefits for others because of accepting bribes, which constitutes the crime of abuse of power, it shall be found to be the same kind of crime.

4. Understanding and application of the Opinions on Several Specific Issues Concerning the Handling of Voluntary Surrender and Meritorious Service

([Author] Zhou Feng, Xue Shulan, Meng Wei [Author Affilications] Supreme People's Court People's Justice (Application), No. 3, 2011, p. 23, Criminal Trial Reference, Vol. 80)

Determination of different types of crimes.

In judicial practice, what is the same kind of crime and what is different kinds of crime is generally based on the crime, which is easy to operate, but for the situation that the crime involved is a selective crime, the standards grasped by various localities are different, resulting in large differences in whether it is determined to be voluntary surrender and whether it is lenient punishment. Therefore, the Opinions stipulate that the determination of different kinds of crimes should first be distinguished by crime. If the charges are different, it is also necessary to consider whether the remaining crimes and the crimes already in hand are selective crimes or are closely related in law or in fact, the crimes are different and not selective crimes, and there is no close connection between law and fact, in order to be recognized as different kinds of crimes. The specific criteria are:

1. Other crimes that have been truthfully confessed are optional crimes with crimes already known to the judicial organs, and if they have already been convicted of the crime of smuggling drugs and confess the crime of manufacturing drugs, they are still the same kind of crimes;

2. Where other crimes truthfully confessed are closely related to the crimes already in the hands of judicial organs in the law or in fact, and if compulsory measures are taken for accepting bribes, and then confessing to the act of seeking benefits for others because of accepting bribes, constituting the crime of abuse of power, it shall be found to be the same kind of crime.

None of the above circumstances constitute voluntary surrender of residual crimes.

5. Guiding Case [No. 703] Jiang Wenzheng Explosion and Extortion Case: How to Determine "Different Crimes" and "Crimes Already In The Hands of judicial Organs" in the Voluntary Surrender of Residual Crimes (Criminal Trial Reference, Vol. 3, 2011, Vol. 80)

Main Points of the Judgment: The provisions of the Interpretation on voluntary surrender of residual crimes can be understood as meaning that if a criminal suspect, defendant, or convict who has been sentenced to compulsory measures truthfully confesses to a crime that the judicial organ has not yet mastered, and the crime already in the judicial organ's possession or the crime determined by the judgment constitutes a different crime, the voluntary surrender is established (except for selective crimes or legal or factual connections according to the "Opinions");

6. Guiding Case [No. 1348] Li Hua and Wang Yilong Drug Trafficking, Sai Lihua Illegal Drug Possession Case: How to Determine the Same Kind of Crime in Drug Crimes and "Possession" in Illegal Drug Possession (Criminal Trial Reference (Episode 122))

Main points of the adjudication: 2. Offences that are closely related in law and in fact are the same kind of crimes

The same kind of crime mainly includes the following three types; first, the crime of the same crime; second, the crime of optional crime; and third, the crime of de jure and de facto closely related. Other talents can be recognized as different kinds of crimes.

The first two types are relatively clear in trial practice, while the determination of the third type of "de jure and de facto closely related crimes" often diverges in practice. Some people hold that crimes that are closely related in law refer to the fact that the constituent elements of different crimes are intersected or that there is a conjunctive (convection) relationship, an implicating relationship, a competing relationship or a collection relationship between different crimes; in fact, a crime that is closely related is a close relationship between different crimes in terms of objective factual characteristics such as the time, place, method (means), object, and result of the crime. We believe that in crimes that are closely related in law, it is generally necessary to examine from the elements of the constituent elements of the crime whether several crimes are similar or inclusive in terms of the elements of the subject, object, and objective aspect of the crime, and whether the elements of the result object are similar or inclusive; in fact, crimes that are closely related generally rely on judicial practice and combine daily experience to examine whether several acts are related in the probability, logic and relationship of occurrence. If a person kills someone with a gun and after being caught for intentional homicide, he voluntarily confesses to the purchase of firearms, and his act of purchasing firearms constitutes the crime of illegally buying and selling firearms, which is not the same crime as the crime of intentional homicide previously mastered by the judicial organs, but because when confessing the facts of intentional homicide, he must truthfully confess the source of the firearm as a criminal tool, therefore, the two crimes he committed are closely related in law and in fact, and his voluntary confession of purchasing firearms cannot be regarded as voluntary surrender.