How to determine criminal compensation after non-prosecution

The disagreement on whether to grant criminal compensation is due to the conflict between the provisions before and after the State Compensation Law, which should be resolved through legislation. ● The so-called "wrong detention and wrong arrest" should be judged according to the conditions of detention and arrest stipulated by law, not by whether a guilty conclusion is reached at the end of the case or whether the criminal facts are ascertained. Article 15 of the State Compensation Law stipulates that the victim has the right to compensation for "wrongfully detaining a person who has no criminal facts or who has no facts to prove that he is seriously suspected of committing a crime" and "wrongfully arresting a person who has no criminal facts". It can be seen that the state compensation law regards being detained without criminal facts as an important compensation condition, and the cases that the procuratorial organs do not prosecute are innocent in legal consequences. After the detained criminal suspect makes a decision not to prosecute, it is a controversial issue whether the parties should be given criminal compensation when applying for compensation. Below, the author analyzes and explains three situations of sorry complaint. 1. Never sue. Paragraph 3 of Article 17 of the State Compensation Law stipulates: "If a person who is not investigated for criminal responsibility according to Article 11 of the Criminal Procedure Law is detained", the state shall not be liable for compensation. "Article 11 of the Criminal Procedure Law" here refers to the provisions of the original criminal procedure law on the conditions of absolute non-prosecution, and the revised criminal procedure law has been changed to Article 15, with no change in content. With regard to absolute non-prosecution and criminal compensation, the main controversy in academic and practical circles is whether the parties who are detained and decide not to prosecute should be compensated according to the provisions of Article 15, paragraph 1, of the Criminal Procedure Law that "the circumstances of the crime are obviously minor and the harm is not great". Procuratorial organs generally believe that Article 17 of the State Compensation Law should be applied without compensation; The court generally believes that according to the provisions of Article 15 of the State Compensation Law, people who "have no criminal facts" should be compensated for their wrongful detention. The author believes that the above two views are reasonable. Looking at the provisions of the Criminal Law, the Criminal Procedure Law and the State Compensation Law together, we can see that the circumstances in the Criminal Procedure Law are obviously minor, and the harm is not great, so it is not considered a crime, does not constitute a crime, does not pursue criminal responsibility, and is exempted from state responsibility in the State Compensation Law. The reason for the inconsistency is that the provisions of the State Compensation Law are inconsistent. Article 15 of the law stipulates that "no criminal facts" is the compensation condition for wrong arrest, wrong arrest and wrong judgment; Article 17 adopts "no compensation for illegal acts", that is, as long as there are illegal acts, the state will not compensate. The author believes that these two provisions of the State Compensation Law are in conflict and should be amended by the legislature. Before the amendment, the exemption clause stipulated in Item 3 of Article 17 of this Law should be understood in combination with the scope of compensation stipulated in Article 15, and the exemption clause should be appropriately restricted. As a judicial organ, in the process of handling criminal compensation cases, it should be treated differently: if it is close to a criminal act and it is not easy to distinguish between a criminal act and a general illegal act, it should be exempted from the responsibility of the state to take detention and arrest measures and consider it a crime. In subsequent proceedings, the state decided not to prosecute if it believed that the number and circumstances did not meet the specific requirements for constituting a crime. Intentional injury to another person's body is identified as serious injury or minor injury by the forensic doctor, and the judicial organ has made a decision on detention and arrest, and then decided not to prosecute because it was re-identified as minor injury; Those who are far away from the crime and obviously belong to ordinary illegal acts, such as stealing two Chinese cabbages from vegetable fields without obvious damage results, are obviously wrongly detained and arrested, and cannot be exempted from state responsibility; For those criminal facts that are not committed by the non-prosecutor, or acts committed by the non-prosecutor are legal acts, such as self-defense and emergency avoidance. If the procuratorial organ decides not to prosecute after examination, it shall make compensation; The death of a criminal suspect or defendant as stipulated in Item (3) of Article 15 of the Criminal Procedure Law cannot exempt the state from the liability for compensation. 2. Do not prosecute as appropriate. In the case of discretionary non-prosecution, although the non-prosecutor is innocent from the legal consequences, the procuratorial organ has confirmed that the non-prosecutor has criminal facts. It is only because "the circumstances of the crime are minor and there is no need to be sentenced or exempted from punishment according to the provisions of the criminal law" that the procuratorial organ decides not to prosecute according to the specific circumstances of the case, from the perspective of saving criminals or considering other factors such as public interests. Since there are criminal facts, of course there is no criminal compensation. This point is basically uncontroversial in academic and practical circles. 3. Don't prosecute if the evidence is insufficient. Since the State Compensation Law was promulgated before and the Criminal Procedure Law was revised later, and non-prosecution due to insufficient evidence is a new addition in the revised criminal procedure law, the State Compensation Law does not stipulate whether compensation should be given to cases that are not prosecuted due to insufficient evidence. On this issue, there are mainly three controversial views in academic and practical circles: the first view is that compensation should be paid. The reasons are as follows: First, the case prosecuted by the procuratorial organ must be that the criminal facts have been ascertained and the evidence is true and sufficient. In the case of insufficient evidence to prosecute, although there is evidence to prove guilt, insufficient evidence is equal to innocence. Second, the concept of guilt in the sense of a legally prescribed punishment for a specified crime, that is, guilt proved by solid and sufficient evidence, is not a subjective judgment made by judicial personnel with partial guilty evidence. Third, there is not enough evidence to prove that guilt equals innocence. Failure to prosecute due to insufficient evidence should be regarded as a wrongful arrest of a person who has no criminal facts, and the state should be liable for compensation. This view is mainly based on insufficient evidence, that is, no prosecution means innocence, that is, there is no criminal fact to prove, and it is from the perspective of protecting citizens' legitimate rights and interests. They believe that whether the evidence is enough for the state to investigate crimes is entirely a matter for the judiciary. As citizens, they are only faced with the final decision. If this judgment is innocent, the state should compensate. The "criminal facts" in law are supported by evidence, but the evidence is insufficient, which ultimately cannot prove the crime, that is, the "no criminal facts" in the sense of the State Compensation Law. The second view is that compensation should not be paid. The reasons are as follows: first, "no criminal facts" is an objective state, and not prosecuting because of insufficient evidence is a legal determination based on evidence, which is "innocence" in the sense of litigation, which is very different from the fact of innocence in both connotation and extension; Second, according to the provisions of the Criminal Procedure Law, as long as there is evidence to prove that there is a criminal fact, arrest can be approved. Therefore, as long as there is evidence to prove that there is a criminal fact, it is not a wrongful arrest; Third, the evidence requirements in different stages of litigation are different, and it is considered that not prosecuting after arrest is a wrong arrest, which confuses the evidence requirements in different stages of litigation; Fourthly, if criminal compensation is given to cases that are not prosecuted because of insufficient evidence, it will add a heavy burden to our limited financial resources. This view is considered from the perspective of safeguarding the overall interests of society. It is considered that not prosecuting because of insufficient evidence is not a real misjudged case, and the conclusion of innocence conforms to the provisions of the criminal procedure law. Moreover, such cases involve a wide range and a large number, and compensation is not in line with China's national conditions. The third point of view is that in the case of insufficient prosecution evidence, compensation should be decided according to the specific situation, and it cannot be generalized. Some cases with insufficient evidence should be compensated, and cases with sufficient evidence should not be compensated. That is to say, if the conditions of detention and arrest at the time of detention and arrest conform to the provisions of the Criminal Procedure Law, even if it is later considered that there is insufficient evidence and no prosecution is made, it is not wrongful detention or wrongful arrest, and no compensation will be given. On the other hand, if a person who does not meet the statutory conditions is detained or arrested and is not prosecuted because of insufficient evidence, he should be compensated. The Provisions on Criminal Compensation of People's Procuratorates formulated by the Supreme People's Procuratorate stipulates that if a case is not prosecuted due to insufficient evidence, whether compensation should be made should first be confirmed according to law, and whether there is any violation of personal rights. If it is confirmed by the confirmation procedure, it will be compensated; if it is not confirmed, it will not be compensated. Confirmation can be divided into three specific situations: first, if the facts of the crime cannot be proved or the serious criminal suspect is wrongly detained, it will be confirmed; Second, people who can't prove the facts of the crime are wrongly arrested and will be confirmed; Third, the detention or arrest of a person who has evidence to prove certain criminal facts, or the detention of a person who has evidence to prove a major criminal suspect, will not be confirmed. I think the third view is more reasonable. The reasons are as follows: The first viewpoint takes "innocence" as the core, and holds that "crime" means "no criminal facts". Taking measures to detain or arrest people with "no criminal facts" means wrong detention and wrong arrest, and compensation should be made. This view completely ignores the word "wrong" in wrong detention and wrong arrest stipulated in the State Compensation Law, and completely ignores the conditions of detention and arrest, which is inevitably biased. The second view is that compensation should not be given, which obviously ignores that some cases that are not prosecuted due to insufficient evidence are indeed the fault of the public security and procuratorial organs, and that people who have no evidence to prove the facts of the crime or have no evidence to prove that they are seriously suspected of committing crimes should be liable for compensation if they are wrongly arrested and detained, which is also biased. The third view is completely correct to treat it differently according to the specific situation. The so-called "wrong detention and wrong arrest" should be judged according to the conditions of detention and arrest stipulated by law, not according to whether a guilty conclusion is reached or whether the criminal facts are ascertained at the end of the case. Public security and procuratorial organs shall take detention and arrest measures against criminal suspects who meet the conditions of detention and arrest according to law. In any case, it cannot be said that they were wrongly detained or arrested. Even if further investigation cannot confirm the existence of criminal facts, they should not be liable for compensation. Only those who wrongly take detention or arrest measures against cases that do not meet the conditions for detention or arrest can bear the liability for compensation. It does not conform to the spirit of seeking truth from facts, is not conducive to protecting the legitimate rights and interests of citizens, but is unfair to criminal victims and has a bad social impact. At present, because the judicial organs tend to think that those who do not prosecute due to insufficient evidence will receive compensation, this makes the procuratorial organs dare not apply cases with insufficient evidence, and the procuratorial organs dare not arrest cases that meet the conditions for arrest but do not meet the conditions for prosecution, resulting in judicial confusion. In the case of insufficient evidence to prosecute, some decided to prosecute, some simply decided not to prosecute or absolutely not to prosecute, and some embarked on the old road of extended and extended detention. Cases that meet the conditions for arrest should have been approved, but the procuratorial organs simply refused to approve the arrest in order to avoid making a final decision not to prosecute because of insufficient evidence, which led to the public security organs repeatedly reflecting the difficulty in approving the arrest. Therefore, the author thinks that the State Compensation Law should be amended as soon as possible to make clear provisions on this so as to eliminate judicial confusion. (The author is the chief procurator of the Procuratorate of Huanghua City, Hebei Province)