| As an important penalty discretion system,voluntary surrender system plays an important role in the criminal law all over the world.Its existence is helpful for criminals to reform themselves and reform evil from good;at the same time,its existance can save judicial cost,improve judicial efficiency and dig up surplus crimes,which is of great significance.However,due to the unclear legal provisions and the complexity of the cases in judicial practice,there are many differences in the identification of voluntary surrender and its lenient treatment in some special and difficult cases.For example,some acts are identified as voluntary surrender,while some acts do not identify themselves as voluntary surrender.Some acts do not grant lenient punishment even though they are regarded as voluntary surrender,specifically to the death penalty.In a trial case,it is of great significance to unify the judgment standard and ensure judicial justice for the criminal who has surrendered circumstances.identifying the surrender and leniently punishing after confession,and the question of "getting out of jail".However,due to the different understanding and practice of the judge,great difference is easy to appear in the result of handling the case.As the specific application of leniency of current criminal legislation and relevant judicial interpretation,the provisions are not clear especially in the application of the death penalty sentencing,which makes the relevant legal provisions become less operational.When the system of voluntary surrender leniency is applied,judges can only decide whether to punish the accused leniently by free appreciation.Due to difference of judges in many aspects,such as personal experience and knowledge accumulation,the application of the relevant provisions of surrender leniency in judicial practice is very confusing.Based on trial practice and integration of theory with practice,this article takes the death penalty case of second instance as an example,and makes a concrete study from the following aspects:First of all,the system value of voluntary surrender and the establishment elements are explained.The system value of voluntary surrender lies in: 1.Fully realize the purpose of punishment.2.ensure the implementation of principle of adaptation of crime,responsibility and punishment.3.Reduce the cost of justice and improve the benefit of criminal justice.The general conditions for the establishment of voluntary surrender are: firstly,automatic surrender;secondly,truthful confession of crimes.The conditions for the establishment of quasi-surrender are as follows: crimes truthfully confessed to the judicial organs from criminal suspects,the accused and the convicted criminals who have been taken coercive measures in accordance with the law,must be other crimes which the judicial authorities have not yet mastered.Uncommitted offences should be in different nature from committed offences.Secondly,it is the experience analysis of the second instance of death penalty cases.It includes the empirical analysis of voluntary surrender and truthful confession.The determination of active surrender includes: 1.Whether the motive of voluntary surrender affects the identification of automatic surrender.The author believes the voluntary surrender can be focused.2.Whether it can be identified as voluntary surrender after being summoned by the judiciary.The author believes that the facts of the crime should be judged according to whether the criminal facts have been mastered by the judicial authorities.3 whether reporting of the crime can be regarded as surrender.If you only report the crime,do not report the identity of the offender to relevant authorities,and do not voluntarily hand it over to the state authorities for control,it cannot be identified as voluntary surrender.In terms of identification of faithful confession,it includes how to define the main criminal facts and how to define the scope of the joint offender's truthful confession.The above two aspects are demonstrated by the example of the death penalty case.Thirdly,it is the analysis of lenient punishment experience in the death penalty case of second instance.Generally,it is believed to conduct lenient punishment,but there are exceptions,which are mainly divided into three categories: criminal suspects evade the law beforehand,criminal means are abominable,subjective malignancy is strong,and the consequences are serious and cannot be lenient;the relatives of the victims are emotional,the contradiction between two sides is fierce,and unable to reach an understanding;pressure from news media and public opinion is high,thus leading to no leniency.In addition,the first instance finds that there is no leniency in the second instance with the aid of judicial means.Finally,some perfect suggestions on the application of voluntary surrender in death penalty cases are put forward,which are the perfect suggestions for the determination of voluntary surrender and the perfect suggestions for lenient punishment.Among them,the suggestions for the perfection of voluntary surrender include: clarifying the essence of voluntary surrender system,perfecting legislative and judicial interpretation,correcting utilitarian tendency,standardizing and perfecting the procedure of examination and confirmation;The suggestions for perfecting the lenient punishment include: formulating the standard for calculating the range of lenient punishment,strengthening the individualized investigation of the criminal,appeasing the emotion of the victim's family,reducing the pressure on the judicial trial,establishing the intervention and investigation mechanism of public opinion and effectively guiding public opinion.The author hopes that sentencing imbalance caused by different understanding of the standards of voluntary surrender and punishment in the theoretical and practical fields should be solved through the discussion of the above problems,and the application of the law should be more specific and normative,thus effectively maintaining social equity more and better achieving social justice. |
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