On The Foundation And Application Of Leniently Punishing Voluntary Surrender

Voluntary surrender is an important system to the discretion of our criminal law, whether it is properly applied has a great significance to the purpose of penalty. Criminal law for the voluntary surrender of our country, provides a relatively broad range of multiple punishment in principle, that is, under normal circumstances can be a lighter or mitigated punishment, the lesser crime can be exempted from punishment. Any criminal who voluntarily surrenders may be given a lighter or mitigated punishment. The ones whose crimes are relatively minor may be exempted from punishment. But when the lighter punishment will be given? What degree of lightness to a particular voluntary surrender? The past theory did not give the right answer. It not only leads to the theoretical confusion, but also leads to unfair justice, and incurs the criticism of society. The author believes that solving the problem lies in looking out the foundation to leniently punish voluntary surrender. Only put the reason, in the application of the voluntary surrender, as a consistent standard, can the premises of the voluntary surrender and the ways to apply it be appropriately apprehended, giving out the valuable function of the system of the voluntary surrender.The author discusses the question in four parts.Part one, the Significance of discussing the lenient punishment of the voluntary surrender. In this part, the author firstly analyzes the difficulties of using of voluntary surrender in theoretical and practical. The Criminal Law of the provides the penalties of the voluntary surrender for the "can", but foundation to leniently punish voluntary surrender was not apprehended in theory ,as a result, the scholars can not find out in what ways that the lenient punishment of the voluntary surrender should not be applied. It leads to the apprehension of "can" as "must". In practice, foundation to leniently punish voluntary surrender was not used, it leads to the apprehension of "can" as "can" or "can not". Thus the provision of the lenient punishment of the voluntary surrender was applied in chance or even abused. So, it has a great significance of reasonably defining foundation to leniently punish voluntary surrender at this stage.Part two, exploring foundation to leniently punish voluntary surrender. In this part, the author firstly analyzes the foundation to leniently punish voluntary surrender in current theoretical circles. The traditional view can be summed up as two rules. First, the voluntary surrender reflects the criminal reducing its Personal Dangerousness; Secondly, the voluntary surrender saves judicial resources. However, Personal Dangerousness as an aspect of personality, one of its feature is "heritage", and it can not be reduced by the voluntary surrender; Also, saving judicial resources could only be considered as the fringe benefits not the foundation to leniently punish voluntary surrender. So ,the author re-explore the lenient punishment of the voluntary surrender in three aspects, that is the purpose of penalty, the essential character of crime and the relationship between criminal law and ethics. To the purpose of penalty, the theory of revenging and the theory of concerning the general prevention are not acceptable. Only Special prevention can get the unity of special prevention and the general prevention. It is reasonable to consider preventing as the purpose of penalty. In the four elements constituting a crime, only putting a person's subjective aspects as the reason of penalty, could fulfill the purpose of penalty. According to the essential character of crime, it is most reasonable to consider a person's great subjective evil as the reason of penalty. According to the relationship between criminal law and ethics, The basic principles of criminal law should not be contrary to the principles of ethics. The judgments of anti-moral could only be a person's great subjective evil. This opinion can be proved by the judicial system of ancient China, which sentencing a person by the subjective aspects. So it should also apply to the Criminal Code. We could conclude that the reason of penalty lie in a person's great subjective evil. At last, the author specifically analyzes the foundation to leniently punish voluntary surrender according to the reason of penalty. The voluntary surrender of the criminal shows its regret to the criminal acts. Its subjective intent is not very absolute, and subjective evil is relatively small. Its dangerousness is small not reducing. So we could get the lenient punishment of the voluntary surrender, that the voluntary surrender shows a criminal's small subjective evil.Part three, the principles and the application of the lenient punishment of the voluntary surrender. According to the provisions of criminal law in our country, we could divide the principles of the lenient punishment of the voluntary surrender into three parts. The general application principle of the lenient punishment of the voluntary surrender can be a lighter or mitigated punishment. The "can" should be understood in the way that the provisions of leniency should be applied under normal circumstances, except for special circumstances. The special circumstances show that even the act belongs to the voluntary surrender but the crime did not reflects the person's lighter malignant. The principle of punishment of a lighter crime is that the criminal can be exempted from punishment. The author believe it appropriate that standard of a lesser crime should be limited to a sentence that declared for three-years. The principle of punishment of the criminal who surrendered and has the performance of great merit is that the criminal must be given a mitigated punishment or be exempted from punishment. The mandatory requirement may indulgence some criminal who has a great subjective evil but grasp some great merit truth. The author suggest that the rule should be modified that the criminal could be given a mitigated punishment or be exempted. At the same time, the author believes that criminal who surrendered and has the performance of merit should be clearly defined in law that the criminal can get a lighter, mitigated punishment or even or be exempted. At the specific part of the application, the author analyzed the motives of surrender, time, manner and how accurately the extent of statements on the impact of sentencing. If the criminal surrenders out of sincere repentance, he will get a relatively large lenient punishment. The earlier the criminal surrender, the larger lenient punishment he will get. If the criminal go to the judiciary by himself, he will get a larger lenient punishment than other manners. The criminal who tells all the facts get a larger lenient punishment than the one who tells the most part of the fact.Part four, Extension—study the other circumstances in the application of sentencing from the perspective of the application of voluntary surrender. In order to study the foundation to leniently punish voluntary surrender, the author studies the principle of punishment. The voluntary surrender is only of the situations that affect the application of sentencing. To other situations, the principle of the application of sentencing should not obey the principle of punishment. Frankly speaking, meritorious service, recidivism, actively return the stolen property, compensate the victims, Falsify and destruct evidence, retaliate witness and other situations that affect the principle of punishment in that these action show that the criminal has a less subjective evil in the implementation of criminal acts.