Under normal circumstances, surrender is not necessarily related to the death penalty. However, the determination of surrender in this case played a vital role in the application of the death penalty. It was precisely because of the determination of surrender in the second instance of this case that the plaintiff’s young life was continued.

1. The case

The case was a series of gang thefts concluded in 1996. There were as many as 70 owners. The amount involved was huge and the social impact was great. A theft case on March 18, 1996 brought the suspect Jiao into the eyes of the public security organs. On March 27, the district bureau of a certain city’s public security bureau summoned Jiao with Li, Cao, and Fan who were gathering. When the bureau conducted interrogation, on March 28, Jiao first confessed the fact that the four people had stolen many times, and later Li and Fan also successively confessed the criminal facts of group theft. Cao absconded from the bureau in the early morning of March 29. In order to capture Cao, the public security agency summoned Cao’s mother, Jia, and said that Cao had been arrested, and that Jia knew of Cao’s whereabouts, but did not explain to the public security organs, nor did they persuade Cao to surrender and call him. The behavior constituted a crime. Only by truthfully clarifying the problem, can the government give a lenient treatment. Later, Jia confessed the fact that Cao was hiding in the home of his relatives in other places. When the public security personnel explained that he had not captured Cao, Jia He denied the facts he had confessed. Under the investigators’ policy and psychological guidance, Jia finally chose to lead the public security personnel to his relatives in other places. Out of his mother’s instinct, Jia did not directly lead the public security personnel upstairs to capture Cao. Instead, he told Cao to escape loudly downstairs. After hearing this, Cao hid in a closet. After the public security personnel worked patiently, Jia finally informed the public security personnel of the floor and house number of Cao’s hiding place, so that the public security organs Can successfully capture Cao. On April 24, all four were brought to justice. On May 4, they were arrested with the approval of the People’s Procuratorate of the city’s jurisdiction. On May 5, they were arrested by the District Bureau of the Municipal Public Security Bureau. The branch was transferred to the Municipal People’s Procuratorate for review on July 3. After the prosecution was reviewed, the city prosecutor filed a public prosecution with the Municipal Intermediate People’s Court on August 1. The first instance found that: Defendant Li participated in 47 joint thefts and 2 separate thefts. The total value of the stolen property was 126,403 yuan and a total of 41,237 yuan was obtained. The defendant Cao participated in 28 joint thefts and the total value of the stolen property was 85,613 yuan. A total of 28,030 yuan was obtained in stolen money; the defendant Jiao participated in 24 joint thefts and 13 cases were committed individually. The total value of the theft was 84,394 yuan, and a total of 24,620 yuan was obtained. The stolen money was 10,000 yuan and a motorcycle was withdrawn; the defendant Fan participated in the joint theft. There were 18 cases of theft, the total value of the theft was 48,062 yuan, and a total of 16,395 yuan was obtained. It is believed that the four defendants colluded with each other and stole other people's property on a large scale, and their actions constituted the crime of theft. He believes that Cao’s theft of other people’s property was extremely large and the circumstances were extremely serious. He played a major role in the joint crime. He was the principal offender. Although his mother could send her son to justice, Cao’s crime was particularly serious and the social impact was extremely bad, and should not be given a lighter punishment. In this case, the author served as Cao's defender. In the first instance, it was proposed that: First, Cao should be treated as a surrender; second, the main stolen goods stolen by Cao have been recovered, and all the stolen money has been withdrawn. The court of first instance did not adopt the defender's opinion. Although the first-instance judgment held that “the defendant Cao’s mother could still send her son to justice”, it did not determine the circumstances of Cao’s surrender or the circumstances of Cao’s family returning all the stolen goods at Cao’s initiative. The unexecuted sentence was concurrently punished, and it was decided to sentence the defendant Cao to death, depriving him of political rights for life. Defendant Cao appealed to the Provincial High Court on October 7 on the grounds of unclear facts found in the first-instance judgment, wrong order of defendants, and heavy sentencing. The author supported Cao's appeal and served as his second-instance defender. In the second trial, the author reiterated the plot of Cao's surrender and the fact that he actively returned all the stolen goods. Through second-instance defense efforts, the second-instance court finally recognized Cao's special form of surrender in accordance with the law, and pragmatically identified the fact that Cao took the initiative to return all the stolen goods, which was not recognized in the first-instance judgment, and sentenced Cao to the unexecuted penalty for the previous crime. The death penalty shall be suspended for two years, depriving of political rights for life.

In this case, it was Cao’s surrender that had a decisive influence on the judgment of the court of second instance. The court of first instance did not recognize Cao’s surrender and sentenced him to death. The court of second instance was the basis for determining the statutory mitigation of Cao’s surrender. In the above, Cao was given a final judgment with a two-year suspension of death sentence. From the immediate execution of the death sentence in the first instance of the Municipal Intermediate Court to the two-year suspension of the death sentence in the second instance of the Provincial High Court, the life and death of the offender depended on the court's understanding of whether the case could be considered surrender. It was also in this case that the determination of surrender was closely related to the application of the death penalty.

2. The determination of surrender

The determination of surrender is one of the most controversial issues in current criminal justice practice. Since there are still many different opinions on the establishment requirements of surrender, and the establishment of surrender must be based on the establishment requirements of surrender, it has led to many different understandings in the process of surrendering, and different people may make different judgments on the same fact. . Therefore, in order to solve the problem of the determination of surrender, we must first solve the problem of the establishment of surrender.

(1) Requirements for the establishment of surrender

Regarding the requirements for the establishment of surrender, China’s 1979 Criminal Law did not deal with it, but only provided for the handling of surrender after a crime. In response to this situation, in 1984, the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security jointly issued the The Answers to the Specific Application of Laws to Surrender and Related Questions (hereinafter referred to as the “Answers”) clearly stipulate the requirements for the establishment of surrenders. China’s 1997 Criminal Law did not directly deal with the requirements for the establishment of surrender, but it clearly stated the concept of surrender. Because the definition of the concept of surrender is based on the requirements for the establishment of surrender, the provisions of the 1997 Criminal Law on the concept of surrender are essentially Implied the establishment requirements of surrender. In 1998, the Supreme People's Court's "Interpretation on the Handling of Several Issues Concerning the Specific Application of Laws of Surrender and Meritorious Merit" (hereinafter referred to as the "Interpretation") also had a certain impact on the establishment of surrender. At present, the research and understanding of the criminal law theory circle and the criminal justice circle on the requirements of surrender is based on these three legal documents.

The "Answer" stipulates that in judicial practice, after committing a crime, criminals who have the three conditions of voluntarily surrendering the crime, truthfully confessing their crimes, and accepting review and judgment are considered to be surrendering. This is the source of the "three essentials". The 1997 Criminal Law seems to deny this understanding. Article 66 of the new Criminal Law stipulates that: after committing a crime, surrender automatically and confess your crime truthfully is to surrender. Therefore, to establish a surrender, you only need to have the two requirements of automatic surrender and truthful confession of your crime. This is the "two requirements theory." Immediately afterwards, a provision in the "Interpretation" seemed to return to the "three essentials theory". The "Interpretation" stipulates that a criminal suspect who voluntarily surrendered and then escaped shall not be deemed to have surrendered. Needless to say, the purpose of fleeing is to evade the state's review and judgment, in order to evade the state's penalties. In other words, if a criminal suspect voluntarily surrenders to the crime after committing a crime, truthfully confessed his crime, and then fled in order to evade review and refereeing, it is not allowed to surrender. Therefore, it is believed that accepting the review and judgment of the country should be one of the elements for the establishment of surrender. At present, most of the criminal law theorists and criminal justice circles have failed to circumvent these three legal documents, mainly focusing on the "three essentials" or the "two essentials." Some scholars also put forward the "one requirement" saying that only one condition is needed to determine that a criminal suspect has surrendered. This kind of formulation actually involves the essence of surrender, because only the essence of surrender can accurately reveal the intrinsic properties of surrender, and guarantee that an act of surrender is established when it possesses this intrinsic property. In fact, the reason for the disagreement on whether surrender must have the "three essentials" or the "two essentials" is because the understanding of the essentials of surrender is too dependent on the current legal provisions, and it is out of the essential meaning of surrender. The author believes that only by correctly understanding the essence of surrender, can the establishment of surrender be determined correctly, and then surrender can be correctly recognized.

(2) The nature of surrender

Surrender is an act of criminals after committing a crime. Regarding the nature of surrender, there are three views in China's criminal law circles: The first view is that the essence of surrender is repentance, which is the motivation for voluntary surrender and truthful confession of crime, and surrender and confession of crime are manifestations of repentance; According to this view, automatic surrender is the essential condition for surrender. The essence of automatic surrender is that the act of surrender is the offender’s original intention. Therefore, the essence of surrender is that the offender commits himself to the state for prosecution after committing the crime; This view believes that surrendering is a positive behavior after the criminal commits a crime. The criminal who surrenders has realized that his behavior is illegal and punished, and thus realizes that his criminal behavior is contrary to the current ruling order. , And then automatically surrender and confess the crime.

The nature of the first view and the third view is the same. Both emphasize the motive of surrendering and surrender to the crime, and impose excessive demands on the subjective perception of the offender. In judicial practice, the motives for criminal suspects to surrender are diverse and complicated. Some are out of sincere repentance and repentance; some are frightened by the majesty of the law and strive for leniency; some are under the persuasion and pressure of relatives and friends. Reluctantly surrendered; there are also long-term flight, lack of food and clothing, and desperation. If an excessively high threshold is set for the subjective motives of criminals surrendering themselves, the result must be to cut off the way for a large number of potential surrenders to surrender, which is not conducive to the fight against crime, is not conducive to the formation of criminal deterrence, and ultimately will be detrimental to the criminal law Play the role of crime prevention. The second point of view emphasizes the automatic surrender, which is feasible in the case of surrender in general, but not feasible in the case of surrender. The nature of automatic surrender is not enough to cover all surrenders.

The author believes that the most essential difference between the act of surrendering and other acts of criminals is that it is an act of criminals willing to take the initiative to bear criminal responsibility. On the one hand, this essence can be applied to all kinds of surrenders; on the other hand, this essence does not emphasize the motives of the offender, and can open the door to potential surrenders to the greatest extent. At the same time, it can also pass the judge's specific sentencing range. Grasp, to maximize the realization of the penalty purpose of punishing and preventing crimes. Surrendering is a process. Whether it is the offender's voluntary surrender after committing a crime, the truthful confession after returning to the case, or the act of actively accepting national review and refereeing, it shows the initiative of the offender in the process of surrendering. Mutual confirmation is a manifestation of the offender's willingness to take the initiative to bear criminal responsibility. Among them, actively accepting the state's review and judgment is the most direct and full manifestation of the criminal suspect's initiative to assume criminal responsibility, and is an indispensable element for the establishment of surrender; the truthful confession after returning to the case is to actively accept the state's review and judgment It directly reflects that if he does not truthfully confess his criminal behavior after he is brought to the case, it is difficult to say that the offender has the sincerity and initiative to accept the state review and judgment. Therefore, the truthful confession after the case should also be one of the requirements for surrender; The behavior of automatic surrender is exactly the difficulty of the determination of surrender (because automatic surrender is not a requirement for surrender, therefore, the requirements for the establishment of surrender mentioned below all refer to the establishment requirements for general surrender). The author believes that, on the one hand, because automatic surrender reflects the offender’s initiative to assume criminal responsibility after committing a crime, it should not be excluded from the establishment of surrender; on the other hand, since surrender is a process that includes automatic surrender At the stages of confession of crime, acceptance of review and judgment, the offender’s actions at all stages can reflect his initiative to assume criminal responsibility. The initiative to assume criminal responsibility at the automatic surrender stage does not mean that the offender assumes criminal responsibility at all stages after the crime. The initiative of the offender cannot be denied because the offender’s initiative in the automatic surrender stage is not sufficient to deny the offender’s initiative in other stages, because the initiative of each stage is mutually corroborated, and traditional views often overemphasize that the offender is in the automatic surrender stage. Therefore, the requirement for the initiative of criminals to surrender automatically should be reduced. Therefore, according to the nature of surrender, the requirements for the establishment of surrender should still adhere to the "three essentials", but the requirement for the initiative of the offender to automatically surrender after the crime should be reduced, as long as the offender has a certain degree of initiative in the automatic surrender. It can be determined that the offender has surrendered if he is active in the other two stages (that is, meets the other two requirements). The degree of initiative of the offender at the stage of automatic surrender is the basis for the judge to grasp the range of sentencing. In other words, in the link of surrender, the stronger the offender’s initiative, the greater the range of lenient, and vice versa.

Surrender can be divided into general surrender, quasi surrender and special surrender. Quasi-surrender is a surrender established when a criminal has taken compulsory measures. The purpose is to maximize the criminal's cooperation with the investigative agency. The special surrender is established by the state to punish certain crimes that seriously endanger the ruling order. my country's special surrender provisions are included in the crime of bribery, bribery, and introduction of bribery to corporate personnel. In addition to these surrenders, in order to win the cooperation of the perpetrator's relatives and friends, my country also stipulates that "sending children to justice" is treated as surrender in the "Answer" and "Interpretation". This kind of surrender in the automatic surrender phase places more emphasis on the initiative of the offender’s relatives and friends. In contrast, the offender’s own initiative is not so important and can even be ignored. The above cases are largely centered on the initiative of the offender and his relatives and friends in the process of "sending their children to justice".

Three) The determination of surrender in this case

The difficulty and key of this case is the determination of Cao's surrender. There are two circumstances that affected the judge’s decision to surrender: First, Cao’s mother, Jia, was forced to confess her knowledge of Cao’s hiding place after the public security organs adopted investigative methods, and tried to lead the public security officers to capture Cao. Cao was notified to escape, and finally, after the public security personnel worked patiently, Jia gave the floor and house number of Cao’s hiding place, so that the public security organs could capture Cao. In this case, can it be determined that Cao established "send son to justice" "Type surrender? Second, if Cao had absconded in the process of being summoned by the public security organs, could his subsequent behaviors be a "send son to justice" surrender?

Regarding the first situation. The first situation is essentially the initiative of the offender and his relatives and friends. The two trials of this case took place in 1996. At that time, the legal provisions on surrender were China’s 1979 Criminal Law and the 1984 Supreme People’s Court, Supreme People’s Procuratorate, and the Ministry of Public Security. (Ie "Answer"), among them, "Answer" defines "send children or relatives and friends to justice", pointing out that "sending children or relatives and friends to justice" is generally not out of the initiative of criminals, but is accompanied by parents, relatives and friends. Surrendered. Regardless of whether it is after the public security organ notifies the offender’s parents, or after the parents or guardians take the initiative to report the crime, the offender is sent to justice, as long as he can truthfully explain the crime and accept the review and judgment of the judicial authority, he should be treated as a surrender. Based on this, let's first look at the initiative of the offender in the “send children or relatives and friends to justice” type of surrender. The methods of surrender involved in the "Answer" include two types of surrender accompanied by relatives and friends, and two types of surrender. Under the surrender method accompanied by friends and relatives, the offender still has a certain idea of voluntarily surrendering under the persuasion of relatives and friends. Under the circumstances, the offender is completely passive, and it is the relatives and friends of the criminal who have the initiative. At the same time, under the influence of the thought of "getting the first concealed by relatives" and the legal consciousness of the offender’s relatives and friends, the law cannot impose excessive demands on the offender’s relatives and friends, as long as the offender’s relatives and friends are in the process of the offender’s return. Subjectively showing a certain degree of initiative, and objectively producing the result of bringing the criminal to justice, the key is that the criminal can truthfully explain the crime and accept the review and judgment of the judicial authority.

In this case, let’s first look at the initiative of Cao’s mother Jia during the arrest of Cao by the public security organs (that is, Cao’s return). Jia's initiative in the process of Cao's return was manifested in two aspects: First, Jia took the initiative to lead public security personnel to the downstairs of Cao's hiding place in Xinxiang. Although this behavior was made under the policy and psychological guidance of the public security personnel, Jia has the right to choose whether to make this behavior and choose to lead the public security personnel. This is one of Jia’s initiative. Second, Jia took the initiative to inform the public security personnel of the floor and house number of Cao’s hiding place. Although Jia took unwise measures when leading the public security personnel downstairs to Cao’s hideout, after the public security personnel worked patiently, he still chose to inform the public security organs so that the public security personnel could Successfully captured Cao without any hassle, this is the second manifestation of Jia's initiative. Although in the process of arresting Cao, Jia made certain acts of resistance instead of fully actively cooperating with the public security organs. However, the fact that the result of the arrest of Cao was based on Jia's initiative cannot be denied, because the public security organs do not. Know the exact location of Cao's hiding. Let's look at Cao's initiative. When Jia yelled to tell Cao to escape, Cao did not take the initiative to surrender to the public security personnel. Instead, he hid in a large cabinet in the house and was later searched and captured by the public security personnel. It can be said that at this stage, Cao did not act. Any initiative. Since the surrender of "sending children to justice" does not require the perpetrator to surrender automatically, Cao's behavior in this case should not affect his determination of surrender. In addition, in the first case, there was another situation that affected the determination of Cao's surrender.

Cao was arrested by public security personnel led by Jia, which did not conform to the way the criminals were brought to justice in the "Answer". So, can Cao not surrender himself? The author believes that although the "Answer" stipulates the method of sending children or relatives and friends to justice, this expression is not intended to limit the method of bringing the criminals back to justice. That is to say, the "send children or relatives and friends to justice" type of surrender can be established regardless of the method adopted by relatives and friends to bring the criminal to justice, as long as they can truthfully explain the crime after being controlled by the public security organ and accept the review and judgment of the judicial organ Surrender. In this case, strictly speaking, the way that Jia and the public security officers arrested Cao did not conform to the method of criminals who surrendered their children or relatives and friends as described in the "Answer". Relatives and friends were sent to justice, but in essence, the way that Jia leads public security personnel to Cao’s hiding place and captures him is the same as when he was sent to justice by relatives and friends. On the one hand, the public security organs did not control Cao’s hiding place. Jia told the public security organs about the exact location, and led the police to find and arrest Cao. On the other hand, Cao had a leg injury at the time, and his mother’s choice of this method is also excusable. After returning to the case, Cao truthfully confessed all the criminal facts of his involvement in the theft, and expressed his willingness to accept the review and judgment of the judicial organs with actual actions. Therefore, in this case, Jia Mou led the public security personnel to arrest Cao Mou’s behavior, which is a “send "Son to the case", Cao should surrender.

Due to different perceptions of the initiative of the offender and his relatives and friends in "sending children or relatives and friends to justice", the court of first instance has different opinions on whether Cao should be surrendered. Both Mou and Cao lacked initiative and should not surrender. After deliberations by the collegiate panel and discussion by the adjudication committee, the court of first instance determined that Jia had "sent his son to his case", but did not believe that Cao had surrendered. The court of second instance further confirmed Cao's surrender on the basis of the fact that the court of first instance found the "sent to the case". The reason why the courts of the two instances made different determinations on the same fact is that the different perceptions of the offenders and their relatives and friends in the case of "sending children or relatives and friends to justice" within the courts and judges are only one reason, and there is another reason. That is the second situation in this case that affected the judge's decision to surrender.

Regarding the second situation. In this case, before being captured by public security officers led by his mother Jia, Cao absconded while being summoned for interrogation by the public security organs. Under this circumstance, can Cao still form a "send son to justice" type of surrender? Both the author's defense and the court's second-instance judgment gave a positive answer. The main reason for the disagreement is the "Answer"'s provisions on automatic surrender. The "Answer" stipulates that: automatic surrender usually refers to the fact that the criminal fact or the criminal has not been discovered by the judicial authority, or although the criminal has been discovered, the criminal has not yet been interrogated and has not been subject to coercive measures. According to this provision, Cao absconded during the process of being summoned to the public security organ for interrogation. It seems that he could no longer surrender himself. However, it should also be clear that Cao’s absconding behavior and Jia’s “sending his son to justice” were in the hands of different people. It is done by different people under the control of the will and is independent of each other. Therefore, Cao’s absconding behavior during the interrogation process cannot deny his mother Jia’s behavior of “sending her son to justice”. Of course, it cannot be because of Cao and his mother. Jia's subsequent behavior denies Cao's previous absconding behavior. In this case, Jia led the public security personnel to arrest Cao and completed his act of "sending his son to justice." After Cao was brought to justice, he truthfully confessed the crime and actively accepted the state's review and judgment. This process is completely in line with " However, Cao had absconded before being sent to justice, which is not exactly the same as the surrender of “sending children to justice” under normal circumstances. Therefore, the court of second instance in this case is fully considering this situation. Under the circumstances, it was determined that Cao established a special form of surrender. This determination is a further expanded understanding of the "send children to justice" type of surrender. It is the result of judges starting from the essence of surrendering and fully using their discretionary power.

In summary, after fully considering the above two circumstances, the judge determined that Cao established a special form of surrender. To some extent, this determination has exceeded the traditional meaning of surrender and the scope defined by the constituent elements. This breakthrough was largely caused by the positive effect of identifying Cao as surrendering himself.

(4) The positive effect of surrendering in this case

In this case, Cao was identified as a special form of surrender, which can produce positive effects in politics, law and society.

1. Political effects

It is determined that the surrendering plot of "sending the son to justice" in this case can play a role in implementing my country's criminal policy of combining punishment and leniency on the one hand, and on the other hand, it is also conducive to maintaining social stability.

First, the purpose of setting up the surrender system is to provide corresponding leniency to criminals who have surrendered on the basis of insisting on accepting criminals, and to achieve an organic combination of punishment and leniency. Compared with other surrenders, the "Answers" stipulates that surrenders should be established in the case of "sending their sons to justice", which reduces the requirement for the offender's initiative. The criminals can also surrender if they are completely passive, as long as they are sent to justice. The offender’s relatives and friends have the initiative. This is a concrete manifestation of the leniency policy in China’s criminal policy that combines punishment and leniency. The determination of Cao’s surrender in this case further relaxes the conditions stipulated in the Answer. Lowering the requirement for the initiative of the criminals’ relatives and friends to "send their sons to justice" is a further implementation of the leniency policy. Although China has been adhering to Confucianism for thousands of years and has been pursuing the lenient and mitigation of penalties, the current penal setting in our country is still "more than punishment" and "less than lenient." The ratio of punishment and lenient in penalty discretion is still very unbalanced. Therefore, At present, the key to implementing the criminal policy that combines punishment and leniency lies in the implementation of the leniency policy. The determination of Cao’s surrender in this case is based on leniency, and the result of combining punishment with leniency can promote the real implementation of my country's criminal policy of combining punishment with leniency.

Second, in this case, Cao was arrested by public security officers led by his mother Jia, and then truthfully confessed to the crime, and actively accepted the state's review and judgment with actions. All links confirmed each other. Cao demonstrated throughout the process The initiative to assume criminal responsibility is in line with the nature of surrender. If Cao is not recognized as surrendering his children or relatives and friends just because his behavior is not strictly in accordance with the "Answers" requirements for "sending children or relatives and friends to justice," it will inevitably lead to Unfair treatment causes it to form social hatred and increases the difficulty of transformation. At the same time, it also increases social instability, which will ultimately be detrimental to social stability and harmony. Therefore, if Cao established his surrender, objectively, he can achieve the effect of maintaining social stability.

2. Legal effect

The legal effect of this case mainly refers to the legal effect of surrendering under the circumstances of "sending children or relatives and friends to court", which is manifested in two aspects: one is the role of penalty theory; the other is the role of criminal justice.

First, the effect of "sending sons to justice" type of surrender to criminal law theory is mainly reflected in the ability to more fully realize the purpose of punishment. The direct purpose of penalties is to punish crimes, provide justice, deter criminals and social instability, suppress criminal ideas, reform criminals, and make them consciously abide by the socialist legal order. According to this, the purpose of punishment can be summarized as: punishing crimes, preventing crimes, and reforming criminals. First, the surrender system legalizes the transfer of interests made by the ruler, so that criminals can anticipate the results of their surrender behavior, and generate huge interest temptations for them, which is conducive to internal differentiation and disintegration of criminal forces. Objectively shortening the implementation time of penalties can ensure the timeliness of the punishment of crimes, establish the deterrence of penalties, and realize the preventive effect of crimes. The "send sons to justice" type of surrender can make it impossible for the criminal to surrender through the intervention of the offender’s relatives and friends, with the help of the irreplaceable influence of relatives and friends, and can also reduce the criminal’s ideological struggle and get rid of the ideological burden as soon as possible. Greatly shorten the time for the offender to surrender after committing the crime, thereby further shortening the time for the realization of the penalty, ensuring that the punishment of the crime is more timely, and further establishing the deterrence of the penalty, thereby enhancing the crime prevention effect. Therefore, the provision of "sending one's son to justice" type of surrender can ensure that the purpose of punishment and crime prevention is more fully realized. Secondly, the "send children to justice" type of surrender can more effectively achieve the purpose of reforming criminals. The surrender system enables the realization of the purpose of the penalty to a certain extent due to the surrender of the offender and extends to the stage after the implementation of the criminal act and before the conviction and sentencing, thus prompting the criminal's self-reformation to begin earlier. The "send sons to justice" type of surrender relies on the powerful influence of the offender’s relatives and friends, which not only enables the criminal’s self-reform thoughts to be formed earlier, but also strengthens the criminal’s belief in self-reform. The indoctrination of people's thoughts makes it more effective to reform themselves in the penalty execution stage.

Second, the effect of "sending sons to justice" type of surrender to criminal justice is mainly reflected in its impact on the effectiveness of criminal justice. The surrender established in the case of "sending the child to the court", due to the involvement of the offender’s relatives and friends, on the one hand, it can prompt the offender without surrendering thoughts to produce surrender thoughts and prompt them to act, which can greatly shorten the criminal from committing a crime to surrendering. This saves investigative agencies a lot of manpower, material and financial resources, reduces the difficulty of investigative agencies to solve cases, increases the rate of detection, reduces the number of hidden cases, reduces the workload of fighting crime, reduces judicial costs, improves judicial efficiency, and enhances criminal justice benefit. On the other hand, surrendering in this situation can more effectively achieve the penalty purpose of reforming criminals, thereby reducing the difficulty of reforming criminals, reducing the cost of reforming criminals by judicial organs, and enhancing criminal justice to a certain extent. Benefit effect.

3. Social effects

It is determined that Cao established a special form of surrender, and through the manifestation effect of typical cases, more parents, relatives and friends can be encouraged to send their children to justice in various ways. In judicial practice, there are not many cases in which relatives and friends of offenders send offenders to the public security organs based on the high spirits of righteousness and extermination. The reason why most relatives and friends of criminals are willing to "send their children to justice" is largely based on state The light commitment of this behavior is precisely because of this expectation that the perpetrator’s relatives and friends may break through the family relationship and choose to "send their sons to justice." Once this expectation falls, the radiation effect based on the case may be greatly reduced. The possibility that most relatives and friends of potential criminals will "send their sons to justice" will deprive the judiciary of the powerful alliance of the criminals' relatives and friends, and ultimately will not be conducive to effective crime fighting. Therefore, the determination of "sending children or relatives and friends to court" surrender should be loose but not tight. In this case, Li, Cao, Jiao, and Fan organized and committed more than 100 thefts in the urban area of the city from July 1994 to March 1996. The social impact is huge, and the case has a huge impact on publicity. While Cao’s mother, Jia, led the public security personnel to arrest Cao, although she did not cooperate enough with the public security organs in the arrest work, and the expectation of lenient statutory law was not obvious, her behavior after all reached the goal of “sending children”. If Jia’s behavior is not recognized as “sending his son to justice” and Cao’s surrender is not recognized, it will first cause Jia to doubt the applicability of the “sending child to justice” provision. Passing this case is huge In the end, it is possible for potential criminals’ relatives and friends to distrust the applicability of this regulation, and increase the probability of choosing the latter between sending and not sending. This is not conducive to the development of the work of the public security organs, and it is also not conducive to the work of the public security organs. Fight crime effectively. Therefore, in this case, the judge broke through the mechanical understanding of “send children or relatives and friends to the case” in the Answer, used discretion, proceeded from the nature of surrender, grasped the determination of surrender, and treated Cao as a special form of surrender. Being able to convey a good message to the public is conducive to psychologically fighting for most of the relatives and friends of potential criminals to become effective alliances for the judicial organs to fight crime, and can encourage more parents, relatives and friends to send their children to justice in various ways.

In this case, it affirmed Cao’s mother Jia’s behavior of "sending her son to justice" and determined that Cao’s surrender in a special form can play a positive role in politics, law, and society, but these effects are indirect. For Cao, the most direct impact is: the continuation of life. It was also in this case that the determination of surrender was closely related to the application of the death penalty.

3. Application of death penalty

The death penalty originated from the homomorphic revenge system of primitive society. With the development of social productive forces and the emergence of classes, the death penalty has existed in human society for thousands of years as a tool to protect private property ownership and maintain the dominant position. Development, driven by the world human rights movement and the theory of abolition of the death penalty, the abolition and restriction of the death penalty have become a general trend. At present, the total number of countries and regions that have actually abolished the death penalty in different ways has reached 123, while only 71 countries and regions have retained and enforced the death penalty. The ratio of countries that have abolished and retained the death penalty is close to 2:1. my country is one of the few countries that retain and enforce the death penalty. In China’s 1979 Criminal Law, there were 7 articles stipulating 28 death penalty charges, and then a separate criminal law was adopted, 40 death penalty charges were stipulated in 29 articles, a total of 68 death penalty charges, the criminal law revised in 1997 , 69 death penalty charges are stipulated in 42 articles. Except for Chapter 9 dereliction of duty, every chapter stipulates the death penalty charges. Although there are many crimes of death penalty in our country's criminal law, our country has always maintained a cautious attitude in the application of death penalty.

(1) Application of death penalty

Regarding the application of the death penalty, Article 43 of my country's Criminal Law of 1979 stipulates: The death penalty is only applicable to criminals who commit the most heinous crimes. Article 48 of the Criminal Law of 1997 stipulates that the death penalty is only applicable to criminals with extremely serious crimes. Therefore, the application of the death penalty requires both subjective and objective conditions: first, the criminal act has extremely serious social harm in the objective aspect; second, the offender has extremely serious subjective malignancy in the subjective aspect. The death penalty can only be applied if these two conditions are met at the same time. For those that do not have to be executed immediately, the death penalty may be imposed and the execution suspended for two years.

Due to China’s large population base, poor social security and many serious crimes, it is necessary to retain the death penalty at present, but China has always been cautious about the application of the death penalty. This is the only way to create a system of suspended execution of the death penalty. The death penalty is clearly defined for the people who are not applicable to the death penalty. At the same time, China has also made active efforts to reduce the death penalty. For example, the 1997 Criminal Law basically abolished the death penalty for the crime of theft, and only retained the death penalty for theft of financial institutions and precious cultural relics. , And before 1997, many cases were sentenced to death for ordinary theft, such as this case. The following describes the application of the death penalty in the crime of theft in my country.

(2) The application of the death penalty in the crime of larceny. The statutory maximum penalty for the crime of larceny in the Criminal Law of 1979 is life imprisonment. In 1982, the Standing Committee of the National People's Congress added a supplement to the crime of theft in the "Decision on Severe Punishment of Criminals Who Severely Destroy the Economy", stating that if the circumstances are particularly serious, they shall be sentenced to fixed-term imprisonment of more than ten years, life imprisonment or death, and may be confiscated. property. In 1984, the Supreme People’s Court and the Supreme People’s Procuratorate "Answers to Several Questions Concerning the Specific Application of Laws in the Current Handling of Theft Cases" (hereinafter referred to as "Theft Answers") also explained the decision of the Standing Committee of the National People's Congress: First, the plot Particularly serious means that the amount of property stolen is extremely large, and at the same time, there are other extremely serious circumstances. Second, it lists other particularly serious circumstances, including: major theft of the chief elements of a group; theft of bank vaults, national precious cultural relics, and disaster relief funds and materials; theft of urgently needed production materials, severely hindering production and construction or causing other serious Loss; theft of money and property urgently needed for life and medical treatment, causing serious consequences; theft of property of foreigners, overseas Chinese, Hong Kong and Macao compatriots, causing foreign negotiations or causing bad political influence, etc. Third, it pointed out that the amount of the death penalty applies to the crime of theft: if the amount of public or private property stolen by an individual exceeds 30,000 yuan, the death penalty shall be imposed in accordance with the law. Individuals who steal public or private property from more than 10,000 yuan but less than 30,000 yuan, the circumstances are particularly serious; the chief element of the theft group, who has a bad circumstance, has serious consequences, or fails to correct it after repeated instruction, shall be sentenced to life imprisonment or death according to law. Although these legal documents have made various provisions on the application of the death penalty in the crime of theft, the legislator’s intention is not to restrict the application of the death penalty in the crime of theft. Therefore, in judicial practice, cases of the death penalty for the crime of theft are still In many cases, it was not until the 1997 revision of the Criminal Law that the application of the death penalty in the crime of theft was restricted, and the number of death sentences for theft was reduced. Article 264 of the Criminal Law of 1997 stipulates that only for the theft of financial institutions, particularly large amounts and the theft of precious cultural relics, and the circumstances are serious, can the life imprisonment or the death penalty be applied, and the punishment of confiscation of property shall be imposed. If these two situations do not exist, The legal maximum sentence can only be life imprisonment, and the amount is no longer the basis for the death penalty.

The trial of this case took place in 1996 before the revision of the Criminal Law. According to the laws at the time, due to the huge amount of theft by Cao and the extremely bad social impact, it also coincided with the second “strike” nationwide. In addition, the death penalty was not applied to the crime of theft at that time. In addition, the court of first instance sentenced Cao to the death penalty to be executed immediately. In the second instance, the Henan Provincial Higher People's Court adopted the author's defense opinions and revised Cao's sentence and sentenced Cao to death with a two-year suspension of execution. The following describes the application of the death penalty in this case.

(3) Application of death penalty in this case

The court of first instance held that the defendant Cao stolen other people’s property in a particularly large amount and the circumstances were particularly serious. He played a major role in the joint crime and was the principal offender. Although his mother could send her son to justice, Cao’s crime was particularly serious and the social impact was extremely bad. There should be no lighter punishment. Accordingly, Cao was sentenced to death and deprived of political rights for life. The court of second instance held that the defendant Cao had a particularly large amount of theft and the circumstances were particularly serious. He was the principal offender of the case and should be punished severely. However, Cao had surrendered and voluntarily withdrew all the stolen money and goods after he was brought back to the case. It can be seen that the first-instance and second-instance courts have the same determination of Cao’s criminal acts and circumstances, and both held that “the amount of Cao’s theft was extremely large and the circumstances were particularly serious”, which is the prerequisite for applying the death penalty to Cao; the legal basis is the Supreme People’s Court The Supreme People’s Procuratorate’s "Theft Answers" and the "Theft Answers" on the amount of the death penalty for the crime of theft pointed out that the amount of public and private property stolen by individuals is more than 10,000 yuan but less than 30,000 yuan. If the circumstances are particularly serious, it shall be sentenced to life according to law. Imprisonment or death penalty. In this case, Cao received a total of 28,030 yuan in stolen money, which is close to the upper limit of 30,000 yuan in this case, and he has committed 28 consecutive crimes in one and a half years, with an average of three crimes in two months. The circumstances are indeed particularly serious. . Therefore, the courts of the two instances have the same opinion on Cao's application of the death penalty. The difference lies in whether Cao needs to be executed immediately, that is, whether Cao is a question of "can be killed or not", it is Cao's decision Whether the circumstance of surrendering and returning the stolen goods can be determined Among them, the circumstance of Cao's automatic return of the stolen goods was based on the receipt of the official seal of the court of first instance. Therefore, the determination of the circumstance is not divided. The key to the dispute between the courts of the two instances about the way that Cao applies the death penalty is the determination of Cao's surrender.

1. The determination of surrender in this case and the application of death penalty

Although the court of first instance confirmed the fact that Cao's mother Jia had sent her son to justice, it believed that Cao's behavior had a very bad social impact, so it did not determine the circumstances of his surrender, and imposed the death penalty on him immediately. Ascertaining the fact that Cao's mother sent her son to court is affirmed as the first element of Cao's surrender. This element is the key to Cao's surrender. Why did Cao truthfully confess his crime and accept state review and judgment , In the case of meeting the other two requirements for surrendering, the circumstances of his surrender were not found, except for the inconsistency in the court’s internal understanding of the law based on the mechanical understanding of the law and the inconsistency in the initiative of Cao and his mother Jia in the process of sending their sons to justice. In addition to the reasons, social influence is the key reason why the judge did not recognize surrender and sentenced Cao to death. As long as the crime is sentenced to death, which one is not the one with extremely bad social influence? If Cao's surrender is denied because of the extremely bad social influence, the statutory circumstance of surrendering Cao can be applied with a suspended death sentence, so that he can be pushed to the execution ground, and the purpose of killing him to vent the anger of the people can be used to replace the need for the application of the death penalty. The absolute reason, the ultimate victim will be the dignity of the law. At the same time, the trial of this case coincided with the second "severe crackdown" in the country, and the criminal guiding ideology of "heavy in troubled times" was followed. The original death penalty slogan of "killable but not killed, do not kill" evolved into "killable but not killed, kill" , "In order not to indulge crime, we must kill more" and other heavy punishment ideological slogans. The general situation of "strike hard" has diluted the cautious attitude in the application of the death penalty. Instead, it has become an excuse for not applying the death penalty strictly in accordance with the applicable conditions in judicial practice. Not only has the scope of application of the death penalty been expanded by judicial personnel, but it has indeed been subject to judicial practice. The abuse was another important reason why the court of first instance sentenced Cao to death.

On the basis of rationally and responsibly considering the facts of the case and adopting the opinions of the defender, the court of second instance determined Cao's surrender and sentenced him to death and suspended execution for two years. There were two reasons. There are plots of surrender. Although it cannot deny the extremely serious subjective malignancy and social harm of Cao’s 28 crimes, it at least shows that his subjective malignancy has been reduced after the crime, and he is not a person who “must be executed immediately”. According to the international abolition of the death penalty This is one of the trends and the cautious use of the death penalty in our country. For criminals who "can be killed but not killed", we must firmly uphold the idea of "not killing". Second, the surrender plot is a statutory mitigation plot. For criminals who are sentenced to death, a reprieve shall apply when they have statutory or discretionary mitigating circumstances. This is a general theory in academic circles, and it is also a general practice in the judicial circle when applying the death penalty.

The key reason for the court of second instance sentenced Cao to death and proclaimed a two-year suspension of execution was Cao’s all circumstances of returning the stolen money and surrendering himself. In addition, there are some factors in this case that cannot directly determine the way the court applies the death penalty, but , Which mutually confirms the above two plots, can enhance Cao’s inability to kill, which is also a factor that the judge should consider.

2. Analysis of the necessity of applying death with reprieve for Cao

The immediate execution of the death penalty only applies to offenders whose crimes are extremely serious and require immediate execution. For crimes that are extremely serious but not necessarily immediate execution, the law provides for a two-year suspension of execution. The immediate execution of the death penalty is a deprivation of the criminal’s right to life. This deprivation is irreversible, so we must be cautious. Whether the offender must execute it immediately, it is necessary to proceed from the case and comprehensively consider multiple factors to determine. The following is a brief analysis of the necessity for Cao not to apply the death penalty for immediate execution, but for a two-year suspension of execution in this case.

First, Cao has never stolen alone. When committing a crime alone, from the formation of criminal intentions to preparing tools for committing crimes, stepping on points in advance, carrying out theft, and finally selling stolen goods, the offenders are all done by one person. The subjective evil is greater than the criminals of the gang. Of the 28 thefts that Cao participated in, they were all joint thefts. In this case, the third defendant Jiao participated in 24 joint thefts and committed 13 separate crimes. Although the number of joint thefts was less than that of Cao, the number of separate crimes was high, and no Compared with Cao, who committed the case alone, his subjective malignancy is obviously greater. When the amount of stolen goods is not much different, the penalty intensity of the two should be roughly the same. However, the first-instance judgment imposed the death penalty on Cao immediately. It is obviously unreasonable to apply the death penalty with a two-year suspension of execution. Therefore, judging from the situation of committing the crime alone, Cao’s subjective viciousness has not reached the level of indispensable killing, and it is more appropriate to apply the death sentence with a two-year suspension of execution.

Second, Cao did not play a key role in the joint theft. The role of the offender in the joint crime can be considered from the initiation of the crime, the preparation of the tools of the crime, and the distribution of the spoils. First of all, from the point of view of the criminal intent, in the joint theft cases that Cao participated in, a considerable part of the criminal intent was not put forward by Cao; secondly, from the crime tool, most of these common theft cases adopted the method of prying the door and locking the door. Most of the crowbars needed were provided by other criminals; in the end, from the perspective of the distribution of stolen goods, the joint theft that Cao participated in was basically an equal split of the stolen goods. As a result, Cao did not play a key role in the joint theft. Subjective malignancy is limited, and there is still room for improvement. It is more appropriate to apply the death sentence with a two-year reprieve.

Third, Cao once asked for the suspension of the crime during the crime. During the theft, Cao once proposed not to continue this kind of theft, but Li insisted on continuing. Out of the loyalty of the blind buddies of young people, Cao could not participate in the joint theft again. Although Cao’s intention to suspend the crime has not been implemented, the formation of this intention has best demonstrated the weakening of his subjective viciousness. Therefore, applying the death penalty to Cao with a two-year reprieve is in line with his subjective viciousness and is the objective requirement of the criminal law's principle of adaptability to crime, responsibility and punishment.

The above analysis of the necessity of Cao's application of death with reprieve based on this case, the following analysis from Cao himself.

First, from the reason why Cao took the crime road. Cao came from a family of cadres with superior economic conditions. He did not go astray for the purpose of getting something for nothing, but based on his brother’s loyalty. Of course, it is not to say that stealing to satisfy his loyalty is forgivable. However, from the perspective of criminal psychology, The crimes caused by this reason are at least much less punishing than theft for free. Second, Cao was a father at the time of the trial, and had a strong desire to survive, hoping that through education and reformation, he would have the opportunity to fulfill the duties of a father. Third, at the time of the trial, Cao was only 21 years old. On the one hand, his outlook on life and values have not yet been completely finalized, and he is more likely to go on the right path after education and reform. Can make a greater contribution to society.

To sum up, because Cao not only surrendered and returned the stolen money in this case, he did not commit the crime alone and did not play a key role in the joint theft, and he once proposed to suspend the crime, although the amount of theft was particularly huge. , The circumstances are particularly serious, but after all, it has not reached the level of "must be killed". For Cao's "can be killed but not killed" situation, considering the case and the actual situation of Cao, the death penalty was applied and a two-year suspended period was announced. Execution is extremely necessary.