Research On The Judicial Application Of The Third Paragraph Of Article 383 Of The Criminal Law

The special leniency system stipulated in the third paragraph of Article 383 of the Criminal Law may compete with the system of surrender and confession.Specifically,when the actor has the circumstances of "truthful confession of his crime before the prosecution",since special forgiveness,surrender and confession are both based on truthful confession,and the third paragraph of Article 383 of the Criminal Law allocates a leniency range different from that of surrender and confession for special forgiveness,so in practice,different judges cannot reach a unified punishment standard when facing the case of special forgiveness,surrender and confession,How to determine the applicable rules of the two systems is really worth exploring.However,the theory of criminal law has not paid enough attention to the issue of concurrence at present,and the discussion on the system of special leniency is still focused on such surface issues as how to determine the applicable conditions and whether there are conflicts with the system of surrender and confession,which has failed to provide practical theoretical guidance for judicial practice.In view of this,the purpose of this paper is to explore the concurrence and competition between special forgiveness,surrender and confession,with the guiding ideology of distinguishing responsibility punishment and preventive punishment,and with the help of the theory of concurrence and competition,to analyze the internal structure of special forgiveness,surrender and confession,with a view to providing referential rules for practice.This text is divided into three chapters,as follows:Chapter Ⅰ: QuestionThis chapter first examines the judicial situation of the third paragraph of Article 383 of the Criminal Law,and points out the dilemma of competing and applying it with the system of surrender and confession.Then,through the analysis of similar cases,we will further sort out the competing situations of special forgiveness,surrender and confession in different cases.In response to the two most concentrated issues in the current criminal law theory on the special leniency system,this chapter has made a special response: first,the applicable conditions of the special leniency should adopt the standard of "one of three",as long as the actor has one of the three elements of "truthfully confessing his crime before initiating a public prosecution","actively returning stolen goods" and "sincere repentance",the special leniency is established,And the three types of special forgiveness can be established and applied at the same time;Second,since the substantial basis of leniency is different from the reasons of surrender and confession,the special leniency system stipulated in the specific provisions does not contradict or conflict with the surrender and confession system of the general provisions.Chapter Ⅱ: Relationship between Article 383,paragraph 3,and Article 67 of the Criminal LawThis chapter aims to discuss the special relationship between the third paragraph of Article 383 of the Criminal Law and the surrender and confession.According to Professor Zhang Mingkai’s point of view of distinguishing responsibility punishment from preventive punishment,this chapter analyzes the lenient punishment grounds of special forgiveness,surrender and confession one by one,and finds that although it is easy to be confused in the text of the law,special forgiveness essentially has lenient punishment grounds independent of surrender and confession.Then,due to the special forgiveness and surrender,and the confession of suspicion,the imaginative concurrence or the concurrence of articles of law,this chapter systematically discusses the basic structure,applicable rules and distinguishing standards of the two theories of concurrence,and deduces the basic types of the concurrence of articles of law with the help of the concept theory of formal logic,and draws the following conclusions: First,the special relationship and the whole part relationship are the two basic types of the concurrence of articles of law;Second,the distinction between the coincidence of articles of law and imaginative coincidence of law should be based on the formal standard of the special relationship between articles of law in logic,and the substantive standard should be that the application of one article of law can achieve the complete evaluation of the content of the act;Third,the distinction between coincidence of articles and imaginative coincidence is not static.Chapter Ⅲ: The competing relationship and applicable rules between the third paragraph of Article 383 of the Criminal Law and voluntary surrender and confessionThe first two chapters have clarified the basic principles and relevant theoretical issues of the combination of special forgiveness,surrender and confession.The main problem to be solved in this chapter is to clarify the specific form of the competition and cooperation of the two and to extract the applicable rules for judicial practice.When special leniency and voluntary surrender compete:first,since there is no special legal relationship between voluntary surrender and special leniency,the two are imaginative concurrence and illegal concurrence.When the perpetrator embezzles a large amount of money or has a serious case,it should be announced that he/she should establish voluntary surrender and special leniency at the same time,and choose a lighter sentence,When choosing a lighter provision,we should fully respect the special consideration of the criminal policy of tempering justice with mercy shown by the special leniency,and recognize that the special leniency is the lighter provision at this time;Secondly,when the amount of embezzlement committed by the perpetrator is(especially)huge or has(especially)serious circumstances,both surrender and special forgiveness are established;Finally,special surrender and special forgiveness may be the coincidence of laws and regulations or imaginative coincidence.When the special forgiveness and confession coincide: first,for the perpetrators with large amounts of corruption or serious circumstances,the special forgiveness is to further limit the time range of truthful confession on the basis of confession,and to specifically forgive and contain confession in terms of breadth,so in this case,the special forgiveness and confession establish the special relationship law article to coincide,which should be recognized as special forgiveness only in accordance with the applicable rules of priority of the special law article;Secondly,for the perpetrator with(especially)huge amount of corruption or(especially)serious circumstances,since confession can be mitigated at most,and special forgiveness can only be mitigated at this time,the relationship between the two turns into imaginative competition and cooperation.The perpetrator who truthfully confesses his crime before initiating a public prosecution is both confession and special forgiveness,and should choose a lighter punishment.