Rule of Law Section｜The defendant is retrial after losing contact, why can the sentence be sentenced below the statutory sentence?

　　The Paper Journalist Tan Jun

　　In a bribery case that was sentenced to more than ten years imprisonment by law at the time, the Guangdong High Court sentenced the defendant in the original trial to two years imprisonment below the statutory sentence. Subsequently, the case was reported to the Supreme People's Court for approval.

　　This is a bribery case that occurred in 2008, and the amount of bribes was 132,000 yuan.

The defendant in the original trial was Shen Zhi, then Deputy Secretary of the Party Committee of Dongshan Town, Donghai Island, Zhanjiang City, Guangdong.

He was sentenced to ten years in prison for accepting bribes in the first instance, and was sentenced to two years in the second instance for accepting bribes.

After the verdict took effect, the procuratorial organ filed a protest on the grounds of qualitative errors. The Guangdong High Court retrial and found that Shen Zhi was guilty of bribery, but the sentence was below the statutory sentence, and he was sentenced to 2 years imprisonment.

　　The Supreme People’s Court recently announced the ruling on the acceptance of bribes by Shen Zhi. The Supreme People’s Court approved the judgment of the Guangdong High Court and held that based on the amount of bribes Shen Zhi received, he should be sentenced to more than ten years in prison. The law has undergone major changes. According to the principle of accommodating crimes, responsibilities and punishments, and considering the circumstances of the case, Shen Zhi can be sentenced to less than the legal penalty."

The deputy secretary of the town party committee accepted 132,000 bribes and was sentenced to ten years in prison in the first instance

　　The file materials show that in December 2006, Shen Zhi served as the deputy secretary of the Party Committee of Dongshan Town, Donghai Island, Zhanjiang City, in charge of organization and personnel, land and urban construction planning, and was appointed by the Dongshan Town Party Committee and the town government to join the Longchi Village Committee of Dongshan Town. Dongshanwei Villagers’ Group, Dongshan Township), is responsible for assisting the work of the village committee.

　　In November 2007, businessman Qian and others wanted to invest and operate in Donghai Island, so he asked his friend Yao to lease business premises for him.

Through Chen, Yao found the office building (eight floors, hereinafter referred to as the "eighth floor") of the Dongshanwei Villager Group in Dongshan Town, but the building has been leased by the villager Tang, and the lease contract stipulates that subletting is not allowed.

Yao and Chen asked Tang and the Dongshanwei villager group to discuss subletting many times, but they failed to reach an agreement.

　　So Yao, Chen, Qian and others approached Chen, the secretary of the Dongshan Town Party Committee, and asked the town government to come forward and do the work.

Chen 2 considered that Shen Zhi was the head of the Longchi Village Committee, and arranged for Shen Zhi to come forward to resolve the subletting of the "eighth floor".

In order to facilitate this, Chen agreed to give Shen Zhi RMB 200,000 as "working expenses."

Shen Zhi immediately consulted with Mr. He, the leader of the Dongshanwei villager group, Mr. Chen, the acting cashier3, Mr. Tang2, the acting accountant, and Wang, the party branch secretary of the Longchi Village Committee and member of the Dongshanwei villager group. The "eighth floor" was sublet and promised to give them "hard expenses" after the incident.

　　In January 2008, He, Chen3, Tang2, Wang, etc. successively signed and agreed on the subletting of the "eighth floor" housing lease contract.

Shen Zhi went through the notarization procedures for the contract at the Dongshan Town Legal Service Office.

Later, Qian’s wife Liu remitted RMB 487,600 to Yao’s bank account on January 23, 2008.

The next morning, Yao took 486,000 yuan from Liu's remittance, and took out 200,000 yuan from it, and Chen Moudao and Chen gave it to Shen Zhi who came to the appointment at the entrance of the clothing wholesale market in Zhanjiang South Railway Station.

　　After Shen Zhi received the 200,000 yuan, he asked Shen Kong to give 12,000 yuan each to He and Chen 3, and Tang 2 and Wang 10,000 each.

Excluding the above 44,000 yuan and other costs of 24,000 yuan for dealing with subletting matters, Shen Zhi actually received 132,000 yuan.

　　After the incident, Shen Zhi was investigated.

On April 22, 2011, the People's Court of Zhanjiang Economic and Technological Development Zone found that Shen Zhi was guilty of accepting bribes and sentenced him to ten years and six months in prison. The stolen money withdrawn was confiscated and turned over to the state treasury.

The retrial court amended the sentence for 2 years, and the Supreme Law ruled that the sentence is below the statutory sentence

　　After the sentence was pronounced, Shen Zhi refused to accept and filed an appeal.

On September 19, 2011, the Zhanjiang Intermediate People's Court revised the sentence of the second instance and found that Shen Zhi was guilty of accepting bribes by non-state employees and sentenced to two years in prison. The stolen money withdrawn was confiscated and turned over to the state treasury.

　　After the judgment came into effect, the Guangdong Provincial People's Procuratorate filed a protest to the Guangdong Higher People's Court on June 20, 2013 on the grounds of qualitative errors.

Since the defendant Shen Zhi in the original trial could not be found, the Guangdong Higher People's Court returned the case to the Guangdong Provincial People's Procuratorate on December 18, 2013.

　　On February 21, 2019, Shen Zhi was captured.

The People's Procuratorate of Guangdong Province once again lodged a protest to the Higher People's Court of Guangdong Province and took measures to release Shen Zhi on bail pending trial.

On December 20 of that year, the Guangdong Higher People's Court issued a criminal judgment and found that the defendant in the original trial, Shen Zhi, was guilty of accepting bribes and sentenced to two years imprisonment below the statutory sentence. The stolen money withdrawn was confiscated and turned over to the state treasury.

　　The Paper (www.thepaper.cn) noticed that during the absconding period of Shen Zhi, the country revised the criminal law and the sentencing standards for corruption crimes have changed greatly.

From November 1, 2015, the Criminal Law Amendment (9) came into effect.

Subsequently, related supporting judicial interpretations were introduced.

The “Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery” issued on April 18, 2016 stipulates that “If the amount of corruption or bribery is more than 30,000 yuan but less than 200,000 yuan, it shall be deemed as the 300th criminal law. The'larger amount' stipulated in the first paragraph of Article 83 shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and a fine."

At the same time, the standard for penalties of ten-year imprisonment or more was raised from 100,000 yuan to 3 million yuan, which changed the “original criminal law's provision of 100,000 yuan for a penalty of ten-year imprisonment or more”.

　　According to Article 63 of the Criminal Law of the People's Republic of China: Although criminals do not have the mitigating circumstances provided for in this law, according to the special circumstances of the case, with the approval of the Supreme People's Court, they can also be sentenced below the legal penalty.

　　After the judgment of Shen Zhi below the statutory penalty, the Guangdong High Court reported to the Supreme People's Court for approval in accordance with the law.

　　The Supreme People's Court approved that Shen Zhi constituted a crime of accepting bribes, and based on the amount of bribes he accepted, he should be sentenced to more than ten years in prison.

In view of the fact that Shen Zhi took the initiative to truthfully confess his crimes and actively returned the stolen money after returning to the case, he did show repentance and could be given a lighter punishment according to law.

Moreover, since the occurrence of this case, the law has undergone major changes. Based on the principle of accommodating crimes, responsibilities and punishments, and comprehensively considering the circumstances of the case, Shen Zhi can be sentenced to less than the legal penalty.

　　In the end, the Supreme People’s Court ruled that the Guangdong Higher People’s Court sentenced Shen Zhi to a criminal sentence of two years’ imprisonment for the crime of accepting bribes.

[Lawyer's interpretation]

　　He Xiaodian Former Vice President of Hunan Criminal Law Research Association, famous criminal defense lawyer

　　He Luchuan, Lawyer of Hunan Gangwei Law Firm

　　The Basic Principles of Sentencing of "Criminal and Punishment Applicable"

　　The Paper: The court’s decision is based on the provisions of Article 63 of the Criminal Law. Although criminals do not have the mitigating circumstances provided for in this law, according to the special circumstances of the case, with the approval of the Supreme People’s Court, they can also be sentenced to less than the statutory penalty. .

How do we understand the "special circumstances" of this case?

　　He Xiaodian: According to the criminal law at the time when the effective judgment was made on September 19, 2011 in the second instance, the starting point of the main sentence is 10 years imprisonment without surrender or major meritorious service.

During the retrial period, the same law shall be applied to the effective judgment of the second instance. There is no mitigation of the circumstances in this case. If the penalty rule for punishment below the statutory sentence stipulated in Article 63 of the Criminal Law is not applied, the sentence cannot be sentenced for less than 10 years.

　　The conditions under which the statutory penalty and the penalty rules apply, including substantive and procedural aspects.

The former requires the case to have "special circumstances", and the latter requires the approval of the Supreme People's Court.

There is no clear legal standard for "special circumstances". I think the main reason is whether the sentence of the defendant complies with the basic principle of "applicability of crime and punishment".

　　The Paper: In the ruling, two factors of the defendant in the original trial were taken into account in the approval of the sentence below the statutory penalty of the Supreme Law. The statutory or discretionary circumstance of “repentance performance” is a lighter punishment.

The second is that "the law has changed a lot since this case occurred, based on the principle of accommodating crimes, responsibilities and punishments." Which of these two factors is the main one?

　　He Xiaodian: The first factor is that most criminal cases, especially corruption and bribery and other official crimes are usually found. It can only be regarded as a general lighter sentence and cannot constitute a "special situation" in the sentence below the statutory penalty. .

The second factor that works and only works for Shen Zhi's sentence below the statutory penalty is the second factor.

The core of the second factor is that if he took bribes of more than 130,000 yuan and was sentenced to a minimum sentence of 10 years in accordance with the current law at the time, the crime and punishment are obviously not applicable when measured according to the existing laws and their conceptual standards.

This is of course based on factors that have undergone major changes in the law.

　　In fact, even if there is no amendment to the Criminal Law Amendment (9) to the sentencing circumstances for the crime of corruption and bribery, and the "Interpretation on Several Issues concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery" (hereinafter referred to as the "Interpretation of the Two Highs") on corruption The amount of punishment for the crime of bribery and other circumstances have been greatly improved. Taking into account the current level of economic development, the sentence of 10 years in prison also makes it difficult to feel that the crime and punishment are applicable.

From another perspective, strictly abiding by laws and regulations that no longer apply to economic and social development is also contrary to the basic principle of "applicability of crimes and punishments".

　　Retrial cases cannot be applied to the principle of "respect the old and take the lighter"

　　The Paper: When the case was retrial, why didn't the parties directly apply the principle of "respect for the old and lighter" to get a lighter sentence, and still have to report to the Supreme Law for sentencing below the statutory sentence?

　　He Luchuan: The old and lenient principle can only be applied to the first and second instance procedures that have not yet formed an effective judgment on the defendant, and cannot be applied to cases in which the initiated trial supervision procedure is also called the retrial procedure.

　　If a case enters the second-instance procedure after the first instance is completed, the new law is conducive to the implementation of the new law for the defendant. Because the first-instance judgment is not an effective judgment, the second-instance can apply the principle of prejudice to the old and lighter, and directly apply the new law in favor of the defendant. The sentence was commuted to a lighter sentence.

　　However, after the judgment of the case takes effect, even if it is retrialed for various reasons, the law applicable to the retrial shall remain the same as the law applicable to the original effective judgment.

Although this case cannot be carried out according to the principle of "from the old and at the same time", the application of the rule of "punishment below the statutory penalty" has finally achieved the same effect as the principle of "from the old and at the same time".

　　The Paper: There is a special detail in the case. When the Guangdong Provincial Procuratorate protested and the Guangdong High Court initiated a retrial, it was "unable to find" the defendant in the original trial.

It was during the period when the defendant was lost in the original trial that the country promulgated a criminal law in favor of the defendant.

Then, can all other parties obtain such legal benefits by continuing to appeal, retrial, or create other circumstances to extend the litigation time?

　　He Xiaodian: Criminal law related to surrender, meritorious service, confession of guilt and punishment, limitation of prosecution, the old principle of lighter and lesser punishment, and the punishment below the statutory sentence can all be said to be statutory preferential treatment for the defendant, but there are some preferential treatments such as confession and punishment. Some of their actions are the result of social development and changes.

How to obtain the "favorites" given by the law is of course to be obtained through legal means and cannot be obtained illegally.