On The Determination Of Self-incrimination And Its Application Of Punishment In The Area Of Judicial Practice

China's current criminal law has not only clearly defined the concept and establishing conditions of self-incrimination, but also further established the lenient principle for the punishment of self-incrimination. However, whether it is in the criminal theoretic field, or the justice practical field, there are existing great differences and controversies in the determination of self-incrimination, and the discretion of punishment. In this article, combining with practical cases, the author sets out personal views and makes a corresponding analysis and argument on the determination of self-incrimination, the standards on lenient punishment and its specific application. In addition, this paper also carries out a shallow exploration into the self-incrimination issues in criminal negligence and private prosecutions that haven't been clearly defined in the existing criminal law.This thesis is divided into 3 sections: introduction, text and conclusion.The introduction gives an illustration of the topic choice and the significance of the project in this article.The text is divided into 3 parts, including an overview of the system of self-incrimination, determination issues of self-incrimination in judicial practice, and application of punishment of self-incrimination in judicial practice.Part-1 is the overview of the system of self-incrimination, which makes a general discussion about the system of self-incrimination from its concept and types as well as the establishing conditions under the present criminal law. About the concept of self-incrimination, the author proposes that accepting national review and referee should be the third establishing condition of self-incrimination in strict accordance with the two elements in the Article 67 of the Criminal Code. As a result, self-incrimination is explicitly stated as so-called self-incrimination refers that criminals surrender voluntarily after committing the crime and honestly confess their offenses or criminal suspects who are subject to compulsory measures, defendants and offenders who are serving sentences honestly confess other offenses which haven't been grasped by the judiciary. On the basis of a clear concept of self-incrimination, there is a further discussion of the classification of self-incrimination, pointing out that on the base of China's criminal law, self-incrimination can be divided into three categories:â‘ general self-incrimination in Item 1, Article 67 of the Penal Code;â‘¡ self-incrimination of remaining offence in Item 2, Article 67 of the Penal Code;â‘¢special self-incrimination in specific provisions of Article 164, 390, and 392. This kind of classification does not only take the existing legislative provisions as the basis, but also ensures that there is the necessity to be relatively independent for the three types of self-incrimination.Next, the author makes a discussion about the establishing conditions respectively for the general self-incrimination, self-incrimination of remaining offence, and special self-incrimination. It dwells on the establishing conditions of the general self-incrimination from surrendering voluntarily and confessing the offences honestly. In the establishing conditions of self-incrimination of remaining offence, it discusses particularly on the reason why the people who are taken by administrative compulsory measures should also be determined as self-incrimination even if they initiatively confess their offences that have not yet been mastered by the judiciary when they are subject to personal restrictions. On this basis, it is recommended to take judicial interpretation, construing the administrative compulsory measures within the scope of compulsory measures, to address the legislation obstacles for the people who are taken by administrative compulsory measures such as compulsory treatment, administrative detention, reeducating through labor being determined as the subject of the self-incrimination of remaining offence. With regard to the establishing conditions for the special self-incrimination, they should strictly apply to the specific provisions of Article 164, 390, and 392 of the Penal Code.Part-2 is about the determination issues of self-incrimination in judicial practice, which is the focus of the full text. To study the concept of self-incrimination, clarify the types of self-incrimination, confirm the establishing conditions, is to better apply the system of self-incrimination to judicial practice. Integrating with practical cases, the author discusses the determination issues of the general self-incrimination and self-incrimination of remaining offence in judicial practice. In the determination of general self-incrimination, the author lists several cases on surrendering voluntarily and confessing the offences honestly focusing on the analysis and discussion on the actual performance and the role family ties playing in the determination of self-incrimination. In the determination of self-incrimination of remaining offence, it carries out an analysis and demonstration about the issues whether such criminals are criminals serving sentences as the controlled prisoners, probationers, ticket-of-leave men, and prisoners released for medical treatment, as well as single-offence additional punishment criminals under accessory punishment after the principal penalty being executed, and the issues when the wanted criminals on the Internet are arrested by off-site public security authorities for other offenses, whether the wanted crimes are the other crimes not yet mastered after being confessed by the criminals initiatively. It proposes that such criminals as the controlled prisoner, probationer, ticket-of-leave man, prisoner released for medical treatment, as well as single-offence additional punishment criminals under accessory punishment after the principal penalty being executed, they are not under an absolute control, and it is entirely possible to surrender voluntarily to become the subject of the general self-incrimination, so they should not be included in the scope of the self-incrimination of remaining offence. It will be analyzed to judge in different conditions at the determination of self-incrimination that criminals wanted on the Internet initiatively confess their crimes.Meanwhile, this part also conducts a study on the self-incrimination issues in criminal negligence and private prosecution cases, believing that these two types of cases may be determined as self-incrimination. From the provisions of Article 67 of Criminal Code in our country, the crimes that can be determined as self-incrimination are not limited to intentional crime, and it can be said according to specific provisions of Criminal Law that all the crimes can be within the scope of self-incrimination, certainly not excluding criminal negligence, so actors should be determined as self-incrimination as long as their actions are consistent with the elements of the establishment after the implementation of criminal negligence. In addition, it also makes a discussion on the establishment of self-incrimination in private prosecution cases from four aspects.Part-3 is about the application issues of punishment of self-incrimination in judicial practice. Starting from the jurisprudential base and legal basis for the liberal system of self-incrimination, this part raises the significance of liberal system in reducing the personal dangerousness of the offenders, and also makes it clear that the leniency of self-incrimination is a need to achieve the economical efficiency and purpose of the punishment. As for the application of leniency for self-incrimination in judicial practice, the author, combining with cases, puts forward personal views and opinions on whether leniency should be applied and how. In addition, the author also deals with the application of punishment of special self-incrimination. Although Article 67 of the Penal Code stipulates that the lenient punishment of self-incrimination is can rather than shall, and it is a selective term rather than absolute provision, but legal rules are tendentious to the"may"situation, that in principle, they are generally applicable to lenient penalties, and punishments without leniency are just individual exceptions and few special circumstances. It is raised that it must be cautious in judicial practices when the criminal's behavior is determined as self-incrimination without lenient punishment, and we should fully address and clarify the reasons and basis for non-lenient punishment in the judgment, in order to guide people to correctly know and understand the lenient system of self-incrimination, and achieve the purposes of punishing and preventing crimes.In the conclusion section, the author points out that the system of self-incrimination builds a golden bridge for the offenders back into society and the lenient principles for punishment of self-incrimination reinforce this golden bridge. The setting up of system of self-incrimination is China reflects the criminal policy with a combination of punishment and lenity, which gives the offenders a way out at the same time, and encourages the voluntary surrenders of the perpetrators through the incentives of self-incrimination leniency, to compensate for the deficiency in detection means and other condition, to achieve maximum punishment of crimes, and protect the normal social order.