On The Identification Of Surrender

Surrender is an important system of penalty measurement in China's criminal law and it is the concrete embodiment of the policy of the combination of punishment and generosity. The proper use of surrender system is of great significance in disintegrating the criminals, encouraging and guiding criminals to give themselves up and start from a clean state so as to achieve the purpose of punishment efficiently and enhance the accuracy of criminal battle.In 1997 the new Criminal Law Article 67 states: After the voluntary surrender of crime, the criminal makes a true statement of his own crimes, is called surrender. The suspect, the defendant and the criminals who are serving time, make truthful statement of their crimes which have not been grasped by the judicial department, which also belong to the category of surrender. At present, even though the Supreme People's Court has made judicial interpretation about some problems of the legal application, but in theory and practice the issue of identification of surrender is so complex and the provisions of law and judicial interpretation are rough, therefore the practical issue still needs exploring in depth.The content of the thesis include:The first part: the concept of surrender. The thesis starts with the origin and discusses in detail the definition and concept of surrender, analyzes the three- element theory, put forwards the three opinions on the concept of surrender in the field of criminal law. By a sequential analysis of the three opinions, the writer presents his understanding about the concept of surrender:"In the legal period, surrender refers to act that the actor voluntarily accepts investigation and judgment, and confess his crimes according to the facts."The relevant parts are discussed on this basis.The second part: the classification of surrender. The proper classification of surrender according to certain standard is of great theoretical and practical importance in deepening our understanding of the surrender system and better grasping and using the system. According to the regulations in Chinese criminal law and"explanation", the writer classify surrender into four kinds from various perspectives and using different standards: (1) According to the different ways, it can be divide into surrender in person, surrender done by others, surrender in company(,2)According to the extent how much judicial departments have got the criminal facts, surrender can be divide into 6 kinds (3) Some scholars divide surrender into 4 kinds according to where the criminal acts has been stopped: surrender of prepared but not ready crime, surrender of abortive crime, surrender of suspending crime, surrender of the accomplished crime;(4) According the to the different target criminals, legal identifying conditions and punishment principles, surrender can be divided into ordinary surrender, quasi-surrender and special surrender. This is a classification which has the wide applicability in China's criminal law.The third part: the identification of surrender. This is the main body of the thesis. Although according to different criteria, there are different categories of surrender, but when discussing the establishment conditions of surrender, that is, the identification of surrender, the writer uses the most abroad classification as an object of discussion and makes discussions of the establishment conditions of the general surrender, quasi-surrender, and special surrender respectively. When discussing the establishment conditions of general surrender, the author carries on from three aspects: First, the establishment conditions of general surrender: the identification of voluntary surrender, including several issues of voluntary surrender, relatives and friends of the suspect send him to give himself up, the preparation of surrender issues; the understanding of the surrendered, including the "work unit" and "other relevant persons responsible" and the understanding of whether victims can become the target of surrender; about truthful statement on their crimes, including the "true confession", truthfully confessed crime, the distinction between true confession and allegation. Second, the establishment conditions of quasi-surrender. This described in detail whether the suspect, the criminal serving a sentence of the offender, the probation criminal and the ticket-of-leave man can become the main body of the surrender, as well as the understanding and identification of other crimes.The fourth part: the surrender identification problems in some special cases. The writer mainly introduces 5 kinds of special cases: The first is about whether voluntary confess of the same crime can be identified as surrender. The second is about the surrender identification of unit crime. The third is about the surrender identification of traffic accident. The fourth is about the identification. The fifth is about the identification in crimes of unclear large sum of money.The fifth part: several questions about the applicability of surrender system punishment. Surrender system is composed of two parts: the forming conditions of surrender and the punishment of surrender system. The former is a definition boundary, while the latter is the fulfillment of and the measurement basis of execution. They supplement each other, and none of them can be dispensed with. In contrast, the latter is more important, because the applicability of the latter reveals the meaning of surrender identification. In practice, there are great differences between the punishment standard of surrender, therefore the writer put forward his own ideas that: (1). How to understand the word"may"in the sentence of"the surrendered may be punished more gentle or more severe"(2) how to define the"crime"in the sentence of"relatively gentle or serious crime"(3) the understanding of"the person turn himself in after crime and has great contributions should be reduced or relieved".In general, through the analysis of the five aspects, the thesis discusses the relevant problems of surrender identification. Although the writer's ability is limited the thesis may seem superficial, it is hoped that this thesis is of some help to promote the theoretical study of relevant judicial practice.