Voluntary surrender and meritorious service are provided for in Section 3 of Chapter 4 of the Criminal Law, "Specific Application of Criminal Punishment", and legal provisions, judicial interpretations, and normative documents also often stipulate voluntary surrender and meritorious service together, both of which are common circumstances that can be mitigated, mitigated, or exempted from punishment, and that according to article 182 of the Criminal Procedure Law, a case may be withdrawn or not prosecuted under special circumstances with the approval of the Supreme People's Procuratorate. In practice, it is easy for people to mistakenly believe that voluntary surrender and meritorious service have the same impact on the leniency or exemption of punishment in sentencing.
The Supreme People's Court and the Supreme People's Procuratorate's "Sentencing Guiding Opinions on Common Crimes (Trial)" (Fa Fa 2021 No. 21) stipulates: "The circumstances of voluntary surrender ,......The base sentence may be reduced by up to 40%;where the crime is relatively minor, the base sentence may be reduced by 40% or more, or punishment may be waived in accordance with law. ”“1.Where meritorious service is made in general, the base sentence may be reduced by up to 20%;2.where there is a major meritorious service, the base sentence may be reduced by 20%-50%;where the crime is relatively minor, reduce the base sentence by 50% or more, or exempt punishment in accordance with law. "It can be seen from this provision that for those who have committed relatively minor crimes, those who have voluntarily surrendered may be exempted from punishment, those with ordinary meritorious circumstances may not be exempted from punishment, and only those with major meritorious service circumstances may be exempted from punishment;As for the range of reduction of the base sentence, less than 40% of those with circumstances of voluntary surrender and less than 20% with ordinary meritorious circumstances, and the impact of ordinary meritorious service on sentencing is significantly less than that of voluntary surrender.
The Opinions of the Supreme People's Court on Several Specific Issues Concerning the Handling of Voluntary Surrender and Meritorious Service (Fa Fa 2010 No. 60) requires: "Under similar circumstances, the scope of leniency for defendants with circumstances of voluntary surrender should be appropriately wider than that for defendants with circumstances of meritorious service." ”
The Supreme People's Court's Opinions on the Understanding and Application of Several Specific Issues Concerning the Handling of Voluntary Surrender and Meritorious Service (Authors: Zhou Feng, Xue Shulan, and Meng Wei (Supreme People's Court)) pointed out: "8. Punishment of defendants who surrender voluntarily and make meritorious contributions. 1. The impact of voluntary surrender on sentencing is generally greater than that of meritorious service The "Opinions" stipulate: 'Under similar circumstances, the scope of leniency for defendants with voluntary surrender circumstances should be appropriately wider than that for defendants with meritorious circumstances. The main reason for this provision is to consider that the circumstances of voluntary surrender give every criminal an equal opportunity, and not everyone has the opportunity to make meritorious contributions, and that voluntary surrender can more fully reflect the criminal's attitude of remorse than meritorious service, so the criteria for determining voluntary surrender and the scope of leniency should be more lenient. ”
Compared with meritorious service, every criminal suspect or defendant in each case has the opportunity to turn himself in, but meritorious service may not. Therefore, criminal suspects or defendants who voluntarily surrender should be encouraged through a larger range of leniency, and the range of base sentences that can be reduced for those with circumstances of voluntary surrender (up to 40%) is twice as high as those with ordinary meritorious circumstances (up to 20%). In a criminal case, a criminal suspect or defendant only has one chance to voluntarily (actively) surrender and truthfully confess and thus be found to have surrendered voluntarily, but for criminal suspects or defendants, during the same criminal case, they may have multiple opportunities for ordinary or major meritorious service, so the range of the base sentence may be reduced (up to 50%) for those with major meritorious service circumstances (up to 50%) and higher than the range for those with voluntary surrender (up to 40%). Because there is no upper limit to the size and effect of meritorious service, the impact of major meritorious service on sentencing may be greater than voluntary surrender, and in special circumstances and special crimes, it may even be possible to withdraw the case, not prosecute, or even give a reward considering the circumstances of the major meritorious service. Article 182 of the Criminal Procedure Law stipulates: "A criminal suspect voluntarily and truthfully confesses the facts of the crime he is suspected of, and has made major meritorious contributions or ......upon approval by the Supreme People's Procuratorate, the public security organs may withdraw the case, and the people's procuratorate may make a decision not to prosecute. The first paragraph of Article 55 of the "Counter-espionage Law" (revised in 2023) stipulates: "Those who commit espionage acts and voluntarily surrender or make meritorious contributions, may be mitigated, commuted, or exempted from punishment;Those who have made major meritorious contributions are to be rewarded. ”
In criminal cases where there are circumstances of voluntary surrender or meritorious service, the impact on sentencing and the specific scope of leniency shall be objectively assessed in light of the specific circumstances of voluntary surrender or meritorious service.
Director of Beijing Caisheng Law Firm.
Lawyer Jin Xuekong.
December 17, 2023.