At present, in China's judicial practice, it is generally required that the time node of truthful confession be made at the time of the first interrogation. However, there is no corresponding legal basis for this practice. Neither the Criminal Law, nor the Criminal Procedure Law, nor the "Interpretation of Voluntary Surrender and Meritorious Service" and the "Opinions on Voluntary Surrender and Meritorious Service" do not contain the expression that "a criminal suspect's failure to truthfully confess during the first interrogation does not constitute voluntary surrender". Some criminal suspects have not taken the initiative to truthfully confess the main facts of the crime after they have surrendered, some have confessed only after the investigating organs have obtained the evidence, some have confessed during the first-instance trial, and some have even confessed after the second-instance trial or the second-instance trial has been remanded for a new trial. In this case, although the criminal suspect voluntarily surrendered, he did not take the initiative to truthfully confess after surrendering, which cannot reflect his remorseful attitude, and the investigation of the case mainly relied on the efforts of the investigating organs, and did not reflect the purpose of saving judicial resources, so it cannot be found to be voluntary surrender. After a criminal suspect voluntarily surrenders, although he did not confess the main facts of his crime at the initial stage of surrender, but voluntarily confessed before the judicial organs learned the main facts of his crime, it should also be found to be a truthful confession of his crime. Therefore, the judicial organs mainly rely on whether they "voluntarily confessed before the judicial organs grasped the main facts of the crime", that is, 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) (hereinafter referred to as the "Opinions on Voluntary Surrender and Meritorious Service") Article 2, paragraph 3: Where criminal suspects voluntarily surrender and do not confess the main facts of their crimes, but voluntarily confess before the judicial organs grasp the main facts of their crimes, it shall be found to be a truthful confession of their own crimes.
In one of the author's cases, the court of first instance did not find that the defendant had surrendered voluntarily on the grounds that the defendant had only confessed to two of the three cases involved in the case for the first time, and that he had not confessed all the facts of the crime. The court of second instance held that "where a criminal suspect commits the same type of crime multiple times, it shall comprehensively consider the degree of harm of the criminal facts that have already been confessed and the criminal facts that have not been confessed, and decide whether to find that it is a truthful confession of the main criminal facts." Although the facts of the crime were not fully confessed after surrendering, the circumstances of the crime that were truthfully confessed were heavier than the circumstances of the crime that were not confessed, or the amount of the crime that was truthfully confessed was greater than the amount of the crime that was not confessed, it should generally be found to be a truthful confession of the main facts of the crime. "The circumstances of the appellant's voluntary surrender were found. The following defense statements of the second instance:
1. Hu X shall turn himself in, and there are statutory circumstances for mitigating punishment.
The key point of dispute in this case is that Hu's fraud involved two cases, one of the victim Zhu's 60,000 yuan and the victim Huang Tianhua's 6,100 yuan. In Zhu's case, Hu confessed from the first confession of the investigative organ to the first-instance trial. Now the controversy is the second case, this one, Hu only admitted the fact that he participated in the crime before the first trial. Whether this case constitutes voluntary surrender, the defense counsel argues:
1. Hu's truthful confession of all crimes shall constitute voluntary surrender
Article 1, Paragraph 2, Item 4 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in Handling Voluntary Surrender and Meritorious Service provides that where a criminal suspect voluntarily surrenders and truthfully confesses his crime and then retracts his confession, it cannot be found to be voluntary surrender;However, where they can truthfully confess before the first-instance judgment, it shall be found to be voluntary surrender. The court of first instance held that, according to the understanding of this article, after voluntarily surrendering, "retracting a confession" can be regarded as voluntary surrender, but failing to confess at the beginning and then confessing does not constitute voluntary surrender, because this article has a prerequisite for voluntary surrender and truthful confession. However, the defender believes that although the Supreme People's Court did not give a detailed explanation or release a guiding case on this issue, the Henan Provincial High Court released a guiding case on this issue on its official website, "Quan Guangyao's Intentional Homicide Case", and gave a detailed explanation, and the defender believes that its reasoning has a certain reference value, and earnestly requests the collegial panel to consider it.
In the case analysis, it is pointed out that the application of voluntary surrender should not be mechanically applied to the legal provisions, and should be considered from the perspective of the criminal policy of blending leniency and severity and maintaining social stability, so as to maximize the social effect. Although the Supreme People's Court has made a more detailed explanation in the form of enumeration, it still cannot cover all the circumstances that may constitute voluntary surrender, which requires judges to exercise their subjective initiative in adjudicating cases to identify situations that are not enumerated in the judicial interpretation. As long as the offender voluntarily surrenders, it means that he has shown remorse and has the possibility of truthfully confessing the crime, and whether or not he can truthfully confess the crime is a process of ideological struggle. After surrendering, they may be affected by various factors, and there may be repeated and incomplete confessions, and this is a normal process of changing people's understanding. As long as the offender truthfully confesses his crime before the first-instance judgment, shows that he has a thorough repentance and is willing to accept the state's trial, and his voluntary surrender, the constitutive elements of voluntary surrender are met. The core element of voluntary surrender is that the criminal suspect voluntarily and directly surrenders to the judicial organs, because only on the basis of the criminal suspect's intention to voluntarily place himself under the control of the judicial organs can the criminal suspect's surrender be controlled. The three elements of initiative, directness, and surrender are indispensable, otherwise it does not constitute voluntary surrender. In this case, the process of the defendant's arrest showed that he took the initiative to put himself under the control of the judicial organs, and truthfully confessed all his crimes before the verdict was announced, which complied with the provisions of the Criminal Law and the Interpretation, so his conduct should be found to be voluntary surrender. In addition, in the principle of the application of law, the defendant voluntarily surrendered after committing the crime, and although he did not truthfully confess the facts of the crime after surrendering, he made a truthful confession at trial. The circumstances of the defendant's evasion of legal punishment should not be as serious as the situation of "truthfully confessing and then retracting the confession", and the latter can be established to surrender voluntarily as long as he can truthfully confess before the first trial, and according to the logic of "lifting the weight to show the lightness", the defendant's conduct should also be established as voluntary surrender. Therefore, the defender believes that the victim Huang Tianhua's 6,100 yuan should be defined as voluntary surrender, and truthful confession should meet the constitutive elements of voluntary surrender. Therefore, Hu X voluntarily surrendered and truthfully confessed all the facts of the crime in this case, which should constitute voluntary surrender.
In addition, the Supreme People's Court's Judicial Interpretations on Voluntary Surrender and Meritorious Service: Guiding Cases and Understanding and Application, edited by President Zhang Jun of the Supreme People's Court and Huang Ermei's Special Committee, pointed out:
The defender believes that we can also see from the relevant documents of the Supreme People's Court that the determination of not confessing first and then confessing is not completely determined to be a truthful confession, and it is still necessary to look at it in light of the specific facts of the case. In this case, Hu did not deliberately avoid the important and conceal the main facts of the crime, and the heaviest of Zhu XX's 60,000 yuan in this case has always been a truthful confession, all of which can show that Hu X is willing to accept legal sanctions, and Hu X confessed the main facts of the crime, although Huang Tianhua's lighter confession was a little late, it is still truthful, and combined with the circumstances of his voluntary surrender, it should be determined that Hu X voluntarily surrendered and truthfully confessed all the facts of the crime, and his conduct constituted voluntary surrender.
2. If the second-instance trial insists that "Huang Tianhua's 6,100 yuan" does not constitute a truthful confession in the whole case, it should also meet the constitutive elements of truthfully confessing the main facts of the crime, and his conduct still meets the constitutive elements of voluntary surrender.
Opinions of the Supreme People's Court on Several Specific Issues Concerning the Handling of Voluntary Surrender and Meritorious ServiceClearly stipulated,
In this case, it was determined that Hu had defrauded Zhu XX of 60,000 yuan and Huang Tianhua's 6,100 yuan, and the amount of 60,000 yuan he confessed was ten times the amount of Huang Tianhua who had not been confessed at the beginning, and the 60,000 yuan was also an upgraded sentence in this case, which was a relatively large amount and the circumstances were more serious. Truthful confessions shall constitute voluntary surrender.
2. Hu was an accomplice in the case of "Zhu Moumou was defrauded of 60,000 yuan", and did not obtain any illegal benefits from it.
Hu X and Zhu XX 60,000 yuan should be found to have surrendered voluntarily, and whether it constitutes self-surrender is to be divided in conjunction with the entire criminal process. In the crime of 60,000 yuan by Zhu Moumou, the motive and intent of the crime were brought up by Chu Moumou, the victim Zhu Moumou rented a car and signed the contract at Chu Moumou's company, the vehicle was provided by Chu Moumou, and after the vehicle was scratched, Chu Moumou went to negotiate with the victim Zhu Moumou and took possession of Zhu Moumou's car rental deposit. The last stolen money was also fully owned by Chu, and Hu did not share any stolen money. From the perspective of the whole case, we can see that car rental fraud consists of signing a car rental contract with the victim, collecting a deposit, finding a rental vehicle through GPS, rowing a car, using a car to claim compensation from the victim, seizing the deposit, and illegally taking possession of the victim's property. There are a total of six links in the car rental fraud, Hu was only instructed to go to the location of the vehicle to row the car, and only participated in one of the six links, and Hu Mou's role in Zhu's victimization case was relatively small, and the participation in the entire crime link was very low, and he should be listed as an accomplice.
3. The first-instance trial characterization was erroneous, and this case should be characterized as a crime of contract fraud.
The confessions of the co-defendants, witness testimony and the evidence in this case can all prove that in this case, in the course of performing the contract, the appellant illegally took possession of other people's property, which should be characterized as contract fraud.
Combined with Chu Xianglong's confession, the witness testimony of the "Car Wash Test Drive Contract" in the case, and the WeChat chat records between the defendant Chu Xianglong and the victim, a chain of evidence can be formed to jointly corroborate that Hu's collection of the victim's rental money, deposit, and deposit, including his refusal to return the victim's property in the later stage, was all based on the provisions of the contract, and without a car rental company or car rental contract, it was impossible to carry out criminal activities. In addition, from the perspective of the entire criminal activity, the car smashing behavior is only a link in the criminal activity, and the act of smashing the car alone cannot be completely criminalized, and the car smashing link is only an integral part of the entire criminal activity, and the proportion is only a criminal means. In the course of performance, the three defendants committed the criminal act of illegal possession and left the contract, and it was impossible for the three defendants to carry out the purpose of illegally taking possession of other people's property, and it was impossible for the victim to hand over the property to the defendant. Without a contract, the case also loses the core of the crime. Criminal Trial Reference Case No. 807 points out that as long as the perpetrator has the purpose of illegally taking possession of other people's property and objectively does use the method of signing and performing a contract to defraud others' property, it shall be found to be contract fraud. Criminal Trial Case No. 457 points out that as long as the actor uses a contract that can reflect the order of the market economy and regulate various market transactions to commit fraud, then the contract satisfies the requirements of "contract" in the crime of contract fraud.
In addition, the court of first instance held that the defendant had the criminal intent to defraud the victim's property before signing the contract. The defender believes that in a large number of contract fraud cases, many of them have the criminal intent to defraud the victim before signing the contract, so the key point in determining whether the crime of fraud or contract fraud is whether the way of signing and performing the contract is used to defraud others of their property. In this case, in the process of contracting, concluding, and performing the contract, the defendant used the method of signing and performing the contract to defraud others' property, leaving the contract, and the defendant was unable to commit fraud at all, and this case also violated the order of market economic management, so it should be characterized as the crime of contract fraud.
IV. Hu's family has signed a "Criminal Compensation Agreement" with Zhu's family, and the victim Zhu has also issued a "Criminal Understanding" and "Receipt", and the two parties have reached a criminal understanding, and there are legally prescribed mitigating circumstances.
To sum up, according to articles 79 and 80 of the "Hainan Court's Sentencing Rules on Common Crimes", Hu X surrendered voluntarily and was an accomplice, and there were statutory mitigating circumstances, and his punishment should be commuted. We sincerely request that the collegial panel fully consider the above defense opinions, accurately characterize the case, and give Hu a lenient punishment, fully demonstrating the fairness and justice of the law, and safeguarding the lawful rights and interests of the appellant Hu.
In the end, the court of second instance affirmed the circumstances of Hu's voluntary surrender.