1. How long is the statute of limitations of criminal law?
1. The limitation period of criminal proceedings can be five or ten years, or fifteen or twenty years.
Article 87 of the criminal law
After the following time limit, the crime will not be prosecuted:
(1) Five years have passed if the statutory maximum penalty is less than five years of fixed-term imprisonment;
(2) Ten years if the statutory maximum penalty is fixed-term imprisonment of not less than five years but not more than ten years;
(3) Fifteen years if the statutory maximum penalty is fixed-term imprisonment of not less than ten years;
(4) Twenty years have passed if the maximum legal punishment is life imprisonment or death penalty. 20 years later, if it is deemed necessary to prosecute, it shall be submitted to the Supreme People's Procuratorate for approval.
2. Calculation of the time limit for prosecution of criminal cases
(1) In general, the time limit for prosecution starts from the date when the crime occurs, that is, from the date when the crime is completed or stopped.
(2) If the criminal act is in a continuous state, it shall be counted from the date when the criminal act ends. In other words, criminals continue to commit the same crime (criminals deliberately commit several independent criminal acts within a certain period of time), and the prosecution period starts from the completion of the last criminal act.
(3) If the criminal act is in a continuous state (if the same criminal act committed by the criminal is in a continuous state within a certain period of time), it shall be counted from the date when the criminal act ends.
(4) If another crime is committed within the time limit for prosecution, the time limit for prosecution of the former crime shall be counted from the date when the criminal act of the latter crime is completed or stopped. Here, what is the former crime and the latter crime, there is no boundary. Whether it is a felony or a misdemeanor, whether it is the same crime or not, as long as a new crime is committed, the prosecution period from the beginning of the previous crime is interrupted and counted from the date of the subsequent crime.
Second, if a criminal case is dropped after it is filed, should the limitation of prosecution continue to be calculated?
The limitation of prosecution for withdrawing the prosecution after the criminal case is filed shall continue to be calculated, for the following specific reasons:
1, "prosecution" should start from criminal filing, and the limitation of prosecution should stop counting from the time of filing. The connotations of "prosecution" and "investigation of criminal responsibility" are different.
(1) "Prosecution" is a procedural concept, while "investigation of criminal responsibility" emphasizes substantive value, and its ultimate realization depends on the smooth progress of filing, investigation, examination and prosecution and trial.
(2) Neither investigation nor prosecution can stop the calculation of the limitation of prosecution, and the limitation of prosecution can only be stopped at the end of the trial. Therefore, all prosecution procedures must be completed before the expiration of the prosecution period, until the trial.
(3) If "prosecution" is understood as the completion of prosecution activities, which is equivalent to the completion of criminal responsibility, it means that the prescription system of prosecution should not only solve the problem of the exercise time of the right of prosecution, but also take into account the time limit for handling cases by judicial organs. This cross-border solution to the problems in the two fields of criminal substantive law and criminal procedure law is obviously inappropriate. Therefore, once the investigation organ investigates a criminal case, the time limit for prosecution in substantive law should stop counting and give way to the time limit for handling cases in criminal procedure law.
2. The withdrawal of the prosecution by the investigation organ does not mean that the right to sue is completely abandoned.
(1) In judicial practice, after investigating some criminal cases, the investigation organ may dismiss the cases for various reasons, such as the expiration of the time limit for handling cases but the evidence is still insufficient. Similarly, the procuratorial organ may make a decision not to prosecute at the stage of examination and prosecution, which means the end of this criminal handling process and litigation activities. But in fact, the principle of "no retrial" has not been fully established in our legal system.
(2) If the people's procuratorate finds that the new evidence meets the conditions for prosecution against the doubtful decision not to prosecute, it may initiate a public prosecution again.
(3) Therefore, after the investigation organ cancels the case, the procuratorial organ decides not to prosecute, or even the court makes a verdict of innocence, it can still file a case for investigation or file a public prosecution again under certain conditions, that is, the judicial organ can start the prosecution procedure again for the same case. According to the original intention of the prescription system, before the prosecution procedure is restarted after the case is withdrawn, the exercise of the prosecution right of the investigation organ should still be restricted by the prescription again.
In other words, the initiation of prosecution by the investigation organ does not mean the indefinite extension of the limitation of prosecution, but only the suspension of the limitation of prosecution, which is essentially equivalent to the "suspension" of the limitation of civil litigation; After the investigation organ cancels the case, the limitation period of prosecution shall continue to be counted, and the newly elapsed time shall be counted together with the original limitation period. If the limitation period of prosecution expires, the right of prosecution shall be extinguished, and the investigation organ shall not file a case again to start the prosecution procedure.
3, after the withdrawal of the lawsuit, the limitation of prosecution is to continue to calculate, and the cumulative calculation of the previous case before the filing of the time, rather than the re-calculation of the limitation of prosecution after the interruption.
(1) On the one hand, the reason for the interruption of the limitation of prosecution is the legal consequences of the interruption of new criminal acts; On the other hand, in judicial practice, the phenomenon of repeated operation of criminal proceedings is quite common, especially in cases where the investigation organ re-files the case after withdrawing the case, the procuratorial organ re-files the case after withdrawing the case or having doubts, and there is no time limit and frequency limit for starting the trial supervision procedure.
(2) The essential value of prescription lies in limiting power and rights, and one of its purposes is to promote the timely exercise of public power and private rights. If the case is withdrawn, it will also have the legal consequences of recalculating the limitation of prosecution, which is very likely to provide institutional space for the repeated operation of criminal proceedings and encourage the occurrence of human rights violations such as overdue handling of cases and prolonged indecision. Therefore, if a criminal case is withdrawn after being placed on file, the limitation of prosecution shall continue to be calculated.
Three, the criminal behavior has a continuous or continuous state, how to calculate the limitation of prosecution?
1. If the criminal act is in a continuous or continuous state, the limitation of prosecution shall be counted from the date when the criminal act ends.
Because of the different specific characteristics of serial offenders and recidivists, their "end dates of criminal acts" are also different. The purpose of serial crime is to commit several identical acts in succession, and each act can constitute a crime separately. Therefore, the date when the criminal acts of serial criminals end refers to the date when the last criminal act was established. Continuous crime refers to the continuous state of criminal behavior in a certain period of time. Therefore, the day when the criminal act of the continuing offender ends is the day when the status quo ends.
2. Extension of the limitation of prosecution.
Those who evade investigation or trial after the people's procuratorate, public security organ or state security organ files a case for investigation or the people's court accepts the case are not limited by the time limit for prosecution.
If the victim files a complaint within the time limit for prosecution, the people's court, the people's procuratorate or the public security organ shall file a case but not file it, and it is not limited by the time limit for prosecution.
I hope the above content can help you. Please consult a professional lawyer if you have any other questions.
Legal basis: Article 87 of the Criminal Law.
After the following time limit, the crime will not be prosecuted:
(1) Five years have passed if the statutory maximum penalty is less than five years of fixed-term imprisonment;
(2) Ten years if the statutory maximum penalty is fixed-term imprisonment of not less than five years but not more than ten years;
(3) Fifteen years if the statutory maximum penalty is fixed-term imprisonment of not less than ten years;
(4) Twenty years have passed if the maximum legal punishment is life imprisonment or death penalty. 20 years later, if it is deemed necessary to prosecute, it shall be submitted to the Supreme People's Procuratorate for approval.