Rethinking Of Theories And Practices In The Legal System Of Criminal's Surrender

The legal system of Criminal's Surrender takes criminal's specific behavior as evaluation object. It is also one of important parts of criminal penalty system. Actually, legal system of Criminal's surrender has a long history in China, but some theories on it have never been reached an agreement. As we all know, validation of criminal's surrender has some decisive impacts on measurement of penalty, but validation of criminal's surrender in legal practices is always vague and confused since there are no agreements on those issues, such as nature of criminal surrender's behavior, constitutive requirements of surrender behavior. Plus, some relatively simple and obscure provisions in criminal law are also the reasons. The dissertation is trying to review some theories on those issues from different perspectives and elaborately rethink some traditional theories and practices on the subject.The dissertation includes four chapters which occupy about 110,000 Chinese characters.In the first chapter, I mainly review historical development and analyze some elements which affect legal system of criminal's surrender. There are some changes and some similarities between different legal systems of Criminal's surrender in different ages. The formation of legal system has been through the changes being from specific regulations, rules to specific legislation, being from aiming at specific crimes to applying to all crimes and being from some simple provisions to concrete provisions. The legal system belongs to one part of superstructure which reflects economic and political changes and needs of different ages. The legal system places strong emphasis on the criminal's confession, and even always validates criminals'surrender behaviors based on criminal's confession. In the second section I made in-depth analysis of the reason why criminal's confession has always been regarded as a prerequisite of criminal's surrender from the perspective of Chinese traditional culture. I consider that it is affected by those Chinese traditional philosophies that kindness is highly valued and penalty should be secondly considered .Human nature is always kind. Those philosophies emphasize that educating criminals is more important and effective than punishing them. Criminals could be educated by two methods. One is external method, such as other people's persuasion. Another is internal method, just like confession. Criminal's surrender is just performance of criminal's confession. Those people who have sense of confession deserve to be forgiven. Therefore, those criminals who have sense of confession,if they turn themselves in ,they should be given a lighter or mitigated punishment. The third section analyzes different changes in different ages from the perspective of criminal policy. It considers that constitutive requirements of criminal's surrender behavior should be expanded. Furthermore, judicial officials should abide by law and regulations when they validate criminal's surrender behavior. The fourth section discusses the effects executed by rule of law and efficiency principle of criminal law. It considers that strengthening legislation of criminal's surrender and following law and regulations on criminal's surrender are required by rule of law. As far as efficiency concerned, application of criminal penalty should be restricted.The second chapter mainly discusses types of criminal's surrender and behavior of criminal's surrender. the first section rethinks academic conclusion that the first provision in Article 67 of criminal law is concept of criminal's surrender or nature of criminal's surrender.Moreover,it analyzes differences between concept of criminal's surrender ,definition of criminal's surrender and nature of criminal's surrender. The second section discusses behavior of criminal's surrender. It makes in-depth analysis of the behavior from external and internal sides. It elaborates the formation of surrender's motive. There are many psychological minds which result in criminal's surrender motive. Sense of Confession is just one of them. Therefore, sense of confession shouldn't be considered as necessary requirement of criminal's surrender behavior. It also criticizes the viewpoint that there exist unfinished forms of criminal's surrender behavior and proves its incorrectness.The third section mainly argues the nature of criminal's surrender and value of legal system of criminal's surrender. The first section denies traditional theory about the nature and considers its exact nature is activity of compromise and cooperation between criminal and the nation. The activity is result of"game theory"between both of two sides. The second section discusses the theoretical basis of legal system of criminal's surrender. It criticizes theory of social harm and theory of criminal's physical danger and believes that value of the legal system is the point. Its internal value concerns justice and efficiency. Its external value involves the penalty functions of general prevention and special prevention.The fourth chapter discusses that constitutive requirements of criminal's surrender behavior. The first section considers that the general requirements include legal entity, legal object and objective aspect. The motive or psychological minds shouldn't be considered as a component. As far as subject concerned, it argues the problem whether the unit could be legal entity of criminal's surrender or not, and believes that the unit is entitled to be legal entity. Criminal's truthful statement is necessary component of criminal's surrender behavior. Being compared with surrender under the condition of being captured, Voluntary surrender has much more efficient value and much more social value. So the legislation should distinguish between them and place high value on the latter. The second section mainly discusses voluntary surrender. It debates the related articles and provisions in criminal law and Supreme Court's judicial explanations. It concludes that uniform standard of how to validate voluntary surrender, which is that judicial officials confine or restrict the physical freedom of criminal by executing enforcement measures. Furthermore, elaborate analysis of legal practical cases is aiming to prove feasibility of the conclusion. The third section mainly discusses and analyzes quasi-surrender. It believes that the scope of legal entity in quasi—surrender is limited and should be expanded. And also considers that the Supreme Court's judicial explanation on this topic is beyond Supreme Court authority. In the Quasi-surrender, it includes two categories of crimes which have something in common that they haven't been investigated by judicial officials. One category has the same nature with the crimes which have been investigated by officials .another category have different nature with crimes which have been investigated by officials. The fourth section discusses the concurrence problem between voluntary surrender and special surrender, between Quasi-surrender and special surrender. It considers that, in generally speaking, special provisions should be given prior consideration. Therefore, special surrender should be validated prior to other types of surrender in those situations.