On Confirmation And Improvement Of Voluntary Surrender In China’s Criminal Law

The surrender system is an important finding system of penalty. According to China’s Criminal Law the first and second section of Article 67, China has a principled regulations on Voluntary Surrender, which stipulates that "Voluntary Surrender (herein after called VS) refers to the act of voluntarily delivering oneself up to justice and truthfully confessing one’s crime after one has committed the crime. If a criminal suspect or a defendant under compulsory measures or a criminal serving a sentence truthfully confesses his other crimes that the judicial organ does not know, his act shall be regarded as voluntary surrender". However, in practice, with the emergence of new situations and types of crimes, this principled provision itself is far from enough to provide an accurate definition of voluntary surrender especially when handling some difficult cases. This paper illustrates the identification of voluntary surrender, the conditions of voluntary surrender under special circumstances, and the problems concerning identification of voluntary surrender in the judicial practice. It also puts forward some suggestions to improve the surrender system. This paper divides into three parts:The first part:Overview and confirmation of voluntary surrender. First of all, in order to identify voluntary surrender, it is necessary to have a comprehensive understanding of its origin and concept. This part elaborates the history of VS in China, the definition of VS in the other regions of the world, as well as the provisions of VS in the current criminal Law. And this part explains in details about the confirmation of general surrender, quasi-voluntary surrender and special VS and particularly emphasize on some important issues such as in the general VS, one voluntarily giving oneself to the police and giving a true account of one; in the quasi-VS, the applicable conditions and applicable subjects; the conditions precedent in the special VS.The second part:Voluntary Surrenders under special circumstances. This part mainly studies several special problems concerning VS:Whether the type or amount of property would affect the establishment of VS in the cases of suspicious surrenders? Is it considered as VS if one confesses his crime during the period of "Shuanggui"? What is the difference between VS of enterprise and individual member of the same enterprise? How to identify plural crimes of a kind and plural crimes of different kinds when one voluntarily confesses his several crimes? This paper will also present the author’s personal views regarding these questions.The third part:Deficiencies and improvement of the existing VS system. In this part, I put forwards my opinions based on the difficulties I encountered during practical work and also the current situation where any criminal who voluntarily surrenders may be given a lighter or mitigated punishment. Firstly, I have doubts over the rationality of this provision:in quasi-voluntary surrender system, confessing the "same crime of a kind" cannot be regarded as VS. However, I hold an opposite view toward this claim. Secondly, in the current Criminal Law, it seems quite general for the principle "The criminals who voluntarily surrender may be given lesser or mitigated punishment". And in the practical work, this principle is difficult to operate. I suggest to developing a more detailed classification in the measurement of penalty.