| The "Supervision Law",officially implemented in 2018,has clarified the inspection and investigation functions of the supervisory committee on duty crimes,and put forward the concepts of "automatic surrender" in the field of duty crime investigation.while the "Regulations on Disciplinary Action" and the "Regulations on Supervision and Discipline Work" proposed the concept of "voluntary surrender".At the same time,there are also differences and mutual inclusiveness in terms of the connotation and denotation of these two concepts.In the past,the Central Commission for Discipline Inspection used the expression "voluntary surrender" when reporting and investigating duty crime cases.However,since 2019,the Central Commission for Discipline Inspection has unanimouslyadopted the wording "automatic surrender" when reporting such cases.Unlike judicial organs,the Supervisory Committee handles criminal liability cases.It is the lenient punishment recommendation materials stipulated in the Supervision Law that guides the Supervisory Committee in determining the circumstances of surrendering in certain cases for the investigators.There is no uniform standard for the lenient punishment recommendations.Wordings chosen are in variety such as "voluntary surrender" and sometimes "automatic surrender",which is vague and confusing.The Supervisory Committee can only determine automatic surrender in accordance with the "Supervision Law" and relevant disciplinary regulations.This automatic surrender is inconsistent with the standard of automatic surrender in the Criminal Law.Therefore,it is necessary to determine the relationship between "voluntary surrender" and "automatic surrender" applied by the supervisory agency before it can correctly connect with the automatic surrender in the criminal law field.There is a difference between the automatic surrender recognized in the duty crime and the automatic surrender determined by the criminal law.The first is that the position of automatic surrender is different.Judiciary determines that automatic surrender is one of the conditions for the determination of surrender,and the supervisory authority believes that automatic surrender is only a preliminary suggestion for the determination of surrender.The applicable basis and evaluation system are different.Judicial agencies apply criminal laws,but supervisory agencies mostly follow internal party regulations and supervisory laws.Secondly,the basic elements for identifying surrender are not the same.Supervisory agencies are only case-handling departments,and there is no explicit provision that they can issue relevant documents directly against surrender.Even if there are documents,they haven’t been valued to a proper extent.The Criminal Law stipulates that the action of the criminal suspect to confess to some unknown crimesunder compulsory measures are also deemed as surrender,But the supervisory organs do not have compulsory measures toward the confessed crimes;Thirdly,only when the application principles of surrender and quasi-surrender have been made clear,could the correct connection between the the automatic surrender of the supervisory authority and the surrender stipulated in the criminal law be possible.The supervisory agency’s procedural connection between the determination of automatic surrender and the determination of surrender in practice.At present,the characteristics of surrender in official crime cases are: the standards for determining automatic surrender are not unified,the standards for determining truthful confession are not unified,and the evidence for determining whether the crime has been grasped is not clear.In the preliminary verification stage,the criminal suspect’s identity is uncertain.If the suspect does not fully confess the facts of the crime at this stage,how could the automatic surrender be determined;In the review and investigation stage,the suspect voluntarily confessed the suspected crime,how to determine the automatic surrender.The preliminary verification stage and the review and investigation stage are not compulsory measures stipulated by the criminal law.How can they be connected with the compulsory measures stipulated by the criminal law? The supervisory agency is not a judicial agency in its true sense,and the criminal law stipulates that the requirement for surrendering to be determined is a "crime that is beyond the knowledgeof the judicial agency." If the supervisory agency handles duty related crimes,we should equate the supervisory agency with the judicial agency,or a "judicial agency".“Organization” should be deemed as a case-handling agency,instead of blindly thinking that a supervisory agency is not a judicial agency,and has no right to evaluate the circumstances of surrender.The supervisory agency’s "beyondknowledge" standard should be measured by the standards required by criminal law as much as possible,rather than purely based on the supervisory law and party discipline regulations.Only in this way can we achieve a seamless connection in the true sense.The supervisory agency intends to determine that the material embodied by the surrender is a leniency recommendation.At present,the leniency recommendation has not formed a complete system and has no position in theoretical construction,and it cannot be compared with the procuratorial agency’s confession and punishment system.Therefore,at the legislative level,the leniency proposal should be given the status of legal force.If the leniency proposal does not appear to be contradictory in evidence,the judiciary should unconditionally accept it.If it is evidence such as the exclusion of illegal evidence,the judiciary should consult with the supervisory agency instead of directly making a negative evaluation.At the legislative level,the discipline and law under the supervision system reform should be reflected,and the discipline and law should be clearly defined in the form of legal provisions.The law is in line with the purpose of maintaining the will of the upper-level ruling,the connection between the automatic surrender recognized by the Chinese Communist Party discipline and that recognized by the criminal law,the connection between party discipline recognition and the criminal fact recognized by criminal law surrender,and the connection between party discipline and law when determining quasi-surrender.In practice,The leniency recommendations of the supervisory authority should be specifically linked with the confession and punishment system,and the leniency recommendations will be upgraded to an evaluation system for the determination of surrender and guilty confession;the supervisory authority shall make the content of the leniency recommendations compatible with the facts of the crime,Its expression strictly abides by the professional terminology required by criminal law,the expression must be accurate,and the purpose is to achieve "a balance of justice with mercy","the proportionality of punishment and crime",and the "protection of human rights."... |
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