In fact, for a professional criminal lawyer, surrender and application for disapproval of arrest can coexist. Below, the author discusses this issue from the conditions of surrender and non-arrest, the possibility of coexistence of surrender and non-arrest, and the practices in practice.
First, surrender is a rational choice for those involved in the crime of illegally absorbing public deposits.
According to the Supreme People's Court's Guiding Opinions on Sentencing for Joint Crimes, which came into effect on April 17, 2007, if the motivation, time, mode, severity of the crime, degree of truthfully confessing the crime and penitence are considered comprehensively, it can be reduced by less than 40% on the basis of the benchmark punishment; If the circumstances of the crime are minor, the benchmark punishment may be reduced by more than 40% or exempted from punishment according to law. Except for those who maliciously use surrender to evade legal sanctions, it is not enough to be lenient.
Combined with the criminal law, "surrender refers to the act of voluntarily surrendering after committing a crime and truthfully confessing one's crime to the public security, judicial organs or other relevant organs". In other words, under the condition of "automatic surrender+truthful confession", surrender can bring up to 40% or even "exemption from punishment".
At present, the maximum penalty for the crime of illegally absorbing public deposits in China is fixed-term imprisonment of 10 years or less, so it is undoubtedly a rational choice for the parties to surrender themselves.
Of course, surrender may be divided into many situations, and in practice, surrender is often not recognized, which will make the parties miss the opportunity of a light sentence. How to surrender in order to avoid the adverse effects in the later period is detailed in the author's book How to surrender a fugitive "criminal suspect" in order to deal with it lightly. How can illegal fund-raisers get rid of illegal detention after surrendering to be controlled by investors? How to investigate the criminal responsibility of the other party? "and other articles, here focuses on how to apply for non-arrest after surrender.
Two, the applicable conditions of the suspect shall not approve the arrest.
According to Article 79 of the Criminal Procedure Law, arrest requires three conditions:
The first is the condition of evidence, that is, there is evidence to prove the facts of the crime. Its connotation includes the following three points: first, there is evidence to prove that the criminal facts are committed by criminal suspects; Third, the evidence to prove the criminal suspect's criminal behavior has been verified.
Secondly, the condition of guilt may be sentenced to more than fixed-term imprisonment. According to the facts of the case proved by the existing evidence, according to the relevant provisions of the criminal law, he was sentenced to a minimum sentence of more than fixed-term imprisonment.
Finally, there are socially dangerous conditions. Bail pending trial is not enough to prevent social danger, and arrest is necessary.
Although the second and third paragraphs of the law have different expressions for approving arrest, they can be covered by the above three points in jurisprudence.
Comparing the above three conditions, we infer the conditions for the case-handling organ not to approve the arrest. The conditions for not approving the arrest are:
First of all, the perpetrator involved does not constitute a crime, that is, there is no evidence to prove the existence of criminal facts, and the perpetrator involved has not committed criminal acts objectively and subjectively. The facts are unclear and the evidence is insufficient, which does not meet the evidentiary conditions for arrest.
Secondly, according to the facts of the case proved by the existing evidence, compared with the relevant provisions of the criminal law, the actor can only be sentenced to control, criminal detention and independent application of additional punishment. If it is impossible to sentence him to more than imprisonment, he cannot be arrested. In judicial practice, criminal suspects and defendants who may be sentenced to fixed-term imprisonment with probation are generally not arrested.
Finally, the perpetrators involved are not socially dangerous and there is no need to arrest them.
Combined with the relevant laws and regulations of public security organs in handling criminal cases, there are the following situations that are socially dangerous:
(a) New crimes may be committed;
(two) there is a real danger of endangering national security, public safety or social order;
(three) may destroy or falsify evidence, interfere with the testimony of witnesses or collusion;
(4) It is possible to take revenge on the victim, prosecutor or accuser;
(5) attempting to commit suicide or escape.
If there is evidence to prove that there are criminal facts, which may be sentenced to fixed-term imprisonment of more than 10 years, or if there is evidence to prove that there are criminal facts, which may be sentenced to fixed-term imprisonment of more than 10 years, or if the crime is intentional or the identity is unknown, it shall apply for approval of arrest.
The crime of illegally absorbing public deposits is a crime of disrupting financial management order under the special chapter of the crime of disrupting socialist economic order, and it is not violent. The parties to the case, especially those who voluntarily surrender to the public security organs, can often be generally considered to be in line with the above-mentioned "no social danger."
However, "the life of law lies in experience, not in logic". In the case of Shi suspected of illegally absorbing public deposits, according to the communication between the author and the prosecutor of the investigation and supervision department, when the procuratorate makes a decision not to approve the arrest at the arrest stage, it will often consider the sentencing range, and the criminal suspect who meets the conditions for upgrading the statutory punishment when the sentencing reaches the second level will not be approved by the investigation and supervision department of the procuratorate once it reaches "a huge amount or other serious circumstances".
Therefore, defense lawyers need to find more facts and legal basis if they want to successfully apply not to arrest.
In the Criminal Procedure Rules of the People's Procuratorate of the Supreme People's Procuratorate (Trial), the criteria for judging whether the actors involved are not socially dangerous are more specific:
A criminal suspect who is suspected of minor crimes and is not suspected of other major crimes may make a decision not to approve or not to arrest under any of the following circumstances: a first-time offender with minor subjective malignancy, an accomplice to the same crime or an accomplice under duress, who surrenders after committing a crime, makes meritorious service or actively returns stolen goods, compensates for losses, and really shows repentance;
In addition, there are similar provisions in the Supreme People's Procuratorate's "Quality Standards for Examining Arrest by People's Procuratorates":
If a criminal suspect is suspected of minor crimes and is not suspected of other major crimes, it can be considered that there is no need to arrest him under any of the following circumstances: (2) A first-time offender or an occasional offender with minor subjective malignancy, an accomplice in the same case or an accomplice under duress, who surrenders himself after committing a crime, makes meritorious deeds, or actively returns stolen goods and compensates for losses, and really shows repentance;
……
(six) the criminal suspect is an elderly or disabled person, and his physical condition is not suitable for detention;
(seven) other circumstances that do not require arrest and will not endanger society or hinder the normal conduct of criminal proceedings.
A criminal suspect who should be arrested, if suffering from a serious illness, or a woman who is pregnant and nursing her baby, can be released on bail pending trial or under residential surveillance.
Zhou Boyun of finance mentioned at the beginning of the article, even the author's client Shi Moumou, seems to meet the conditions of the above-mentioned "old man", but in practice, Li Moumou, the director of Ganoderma lucidum in Guangzhou, was accused of illegally absorbing public deposits, and Li Moumou's sixtieth birthday was spent in a detention center. Combined with the stipulation that the age of criminal responsibility of the elderly who meet the conditions of lighter or mitigated criminal punishment is defined as "75 years old" in the Criminal Law Amendment (VIII), the general designation of "the elderly" in public thinking does not necessarily conform to the situation of "not approving arrest" in judicial practice. As far as the legal expression is concerned, "physical condition is not suitable for detention" is a more convincing condition. In the case of Shi Moumou being accused of illegally absorbing public deposits, the author paid attention to the key expressions such as the client suffering from uterine fibroids and "being seriously ill and not suitable for detention".
Third, the possibility of coexistence of surrender and non-arrest in judicial practice.
First of all, the surrender of the perpetrator does not mean that the public security organ can directly make a decision to file a case and take criminal detention measures against the suspect. Instead, it is necessary to collect preliminary evidence that can confirm the above evidence conditions, punishment conditions and social dangers through investigation. Therefore, if the public security organ cannot find enough evidence to prove that the perpetrator constitutes a crime, it meets the conditions for not approving the arrest. In the case of Shi Moumou accused of illegally absorbing public deposits undertaken by the author, when Shi Moumou was detained for 3 1 day and communicated face to face with the prosecutor, the prosecutor revealed the problems in the evidence of the case, which can prove that this view is helpful to the realization of effective defense effect. Of course, according to the provisions of the Criminal Procedure Law, if the evidence collected by the defender shows that the suspect is not at the scene of the crime, has not reached the age of criminal responsibility, and belongs to a mental patient who is not criminally responsible according to law, he shall promptly inform the public security organ and the people's procuratorate. In the case of Beijing Jiao Moumou suspected of illegally absorbing public deposits by Credit Suisse Bank, which was undertaken by the author, the defense lawyer received electronic evidence, such as WeChat screenshots and emails, and some witnesses and evidence clues, which were saved before his surrender, indicating the source of the evidence and submitting it to the investigation organ for investigation and verification.
Secondly, compared with the legal conditions of surrender, it can be seen that the actor needs to have the conditions of voluntarily surrendering and truthfully confessing his crimes. The above behavior can just prove that the actor has a good attitude of pleading guilty and repenting, and thus does not have the possible social harm listed in Article 129 of the Procedures for Handling Criminal Cases by Public Security Organs. At the same time, according to Article 144 of the Criminal Procedure Rules of the People's Procuratorate (Trial), surrender can be used as one of the criteria for judging that the actor is harmless to society.
Finally, in the case of Shi Meijun suspected of illegally absorbing public deposits, the author found that Shi Meijun had two operations in May and August of 20 14, but failed to effectively control his illness. In 20 17 years, the doctor suggested that he needed immediate surgery, otherwise the tumor with a height of 8.5 cm X 10 cm might become cancerous. This is in line with Article 6 of the Supreme People's Procuratorate's Quality Standard for Examining and Arresting by People's Procuratorate, which stipulates that physical condition is not suitable for detention.