Judicial Determination Of Surrendering To Justice Initiatively

As the pre-condition of the voluntary surrender, surrendering to justice initiatively is very important in the system of voluntary surrender. The essence of voluntary surrender is the criminal suspect surrendering himself to the national justice initiatively. As a kind of surrendering measure, surrendering to justice initiatively reflecting the essence of the voluntary surrender, and it is the difference from the confession. Voluntary surrendering system reflect the policy of balancing leniency and strictness in Chinese Criminal Law, it is an important basis of measurement of loosen penalty. Different from the passive surrendering, initiative surrendering reflects the initiative of the criminals, and corresponding with the voluntary surrender system's essence on encouraging the criminals to surrender themselves to justice for loosen penalty; at the same time, surrendering to the justice initiatively reducing the justice costs, in favor of efficiency of solving case. Surrendering to the criminal initiatively and confessing the criminal are the two essential conditions to determine the system of voluntary surrender. Surrendering to the criminal is the basis of confessing the criminal and determining the nature of confessing the criminal; confessing the criminal is the progressive stage of surrendering to the criminal.We should understand the surrendering to the criminal initiatively from the surrendering time, object, way, initiative, and the conduct after the surrendering. First, there're strict restrictions on the surrendering time. Judicial interpretation widen the surrendering time, including the surrendering in the wanted arresting, pursuing for arrest and interrogating. It reflects the legislation demand on reducing the judicial cost, improving the efficiency. Considering the citizen's legal level and the convenience of the surrendering, we should interpret the object of surrendering in a wider scope. Besides the judicial organ, it should include the work unit of the criminal suspect, rural and urban basic organization undertaker and the victims. Of course, such units and individuals are not without restrictions, they should be the agent between the criminal suspect and the judicial authority, and they could send the criminal suspect to the judicial authority in time. There're no much restrictions on the surrendering way, it is only the way of informing the relevant authorities and personals the crime conducted. Besides the basic form of surrendering himself by the criminal suspect, agent surrendering and accompany surrendering, any other new form enrich the surrendering form. The initiation of the surrendering demands the criminal suspect surrender based on own will. Unless violated the criminal suspect's will, the initiation demand should be loosen in the accompany surrendering. Besides the above requirements, criminal suspects should be willing to put themselves under the control of the relevant authority and personnel and waiting for confess the criminal. Then the procedural of the initiative surrendering has been finished.In judicial practice, some cases have controversy on the identifying of the voluntary surrendering, especially on the identifying of the initiative surrendering. The non-initiative surrendering with the assistance of the relatives should be identified based on the reducing of judicial cost and improve solving efficiency. But the resipiscence of the criminal suspects, those obviously rebelled after surrendering should not be identified. The criminal suspects who had been arrested and escaped and surrendering should be identified as has not been brought to the justice. Identifying those criminal suspects as initiative surrendering is out of the consideration of reducing the judicial cost, improve the resipiscence of the criminal suspects. "Opinion on the relevant problems in the determination of penalty measurement such as voluntary surrendering and meritorious service in the functional crime" announced in 2009 determined the problem of "double regulation" which has controversy in the practice. Especially, changed the "judicial authority" to "case handling authority", and identifying the same legal position of the senior disciplinary and supervisory departments to the public security authority and prosecuting authority. The parallel using of "investigation talk", "investigation measure", "interrogating" and "enforcement action" determined the legal position of the "double regulation" The result is that the criminal suspect confessing his crime when he was under the "double regulation" should not be identified as initiative surrendering. The identifying of the voluntary surrendering in traffic accident crime is very complicated. Although calling the police after the traffic accident and waiting for the conduct are the demand of administrative legislation, but it should not exclude the determination of voluntary surrendering in Crime Law; The conduct of surrendering but not help fulfill the initiative surrendering but constitute the flee after the traffic accident; but for those who help but have no time to surrender, if they could put themselves under relevant authorities control, they should be regarded as initiative surrendering. Unit surrendering has been confirmed by the law, the unit crime is different from the nature person crime, and the focus is whether the surrendering personnel could represent the will of the unit. The case of private prosecution is different from the case of public prosecution, the right of prosecution belongs to the victims and the determination of initiative surrendering has its own characteristics. Especially the surrendering object, the criminal suspect should surrender to the victims, but under the restrictions of legal level of the criminal suspect, judicial authority could accept the surrendering and adopt next measures. The determination of initiative surrendering is a complicated problem in judicial practice. Understanding the initiative surrendering based on the essence and value of voluntary surrendering is helpful for us to solve the complicated problems in the practice.