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Hot Comments on Current Events | Yang Juan: The practice of canceling the suspect's registered residence registration in order to combat crimes deserves discussion

On June 4, the public security bureau of a city in Jiangxi issued a notice on canceling the registered residence of the first batch of missing persons according to law. The content is as follows:


On June 4, the public security bureau of a city in Jiangxi issued a notice on canceling the registered residence of the first batch of missing persons according to law. The content is as follows:

 

Once the announcement was released, it sparked a heated discussion in society. Some netizens support the local police's approach, believing that this move is a popular tool to crack down on overseas telecommunications fraud crimes. But some netizens also raised objections to this, believing that this move is suspected of being illegal.

 

Which is right or wrong? I have no intention of making any hasty comments. However, as a legal practitioner, the author intends to briefly introduce and discuss the legal provisions of our laws on the cancellation of registered residence registration, the legal conditions for declaring missing, and the principle of assuming responsibility for crime and punishment to netizens from the perspective of law, with a view to attracting more valuable insights.

 

1、 Does the public security organ have the right to cancel the registered residence of "missing persons"?

 

The registered residence system is a basic national administrative system in China. The registered residence system in Chinese history is directly related to land, and it is a population management mode based on family, family and clan. The modern registered residence system is a legal system that the state collects, confirms and registers the basic information of citizens' population such as birth, death, kinship, legal address, etc. according to law. The modern registered residence system is an individual based population management method to protect the rights and interests of some citizens in employment, education, social welfare and other aspects.

 

On January 9, 1958, the "Regulations of the People's Republic of China on Household Registration" were promulgated and implemented. This regulation stipulates that the household registration work is under the supervision of public security organs at all levels, including seven items: permanent resident registration, temporary resident registration, birth registration, death registration, relocation registration, immigration registration, and change correction registration. The task of household registration management is to prove citizenship, maintain public order, and serve socialist construction. This regulation regulates the national household registration management system in the form of law, which is an important symbol of the formal formation of the national unified urban and rural registered residence registration system, and also an important milestone in the development history of contemporary China's registered residence system.

 

Those who register their registered residence relations according to the registered residence registration system in China are legal citizens with Chinese nationality, and they fully enjoy the rights and interests of citizens as stipulated in the Constitution and laws of China. Does the public security organ's cancellation of the registered residence of the "missing person" infringe upon the legitimate rights and interests of citizens?

 

According to the regulations of the Household Registration Regulations, there are four legal situations under which a household registration can be cancelled:

1: Death. Article 8 of the "Regulations on Household Registration" states that if a citizen dies, the head of household, relatives, caregivers, or neighbors shall apply for death registration and cancel their household registration to the household registration authority within one month before burial in urban areas or in rural areas. If a citizen dies in their temporary residence, the temporary residence registration authority shall notify the permanent residence registration authority to cancel their household registration.

2: Move out of one's habitual residence. Article 10 of the Household Registration Regulations stipulates that if a citizen moves out of the jurisdiction of their household registration, they or the head of the household shall apply for registration of the move out to the household registration authority before moving out, obtain the transfer certificate, and cancel their household registration.

3: Join the army and enlist. Article 11 of the "Household Registration Regulations" stipulates that citizens who are conscripted for active service shall, before enlisting, apply for registration of relocation from the household registration authority in their habitual residence by themselves or by hosting the conscripted citizen's enlistment notice, cancel their household registration, and do not issue a migration certificate.

4: Arrested and imprisoned. Article 12 of the Regulations on Household Registration stipulates that for an arrested offender, the arrest authority shall notify the offender's family members and the household registration authority at their habitual residence to cancel their household registration.

 

It can be seen that the public security organ can cancel the registered residence of the relevant citizens only when one of the four situations mentioned above is met. Obviously, the relevant personnel or suspect detained in northern Myanmar do not meet any of the above situations. Of course, some readers may think that the relevant personnel in the event meet the fourth kind of registered residence cancellation situation of being arrested and imprisoned as stipulated in the regulations, but it is not true. Because these so-called "missing persons" are currently detained in northern Myanmar and have not been arrested according to law, the public security organ's practice of canceling their registered residence is unfounded.

 

Moreover, since it has been confirmed that these individuals are stranded in northern Myanmar, they are not in a state of "unknown whereabouts" and are not legally classified as "missing persons". So the second question comes, what exactly does the legal provision of "missing persons" refer to? Who has the right to identify 'missing persons'?

 

2、 What does' missing person 'refer to? Who has the right to lawfully identify 'missing persons'?

 

Article 40 of the Civil Code of China stipulates that "if the whereabouts of a natural person are unknown for at least two years, interested parties may apply to the people's court to declare the natural person as a missing person".

 

Therefore, according to this provision, the declaration of disappearance must simultaneously meet the following conditions:

 

(1) Natural persons must be in a state of continuous disappearance. Unknown whereabouts refer to the state where a natural person is in an unknown state of life or death after their final exact whereabouts disappear without any information.

 

(2) The missing person must reach a certain deadline. The deadline for missing persons should be 2 years, calculated from the date of loss of information; If a person's whereabouts are unknown during the war, the time of their whereabouts being unknown shall be calculated from the date of the end of the war or the date determined by the relevant authorities as the date of their whereabouts being unknown.

 

(3) The interested party of the natural person must apply to the court. The scope of interested parties includes two aspects: one is the close relatives of the person being declared missing, and the other is the persons who have civil rights and obligations with the person being declared missing, such as creditors, partners, etc. These people have no order restrictions.

 

(4) It must be declared by the court in accordance with the law. In China, cases of declared disappearance should be tried in accordance with the special procedures stipulated in the Civil Procedure Law, and the court is the statutory authority that makes the declaration of disappearance. After receiving the application for declaration of disappearance, the court issued a notice to search for the missing person. The announcement period is three months.

 

(4) It must be declared by the court in accordance with the law. In China, cases of declared disappearance should be tried in accordance with the special procedures stipulated in the Civil Procedure Law, and the court is the statutory authority that makes the declaration of disappearance. After receiving the application for declaration of disappearance, the court issued a notice to search for the missing person. The announcement period is three months.

 

3、 Can the public security organ directly include the suspect in the list of dishonest persons to be executed?

 

In addition, according to the local police's "announcement", the relevant suspects have been blacklisted as dishonest individuals. Then, can the public security organ directly include the suspect in the list of dishonest persons to be executed?

 

The list of dishonest executed persons refers to the six categories of persons listed in Article 1 of the "Several Provisions of the Supreme People's Court on the Disclosure of Information on the List of dishonest executed persons" (passed at the 1582nd meeting of the Judicial Committee of the Supreme People's Court on July 1, 2013) who have the ability to perform but fail to fulfill the obligations determined by effective legal documents. The people's court shall include them in the list of dishonest executed persons, To impose credit penalties on them in accordance with the law: (1) obstructing or resisting execution through methods such as falsifying evidence, violence, threats, etc; (2) Evading execution through false litigation, false arbitration, or concealment or transfer of property; (3) Violating the property reporting system; (4) Violating the order to restrict high consumption; (5) The person subjected to execution refuses to fulfill the settlement agreement without justifiable reasons; (6) Other parties who have the ability to fulfill but refuse to fulfill the obligations determined by effective legal documents.

 

The prerequisite for inclusion in the list of dishonest executed persons must be the existence of a certain effective legal document and the fact that the executed person has the ability to perform but fails to perform. Due to the relatively brief content of the relevant announcement, we are unable to determine whether these ten stranded personnel in northern Myanmar have engaged in the six "old rascals" behaviors mentioned above. However, according to relevant regulations, it seems inappropriate for the public security organs to directly include the perpetrator in the list of dishonest executed persons without obtaining a legal judgment from the people's court.

 

4、 Whether the public security organ can directly recover the illegal and criminal gains of the suspect.

 

Among the "Ten Unifications" in the relevant announcement, there is a provision that "all illegal and criminal gains shall be recovered in accordance with the law. The stolen money and goods obtained by those detained in northern Myanmar shall be confiscated, and large real estate such as houses purchased (constructed) with stolen money shall be sealed up and confiscated in accordance with the law". Then, can the public security organs directly confiscate the illegal gains of suspect?

 

Firstly, what is' confiscation '?

 

Confiscation refers to the confiscation of property, which refers to the criminal punishment method in which the judicial authorities, in accordance with the relevant provisions of the Criminal Law, forcibly confiscate a portion or all of the personal property owned by criminals to the state for free. Confiscation of property is a type of property penalty stipulated in China's criminal law, which is relatively strict and generally only applicable to serious criminal acts. Obviously, the prerequisite for confiscation must be that the perpetrator has committed a crime and has been sentenced to punishment.

 

Secondly, who has the right to 'confiscate'?

 

According to Article 12 of China's Criminal Procedure Law, no one can be determined guilty without a judgment by a people's court in accordance with the law. Therefore, no one, including the suspect, shall be convicted without the judgment of the people's court according to law.

 

Therefore, the public security organ directly confiscates the property of the suspect suspected of telecommunications fraud without the judgment of the people's court according to law, which is obviously beyond its authority. The correct approach should be to carry out criminal judicial assistance and police cooperation with foreign police authorities in accordance with the Extradition Law of the People's Republic of China, the Law of the People's Republic of China on International Judicial Assistance in Criminal Matters, international treaties concluded or acceded to by China, bilateral and multilateral cooperation agreements signed with relevant countries, or the principle of reciprocity and reciprocity, to extradite suspect detained abroad, According to the legal procedures stipulated in the Criminal Procedure Law, a criminal case shall be filed and investigated, and a criminal judgment for confiscation of property shall be made after trial by the court. The confiscation shall then be executed by the public security organs in accordance with the law.

5、 Can the public security organs jointly and severally investigate the legal liability of the suspect's immediate relatives?

 

Obviously, according to the principle of self responsibility under modern rule of law, a person can only bear legal responsibility for their own actions. Whoever commits a crime should bear criminal responsibility; The punishment only applies to the perpetrator himself, and cannot implicate the innocent. As Marx pointed out, for national law, the existence of a person refers to the existence of their actions. Therefore, it is obviously inappropriate for the local public security organ to impose many sanctions on the immediate family members of suspect who are not involved in telecommunications fraud activities in accordance with the provisions of the "announcement".

 

In response, Article 55 of the Criminal Law of China clearly stipulates that "confiscation of property is the confiscation of part or all of the personal property of the criminal." Property owned or due to the family members of the criminal shall not be confiscated. These all reflect the principle of self responsibility and opposition to collusion in China's criminal law, and are also determined by the essence of our socialist country and the purpose of socialist punishment.

 

In summary, the author believes that the original intention and purpose of the public security organs to crack down on telecommunications network fraud and crack down on cross-border illegal and criminal activities are good. In order to cope with the new type of online fraud crime, public security organs also need to timely launch some new effective measures to combat crime and deter criminals. However, while cracking down on crime, attention should also be paid to the protection of human rights, let alone the importance of attacking and harming innocent people.

 

Yes, fairness and justice not only need to be achieved, but also in a way that every common person can feel firsthand.