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12.29.2010

Opinion on handling certain problems in voluntary surrender and meritorious service


An Opinion on handling certain problems in voluntary surrender and meritorious service (原文) has been issued yesterday by the Supreme People’s Court. The Opinion makes further specifications on a 1998 judicial interpretation (原文), of articles 68 and 69 of the Criminal Law.

Voluntary surrender is constituted if a suspect hands himself in and confesses his crimes. Meritorious service is acknowledged if a suspect exposes other people's crimes or provides clues about other cases. Either of these circumstances allows a lighter sentence.

This used to be the case at least, because the Opinion seems to have turned statutory circumstances into discretionary ones. In so-called heinous cases and organized crime cases judges will enjoy a greater discretion to choose whether to apply article 68 and 69 or not.

Here's a rough translation of the Opinion, paragraph 8:
“If the conditions of voluntary surrender or meritorious service exist, but the circumstances of a crime are particularly heinous, the outcome of a crime is particularly severe, the defendant’s subjective viciousness and personal dangerousness are great, or if before committing a crime preparations to voluntary surrender or meritorious service were made to evade the law and escape punishment, a lenient punishment may not be given.
虽然具有自首或者立功情节但犯罪情节特别恶劣、犯罪后果特别严重、被告人主观恶性深、人身危险性大或者在犯罪前即为规避法律、逃避处罚而准备自首、立功的可以不从宽处罚。
[Concerning] ringleaders of criminal groups or principal offenders in joint crimes who expose, accuse or help judicial organs arrest accomplices who played a secondary role in the same crime, lenient punishment should be severely controlled. If a lesser punisment could cause an imbalance in the sentencing of the entire case, a lesser punishment is not given. If an equally serious offender in a different case was exposed, accused, or arrested through one’s help to judicial organs, a lenient punishment is given according to the law.
[Concerning] ordinary members of criminal groups and accomplices in joint crimes who perform meritorious service, the policy of lenient sentencing according to the law should be followed, particularly if they help to arrest ringleaders or principal offenders

犯罪集团的首要分子、共同犯罪的主犯检举揭发或者协助司法机关抓捕同案地位、作用较次的犯罪分子的,从宽处罚与否应当从严掌握,如果从轻处罚可能导致全案量刑失衡的,一般不从轻处罚;如果检举揭发或者协助司法机关抓捕的是其他案件中罪行同样严重的犯罪分子,一般应依法从宽处罚。对于犯罪集团的一般成员、共同犯罪的从犯立功的,特别是协助抓捕首要分子、主犯的,应当充分体现政策,依法从宽处罚。
This attempt to strike the proverbial balance between leniency and severity comes one year after less stringent rules were made in the case of public officials suspected of corruption. The first condition of voluntary surrender - handing oneself in to investigators - does not apply to officials, who can be punished more leniently on the sole ground that they confessed to their crime.
Aside from this, the Opinion outlines in greater detail the circumstances in which surrender can take place, introduces a procedure to verify information and clues provided by criminal suspects, and nullifies the provision of clues obtained illegally.