On The Several Problems Of Voluntary Surrender In Practice

Voluntary surrender is an important penalty rule in criminal law of our country. It is the statutory condition for lighted punishment. Whether voluntary surrender can be confirmed is of important role in measuring punishment to the accused party. But due to lack of rules in certain areas, many problems are found in actual application of law, which make this important punishment measuring factor mal-applied in judicial practice. This article aims to study some relative problems of voluntary surrender of different actors, in the ways of being seized and different categories of crimes in normal voluntary surrender, quasi-surrender, voluntary surrender of an organ, voluntary surrender after traffic accident, surrender under obligatory measures of non-judicial organizations, and suggest that in confirming voluntary surrender upon questioning, criminal procedure shall be emphasized and presumption of innocence shall be followed; truthful confession of combined crimes of same category not known to the judicial organizations shall be taken as voluntary surrender; Voluntary surrender of an organ, doctrine of voluntary surrender in traffic accident crimes shall be set, etc.The full text is divided into six parts:In chapter one, It has the theoretical argument that whether basic elements of voluntary surrender shall include being exposed to examine and judgment. It states that accepting examination and judgment is one of the factors for constructing voluntary surrender. As to voluntary confession, the author chosen to voluntary confession under questioning and voluntary confession by relatives, which are the scenarios usually seen in judicial practices. What's difficult for voluntary confession is how to convict susceptible acts and crimes that have not been perceived. If suspects confessed the crimes they committed after being caught for susceptible facts and questioned, the author raised an opinion inconsistent to usual judicial practices, and believes it can be regarded as voluntary surrender under most of the scenarios in accordance with the doctrine of presumption of innocence. As to voluntary surrender under the scenario of reporting crime by a relative,considering the legislative purpose, if there is no evidence that can prove or presume the suspect not against his relative giving him to the police, self surrender can be recognized. Regarding to elements of truthful confession of crime committed, the author believes that as long as the surrendering party truthfully confessed fundamental facts that can help conviction of crime, self-defending in nature of the acts and particular details can be disregard. As to truthful confession of joint criminals, it shall be considered whether the confession is given by a principal criminal, an accomplice, a person compelled to commit a crime or an instigator. If a joint criminal confesses acts of his own and that of others whose acts are closely relevant to the crime, the confession can be regarded as voluntary surrender.In chapter two, the author discusses two issues in relation to element of the actor and the subject in confessing undiscovered crime: scope of the actor and whether the so-called other crimes shall include crime of the same category. The author suggests that the suspect, the accused and a criminal shall include both those whose personal liberty is deprived and those not and exclude the scenario that fine or confiscation of property is not fully exercised. The author believes that it is not proper to explain judicially that other crime of the actor is limited to different type of crime. The author gives five reasons for his standing points, which emphasize confession of either type of crime has manifested the attitude of the actor of regretting for the crime committed and willingness to be punished in a lighted way. Determination of a type of crime can be different by different judges and hamper the application of law in a uniform way.In chapter three, the author believes voluntary surrender can be applied to organ criminals. The reason is that penal code rules that an organ can be actor or a crime, then voluntary surrender can be applied to it. It is beneficial to crack down unit crime. There are cases involving surrender of organs in practices. Surrender of an organ can be normal voluntary surrender, surrender of undiscovered crime and special surrender. The author believes that surrender of an organ shows willingness of the entire organ as a group, which can be determined by decision-maker or persons in charge. Then the author raised four principles in recognizing voluntary surrender. Fine is exerted to an organ criminal. Voluntary surrendering organ can be given lighted or...