Viewpoint | A brief discussion of the defense points of automatic surrender and truthful confession

According to the first paragraph of Article 67 of the Criminal Law, the general surrender consists of two elements: 1. Voluntary surrender. 2. Truthfully confess their crimes.

The "Interpretation" interprets automatic surrender as "refers to the fact that the criminal facts or the criminal suspect have not been discovered by the judicial organ, or although they have been discovered, but the criminal suspect has not been interrogated or has not been taken compulsory measures, he will take the initiative and directly report to the public security organ, The people's procuratorate or the people's court surrendered." Moreover, the Interpretation lists the following seven situations that should be recognized as voluntary surrender:

1. The criminal suspect surrendered to his unit, urban and rural grass-roots organizations or other relevant responsible personnel;

2. The criminal suspect, because of illness, injury or in order to mitigate the consequences of the crime, entrusts another person to surrender first, or surrendered first by letter;

3. The crime has not been discovered by the judicial organ, and only because of suspicious behavior, after being questioned and educated by the relevant organization or judicial organ, voluntarily confesses his crime;

4. Fleeing after committing a crime, and voluntarily surrendered in the process of being wanted or pursued;

5. If it is verified that it is ready to surrender, or is on the way to surrender, and is captured by the public security organ, it shall be regarded as voluntary surrender.

6. Not out of the initiative of the suspect, but by relatives and friends to persuade, accompanied by surrender;

7. If the public security organ notifies the relatives and friends of the criminal suspect, or the relatives and friends take the initiative to report the case and send the criminal suspect to surrender, it shall also be regarded as voluntary surrender.

In addition to affirming the above seven cases of voluntary surrender, the Opinions add six additional cases that should be identified as voluntary surrender:

8. After committing a crime, he voluntarily reported the crime, although he did not show that he was the perpetrator, but did not flee the scene and confessed his crime when questioned by the judicial organ;

9. Waiting at the scene, knowing that another person has reported the crime, without resisting arrest at the time of arrest, and confessing to the facts of the crime;

10. If the judicial organ has not identified the criminal suspect and still takes the initiative to confess his crime during the general investigation and inquiry;

11. During the period of administrative and judicial compulsory measures such as reeducation through labor, administrative detention, judicial detention, compulsory isolation and drug rehabilitation due to specific illegal acts, take the initiative to explain to the executive organ the criminal acts that have not yet been mastered;

12. If the crime has not been discovered by the relevant departments or judicial organs, and only after being questioned and educated because of suspicious behavior, he voluntarily confesses the facts of the crime, it shall be regarded as voluntary surrender,

13. Protecting the scene, rescuing the injured after a traffic accident, and reporting to the public security organ.

In addition, the "Opinions" added a bottom-up clause for voluntary surrender: "Other situations that conform to the original legislative intent and should be regarded as voluntary surrender." This means that even if the defendant's behavior is not within the above-mentioned circumstances, if the core of his behavior conforms to the spirit of legislation, it should be regarded as automatic surrender.

To confess one's crime truthfully means that after the criminal suspect voluntarily surrendered, he truthfully confessed his main criminal facts. Regarding the specific determination of truthful confessions, the Interpretation and Opinions are clear:

1. If a criminal suspect who has committed several crimes only truthfully confesses part of the crimes committed, only the act of truthfully confess part of the crimes shall be deemed as voluntary surrender;

2. A criminal suspect in a joint crime case, in addition to truthfully confess his crime, should also confess his known accomplice, and the principal offender should confess the facts of other known joint crimes in the same case before he can be identified as surrendered;

3. If a criminal suspect voluntarily surrendered and truthfully confessed his crime and then withdrew his confession, he cannot be deemed to have surrendered, but if he can truthfully confess before the judgment of the first instance, he shall be deemed to have surrendered;

4. To truthfully confess one's crime, in addition to confess one's main criminal facts, one should also include one's name, age, occupation, address, criminal record, etc. Although the identity of the criminal suspect's confession is different from the real situation, but it does not affect the conviction and sentencing, it should be recognized as a truthful confession of his crime. If a criminal suspect conceals his true identity after voluntarily surrendered, which affects his conviction and sentencing, it cannot be regarded as a truthful confession of his crime.

5. If a criminal suspect commits the same crime for many times, he shall comprehensively consider the degree of harm of the confessed criminal facts and the unconfessed criminal facts, and decide whether to determine whether to truthfully confess the main criminal facts. Although all the facts of the crime have not been confessed after the surrender, the truthfully confessed crime is more important than the unconfessed crime, or the truthfully confessed crime is more than the unconfessed crime, it should generally be recognized as the truthful confession of one's main criminal facts. Unable to distinguish between the seriousness of the circumstances of the crime that has been confessed and the crime that has not been confessed, or the amount of the crime that has been confessed is equivalent to the amount of the crime that has not been confessed, it is generally not recognized as a truthful confession of the main facts of the crime;

6. Although the criminal suspect did not confess his main criminal facts when he voluntarily surrendered, if he voluntarily confesses his crime before the judicial organ grasps the main criminal facts, he should be deemed to have truthfully confessed his crime.

It should be emphasized that after the criminal suspect truthfully confesses his crime, even if he justifies the nature of the act, it will not affect the establishment of the surrender.

The system of voluntary surrender aimed at forgiving criminals has existed since ancient times, and has been seen in criminal law and jurisprudence since the Qin and Han Dynasties. Up to the Tang Dynasty, the Tang Law contained: "Those who surrender before committing crimes are originally guilty." The article is followed by a "sparse discussion" (equivalent to today's judicial interpretation): "If you don't change it, you will be too much. If you can change it now, you will be right to the original." It means that anyone who surrenders his crime without being discovered can be pardoned, because since he "committed his crime", it means that he "can be corrected now". The preferential treatment given to prisoners in terms of punishment after surrendering reflects the long-standing thoughts of "morality and punishment" and "morality and prudence" in the judicial history of our country. This is the preventive value of the surrender system.

At the end of the day, the functions of the government are expanding, some civil rights are transferred to the government by individual citizens, and the power of prosecution is almost entirely transferred to the government by the private sector. The maintenance of the surrender system has increased economic considerations. There are two aspects of this consideration. For individual criminals, it is human nature to seek advantages and avoid disadvantages. It is necessary to provide additional reduction of penalty for absconding criminals and urge them to take the initiative to accept judicial trial, which is helpful for them to reconsider the necessity of absconding. As far as the judiciary is concerned, the ultimate goal of the surrender system is to encourage criminals to surrender and plead guilty, thereby improving the efficiency of judicial detection and prosecution, and saving valuable judicial resources.

In short, the understanding of the essence of voluntary surrender includes two aspects. On the one hand, the preventive effect is that voluntary surrender reflects the offender's repentance and confession attitude and represents the reduction of his special prevention necessity. Therefore, the penalty aimed at improving his character can be reduced. On the other hand, it is an economic effect, that is, voluntary surrender greatly saves judicial resources for public power organs and is a cost-effective channel for criminals to reduce sentences. Therefore, this kind of behavior should be praised.

1. Time

For the "automatic surrender" in general surrender, we should focus on two key points: the time of surrender and the automatic nature of surrender. For consideration of the economic value of voluntary surrender, the time for surrender is required before the perpetrator is brought to justice. For example, surrender when the facts of the crime have not been discovered; surrender when the facts of the crime have been discovered but the suspect has not been identified; surrender when both the facts of the crime and the suspect have been discovered but the suspect has not been interrogated or taken coercive measures have not been taken, and the suspect has not been turned over by the masses; escape after committing a crime and voluntarily surrender in the process of being wanted or pursued, those caught by public security organs should also be regarded as surrenders. Its core value is to save a lot of judicial resources that the investigation organ may invest in the investigation of the case. On the contrary, after being brought to justice, even if the perpetrator sincerely repents and mends his ways, because judicial resources have been consumed, it is not enough to be regarded as surrender.

2. Voluntary

Voluntariness is the core element of voluntary surrender, which embodies the criminal's attitude of pleading guilty, reforming his past, and actively accepting judicial accountability. The offender is required to surrender actively and actively based on his own will. This voluntariness is reflected in the fact that it has not yet been controlled by the judiciary, has personal freedom, is sufficient to abscond, and voluntarily places itself under the control of the judiciary out of its own will, knowing that the judiciary will control itself. In short, it is "to escape without escaping".

In this regard, there is a misconception that it is necessary to take the initiative to go to the judicial organs to cooperate with the investigation in order to belong to voluntary surrender, but the essence of the voluntary surrender system is not to "go to" the judicial organs, but to "voluntarily" accept control and assume responsibility, so as to demonstrate the criminal's sincere repentance and the spirit of confession. Whether or not to take the initiative to go, is not the essence of voluntary surrender, should not stick to the column, to unfair reason.

For example, the "opinion" clearly stipulates that "those who know that others report a case and wait at the scene, do not resist arrest at the time of arrest, and confess the facts of the crime", the act is not "going to" the judicial organ, but actively waiting for the judicial organ to control, "can escape but not escape", can also be regarded as voluntary surrender. On the contrary, those who are kidnapped by relatives and friends to the judicial organs, even if they do reach the judicial organs, the act of kidnapping does not reflect the voluntary nature of bearing criminal responsibility, so it can not be regarded as voluntary surrender. In this regard, the Supreme Court of the Criminal Court 《<最高人民法院关于处理自首和立功若干具体问题的意见>The "understanding and application of" also emphasizes "initiative and voluntariness": "those who are sent to the judicial organ by means of binding by relatives and friends, or are led by investigators to arrest them without knowing it, because the suspect has no initiative and voluntariness to surrender, and is completely passive to return to the case, it is not in line with the essential characteristics of voluntary surrender to identify this as automatic surrender, it also violates the criminal law principle of the unity of the subjective and objective, and undermines people's general idea of surrender."

This view has also been affirmed by the guiding cases of the Supreme People's Court. In the case of Zhou Jianlong theft, the guiding case No. 437 of the Criminal Trial Reference, the gist of the judgment is clearly stated: "Although the current criminal law does not express acceptance of the state's review and judgment as a condition for surrender, acceptance of the state's review and judgment is still an essential requirement for surrender." In addition, in this reference, the reason for the judgment is also certain that even if he did not go to the state organ voluntarily, if he showed that he voluntarily accepted the examination and judgment of the judicial organ, even if he only admitted the crime to the victim, it is also enough to be regarded as voluntary surrender: "The perpetrator admitted the crime to the victim ...... The perpetrator does not contradict or refuse the transfer of the victim to the judicial organ for examination and judgment, which is no different from direct surrender, although the" Interpretation "does not clearly stipulate that surrender to the victim can constitute surrender, combined with the essence of this situation and in line with the spiritual essence of the surrender conditions, it can be regarded as surrender."

Based on the above logic, the criminal defense should emphasize the objective fact that the defendant "can escape but not escape" from time and space, and highlight the voluntary characteristics of the defendant. In the bribery case of a non-state staff member of a player undertaken by the author, a few days before he was officially arrested, the public security organ had already questioned him. On the day of his formal arrest, he still went to the office building to cooperate with the public security organ's investigation before the club training, and then he still trained with the team normally. He was not arrested and detained until the end of the afternoon training. The club covers a vast area, and a certain A is completely free to move during this period. It has enough time and space to drive away from the club and evade the investigation, but it still takes the initiative to go to the building where the investigators are waiting to cooperate with the investigators in the investigation, and then always puts itself within the scope that the investigators can control, and is finally detained and taken away by the investigators. Although a certain person did not take the initiative to go to the judicial organ, in the face of the investigation of the judicial organ, he "can escape but not escape", always put himself under the control of the judicial organ, and also reflected his attitude of pleading guilty throughout the whole process, which is enough to be regarded as "automatic surrender".

1. Authenticity

The first condition of truthful confession is authenticity. The authenticity here focuses on the degree of conformity between the criminal facts of the perpetrator and the understanding of the facts in memory. It should be examined from at least two dimensions: on the one hand, consider whether the criminals have truthfully stated their crimes according to the real development experience of the criminal facts in memory, that is, whether they have truthfully confessed their memories; secondly, consider whether the facts of the crime confessed by the criminal, that is, the recollection and description of the facts of the crime, are objectively consistent with the crime committed, that is, whether the recollection itself is true.

Here, it is necessary to respect the objective law of memory of the offender as a natural person. In the case of a long interval between the arrival of the case and the crime, even if the actor's statement omits part of the plot or some content does not match the objective facts, it should not be denied that his surrender is established. In particular, the perpetrator did not conceal the circumstances of the important crime, always showed a positive and active attitude in the process of confession, and always cooperated with the public security organs to recall and interrogate, so it is not appropriate to deny the establishment of his "truthful confession of his own crime.

2. comprehensiveness

The comprehensiveness requires that the perpetrator confessions all the facts in a crime that may affect his conviction and sentencing. The original intention of the retrospective surrender system is that only if it fully confesses all the facts of the crime in one of its crimes and is willing to take responsibility for all the results of the crime, can it show its sincere repentance and willingness to accept punishment; if it conceals the facts of conviction and sentencing, even if the process of bringing to justice does save judicial resources, it can not show that the offender's own prevention necessity has been reduced. Therefore, nor can they be given a reduction in their sentences.

Therefore, the "opinion" stipulates that "if a criminal suspect conceals his true identity after voluntarily surrendered, which affects his conviction and sentencing, he cannot be regarded as truthfully confess his crime." "If a criminal suspect commits the same crime many times, he shall comprehensively consider the degree of harm of the confessed criminal facts and the unconfessed criminal facts, and decide whether to identify it as truthfully confessing the main criminal facts."

Moreover, the requirement of comprehensiveness should not be limited in time. In practice, whether or not to confess all the crimes in the first interrogation is often used as the time point for truthfully confessing one's crimes. This paper argues that the restriction is illogical and open to discussion. In cases where the perpetrator has committed more crimes, it is objectively impossible to confess all the charges in one interrogation. Moreover, when the time interval is too long, the criminal must also need time to think, and even need to be reminded by investigators, so as to gradually recall and supplement the facts of the crime. The value of law is to urge ordinary people in society to obey social rules and maintain social order. For ordinary people who cannot make the choice of legal behavior in the context of the perpetrator, then the perpetrator cannot be blamed. This is "the law cannot force others." The meaning of the question. The one-sided requirement that the offender immediately and fully confess the facts of the crime is a strict requirement that violates the law of memory and should not become a common criterion in judicial practice.

It should also be stated that comprehensiveness refers to a full confession of a crime, rather than all the crimes that have been committed. If a full confession is made to one of the several crimes, it may be recognized as a voluntary surrender for that crime.

In the pre-return case, after a certain A arrived in the case, the first interrogation only confessed part of the facts suspected of taking bribes and playing match-fixing. After the meeting, a certain A admitted frankly that it was indeed because the time interval was too long that other criminal facts had been forgotten; but after being reminded by the investigators, a certain A immediately took the initiative to confess other criminal facts. From this, the author claims to the procuratorate and the court that after a period of time, the facts of the crime are blurred and omitted, which is a normal situation. A person's ability to recall in time without hindering the progress of the investigation by the investigation organ also reflects his attitude of sincere repentance and voluntary acceptance of punishment. Praising this attitude is exactly the meaning of the voluntary surrender system.