In the era of misdemeanors, the crime of dangerous driving has become the "number one crime", and the highest incidence rate is "drunk driving". The picture shows that on the evening of July 24, 2023, the traffic police of the Traffic Police Brigade of the Pujiang County Public Security Bureau in Zhejiang Province are investigating drunk driving. (Photo courtesy of People's Vision)
How long does it take to close a misdemeanor case? In the Yanbian County Procuratorate in Sichuan Province, it may only take about 10 days.
A leader of the Yanbian County Procuratorate said that in the past, when handling a drunk driving case, the public security organs would normally investigate for one or two months, the procuratorate would examine it for one month, and the court would make a judgment in one or two months. If the coercive measure is a case of bail pending trial, it may take longer.
The time limit for handling cases can be shortened because the local government has made strict regulations on the time for handling misdemeanor cases. On July 20, 2023, the Yanbian County Procuratorate, together with the local political and legal committee, the public security bureau, the court and the judicial bureau, signed an opinion requiring the time taken in the three stages of investigation, review and trial.
In the view of the court's leaders, this is an attempt to deal with the significant increase in misdemeanor cases in recent years.
The law does not clearly stipulate what constitutes a "misdemeanor", but it is generally accepted in practice that a sentence of less than three years imprisonment is a misdemeanor case. The Supreme People's Procuratorate and the Supreme People's Court have repeatedly publicly mentioned that more than eight of the criminal cases are misdemeanors.
Some scholars assert that China has entered an era of misdemeanors. In 2024, "misdemeanor governance" will be included in the work report of the Supreme People's Procuratorate for the first time. The Supreme People's Procuratorate made it clear that in 2024, it will promote the improvement of the misdemeanor governance system: "In view of the continuous growth of the number and proportion of misdemeanors, we will work with all parties to promote the governance of misdemeanors." For minor crimes, fewer arrests are made in accordance with law, and cautious prosecution and detention are prudent. ”
Previously, the local government had taken the lead in exploring how to deal with the large number of citizens who had committed minor crimes. Since 2022, judicial organs in many places have established centers for expedited trial of minor criminal cases, and after 2024, the establishment of minor crime management centers at the city and county levels will be accelerated.
Simplifying procedures and shortening the time limit for handling cases are the most common attempts. The next question that the academic and practical circles are concerned about is, in addition to the criminal justice process, can crime prevention and source management be truly realized?
Average court time: 5-10 minutes
The "one-stop" case handling center for minor criminal expedited cases set up at the Yanbian County Public Security Bureau, which began trial operation in April 2023, is only separated by a wall from the Public Security Bureau's Law Enforcement and Case Handling Center.
On one side of the wall are the interrogation rooms, the "five routine" physical examination rooms, the psychological counseling room, and the conflict and dispute mediation rooms affiliated to the public security organs, and on the other side there are the procurator's office, the legal aid duty lawyer's office, and the expedited court. In other words, in the same place, the three processes of investigation, review and trial can be completed.
It was here that the Yanbian County Procuratorate handled a "special" theft case - the thief and the victim were boyfriend and girlfriend.
In 2019, Gong, a native of Hunan, established a relationship with a woman while working in Panzhihua City, and his WeChat payment was also bound to the other party's bank card. Two years later, the two broke up. Due to his family's illness and financial difficulties, Gong, who returned to Hunan, successively swiped more than 4,300 yuan from the woman's card. In May 2023, the woman reported the case after discovering it. On the 18th of the same month, Gong was detained by the Yanbian County Public Security Bureau on suspicion of theft.
The county public security bureau transferred the case to the county procuratorate, and considering that the nature of the case was slight, the family of the parties was in difficulty, the mother was still paralyzed in bed and needed to be taken care of, and the distance to and from was very inconvenient, the decision not to prosecute Gong was made on the same day.
"The theft case sounds a bit serious, but judging from the individual cases, Gong has actively compensated and obtained understanding, and the conflict between the two parties has been resolved." The head of the procuratorate explained to the Southern Weekend reporter that cases like these, where the facts are clear, the evidence is credible and sufficient, the circumstances of the crime are minor, the parties truthfully confess after arriving at the case, voluntarily admit guilt and accept punishment, voluntarily make restitution and obtain the victim's forgiveness, and may be sentenced to less than three years in prison in accordance with the law, will enter the local "misdemeanor case" handling process, and the time taken for investigation and evidence collection, examination for prosecution, and trial will be greatly shortened.
The original intention of setting up a "one-stop" case handling center was to take into account the convenience and efficiency of the people. If Gong's theft case is handled in the previous way, "he needs to run to the public security department first, and then go to the procuratorate to apply for bail and sign, and it may take three or four months for a case, and it will take seven or eight trips back and forth from Hunan, and maybe the travel expenses will exceed the amount stolen." The hospital leader said.
After the establishment of the "one-stop" case-handling center, on July 20, 2023, the Yanbian County Procuratorate, the local political and legal committee, the public security bureau, the court and the judicial bureau countersigned the "Opinions on Establishing a 'One-stop' Case Handling Mechanism for Minor Criminal Expedited Cases", which clearly requires that during the investigation and evidence collection stage, the public security organs should complete the investigation and transfer the criminal suspect to the procuratorate within 5 days after the criminal suspect arrives at the case. After the procuratorate accepts the case, it shall make a decision on the handling of the case within 5 days, and if it wants to initiate a public prosecution, the court shall conclude the case within 7 days after accepting the case.
After one year of operation, the most intuitive embodiment of this mechanism is that among the more than 170 cases handled for minor crimes, the average time for handling cases has been shortened to 10-15 working days, and the average court time for cases of minor crimes has been 5-10 minutes.
"Compared with serious crimes, misdemeanor cases have a certain degree of regularity or predictability, and there must be certain loopholes in social management and governance for such large-scale crimes." The leaders of the Yanbian County Procuratorate said that their next step is to promote social governance from the rules or problems found in the handling of cases, and transition from "punishment" to "governance" in misdemeanor cases.
upgrade
After 2023, some localities have already tried this transition, and some criminal expedited trial centers have been upgraded to "misdemeanor management centers". In September of that year, the Suining County Criminal Case Expedited Trial Center in Xuzhou took the lead in turning around.
Entering 2024, the exploration of misdemeanor governance reform in various places has been significantly accelerated, and misdemeanor governance centers have been established in Shenyang, Wuhan, Zhuji and other places.
In a nutshell, the Expedited Trial Center focuses on improving the handling process and efficiency of misdemeanor cases, while the Governance Center will further explore how to prevent crime from occurring on the basis of the former.
On February 1, 2024, the Xixiu District Procuratorate of Anshun, Guizhou Province, together with the local court, the Public Security Bureau, and the Justice Bureau, jointly established the "Xixiu District Misdemeanor Governance Center", and also established the province's first misdemeanor governance court.
A month after its establishment, the Xixiu District Misdemeanor Management Center handled a case of fire crime.
Chen burned straw while doing farm work in his own field, and accidentally caused a forest fire, causing a large area of forest to be burned, and the area of destroyed forest land has reached the standard for filing a criminal case.
In this case, the Xixiu District Misdemeanor Management Center will combine social volunteering with "relative non-prosecution." In accordance with the provisions of the Criminal Procedure Law, where the circumstances of the crime are minor and it is not necessary to determine punishment or waive criminal punishment in accordance with the provisions of the Criminal Law, the procuratorate may make a decision not to prosecute.
Specifically, it is to leave a period of time for criminal suspects to perform their duties in the public interest as a reference for whether to prosecute.
For example, "Let him be a forest ranger, stand guard in areas with a high incidence of fires, and record punches." Let the value created by his time in office and the ecological damage he cause be relatively compatible", and at the same time, the forestry department will monitor the performance of his duties, and the procuratorate will also inspect it.
Luo Peng, director of the No. 1 Procuratorate Department of the Xixiu District Procuratorate, told Southern Weekend that in the process, the nature, circumstances, methods, and harmful consequences of the crime will be considered, as well as how to make up for the crime and whether to repent. ”
In addition to non-prosecution in the performance of public interest duties, for those who are not prosecuted for crimes or exempted from criminal punishment, the procuratorial organs will, in accordance with the provisions of "connection between executions", transfer the personnel who need to be subject to administrative punishment to the administrative organs for handling, "because misdemeanors are also crimes, it is necessary to avoid the judicial paradox of not being investigated for criminal responsibility after committing a crime, and not bearing the performance of social public interest duties or administrative punishment." ”
Since its establishment two months ago, the Anshun Xixiu District Misdemeanor Center has handled more than 50 misdemeanor cases. At present, the cases mainly focus on five categories: fire, illegal fishing, petty theft, use of online casinos and dangerous driving.
Luo Peng said that although it is currently in the exploratory stage, "this method of separating complicated and simple cases can indeed optimize the allocation of judicial resources, so that prosecutors handling serious crime cases have enough time to handle cases." ”
The legal net is getting denser and denser
Based on the trend of a sharp decline in serious violent crimes and an increase in misdemeanor cases, Lu Jianping, a professor at Beijing Normal University's Law School, believes that 2013 can be called the first year of the misdemeanor era.
Southern Weekend reporters combed through the data of the National Court Judicial Statistics Bulletin for the past ten years and found that in 2013, the proportion of defendants sentenced to less than three years in prison exceeded 80% for the first time, and since then, except in 2017, this figure has remained at about 85%. This means that misdemeanors have become the main object of crime governance. And Lu Jianping's basis is that "more than 80% of the sentences under three years are important nodes".
The change in the proportion of misdemeanors and felonies in the structure of criminal offences is inseparable from the development of society.
Mistakes in life such as missing a product while self-shopping at a convenience store, accepting a transfer for an acquaintance, or moving a car after drinking alcohol can often lead to legal violations and criminal penalties. "This is related to the strengthening of our social governance, such as the real-name system everywhere, the deployment of electronic surveillance, and the easy detection of minor crimes." Han Xu, a professor at Sichuan University Law School, told Southern Weekend.
On the other hand, the criminal law has shown a tendency to expand the criminal circle. Since the Criminal Law Amendment (VIII) in 2011 added the crime of dangerous driving, the legal net has become more and more dense.
As of the passage of the Criminal Law Amendment (11) in 2020, six of the 35 new crimes have become misdemeanors, and the corresponding penalties are mostly up to three years in prison.
Along with the increase in the number of crimes, the number of cases has increased. In recent years, as the public security organs have intensified their efforts to crack down on wire fraud, the number of cases of aiding and abetting has skyrocketed. In 2021, procuratorates across the country prosecuted nearly 130,000 people for crimes related to aiding and trusting, an increase of more than 8 times year-on-year, ranking third among all types of criminal cases.
In addition, taking the crime of dangerous driving as an example, the number of cases per year in recent years has been around 300,000, which has become the "first major crime". Among them, the highest incidence rate is "drunk driving". According to data released by the Supreme People's Court, in 2013, more than 90,000 dangerous driving cases were concluded by courts across the country, ranking third in the number of criminal cases that year. By 2019, the number of cases had increased to 319,000, surpassing theft and topping the list of criminal offenses.
In 2013, Hu Yunteng, then director of the Research Office of the Supreme People's Court, mentioned in an interview with the media that drunk driving cases accounted for an unusually high proportion of all criminal cases, accounting for 1/5 or even more in some grassroots courts, and judicial resources were used too much on the handling of drunk driving cases, which in turn affected the crackdown on some serious crimes.
On October 15, 2020, Zhang Jun, then the Supreme People's Prosecutor General, reported to the Standing Committee of the National People's Congress on the People's Procuratorate's application of the plea leniency system, saying that China's criminal structure has undergone significant changes over the past decade. The proportion of misdemeanor crimes increased from 54.4 per cent to 83.2 per cent, while the number of persons prosecuted for serious violent crimes fell from 162,000 to 60,000.
The data on criminal cases filed by the public security organs can also be corroborated. According to the National Bureau of Statistics, in 2013, there were 10,640 cases of suspected intentional homicide and 161,910 cases of suspected intentional injury, but by 2022, these two data have almost halved, reducing to 5,293 and 73,212 respectively.
In March 2024, the Misdemeanor Management Center of Qixingguan District, Bijie City, Guizhou Province was officially established in the Qixingguan Branch of the Bijie Public Security Bureau. (Image source: Guizhou Chang'an Net)
"Exoneration"
The change in the proportion of minor and serious crimes in the crime structure calls for new criminal justice policies.
In practice, the judiciary has long been aware of the problems posed by the proliferation of misdemeanors. According to Zhang Jianwei, a professor at Tsinghua University's Law School, at the macro level, the planning of misdemeanor governance is mainly achieved through two ways: one is physical guilt, and the other is procedural guilt.
To put it simply, it is to refine the legal provisions and raise the standard of criminalization through the issuance of judicial interpretations. At the same time, the procuratorate actively applies the right not to prosecute.
In recent years, many places have adjusted the threshold for the criminalization of "drunk driving". In January 2017, Zhejiang, Shanghai, and Jiangsu successively issued normative documents on the handling of drunk driving cases, which clarified that some cases with minor circumstances may not be investigated for criminal liability.
On December 18, 2023, the "Two Supreme People's Courts and the Ministry of Justice" jointly issued the "Opinions on Handling Criminal Cases of Dangerous Driving While Intoxicated", which stipulates that the public security organs shall decide whether to file a case in accordance with the provisions of the Criminal Procedure Law and these Opinions on the original standard of "blood alcohol content of 80 mg/100 ml or more".
"The alcohol content standard here hasn't changed, but it's been shown that meeting that standard doesn't necessarily require a case." Zhang Jianwei explained to a reporter from Southern Weekly.
The new regulations also add some criminal circumstances, including drunk driving in residential areas, parking lots, and other places for moving a car; Drunk driving for emergency purposes such as first aid for injured or sick persons, and does not constitute emergency evasion.
The leaders of the above-mentioned court also said that when they are currently handling drunk driving cases, drunk driving with a blood alcohol content of less than 150 mg/100 ml is generally not treated as a crime, but once it is 150, they will be sentenced to a free sentence, "Even if it is locked up for a month, it is more important than not being closed for a day to the drunk driver." ”
There has been a similar change in judicial attitudes towards the crime of aiding and abetting.
On March 22, 2022, the "Minutes of the Meeting on Issues Concerning the Application of Law in the 'Broken Card' Operation" issued by the Supreme People's Court and the Ministry of Public Security clearly stated that first-time offenders, occasional offenders, minors, and school students, especially defendants who were coerced or deceived into selling mobile phone cards and credit cards in their own names, had illegal gains, were involved in a small amount of money, and pleaded guilty and accepted punishment, may be given lenient punishment in accordance with law.
In December of the same year, the Anti-Telecommunications Network Fraud Law came into effect, stipulating that the criminal law would no longer punish those who committed relatively minor crimes.
In addition to substantive offences, in criminal proceedings, in recent years, the judiciary has also responded to misdemeanors.
Since April 2021, the Supreme People's Procuratorate's criminal justice policy of "fewer arrests, cautious prosecution and careful detention" has been regarded as a top-level design mainly applied to misdemeanor scenarios. Since then, the Criminal Procedure Law has undergone three amendments, and has also provided corresponding institutional safeguards for "fewer arrests, cautious prosecution and cautious detention", adding a review of the necessity of post-arrest detention and establishing a system of leniency for those who admit guilt and accept punishment. At the same time, it clarifies the expedited procedures, a special procedural procedure for misdemeanor cases in which the defendant admits guilt and accepts punishment.
This is also reflected in the case-handling mechanism of the Misdemeanor Management Center in Xixiu District, Anshun City.
For example, as for whether compulsory measures are applied to criminal suspects in misdemeanor cases, Luo Peng said that it is necessary to comprehensively assess factors including the harmful consequences caused by the crime, the subjective malice of the criminal suspect, whether social contradictions have been resolved, and whether economic losses have been compensated.
If the circumstances of the case are minor, the suspect pleads guilty and repents, voluntarily admits guilt and accepts punishment, and there is no possibility of interfering with the proceedings, there is no need to use custodial measures. ”
In addition, if a misdemeanor case is ultimately decided to be prosecuted, Luo Peng said that they will recommend applying the expedited procedure when transferring it to the court, and label it as a "misdemeanor case". In cases of misdemeanors, courts may hold court sessions, announce verdicts in court, and serve legal documents in court, "to increase the efficiency and quality of trials, and to embody the characteristics of handling misdemeanor cases." ”
doubt
Although in practice, a sentence of less than three years in prison is considered a misdemeanor, but in practice, "what is a misdemeanor and what is a felony?" There is no express provision in the criminal law. The leaders of the hospital said that the grassroots are actually still a little confused.
For example, is a fixed-term imprisonment of less than three years a statutory sentence or a declared sentence? The relationship between the two is comparable to the guide price and the transaction price, the statutory penalty is the sentencing range prescribed by the criminal law for a certain type of crime, and the declared sentence is the sentence imposed by the court on the defendant in a specific case.
Different classification criteria affect the scope of misdemeanors. If the sentence is pronounced, then the misdemeanor circle can include crimes with multiple sentencing levels, such as intentional injury and theft.
In addition, some prosecutors are also confused about the procedure of misdemeanor cases: how to grasp the social danger of pretrial detention coercive measures?
Several grassroots prosecutors said that in recent years, the detention rate has become a neutral indicator in their work, meaning they do not have to pursue high detention rates. On the other hand, if the procuratorate changes the compulsory measures, it will face the risk of judicial liability.
A prosecutor from a city-level procuratorate in northwest Guizhou told Southern Weekend that if a person on bail runs away, or if a person is released on bail and sentenced to actual punishment, and it is difficult to send him to a detention center, the court will put pressure on the procuratorate.
Non-detention, risky; Too much detention is contrary to the concept of "fewer arrests, cautious prosecution and cautious detention". In practice, there is still a situation of alienation in the "fewer arrests, cautious prosecution and cautious detention".
In some misdemeanor cases represented by Qin Yong, a lawyer at Beijing Huayi Law Firm, the modification of coercive measures has become a bargaining chip between the procuratorate and the criminal suspect, and only the client will be released on bail pending trial if he pleads guilty and accepts punishment. "In order to get out of custody as soon as possible, some parties often admit guilt and accept punishment against their will. However, once the parties admit guilt and accept punishment, it will be difficult to make a not-guilty defense in the future, and the effect will be much worse. Qin Yong said.
The era of misdemeanors has arrived. However, in the practical world, there are still many questions about the management of misdemeanors.
A provincial prosecutor's puzzle is: After a misdemeanor has been committed, the judicial organs have intervened, diverted and punished, but the crime has already occurred, can this be called "governance"?
The prosecutor of the municipal procuratorate also mentioned that there are still some people who have a weak sense of the law, "sentencing him to a month of detention or probation does not seem to touch him at all, he feels that it doesn't matter, as long as he is not locked up anyway." ”
In the view of the provincial prosecutor, the current management of misdemeanors is only an adjustment of the procedure of criminal cases, and the real focus should be on the comprehensive governance of society, "using social policies instead of criminal law to govern and prevent crimes." ”
Some of the crimes are related to the surrounding natural environment and living customs. According to the leaders of the Yanbian County Procuratorate, in addition to "drunk driving", the majority of local misdemeanor cases are illegal gun possession cases, for two reasons: first, there are still many local farmers living in the mountains, worried about wild boars, farmers will weld and process nail guns themselves to defend themselves; Second, due to the influence of local customs, "In some places, when people die, they will shoot twice into the sky." ”
The leader of the hospital said, "In this case, if you want to prevent crime from the source, you still need to unite multiple departments to deal with it." ”
The process of the Beijing procuratorate in tackling "supermarket theft" may provide a sample.
"Supermarket theft" refers to the situation where some people do not scan the barcode and steal supermarket goods during self-checkout. In recent years, the Beijing Municipal Procuratorate has found that the number of "supermarket theft" cases has been rising. From 2019 to 2021 alone, the number of cases soared from 159 to 1,101.
According to the analysis of the Beijing Municipal Procuratorate, the reason is that various supermarkets have successively launched new business models such as customer self-checkout, which not only improves shopping efficiency and saves labor costs, but also objectively leads to many people deliberately not scanning the code, resulting in an increase in the number of theft cases.
After that, the Beijing Municipal Procuratorate issued procuratorial suggestions to a number of supermarkets to standardize the payment and understanding process and prevent the compensation link from breeding crimes. Some supermarkets don't understand: what does the customer's crime have to do with themselves?
Liu Zhe, deputy director of the First Procuratorate Department of the Beijing Municipal Procuratorate, explained to them: "If you want to change from not being able to steal to not daring to steal, and then not wanting to steal, it is a training process that gradually transitions from other discipline to self-discipline, and supermarket enterprises are an important part." ”
Liu Zhe introduced this process in the book "50 Lectures on the Management of Misdemeanors", he wrote: Just like a road without traffic lights, traffic accidents will inevitably increase, and only by rebuilding other laws and regulations can we truly prevent crimes.
Southern Weekly reporter Chen Yifan
Editor-in-charge: Qian Haoping