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2021

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09

Lawyer Yu Hailiang from Legal Shengbang: How to Determine the "On site Waiting Type" Automatic Submission in Practice

The arrival of suspect and defendants in criminal cases will be described in each criminal case. The arrival of suspect and defendants involves the identification of the circumstances of their voluntary surrender and voluntary surrender. As circumstances that can be mitigated and mitigated, voluntary surrender and voluntary surrender are also related to the final conviction and sentencing of the perpetrators. Therefore, lawyers should pay enough attention to the arrival of the perpetrators in case handling.


The arrival of suspect and defendants in criminal cases will be described in each criminal case. The arrival of suspect and defendants involves the identification of the circumstances of their voluntary surrender and voluntary surrender. As circumstances that can be mitigated and mitigated, voluntary surrender and voluntary surrender are also related to the final conviction and sentencing of the perpetrators. Therefore, lawyers should pay enough attention to the arrival of the perpetrators in case handling.

 

In practice, the main basis for identifying the process of suspect and defendant's arrival in the case is the litigation evidence such as the Capture Process and the Process of Suspected Person's Arrival issued by the public security organ, or the suspect and defendant's statements on their arrival in the case in combination with the Prosecution Opinion, the indictment and the Interrogation Record.

 

According to Article 67 (1) of the Criminal Law, the establishment of voluntary surrender requires two requirements: one is automatic surrender, and the other is truthful confession of one's own crime. That is to say, if a criminal truthfully confesses his/her crime during interrogation by investigators after being brought to justice, and at the same time falls under the category of "automatic surrender", he/she can be deemed to have voluntarily surrendered, thus allowing him/her to be "given a lighter or mitigated punishment".

 

According to Item 1 of Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in Handling Voluntary Surrender and Meritorious Service (hereinafter referred to as the Interpretation of Voluntary Surrender), "voluntary surrender" means that when the facts of a crime or the suspect are not discovered by the judicial organ, or although they are perceived, but the suspect has not been interrogated and has not been taken compulsory measures, they take the initiative to directly report to the public security organ The People's Procuratorate or People's Court submits the case.

 

Regarding the specific determination of "automatic surrender", the "Interpretation of Voluntary Surrender" lists seven specific situations that can be considered as "automatic surrender". The "Opinions on Handling Several Issues of Self surrender and Meritorious Service" (hereinafter referred to as the "Opinions on Self surrender") also lists five situations of automatic surrender, one of which is the situation of "knowingly waiting at the scene while others report the case, without resisting arrest behavior, confessing criminal facts", which is the "on-site waiting type" automatic surrender described in this article. This type of automatic surrender is in judicial practice, The parties involved in the litigation may have different understandings based on factual findings and legal application, which can easily lead to disagreements.

 

Taking a rape case handled by the author as an example:

 

On February 3, 2021, at 19:50, the defendant Huang deceived the victim Ma (a student) into living in the dormitory of his unit located in Zone A of G city. In the dormitory, Huang touched Ma's chest and genitals with his hand, and pressed Ma's buttocks with his lower body, attempting to forcibly engage in sexual intercourse with Ma. However, due to strong resistance and loud cries for help from Ma, he was unsuccessful. After Ma fled the room, he reported to the police, and the defendant Huang was subsequently arrested and brought to justice at the previous address.

 

During the handling of this case, the public security organs did not determine the circumstances of Huang's automatic surrender. The "Arrest Procedure" of the public security organs only states that "the suspect Huang was arrested, and after trial, he confessed to the act of forced indecency towards others." It does not specify the location of Huang's arrival or the process of his arrest. Later, the Public Security Organ issued the Case Resolution Report, which once again described the appearance of Mr. Huang as "the police arrested the suspect Mr. Huang on the scene, and the suspect Mr. Huang confessed to his illegal behavior after his arrival". The "Investigation Report" uses the word "present" to clarify that the location where Huang attended the case is the scene of the crime, which is the dormitory of Huang's unit at the time of the rape, but it is not determined that Huang voluntarily surrendered. When the case was transferred for review and prosecution, the "Prosecution Opinion" stated that the process of Huang's arrival was basically consistent with the "Investigation Report", and did not determine that Huang had "voluntarily submitted to the case".

 

During the case review and prosecution stage, when exchanging legal opinions with the handling prosecutor, the author believed that Huang's behavior should be deemed as an attempted crime, and there should also be a mitigating circumstance for voluntary surrender. The author believes that the main reason why Huang surrendered himself is that there is evidence to prove that Huang subjectively believed that the victim would choose to report the case, and objectively had enough time and conditions to escape the scene without fleeing. He stayed in his unit dormitory, and when public security personnel received the victim's report telegram and came to arrest him, Huang did not resist arrest. After being brought to justice, he was able to truthfully confess his main criminal behavior, According to Article 1 of the "Opinions on Surrender", if a person voluntarily surrenders to a crime while waiting on the scene while knowing that someone else has reported the case, without resisting arrest, and confessing the facts of the crime, and Huang confesses or repents, it should be considered as voluntary surrender.

 

The prosecutor has a different understanding of the author's opinion, mainly believing that it is impossible to know that Huang was "waiting in place knowing that someone else reported the case". Later, in the "indictment", it was stated that Huang's appearance in the case was "after the victim reported the case, the defendant Huang was subsequently arrested and brought to justice at the previous address". It was briefly mentioned that Huang had voluntarily surrendered to the case.

 

During the court trial stage, the author expressed a defense opinion on whether Huang should establish a voluntary surrender plot, and ultimately, Huang's voluntary surrender plot was determined. In the judgment, the court held that the defendant Huang, who was aware that the victim had reported the case and was waiting on the scene for processing, did not resist arrest during the arrest, and was able to truthfully confess the criminal facts after being brought to justice, indicating voluntary surrender.

 

Development of defense reasons

 

From the provisions on "voluntary surrender" in the "Interpretation of Voluntary Surrender" and "Opinions on Voluntary Surrender", it can be determined that the perpetrator belongs to voluntary surrender mainly based on several considerations: firstly, whether the perpetrator "knowingly" waited on the scene for others to report the case; The second is whether the perpetrator has sufficient time and conditions to escape the scene without escaping; The third is whether there was any resistance to arrest during the arrest.

 

(1) There is evidence to prove that Huang "knew" that the victim would choose to report the case and wait in place

 

Firstly, the victim, Ma, was informed to report the case when he was violated by Huang. According to the inquiry transcript, when the investigators inquired about the incident involving Ma, Ma stated, "When Huang invaded, I loudly said I wanted to report to the police. After hearing this, he was stunned for a moment. I took the opportunity to break free from him, grabbed my bag, and opened the door to go out. Afterwards, I called the police, and the police came to the scene to handle it." It can be seen that Huang was aware of the fact that the victim was about to report the case.

 

Secondly, the documentary evidence obtained by the public security organs can prove that Huang knew that the victim would choose to report the case. After the incident, Huang had a conversation on WeChat to appease Ma's emotions. Ma said, "Do you know you're breaking the law. Huang replied, 'I know (illegal), don't report to the police' and 'I'm really scared, please don't report to the police'. From this, it can be seen that during the waiting period in the dormitory of the original unit after the incident, Huang was also aware that the victim would choose to report the case.

 

Thirdly, Huang is fully aware that he may be held criminally responsible. After the incident, the victim Ma informed the school counselor of the fact that he had been violated by Huang, and the counselor asked him to report and handle the case. After the incident, Huang also voluntarily reported his involvement to the unit leaders, and the unit recorded the situation involved. Therefore, after the incident, Huang's criminal behavior has been made public, and Huang has reasonable reasons to believe that the police will come to the scene of the incident.

 

(2) Huang had enough time and conditions to escape the scene but did not, and voluntarily waited for the police to come and arrest him at the scene

 

Firstly, Huang had sufficient conditions to escape the scene without escaping. Huang was neither unable to leave the scene of the crime due to objective factors such as obstruction from the victim or the public, nor was he left at the scene for negative motives such as destroying evidence, continuing the crime, or seeking opportunities to commit the crime. Instead, he voluntarily and voluntarily chose to wait at the scene, willingly subjecting himself to legal punishment. After the incident, upon realizing that he was already suspected of committing a crime and that the victim would choose to report the case, Huang was not under personal control and had sufficient conditions to escape from the scene of the incident.

 

Secondly, Huang had sufficient time to escape the scene without escaping. The time of the night of the crime was 19:50. After receiving the report from Ma, the police arrived at the scene at 21:00 that night. Although it was not known at which time the victim reported the crime, there was an interval of over an hour between the incident and the police coming to the scene, and Huang had ample time to escape.

 

(3) Huang did not resist arrest when the public security personnel came to arrest him

 

When public security personnel arrive at the dormitory of the unit, they first contact the person reporting the case, Ma, to inquire and confirm the matter on site. During this period, Huang, who is aware of the reason for the police personnel's visit, has a clear understanding that he will be taken personal control measures by the police personnel. When the police personnel summon him on site, he actively cooperates with the investigation and follows the arrangements of the police personnel from being taken out of the dormitory of the unit, escorting the police car, and escorting him to the handling unit, It should be recognized as' no resistance to arrest during arrest '.

 

In summary, Huang voluntarily waited at the scene knowing that others had reported the case, but did not resist arrest when arrested, which should be considered as automatic surrender. After being brought to justice, Huang truthfully confessed his crimes and met the requirements of "automatic surrender" and "truthful confession", which should be recognized as voluntary surrender in accordance with the law.

 

Reference

Yang Hua and Ji Hao: "Han Yongren's Intentional Injury Case", published in "Criminal Trial Reference", Vol. 102, No. 1059.