Relevant regulations:
1, the Supreme People's Court 1957, No.20358, replied: "If the criminal act of which the defendant was sentenced is the same as that of the previous administrative detention, the date of detention will be reduced to fixed-term imprisonment."
2. On February 23rd 1988, the Telephone Reply of the Supreme People's Court Research Office on the Issue of the Date when Administrative Detention Credits Sentences (the reply to Hubei Provincial High Court) reiterated the validity of this provision and explained the "same act".
Article 44 of the Criminal Law of People's Republic of China (PRC) shall be counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment.
Extended data:
Case: The prosecution's protest against corrupt officials was rejected one day ago. Court: The sentence should be reduced.
Xu Jingchun, suspected of embezzling more than 8 million yuan of public funds, was taken to the procuratorate for questioning by the Commission for Discipline Inspection before being detained in criminal detention, and the date of detention was determined by the court. After the verdict was pronounced, the prosecution protested and the penalty was calculated from the next day of detention. The sentencing start time in the judgment was one day earlier.
The court held that if personal freedom is completely restricted, the sentence should be reduced and the prosecution's protest should be rejected.
According to the verdict, Xu Jingchun, 63, has been working as an assistant accountant in Fumazhuang Village, Beifang Town, Huairou District for a long time, in charge of various funds in the village. In recent years, Fumazhuang Village has received some compensation for land acquisition due to land acquisition and occupation. Xu Jingchun, together with a real estate company, decided to lend the compensation for land acquisition in the village to the real estate company by taking advantage of his own financial management.
On the 20th 1 1, 20th1,20th1May 31August 20 1 August 3, Xu Jingchun provided loans to the company twice, totaling 8.5 million yuan. Fortunately, the company returned the principal and interest in time, and there was no financial loss. But Xu Jingchun's behavior was discovered and reported.
According to the judgment, on March 25th, 20th14th, Xu Jingchun was detained on suspicion of misappropriating public funds, and was arrested on April 20th1/day of the same year.
Huairou Court held that Xu Jingchun, as a member of the grass-roots organization of the village committee, used his position to misappropriate public funds for profit-making activities while assisting the relevant departments to do a good job in compensation management for land acquisition and demolition, which constituted the crime of misappropriation of public funds. Because Xu Jingchun can truthfully confess the crime, the misappropriated public funds and interest have been returned, so he can be given a lighter punishment and sentenced to 6 years' imprisonment in the first instance.
If you detain first, one day of detention will be converted into one day of imprisonment. Xu Jingchun's imprisonment will start on March 25th, 20 14 and end on March 24th, 2020.
Huairou prosecutors protested that the detention deduction date was wrong. Xu Jingchun's case of misappropriating public funds was put on file on March 25th, 20th14th. He was interrogated according to law at 23: 44 on the same day and detained in criminal detention the next day.
The prosecution believes that according to the reply from the Ministry of Public Security 1993 to the Beijing Public Security Bureau, the interrogation time before taking legal detention measures should not be counted as detention time. In this regard, the Municipal Third Inspection Office supported the protest, arguing that Xu Jingchun's commutation should be calculated from March 26th.
Finally, the Third Intermediate People's Court held that according to the relevant provisions of the Criminal Law, the term of fixed-term imprisonment is calculated from the date of execution of the judgment. If the person is detained first, one day of detention shall be reduced to one day of imprisonment.
References:
People's Daily Online-The prosecution's protest against corrupt officials was rejected one day earlier. Court: The sentence should be reduced.