Let more cases that are factual and reasonable become a benchmark for criminal justice.
Dean of Tsinghua University Law School, Professor and Doctoral Supervisor.
Zhou Guangquan. Recently, the People's Court Case Database was officially launched and opened to the public. Among the total cases included in the case database, there are more than 1,000 cases involving criminal substantive law. In terms of the application of law to be solved, it involves not only the resolution of complex issues of traditional crimes (such as the judgment of the substantive infringement of the act in the determination of the crime of fraud, the calculation of the victim's property losses, etc.), but also the accurate identification of new types of crimes (such as crimes committed by persons with guardianship duties, crimes such as destruction of nature reserves); There are not only judgments on the constitutive elements of the crime (many cases involve the subjective and objective constitutive elements of crimes such as the production and sale of toxic and harmful food), but also judgments that express the position of criminal policy (such as the determination of the crime of investing in shares and holding shares on behalf of others, and new means, which can provide clear guidance for the handling of cases of accepting bribes by new means in recent years). From a macro point of view, these cases have a considerable degree of typicality, difficulty and complexity, novelty or widespread social concern, and these characteristics are ultimately manifested in the controversial nature of the application of law. The Supreme People's Court's compilation and selection of similar cases can demonstrate that judicial adjudication work fully respects the values recognized by the public, and enhances the credibility of the judiciary.
From a microscopic point of view, these cases generally have the following distinctive characteristics: First, the principle of legality of crimes has been well adhered to. In order to make the handling of criminal cases "brilliant", the refinement of adjudication rules requires the use of methods of interpretation of the criminal law, to make a certain degree of innovative judgment on the application of legal provisions, adjudication methods, judicial concepts, and other issues, and to propose innovative solutions. However, the limits of such innovation are limited, because in the field of criminal justice, judges do not have the power to create law, and once the adjudication rules go beyond the provisions of the law, they may violate the principle of legality. The compilation and selection of existing criminal cases, especially in the not-guilty verdicts for pocket crimes such as illegal business operations, shows the people's courts' rejection of the application by analogy, and accurately grasps the bottom line of the principle of legality for crimes. Second, these cases are generally well-reasoned. Some cases explain in detail the reasons for the adjudication and the reasoning process, objectively and comprehensively reflect the views of the prosecution and defense, and explain why the prosecution and defense are not accepted, so as to ensure that the adjudication result is deduced from the evidentiary facts. Thirdly, these cases can accurately refine the gist of the adjudication. The completeness and accuracy of the gist of a judgment is the core content of an excellent case. However, it is not easy to extract the gist of the adjudication. In these cases, the introduction of the main facts of the case can give a glimpse of the factors that affect the adjudication, or the main points of controversy in the application of law, reveal the main adjudication rules and highlights of the case, and the gist of the adjudication and the basic facts of the case are interlocking and take care of each other, so that the gist of the adjudication is lawful and well-founded, the content is generalized, accurate, concise, concise, and easy to understand, which can dig out the shining points of the case, and has guiding and enlightening significance for the handling of similar cases in the future. Finally, many cases focus on the latest advances in theoretical research, which helps to promote the interaction between theory and practice. In recent years, criminal law scholars have carried out in-depth research on issues such as attempted crimes, boundaries between crimes, accomplices, and indirect principal offenders.
The cultivation of a good criminal case requires judges to have "great wisdom", which requires judges to be proficient in law and jurisprudence, proficient in criminal policies, and devote more energy to writing criminal judgments. In the future, there is still a long way to go and many difficult problems to be solved in order to form more good judgments, so that judgments that are based on facts and reason can enter the case database and become a benchmark for criminal justice. Here are a few personal opinions:
First, when a large number of judicial interpretations exist and are valid, the criminal cases collected in the case database should not simply repeat previous judicial interpretations. If the previous judicial interpretations were very clear, and this has been done in practice, and there is no major controversy in theory, there may be no special guiding significance and reference value. The case database should also try to compile and select types of cases that have significance beyond individual cases. In other words, some judgments only solve one issue, and if the issue has been provided for in judicial interpretations, or according to criminal law methods such as ex officio interpretation, the conclusion is basically self-evident, and it is not appropriate to enter it as a case in the case database. Cases that appear in the form of cases in the case database must be as typed and difficult as possible, and through the compilation and publication of a case, it can provide a reference for resolving a large number of similar cases in the future.
Second, the bottom line of the principle of legality must always be adhered to. Criminal cases cannot be positioned to fill legal loopholes. In the compilation and selection of all criminal cases in the future, it is necessary to avoid contradictions with the principle of legality of crimes, and prevent judges from convicting on the basis of the defendant's subjective malice, or from applying the logic of determining the subjective elements first and then the objective elements to the process of forming criminal cases, so as to ensure that the conviction meets the requirements of the constitutive elements of the crime to the greatest extent possible in judicial practice.
Third, the handling of certain vicious cases will arouse widespread concern in society, but where the relevant legal provisions are relatively principled and there is controversy over the application of law, more attention should be paid to collecting similar cases. For example, the issue of the standard for the application of the death penalty has always been very controversial, where the defendant committed a crime in a cruel manner and should be sentenced to death on the basis of the crime, but there are mitigating circumstances such as confession of repentance and positive compensation, but the victim's relatives strongly demand that the criminal be severely punished, can the death penalty be applied to the defendant? In this regard, there has always been a great deal of controversy among the substantive departments, and consideration may be given to collecting relevant cases and clarifying the rules for the application of criminal penalties in similar cases, so as to implement the criminal policy of "retaining the death penalty, strictly controlling and prudently applying the death penalty".
Fourth, as many criminal cases as possible that can be "pointed to the long term" and contribute to crime prevention, should be collected. An excellent criminal case, which can not break the law and play a guiding function, must point to the future and give the public the best possibility of their own actions. For example, the determination of justifiable defense is to uphold social fairness and justice, indicating the attitude that "the law cannot yield to the lawless"; The accurate distinction between an attempt to commit a crime and the inability to commit it may delineate the boundaries of conduct and clarify the expectations of conduct; An accurate determination of voluntary surrender can indicate the orientation of the country's criminal policy. However, in judicial practice, many criminal judgments classify the defendant's or defender's arguments on legitimate defense, inability to commit crimes, and voluntary surrender as "not accepted because there is no factual or legal basis", which is difficult to point to the future and the long term. In order to change this situation, it is necessary to strengthen the interpretation and reasoning of judgments in criminal judgments, so as to lay a good foundation for the construction of future case databases.
All in all, the Supreme People's Court's decision-making and deployment of the people's courts' case database is of great significance, which can to a large extent change the previous way of publishing judgment documents through the China Judgment Opinions Network without filtering, enhance the effectiveness and pertinence of case guidance, "force" judicial personnel to improve their professional level, fully demonstrate the latest achievements of criminal justice reform, and contribute to the modernization of national governance capacity and governance system.
*: Information Bureau of the Supreme People's Court.