Understanding And Application On "Deemed To Be Voluntary Surrender To Justice" In Traffic Accident Cases

In22th December,2010, the Supreme People’s Court published “Opinions ofsome specific issues about the treatment of voluntary surrender and meritoriousservice”, which regulated that the one who protect the scene, rescue the injured, andnotify the public security unit after committing traffic offences should be deemed tovoluntarily surrender himself to justice and constitute a voluntary surrender, sincethese behaviors are also suspect’s statutory obligations, whether to be lenient and thelenient scope both should be controlled appropriately and strictly. Determination ofvoluntary surrender in traffic accident cases mainly have three problems in judicialpractice:(1) not to protect the scene, rescue the injured and notify the public securityunit as well after the traffic accident, but directly surrender to the public securityorgans;(2) be fully aware of others’ reporting to the police, but not to protect thescene, waiting for treatment presently after the traffic accident.(3) to rescue theinjured and have no enough time to call the police, but back to the scene of theaccident, waiting for disposal after the traffic accident.Development of the Criminal Law and its judicial interpretation showed out tolerant determination to surrender oneself and voluntary surrender to justice, andwhich come into being a development trend. The current Criminal Law is based onCriminal Law of1979, added regulations about the lenient punishment to voluntarysurrenders, China’s judicial interpretation’s provisions on surrender oneself arecontinuously specific and concrete, according to the needs of practice, the provisionof voluntary surrender is more diverse, from the typical voluntary surrender to theuntypical voluntary surrender, expanding the scope of voluntary surrender constantly,being lenient to criminals who voluntarily surrender himself.How to understand the essence of surrender oneself is the key to identify“deemed to be voluntary surrender to justice” in the traffic accident cases, there arefour main theories about the essence of surrender oneself: repentance, judicialresource conservation, delivery of state prosecution and power compromise, the firstthree theories have certain defects: they have not accurately grasped the essence ofsurrender oneself, so all of them are not desirable. The essence of surrender oneself isthe power of compromise, namely judicial power and the surrendered suspects reach acompromise on the platform of pursuing justice correction, surrender oneself isactually a result of compromise between power and right.Determination of “voluntary surrender to justice” in traffic accident cases shouldnot be independent from the general surrender but be a separate application, generalstandards should also be applied to voluntary surrender in traffic accident cases,relevant provisions of “Opinions” is only a supplement and expansion to trafficaccident cases, behavior of “protecting the scene” can only be act of commission, butnot be act of omission; behavior of “rescuing the injured” is also like this, however,this act can either play a major or supporting role, it is not required to obtain actualeffect to rescue the injured either, so long as the rescuer has the subjective intentionand objective behavior.“Notifying the public security unit” is not “reporting to thepolice”, but other acts than “reporting to the police”; either “protection to the scene”or “rescue the injured” is necessary for “voluntary surrender to justice, not both ofthem are needed.