On Repentance Performance In Criminal Law

The repentance performance is an important plot in the criminal justice of our country,but the Criminal Law doesn’t give due attention to the repentance performance.For a long time,it has only existed in various judicial interpretations or other normative documents as a kind of trial experience,in practice,it tends to be a comprehensive consideration factor.Although there are many requirements for the repentance performance in the Criminal Law,but there are subtle differences in the expression,and there are no explanatory provisions on the concept of the repentance performance,no explicit provisions on the principle of repentance performance.The universality of repentance performance in judicial application is in sharp contrast with the fuzziness in the use of the concept,which often leads to disputes over whether a particular fact is a manifestation of repentance performance,whether should be treated leniently,and the range of leniency,etc.Therefore,it is necessary to sort out the concept of the repentance performance,and use scientific methods to guide repentance performance plot to be reasonably applied to judicial practice,so that it can play its due positive role.This article is divided into three parts:The first part sorts out the concepts and types of the repentance performance.Firstly,the three concepts of confession,repentance and repentance performance are distinguished,confession is the premise of repentance performance,but it is not the content of repentance performance.Repentance performance can be divided into two parts: repentance psychology and external representation,so repentance only refers to repentance psychology.Secondly,sorts out the content of the repentance performance in the Criminal Law.Finally,the external representation is divided into two types:discourse form and behavior form.The second part discusses the conviction and sentencing function of repentance performance,confirms the lenient extent of repentance performance plot.The first section mainly discusses the theoretical basis of the leniency of repentance performance.and introduces the theory of restorative justice in addition to the traditional purpose of punishment,which shows the important relationship between the repentance performance and the purpose of restoration.The second section discusses the function of repentance performance in the conviction stage,this article holds that the proviso in Article 13 of the Criminal Law stipulates that the repentance performance can affect the "Harm" of the criminal act,but this incriminating function needs to take "obviously slight circumstance" as the premise.The third section discusses the function of repentance performance in the sentencing stage,in addition to the light punishment,"special circumstances" stipulated in the second paragraph of Article 63 of the Criminal Law,it should be understood as the circumstances that can influence the social harmfulness of behavior and the personal danger of the actor,and the repentance performance has the possibility of "specialization",but at the same time the procedure should be approved by the Supreme People’s Court to limit the excessive expansion of the application of the article;on the premise of "slight circumstances",the repentance performance may achieve the effect of exemption from criminal punishment by influencing the judgment of "no punishment required".The third part mainly elaborates the judgment of repentance performance,and solves the concrete application problems of the repentance performance,including four sections: The first section clarifies that the application of the principle of prohibition of repeated evaluation includes the factual plot of the crime and the sentencing plot,and all relevant facts and elements are the objects of prohibition of repeated evaluation,so that the application of repentance performance must implement the principle of prohibition of repeated evaluation.The second section discusses the judgment of repentance performance in the probation system and the crime of corruption,the probation system is essentially a penalty execution system,so there is no need to implement the principle of prohibition of repeated evaluation;The Special Leniency Clause in the crime of corruption belongs to the repentance performance as a whole,and because of the Criminal Law directly stipulates the conditions for the application of the special leniency system,so the judgement standard is different from the repentance performance as a discretionary sentence,that is,the external form of performance,time conditions should meet the requirements of the Criminal Law,and the repentance performance as a discretionary sentence can not be evaluated repeatedly and leniently.The third section focus on the judgment of repentance performance as a discretionary sentence.In the application of the repentance performance plot,if we want to carry out the principle of prohibition of repeated evaluation,the independent sentencing status of repentance performance must be maintained.The difficulty of judgement of the repentance performance is the recognition of the sincerity of repentance.This article holds that the pros and cons should be started from two perspectives,and a comprehensive analysis of perpetrator’s supportive and negative performances,while referring to the victim’s attitude and the efforts of the perpetrator to obtain the victim’s forgiveness,and then make a joint judgment on the sincerity of the repentance.Finally,the fourth section discusses the impact of the application of the leniency system of confession and punishment on the repentance performance.It should be considered that the leniency of confession can include the repentance performance in its content,and the two cannot be applied at the same time;but for those who do not apply the leniency system of confession and punishment are still possible to apply the repentance performance plot.