法学专业外文翻译6

Voluntary Surrender and Confession in Chinese law

A unique feature of traditional Chinese law was the provision by statute that an offender who voluntarily surrendered and confessed before discovery and who made full restitution was entitled to remission of punishment. Offenders who physically harmed their victims or offended against the state itself by commiting treason or escaping across borders were not entitled to remission, but could receive a reduction of punishment. Under the Republic this provision, known as tzu-shou, was continued in name but materially changed in substance under the influence of Western law as introduced through Japan. In general, the rewards for voluntary surrender and confession were reduced to mere reduction of punishment, but the scope was broadened to include crimes such as homicide, for which restitution was impossible. When the Chinese Communists first began developing a legal system in the 1930's, they too adopted tzu-shou. However, under them it became primarily an instrument of political control and social and ideological reform. It has remained an important aspect of Communist law even to the present though its application has ceased to have any strict legal significance.

China surrendered to the implementation of the principle of relative leniency, surrendered to the principle of mitigation factors, but in individual cases can not be treated with leniency. Whether leniency from the judge, in accordance with the circumstances of the case in accordance with the law of discretion. 7, paragraph 2 provides that: "For the criminals surrender or mitigation can be lighter, less serious crimes can be exempted from punishment." Surrendered, would be treated with leniency, combining punishment with leniency in the criminal policy of China's Criminal Law the concrete embodiment. Surrendered to the leniency is in line with China's national conditions and an effective legal system, the collapse of differentiation to criminals, to people who committed a crime a rehabilitation opportunity to encourage criminals surrendered the initiative to promote done strictly according to his confession, as soon as possible to enable cases detected, the reduction of social harm to the general prevention and special preventive purposes.

Classification surrender on the type of theoretical circles have different understanding. Criminal Law according to the traditional view of the Penal Code section 97 of the 67 provisions of the two surrendered to the binary classification, will be surrendered into two types: those for which the provisions of paragraph 1, "surrendered" Typical surrendered or said, "surrendered after the crime, truthful testimony of his crime, surrendered" to the other provisions of paragraph 2 of that article to the surrender of the "MS crime," surrendered, "measures have been taken against the criminal suspects and defendants, and are serving sentences of criminals, the judiciary has not been truthful statements I have the other crimes, to surrender on. “On the provisions of paragraph 2, surre ndered type Criminal Law also called "quasi-surrendered." Surrendered on the types of binary systems division, from the formal point of view it seems that the Criminal Code with China on the surrender of the legislative system in line configuration mode, but in essence, it is fundamentally incompatible.

Although such a dichotomy can reflect on the 1997 Penal Code section 67 of the contents of two different sexual concerns, it simply does not note that the other side of the problem: the system is not only surrendered in the general provisions exist, but also exist in

sub; not apply there surrendered the universality of all criminal system, and there are still individual criminal apply special surrendered system, the aforementioned understanding is one-sided.

Surrendered on the type of theoretical circles have different understanding. According to the traditional view of the Penal Code section Classification surrendered 97 of the 67 provisions of the two surrendered to the binary classification, will be surrendered into two types: those for which the provisions of paragraph 1, "surrendered" Typical surrendered or said, "surrendered after the crime, truthful testimony of his crime, surrendered" to the other provisions of paragraph 2 of that article to the surrender of the "MS crime," surrendered, "measures have been taken against the criminal suspects and defendants, and are serving sentences of criminals, the judiciary has not been truthful statements I have the other crimes, to surrender on. " On the provisions of paragraph 2, surrendered type al Criminal Law so called "quasi-surrendered." Surrendered on the types of binary systems division, from the formal point of view it seems that the Criminal Code with China on the surrender of the legislative system in line configuration mode, but in essence, it is fundamentally incompatible. Although such a dichotomy can reflect on the 1997 Penal Code section 67 of the contents of two different sexual concerns, it simply does not note that the other side of the problem: the system is not only surrendered in the general provisions exist, but also exist in sub; not apply there surrendered the universality of all criminal system, and there are still individual criminal apply special surrendered system, the aforementioned understanding is one-sided. Surrendered on the concept and the establishment of conditions "Criminal Law" article 67, paragraph 1 has been defined "surrendered after the crime, truthful testimony of his crime, is surrendered." However, many scholars believe that, even with the third condition is that the review and acceptance Magistrate. Hold this view of the many scholars found scattered in a variety of reasons either.

While the voluntary surrender of a variety of motives, and some have no place to hide wanted by the judiciary and surrendered, and some victims were afraid of retaliation against or associates and surrendered, and some suspects out of sincere repentance, and some of the majesty of the law out of fear, some to seek clemency, and some escaped life unfunded, and some advice and awakened by friends and relatives, etc. . Surrendered different motives but does not affect the composition of the voluntary surrender of the suspects who surrendered after, we must also truthfully confess their crimes, it is enough to prove that with the expression of penitence for the Judiciary prosecuted the crime they provide an objective basis, to the successful prosecution carried out.

Therefore, truthfully confess Surrendered criminal acts are an important condition for the establishment, but also the essential characteristic of surrender. "Of course, a small number of scholars:" The provisions of the Penal Code in 1997 surrendered to set up the conditions: (1) surrendered; (2) truthfully confessed her crimes during her. Practice of criminal law in 1979 by the master of the establishment of conditions for surrender: (1) surrendered; (2) during the period of his crime truthfully, (3) to review and referees.

If criminals not surrendered as a condition that would mean the legal again "under review, a magistrate" re-established as a prerequisite for surrender. As previously mentioned, is the 1997 Penal Code in 1979 to make up for the lack of criminal law to avoid Practice may arise in some bad practices, surrendered before the establishment of

conditions from three to two. " At the same time, the Supreme People's Court" for dealing with specific surrender and meritorious application of the law on the Internet, "Although there is no will be reviewed and the judges as a condition of surrender, but in the interpretation of provisions in Article 1 of the "criminal suspects surrendered and truthfully confessed her crimes during her later, and can not be identified as surrender, but in the first instance verdict before statements can truthfully, It should be identified as surrender. "Objective has been to review and accept the establishment of a magistrate as the third surrendered conditions.

In the implementation of the interpretation of the practice of criminals also excuse for acts of nature is also identified as a magistrate not to accept review and, to that end, in 2004 the Supreme People's Court issued the "behavior on the nature of the accused to justify the impact of the establishment of surrender the letter .

According to the first paragraph of Article 67 of the Penal Code and the Supreme People's Court "for dealing with specific surrender and meritorious application of the law on the Internet," the provisions of Article 1, surrendered after the crime, their statements accurately crime is surrendered. Accused excuse for acts of nature does not affect the establishment of surrender.

The establishment of China's Criminal Law surrendered the significance of the system .Surrendered system in the world today in many countries have provided in the Criminal Code. In our country, this system is a long history. China alone-law "since the first divisions, with the exception of the crimes". Tang law "all the crime and not surrendered, the original incrimination. Sociology, criminal psychology research results show that the perpetrator in the act of the crime, would have the psychological complexity, and corresponding to, and will have different behavior, the most important of their misdemeanours, though, because the first felony, for their crimes."Since the founding of New China, has consistently taken the surrender of criminals leniency principle. After the founding of the first of the Penal Code, the Penal Code in 1979 that formally established on the surrender system, the first 63 of the Act specifically states that: "surrendered after the crime, his punishment, among them, a lesser crime, can be reduced or be exempted from punishment heavier crime, if meritorious performances, can reduce or waive penalties. "Provision of the establishment of China's surrender marked the formal establishment of the system. After several changes to the system until today surrendered. As China's an important penalty discretionary system, in the judicial practice of the facts of the timely identification and differentiation collapse of criminals has played an important role. In particular, the provisions in the Penal Code surrendered system has the following five aspects of the significance.

Contribute to the "punishment with leniency in conjunction with the" criminal policy implementation "Combining punishment with leniency" criminal policy of the content of specific performance: "Frankly leniency, and resist the strict, merit discount crime legislation won great merits reward." China's criminal law as a guide, has developed a package of the penal system, such as recidivism from the weight, a lighter, and so surrendered. Therefore, surrendered to China's Criminal Law as a lighter penalty system to be provided, and to ensure its national mandatory implementation will promote "combining punishment with leniency" criminal policy implementation to the same in the

fight against crime play a bigger role. to provide a crime Qiandoumeng opportunity to promote their repentance toward self-rehabilitation.

Combining punishment with leniency is our fight against crime with the basic policy. The purpose of penalties is not only punishment for a crime, what is more important is the prevention of crime, to achieve this aim, does not necessarily have to rely on harsh penalties to complete the penalty, a certain utilitarian, as long as it can achieve the ultimate goal of crime prevention, we can in the system for some special settings, of course, this is followed in other criminal law the basic principles of the design. Surrendered system, which in the crime after crime opened the door, but also the results of such a design. Sociology, criminal psychology research results show that the perpetrator in the act of the crime, would have the psychological complexity, and corresponding to, and will have different behavior, the most important of which is manifested as a kind of panic, because of fear crime was brought to light by a constant state of anxiety penalty of sanctions, the direction and indecisiveness. If they ignore these people may evade judicial investigation, or even burn his bridges to crime, continue to endanger society, and people's lives and property safety. If we can give them that one of the glorious road rehabilitation repentance, these people could get rid burden Qijiutuxin. In this process of balancing interests, they are most likely to tend to their own most advantageous option, surrendered system is precisely in such circumstances the role of the evil criminals from disposable provided a good external impetus. Surrendered often is based on repentance, even if not based on repentance, only to seek leniency utilitarian purpose of this punishment automatically surrendered itself is a manifestation of the good. Therefore, surrendered on a subjective evaluation perpetrators of a vicious extent of the factors that can not be overlooked, is one of the circumstances of discretionary penalty. Since the leniency of the punishment of the culprit to suit the crime, the penalty is not only in line with China's aims, but also conducive to reform criminals.

The judiciary seek help reduce costs and improve the detection rate .Crime is the danger of many major and intuitive performance in the criminal act itself to the social damage caused by the objective of the deprivation of human life, property damage and so forth like, but we must also recognize that criminal acts to society after another loss - the judiciary to perform their judicial duties and the amount of the cost - is very important. A criminal case, the judiciary in the investigation, prosecution, trial, implementation requires a lot of manpower, financial and material resources. And often is cast and not, reconnaissance, but not broken, so the judiciary, and the entire society is a very large expenditures, or to say is a tremendous waste, and the current economic crimes in crime has been increasing, more subtle means, At the same time the number of cases has become a geometric growth, to the work of the judiciary has posed a severe challenge. Criminal who surrendered to the judiciary not only save the file from the investigation to arrest this process the enormous expenditure, but also greatly increase the rate of detection of the judiciary; saving expenditures are also allowed to free up resources do the big cases, cases. At the same time the offender is the case most of the people have a voice, they truthfully statements criminal acts, investigate and collect evidence for the judiciary to provide a comprehensive and reliable clues, for the timely and accurate processing of cases to create the conditions to facilitate easy establish a good image of the judiciary.

中国法律中的自首与坦白

一个独特的特点，传统的中国法律是规定，由法规罪犯，他们自愿自首，并交代了，才发现谁做了充分归还有权减免处罚。违例者身体损害他们的受害者或冒犯了对国家本身所犯下叛国罪或逃逸跨越国界不能享有减免，但可以接受，减轻处罚情节。根据中华民国这一规定，被称为子寿，是继续在名称，但实质上改变，在物质的影响下，西方的法律，通过引进日本。一般来说，奖励为自首，并供述减少到仅仅减轻处罚情节的，但范围扩大到包括犯罪的，如杀人，而恢复原状是不可能的。当中国共产党人首次开始制定一项法律制度，在1930年的，所以他们也通过了林子守。但是，根据他们来说，这成为主要的工具，政治控制与社会和思想的改革。它仍是一个重要方面，共产主义的法律，即使到现在，虽然它的应用已不再有严格的法律意义。

中国对自首者实行相对从宽处理原则，即对自首者原则上从宽处理，但在下也可以不予从宽处理。是否从宽处理，由法官根据个案的具体情况依法自由裁量。第七条第2款中规定：“对于自首的犯罪分子可以从轻或者减轻处罚，犯罪较轻的，可以免除处罚。”自首者得到从宽处理，是惩办与宽大相结合的刑事政策在我国刑法中的具体体现。对自首者从宽是一条符合我国国情且行之有效的法律制度，有利于分化瓦解犯罪分子，给犯了罪的人一个改过的机会，鼓励犯罪分子主动投案，促进其认罪伏法，使案件尽快侦破，减少社会危害性，达到一般预防和特殊预防的目的。

自首的概念及成立条件《刑法》第六十七条第一款已经有明确规定即“犯罪以后自动投案，如实供述自己的罪行的，是自首。”但有众多学者认为，还要具备第三个条件，就是接受审查和裁判。持此观点的众多学者散见于各种论著中的理由不外乎是“虽然自动投案的动机是多种多样的，有的是被司法机关通缉无处藏身而自首，有的是怕遭到被害人的报复或同伙的打击而自首，有的嫌疑人出于真诚悔罪，有的慑于法律的威严，有的为了争取宽大处理，有的潜逃在外生活无着落，有的是经亲友规劝而醒悟，等等。但是不同的投案动机并不影响自动投案的构成。犯罪嫌疑人投案后，还必须如实交代犯罪行为，才足以证明其有悔罪表现，为司法机关追诉其所犯罪行提供客观依据，使追诉得以顺利进行。所以说，如实交代犯罪行为是自首成立的一个重要条件，也是自首的本质特征。”当然，他们也有少数学者认为如：“1997年刑法规定自首成立的条件有：（１）自动投案；（２）如实供述自己的罪行。1979年刑法在实践中所掌握的自首的成立条件有：（１）自动投案；（２）如实供述自己的罪行；（３）接受审查和裁判。如果将犯罪分子翻供作为不予认定自首的条件，就等于从法律上又将“接受审查、裁判”重新列为自首成立的必备条件。正如前文所说，1997年刑法正是为了弥补1979年刑法的不足，避免实践中可能出现的某些错误做法，才将自首的成立条件从三条改为二条。”同时，中国最高人民法院《关于处理自首和立功具体应用法律若干问题的解释》虽然没有将接受审查和裁判作为自首的构成条件，但在该解释第一条中规定了“犯罪嫌疑人自动投案并如实供述自己的罪行后又翻供的，不能认定为自首，但在一审判决前又能如实供述的，应当认定为自首。”客观上已经把接受审查和裁判作为自首成立的第三个条件。在执行该解释的实践中，还把罪犯对行为性质的辩解也认定为是不接受审查和裁判，为此，在2004年中国最高人民法院又发布了《关于被告人对行为性质的辩解是否影响自首成立问题的批复》批复内

容是：“根据刑法第六十七条第一款和最高人民法院《关于处理自首和立功具体应用法律若干问题的解释》第一条的规定，犯罪以后自动投案，如实供述自己的罪行的，是自首。被告人对行为性质的辩解不影响自首的成立。”该批复对98年解释的不足进行了一定的完善。

自首的类型划分，他们理论界有不同的认识。刑法理论界的传统观点根据97年刑法第67条的两款规定对自首做出了二元的划分，即将自首划分为两种类型：一类为该条第1款规定的“一般自首”，或者曰典型自首，即“犯罪以后自动投案，如实供述自己的罪行的，是自首”；另一类为该条第2款规定的以自首论的“余罪”自首，即“被采取强制措施的犯罪嫌疑人、被告人和正在服刑的罪犯，如实供述司法机关还未掌握的本人其他罪行的，以自首论”。对第2款规定的自首类型，刑法理论界也称其为“准自首”。关于自首制度类型的二元划分，从形式上看似乎与中国刑法典关于自首制度的立法设置模式相一致，但在实质上却是根本不相容的。此种二分法虽然能够体现出对1997年刑法典第67条两款内容之不同性的关注，却根本未注意到问题的另一面：即自首制度并不仅仅存在于总则中，同时还存在于分则中；不仅仅存在适用一切犯罪的普遍性自首制度，还存在适用个别犯罪的特别自首制度，因此前述认识是片面的。

中国人，无论是在其传统的和现代法律系统，有重视招供或承认有罪刑事程序。根据系统的长波存在于中国，直到早期多年的20世纪，一个供词认为必须结束一宗刑事案件，形式的酷刑获准在以获得自白书形式指控罪犯以及作为证据的形式不愿意作证.在实践中，同时，根据各个共和党和共产主义，被告人目前常常受到各种压力，包括身体暴力和威胁，尤其是服务器上的制裁，如果他们不承认。

正确认定自首的本质，对于科学地揭示自首制度的立法精神具有十分重要的意义。在自首本质的问题上，中国刑法学界存在以下三种观点：第一种观点认为，自首的本质是悔罪，悔罪是“自动”投案和“如实”供述罪行的动机，投案和供述罪行是悔罪的表现。第二种观点认为，认定自首要先分析其归案形式。犯罪人犯罪后归案的形式不外乎两种：被动归案和自动归案。自动归案的本质在于，归案行为是犯罪人出于本意的行为。可见，自首的本质就在于：犯罪人犯罪后自己把自己交付国家追诉。第三种观点认为，自首之所以不同于其他任何行为，就在于它具有犯罪人主动提请司法机关追诉其所犯罪行这一本质亦即自身的质的规定性，所以自首的本质就在于犯罪人主动提请司法机关追诉所犯罪行。

他们认为，作为自首的本质，应当具备以下三个特征：第一，它是自首本身的特质，并将自首与其他事物区别开来；第二，它贯穿自首行为的始终，并普遍适用于自首的各种情形；第三，它能体现自首制度立法的精神实质。

以此为基点来考察，他们认为，悔罪或悔改不能作为自首的本质。“悔罪”并不是自首所特有的属性，其他刑罚制度诸如缓刑、减刑、假释等制度无不以悔罪为要件；司法实践中，自首的动机是各种各样、纷繁复杂的，并非全部出于悔罪，有的可能是潜逃困难、走投无路，有的是因为法律的威慑，有的是在亲朋好友的规劝之下勉强投案等。对于第二种和第三种观点他们认为不存在根本的区别，只不过侧重点有所不同，第二种观点表述为犯罪人犯罪后把自己交付国家追诉，第三种观点表述为犯罪人主动提请司法机关追诉所犯罪行。在这里，无论是“交付”还是“提请”，都是强调犯罪分子犯罪后归案的主动性，可以说，这已在很大程度上提示出自首的本质。