Lawyer Nan Fang:

My husband works as the general manager of a state-owned company in Guangdong. In November 2014, staff from the Provincial Commission for Discipline Inspection took my husband away from the company to assist in the investigation. On the third day of the investigation, my husband voluntarily confessed that he had taken advantage of his position and received a business kickback fee of 520000 yuan from Zhang San and Li Si in economic transactions. The Commission for Discipline Inspection was not aware of this situation beforehand, but the case has now reached the court. May I ask if my husband's behavior was voluntary surrender? If it was voluntary surrender, How many years may it take?

                                                  Ms. Chen from Foshan

Ms. Chen:

Hello, first of all, according to Article 67 (1) of the Criminal Law of the People's Republic of China, voluntary surrender requires two legal conditions: automatic surrender and truthful confession of one's crimes; According to the Opinions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Determination of Voluntary Surrender, Meritorious Service, and Other Sentencing Circumstances in Handling Cases of Duty Crimes, which were released on March 12, 2009, if the criminal did not voluntarily submit to the case, but truthfully confessed the crimes that the investigating authorities had not yet mastered, it shall be considered as voluntary surrender.

Your husband was taken away by the disciplinary commission and did not voluntarily submit to the relevant unit, so he did not voluntarily surrender. He did not have the legal conditions for voluntary surrender. However, during the investigation period, your husband voluntarily and truthfully confessed the criminal facts of accepting bribes that the investigating authority did not have. According to the above regulations, it should be recognized as voluntary surrender in accordance with the law.

Secondly, according to the provisions of the Criminal Law, criminals who voluntarily surrender can be given lighter or mitigated punishment. If your husband is found to have surrendered himself, he may be given a lighter or mitigated punishment;

According to the provisions of Articles 383, 385, and 386 of the Criminal Law, if a bribe of 520000 yuan is accepted without serious circumstances, the lighter punishment shall be considered within the range of 10 to 15 years of fixed-term imprisonment; The reduction of punishment is considered within the range of 5 to 10 years of imprisonment, and the sentencing is considered comprehensively.

 

Should the perpetrator bear criminal responsibility for carrying drugs out of the country without their knowledge?

 

Lawyer Nan Fang:

My younger brother joined a Dongguan badminton club in 2013. In January 2015, at the invitation of a foreign badminton club, he went abroad to participate in a friendly match. At a domestic airport, the coach of the Dongguan badminton club handed over six suitcases to my younger brother and other members of the club, saying they were souvenirs for the foreign club members. When asked what they were, the coach said it was foreign wine and opened the suitcases in person, From the outer packaging of the wine, it seems that it is indeed foreign wine. Therefore, my brother and other members believed it and did not open the outer packaging of the wine to carefully inspect it. Each person carried a suitcase to check in for going abroad. However, during security checks, it was found that each suitcase contained drugs, totaling 2 kilograms. Now, the coach, my brother, and other members have been criminally detained on suspicion of drug smuggling. May I ask if my brother bears criminal responsibility in this situation?

                                                   Mr. Wang from Dongguan

Mr. Wang:

Hello, according to Article 347 of the Criminal Law of the People's Republic of China, the crime of smuggling drugs is subjectively committed with direct intent, requiring the perpetrator to knowingly or reasonably know that the smuggled goods are drugs and engage in smuggling; Objectively, the perpetrator has committed acts of violating drug control and customs regulations, evading customs supervision, and illegally transporting, carrying, or mailing drugs into or out of the country (border).

According to the above regulations, although your brother and members of other clubs were found to have drugs in their luggage during airport security checks, they did not know beforehand and mistakenly thought it was foreign wine, which was carried by the coach. Fortunately, the coach was also arrested at the same time, and other members who were arrested together could also confirm this fact. Therefore, your brother does not constitute a drug smuggling crime and does not need to bear criminal responsibility, The investigation agency will release your friends and other members who do not know the truth in accordance with the law after discovering the truth.

However, it is also important to remind your younger brother to be highly cautious when carrying items into or out of the country (border) for others. It is necessary to ask clearly what the items are and whether there are any illegal or prohibited items such as drugs. It is also necessary to open them in person and carefully inspect them. At the same time, it is necessary to have a comprehensive understanding of the contact information of the entrusted carrying friends, and to keep the identification materials of the principal, Evidence entrusted by a friend to be kept (such as text messages, WeChat, emails, or taking a group photo to prove it), etc. Otherwise, if it is found that drugs or other prohibited items are hidden inside the items carried by others when entering or leaving the country (border), if the perpetrator cannot provide a reasonable explanation and the investigating authority has no way to identify the source of drugs and other prohibited items, the perpetrator may still be held criminally responsible.

 

What kind of leniency can be given to the suspect after he has beaten the victim into a minor injury?

 

Lawyer Nan Fang:

My boyfriend is in the restaurant business. In January 2015, a customer said after dinner that the fish was not fresh and not only didn't pay for it, but also caused a scene in the restaurant. They demanded compensation for his medical expenses, work delay expenses, mental damage expenses, and so on. In a dispute, my boyfriend pushed him to the ground. In a fit of anger, he hit this customer, who was taken to the hospital and reported to the police. After being diagnosed with minor injuries by the forensic examination, my boyfriend has never been criminally punished before and is now being criminally detained for fighting, I am very worried about him. I heard that this situation can lead to a criminal settlement with the victim. After the settlement, my boyfriend may not be held criminally responsible. What is a criminal settlement and what kind of leniency can my boyfriend receive after the settlement?

                                                  Miss Zhang from Zhuhai

 

Miss Zhang:

Hello, criminal reconciliation means that in the process of criminal proceedings, after the suspect and the defendant have obtained the victim's understanding through sincere repentance, apology, compensation for losses and other means, the national specialized agency will give leniency to the suspect and the defendant, or will not pursue their criminal responsibility. Its purpose is to resolve conflicts to the maximum extent and repair the social relations damaged by the crime, Achieve good legal and social effects.

According to the provisions of the Criminal Procedure Law of the People's Republic of China, criminal reconciliation is applicable to intentional criminal cases caused by civil disputes, suspected of infringing on citizens' personal and democratic rights, property infringement crimes, and may be sentenced to fixed-term imprisonment of not more than three years, as well as negligent criminal cases that may be sentenced to fixed-term imprisonment of not more than seven years, except for dereliction of duty crimes. If the suspect or defendant has committed an intentional crime within five years, criminal reconciliation is not applicable.

Your boyfriend engaged in a dispute with a customer during the business process and caused minor injuries to the customer, which is an intentional criminal case caused by a civil dispute and may result in a sentence of up to three years in prison. He has not previously received criminal punishment and meets the conditions for criminal reconciliation. If your boyfriend and the victim reach a settlement agreement and fulfill their agreed obligations such as compensation, the public security organs may propose lenient treatment to the People's Procuratorate, and the People's Procuratorate may propose lenient punishment to the People's Court; For those whose criminal circumstances are minor and do not require punishment, a decision not to prosecute may be made, and the people's court may impose lenient punishment on your boyfriend in accordance with the law. The lenient treatment here includes leniency, mitigation, or exemption from punishment. That is to say, after the criminal settlement between your boyfriend and the injured customer, you can receive a lighter or mitigated punishment in accordance with the law. If the circumstances are minor, you may not be held criminally responsible.

(Lawyer Nan Fang from Guangdong Legal Shengbang Law Firm)