Research On Difficulties And Problems In Judicial Application Of Natural Person Voluntary Surrender

As an important system of measuring penalty, voluntary surrender has important place in criminal legislation and judicial. Voluntary surrender contains natural person voluntary surrender and unit voluntary surrender, while the unit voluntary surrender has special rules that are different from natural person voluntary surrender. Natural person voluntary surrender system is one of the systems which have extremely high application in criminal and judicial activity, and generates many problems of applicability of judicial. Because the paper has limited contents and emphasis of the research, the paper mainly researches natural person voluntary surrender, the research key point is the judicial application issue of natural person voluntary surrender. Generally speaking, our national criminal law adopts the legislation mode of combination of general and specific provisions. It takes general and specific provisions as distinguish standards, natural person voluntary surrender can be divided into ordinary voluntary surrender(also called as common voluntary surrender) and special voluntary surrender. In general provisions, ordinary voluntary surrender can also be divided into ordinary voluntary surrender and special voluntary surrender in narrow meaning according to composing elements of voluntary surrender. Special voluntary surrender has different voluntary surrender establishing situations, including remaining crime voluntary surrender, onsite waiting voluntary surrender and suspicious trace voluntary surrender. Criminal legislation of our national voluntary surrender belongs to loose legislation, which does not have extremely strict requirements on establishing of voluntary surrender, if lacking partial establishing conditions of ordinary voluntary surrender in narrow meaning can be called as special voluntary surrender. Loose legislation mode enlarges application scope of voluntary surrender, encourages criminals to reach agreements with the country in behavior of cooperation and compromise after the crime happens, in order to greatly reduce national cost to investigate the crime, this kind of restriction is expressed in multiple aspects, including setting-up of voluntary surrender system, determination of voluntary surrender situations and measurement of penalty.Establishing conditions of natural person voluntary surrender contains voluntary surrender to justice and truthful confession, the above two elements form the frame of voluntary surrender system, accurate grasping of these two elements have always been key and hot points of theoretical research and criminal practice. Through theoretical research,legislation activity and judicial application in past years, currently legislation of our national natural person voluntary surrender system is relatively more mature and complete than other systems, since voluntary surrender system was officially specified by criminal law in 1979, theoretical research is also relatively wide and deep. However, due to specialty, complexity and novelty in judicial practical cases, current legal rules cannot solve some difficulties and problems in judicial practice, while theoretical field of criminal law also has some disputes about these problems. Determination and punishment of natural person voluntary surrender are problems that may happen in each criminal case and are urgent to solve, which makes determination of natural person voluntary surrender become a difficult problem bothering judicial workers under special conditions. Besides, measurement of penalty of natural person voluntary surrender also has some phenomenon such as big randomness, non-uniform standard and unconformable crime, which destroys justice and judicial effect of voluntary surrender system.Based on judicial practice, the paper extracts and explores current difficulties in judicial practice of natural person voluntary surrender through the method of combining ordinary theory and special cases of natural person voluntary surrender. Meanwhile, it upgrades the theory, in order to solve some difficulties and problems in judicial application of natural person voluntary surrender.The paper contains three parts, namely introduction, text and conclusion, while the text is divided into four chapters.Introduction: It summarizes property of natural person voluntary surrender behavior and profitable value of voluntary surrender. It tells universality of natural person voluntary surrender in judicial application, some difficulties and problems need to be solved, research value of the paper, and makes clear the research object is judicial application issue of natural person voluntary surrender.Text:The first chapter firstly discusses attribute and value of natural person voluntary surrender. When voluntary surrender rights of doers have superposition with legal obligations of some crimes, doers should still stick to the independence of voluntary surrender, meanwhile, law implements setting limitation to free implementation of voluntary surrender rights, but subjective factors or doers and objective factors of judicial organs can influence the implementation of voluntary surrender rights. Voluntary surrender has the value of fairness, profit and guiding positive human nature, profitable value is the basic value of voluntary surrender, but can suffer from restriction of fair value and retribution punishment value.The second chapter demonstrates common problems of natural persons, combined with cases, including establishing conditions of ordinary voluntary surrender, difficulties and problems happen in judicial application. The establishing of voluntary surrender not only contains voluntary surrender to justice and truthful confession, but also contains practical elements of receiving national investigation and judgment. The paper summarizes initiative and voluntary of surrender to justice, object of surrender to justice, ordinary determining principle of voluntary surrender to justice, and explores the issue of whether voluntary surrender to justice can be established in some special cases. It thinks two premises of establishing of relatives sending for voluntary surrender are that relatives know the crime truth and the sent people do not fight against, if criminals surrender to other departments and people, specific responsibility of the criminals and case connection should be checked, onsite waiting voluntary surrender should at least express criminals’ willingness to voluntary surrender to justice, suspicious trace voluntary surrender should exclude the grasped crime conditions of the judicial organs. Regarding truthful confession, the paper summarizes ordinary determining principles of confessing main crime truth, confession time, object and confessing different crimes. In difficult case exploration of judicial application about truthful confession, the restricted explanation of other crimes in remaining crime undiscovered voluntary surrender are meant to solve crime determining issue, and the restricted explanation should be strictly restricted to be applicable to remaining crime undiscovered voluntary surrender of criminals before their appearing, besides, the transcript time cannot be simply thought as voluntary surrender establishing issue of accomplice, during the detained period, crimes grasped by discipline inspection commission of passive surrender to justice cannot be thoughts as voluntary surrender.The third chapter discusses special voluntary surrender issue of natural person. The main bodies of special voluntary surrender are briber and introduced briber, whose behavior is to positively confess the crime of bribing and introducing bribe, the confession time is before prosecution, intensively discusses that connotation before prosecution should be before opening the case for investigation of judicial organs. Special voluntary surrender has competition and cooperation with ordinary voluntary surrender, regarding the applicable ordinary principle, special voluntary surrender prevails ordinary voluntary surrender, meanwhile, special voluntary surrender situations that are not suitable for special voluntary surrender should be excluded. Special voluntary surrender system of bribing crime violates the initial intention of system setting in judicial application, which causes lightening of punishment of bribing behavior. Amendment to criminal law makes lenient punishment condition of bribing crime strict, and resets special lenient provisions of crime of corruption, which expresses making lenient application conditions of special voluntary surrender strict, in order to amend negative effect brought by special voluntary surrender is one of the legislation trend of special voluntary surrender currently. At last, the paper thinks provisions of special voluntary surrender in specific provisions of criminal law should be abolished based on the discussion from multiple perspectives.The fourth chapter discusses rule of measurement of penalty and evidence checking of natural person voluntary surrender. Lenient basis of voluntary surrender is applicable to profitable awards for criminals and fair criminal punishment realizing, measurement of penalty of voluntary surrender should abide by the principle of wide entering strict exiting and combining punishment with leniency, based on basic crime truth, makes comprehensive determination of initiative and voluntary of voluntary surrender, attitude of admitting and regretting guilt, surrender time, surrender behavior and degree of true confession, in order to properly grasp the lenient degree, meanwhile, not make lenient punishment for situations that are not consistent with objective of voluntary surrender legislation. The checking of voluntary surrender evidence specifically checks the form and contents of surrender materials, accomplices materials issued by investigation organs cannot be simply trusted, which must be mutually supported by other materials, the checking method of true confession uses basic criminal truth to push down truth of confessed contents.Conclusion: It summarizes main writing contexts, research method, research emphasis and disadvantage of the paper, refines rules and standards that have universal value through analysis of difficult cases of voluntary surrender, in order to realize the research objective of guiding determination of difficult cases of natural person voluntary surrender in judicial practice and the research value of pushing further development of voluntary surrender system.