The Surrender Of Actor After His Escaped During The Period Of Obtaining

Along with the continuous change of the surrender in practice, the form of surrender is more and more complex. For example, in the case that the actor escape during the period of obtaining a guarantor and pending trial and surrender after his escape, the current criminal doesn’t give us a unambiguous solution, which results in cognitional and juridic disputes----some affirm it as surrender, some don’t, the others think it depend on weather the the actor had surrender before his escape. In judical practice, the opinion of the first instance judgement sometimes differ with the second, the judgement of the same court in one period sometime differ with the other period and courts in different territory of have different judical opinion, for example, courts in Beijing regard a case as surrender but courts in Shanghai, Jiangsu and Zhejiang don’t so.The cognitional disputes mainly depend on the different congnition of the value of surrender. People who hold the opinon that the primary purpose of surrender system is based on the the cost saving consider that surrender has no matter with the time and the back ground. People who hold the opinon that the primary purpose of surrender system is based on the state’s judicial resource reducement of personal risk brought about by the penitence attitude or consider that the actor escape during the period of obtaining a guarantor and pending trial reflect the actor’s subjective culpability of the mind and even if the actor surrender again he can’t get less punishment. To start from the nature of the surrender system, we hold the opinion that the top priority of surrender system is to give the actor a fair judgment and fair is superior to the efficiency. If we affirm the actor who escapes during the period of obtaining a guarantor and pending trial and go back after his escape as surrender, it will break the balance between crime and penalty and be against the legal saying that no one should be benefited for his wrongdoing which doesn’t match the basic viewpoint of justice. To start from our existing criminal law we can analyze that surrender need time requirement as the law stipulate that surrender must before compulsory and interrogate. The special surrender shapes listed in the judicicial interpretation all has a time requirement. The stipulation of surrender in the criminal law in ancient history, in the criminal formulated in 1979 and in the judicicial interpretation of recent years all make it clear that surrender must have time requirement. The criminal suspect who obtains a guarantor and pending trial has the obligation of accepting cencorship and judge similarly to the traffic accidetnt criminal suspect who has the obligation of alarm and salvation. Judicicial interpretation makes it clear to restrict strictly to the traffic accidetnt criminal suspect who alarm after the accident before affirming a surrender plot and giving less punisnment and the same we should restrict strictly to the actor escape during the period of obtaining a guarantor and pending trial. From the other perpective, the opinion that the primary purpose of surrender system is based on the the cost saving can’t be set up because the cost saving based on the judical resource which has been wasted. The saving makes no sense and will give rise to cause the actor escape during the period of obtaining a guarantor and pending trial to get a less punishmet. An analysis on the withdraw prosecution cases in Beijing has reveal the trend that more and more criminal suspects excape during the period of obtaining a guarantor and pending trial.So to regard the actor who escape during the period of obtaining a guarantor and pending trial and surrender after his escape as a confessor can get a balance between faily conducting law and enforcing the criminal suspect go to justice. Rather than regarding the actor who escape during the period of obtaining a guarantor and pending trial and surrender after his escape as surrender in criminal law and restricting the limit of less punishment, it would be better to affirm the actor as a confessor to enforce the criminal suspect go to justice and save judical resource which will achieve the balance between crime and puninshment and will not be against with the legal tradition, the current law and the legal trend.