Li Lei: Several issues in the judgment of the statute of limitations

The statute of limitations is the statutory time limit for criminals to be held criminally responsible in accordance with the law. Article 87 of the Criminal Law provides for the time limit for prosecution on the basis of the harmfulness of the crime to society and the maximum penalty prescribed by law, and articles 88 and 89 respectively provide for legally-prescribed circumstances that are not subject to the limitation of the time limit for prosecution and are not subject to recalculation on the basis of the criminal's subjective malice and personal dangerousness. Article 16 of the Criminal Procedure Law and Article 24 of the Regulations for the Implementation of the Supervision Law stipulate rules for handling criminals who exceed the time limit for prosecution.

1. Judgment on the statute of limitations when the substantive law at the time of the act is inconsistent with the substantive law at the time of filing the case

　　The non-retroactivity of the law is the basic principle of the modern rule of law. Article 104 of the Legislation Law stipulates: "Laws, administrative regulations, local regulations, autonomous regulations, special regulations and rules shall not apply retroactively, except for special provisions made to better protect the rights and interests of citizens, legal persons and other organizations." "The criminal law of the mainland as a whole implements the principles of "substance from the old and light" and "procedures from the new". Article 12 of the Criminal Law stipulates the principle of leniency between the old and the less, "After the founding of the People's Republic of China, if the acts of this Law before the implementation of this Law are not considered to be crimes, the laws of the time shall apply; If the law at the time considers it to be a crime, and it should be prosecuted in accordance with the provisions of Chapter IV, Section 8 of the General Provisions of this Law, criminal responsibility shall be pursued in accordance with the law at that time, but if it is not considered a crime by this Law or the punishment is relatively light, this Law shall apply. Judgments already in force in accordance with the law at that time before the entry into force of this Act shall remain in force". The principle of procedural renewal, that is, litigation legal acts carried out after the implementation of the new law shall be subject to the new law, but litigation acts that have been completed in accordance with the old law are generally still valid, unless otherwise provided by law. The statute of limitations for prosecution is stipulated in the General Provisions of the Criminal Law, and its legal consequences are stipulated in the Criminal Procedure Law and the Regulations for the Implementation of the Supervision Law.

　　Where the statute of limitations for prosecution is of a substantive law nature, and where the substantive legal provisions at the time of the act are inconsistent with those at the time of the criminal case filing (including the filing and investigation, the same below) when a new law is implemented after the crime has been committed, from the perspective of balancing the state's penal power, the protection of human rights, and the protection of the parties' trust and interests, the law at the time of the act and the time when the criminal case is filed shall be compared, and the law applicable to the judgment of the statute of limitations for prosecution shall be determined in accordance with the principle of treating the old with leniency. For example, if the substantive law at the time of the act is not considered to be a crime, but the new law implemented after the act is considered to be a crime, there is no criminal liability at the time of the act, and the substantive law at the time of the act shall not be prosecuted and criminal prosecution shall not be prosecuted; or the statutory maximum penalty provided for by the substantive law at the time of the act is lower, but the new law implemented after the act adds an upgraded statutory penalty or increases the statutory maximum sentence for sentencing, the statute of limitations should still be judged by the statutory maximum penalty provided by the substantive law at the time of the act. On the contrary, if the substantive law at the time of the act is considered to be a crime or the punishment is heavier, but the substantive law at the time of the criminal case filing is not considered to be a crime or the punishment is lighter, it should also be consistent, and in accordance with the principle of the old and the lesser punishment, and in accordance with the substantive law at the time the criminal case is filed, the review of whether prosecution should be pursued and the limitation period for prosecution should be reviewed. For example, Amendment (12) to the Criminal Law adjusts the statutory maximum sentence for the first sentencing of the crime of bribery from 5 years imprisonment to 3 years imprisonment, and the perpetrator commits the crime of offering bribes before Amendment (12) to the Criminal Law, and the statutory maximum sentence is 5 years imprisonment, but the case is filed after the implementation of Amendment (12) to the Criminal Law, the new law may be applied to determine the time limit for prosecution of the crime.

　　The statute of limitations for prosecution has the nature of the criminal procedure law, and the filing of a criminal case is an important measure and symbol for state organs to exercise the power of criminal investigation and prosecution, and has independent procedural value, and for cases that have been filed in accordance with the law and entered into investigation and litigation procedures within the time limit for prosecution, the new law implemented after the case filing does not affect the legal effect of the measures for filing the case, and the investigation, investigation, review, and trial should be continued, so as to avoid putting the cases that have been filed in accordance with the law within the time limit for prosecution and are being handled in a state of uncertainty due to the statute of limitations. undermines the authority and seriousness of criminal proceedings. However, because when the court makes a judgment, it should compare the substantive law at the time of the act and the time when the judgment is made, and determine the applicable law in accordance with the principle of the old and the lesser of the law, so the substantive law at the time of the act is inconsistent with the substantive law at the time when the criminal case is filed, and if the new law does not consider it to be a crime, even if the case is filed within the statute of limitations, from the perspective of saving case-handling resources, it may be handled in accordance with the provisions of article 16 of the Criminal Procedure Law and article 24 of the Regulations for the Implementation of the Supervision Law, and criminal responsibility will not be pursued.

II. Judgment of the statute of limitations for prosecution of joint crimes

　　Whether the statute of limitations for prosecution should be determined in conjunction with the joint offender is understood in different theories and practices of criminal law. One opinion is that the statute of limitations for the prosecution of the co-perpetrators of the crime is determined as a whole, that is, the judgment of the statute of limitations for the prosecution of the accomplices should be the same; Another view is that in the case of joint crimes, the crimes are joint, the responsibilities are separated, and the statute of limitations for the prosecution of each accomplice is judged separately. In the second opinion, there are also differences on how to determine the time limit for the prosecution of the perpetrators of each joint crime, with some opinions holding that the principal offender should be determined according to the statutory maximum penalty that should be applied to the principal offender, while others holding that the principal and accessory offenders should be distinguished and then determined separately. In this regard, the author agrees with the second opinion, that the time limit for prosecution of the joint criminal perpetrator should be determined in one piece, but whether the statute of limitations for prosecution is not subject to the limitation period for prosecution and recalculation should be judged separately.

　　The time limit for prosecution of joint crimes is to be determined in accordance with the statutory maximum penalty for joint crimes. Where two or more persons commit a joint intentional crime, causing the same harmful result, they should both bear criminal responsibility for the harmful results caused by the joint commission of the crime, and the Criminal Law provides that the period for prosecution should be determined in accordance with the legally-prescribed maximum penalty for the crime, rather than the declared sentence after distinguishing between the principal and accessory offenders, so the period of statute of limitations for prosecution for each accomplice should be the same, and it is determined in accordance with the maximum penalty of the legally-prescribed punishment level that should be applied to the joint crime.

　　Whether the time limit for prosecution of each joint offender is not subject to the limitation of the time limit for prosecution and is recalculated should be judged separately, so as to demonstrate the legislative intent of the principle of self-responsibility and the statute of limitations for prosecution. First, if a joint offender commits another crime against the perpetrator of a joint crime in addition to the joint crime, he does not bear the legal consequences of recalculating the time limit for prosecution. The principle of self-responsibility is an important principle in the criminal legislation and judiciary of the mainland, and the perpetrator only bears criminal responsibility for the harmful results caused by the criminal acts he committed; The principle of "full responsibility for some acts" in joint crimes mainly addresses the issue of the attempted joint crime and the scope of criminal responsibility that each perpetrator of the joint crime should bear, and refers to considering the joint crime as a whole, and if any principal offender in the joint crime is completed, the other accomplices will all be responsible for the harmful results caused by the joint crime. The commonality of the above two principles lies in the fact that, when defining the scope of criminal responsibility of the perpetrators of a joint crime, each joint offender does not bear criminal responsibility for other crimes in which he or she did not have criminal intent and in which he did not participate in the crime, so in a joint crime, the perpetrators of the joint crime, especially the accomplices, have borne the legal consequences of being criminally prosecuted for participating in the crime, but they do not bear the adverse consequences of other crimes in which the perpetrator of the joint crime did not participate in the joint crime, including the upgrading of the prosecution period, the recalculation, etc., Otherwise, it is a clear violation of the principle of self-responsibility. If A and B jointly embezzle and B accepts bribes alone, the period for prosecution shall not be recalculated because B commits a new crime. Second, after the investigating organ files a case against the criminal perpetrator, if the other joint criminal perpetrators actively evade the investigation, they are not subject to the limitation period for prosecution. In accordance with the provisions of article 39 of the Supervision Law and article 180 of the Regulations for the Implementation of the Supervision Law, the filing and investigation of crimes abusing public office is limited to the filing of cases based on the person and does not include the filing of cases only for the sake of the matter. However, the practice of punishing crimes abusing public office is more complicated, and after the person under investigation is placed on file for investigation, the accomplice instructs others to give false testimony, destroy evidence, or even threaten case-handling personnel to evade investigation, which is clearly a situation where the facts of the crime provided for in Article 88 of the Criminal Law are evaded after the case has been filed, and therefore are not subject to the time limit for prosecution.

3. The starting point of the time limit for prosecution

　　In accordance with the provisions of Criminal Law article 89, the period for prosecution is calculated from the date on which the crime was committed, and where the criminal conduct is continuous or continuous, it is calculated from the date on which the criminal conduct ends; Where the crime causes harmful results, it is calculated from the date on which the harmful outcome occurred, and where the harmful outcome is continuous and expanded, calculated from the date on which the harmful outcome is determined; Where multiple harmful outcomes are caused, it is calculated from the date on which the last harmful outcome is determined. It is generally believed that the date of the crime refers to the date on which the constitutive elements of the crime are met; Harmful result refers to the harmful result specified in the constituent elements, excluding the illegal state after the infringement of legal interests.

　　The starting point of the prosecution period needs to be judged according to the constitutive elements of the crime and the type of conduct. First of all, it is necessary to determine the starting point of the prosecution period based on the constitutive elements of the crime, focusing on the basic constitutive elements of the crime and the amended constitutive elements of the crime. The basic constituent elements are all the constituent elements stipulated on the basis of the most common form of crime, which is the completion of the crime, and the constituent elements of the amendment are all the constituent elements based on the special forms of the vertical development process of the crime, such as the preparation, attempt, suspension and aggravation of the crime. Where the constituent elements of the amendment are applied, the time limit for prosecution is calculated from the date on which the constitutive elements of the amended crime are met. If the crime of embezzlement is committed for the purpose of purchasing drugs, the crime of embezzlement is completed when the criminal actually controls the stolen money and goods, and the crime of corruption is aggravated by using the stolen money to purchase drugs, and the period of prosecution is calculated from the date of purchase of the drugs and not from the date of control of public funds. Second, where the crime includes several types of conduct, it is necessary to judge the date on which the constitutive elements are met in light of the type of conduct. For example, the crime of embezzlement of public funds includes three types of conduct, namely, misappropriation of public funds to carry out illegal activities, misappropriation of public funds in a relatively large amount, profit-making activities, and the misappropriation of public funds in a relatively large amount and failure to repay for more than three months, the Reply of the Supreme People's Court on the Issue of How to Calculate the Time Limit for Prosecution for the Crime of Embezzlement of Public Funds (Fa Shi [2003] No. 16) provides the starting point of the time limit for each type of conduct constituting the crime of misappropriation of public funds according to the different types of acts of the crime of misappropriation of public funds. For other crimes, the date on which the offence was constituted must be accurately determined according to the type of offence.

　　The starting point for accurately determining whether the criminal conduct has a continuous or continuous state, a cumulative number of crimes, or a period for prosecution for multiple crimes of the same type. First, where the criminal conduct is continuous or continuous, the time limit for prosecution is calculated from the date on which the criminal conduct ends, and it is generally easier to judge. If A has been seeking benefits for B for decades and has uninterruptedly and unlawfully accepted property from B, the time limit for prosecution shall be calculated from the date on which the criminal act ends. Regardless of whether it is the same type of crime or different types of crimes, where a new crime is committed within the time limit for prosecution, the time limit for prosecution for the previous crime is to be recalculated from the date on which the subsequent crime was committed, but the time limit for prosecution for multiple crimes should be judged separately, and where the time limit for prosecution is exceeded for any crime, it is generally not to be prosecuted. If the prosecution period for A to accept property from B constitutes the crime of accepting bribes is five years, and the acceptance of property from C is constituted after five years, the prosecution period for the previous crime has expired; If the prosecution period for the previous crime is 10 years, and accepting C property within the prosecution period constitutes the crime of accepting bribes, and the prosecution period for the latter crime is 5 years, and the case is filed after another 8 years, the prosecution is generally not to be pursued because it is the same type of crime and not the bribery has been continuous, and the later crime has exceeded the prosecution period. For example, the Criminal Law provides that multiple commits the same criminal act or the amount of multiple crimes is calculated cumulatively to constitute a crime, and in practice it is usually manifested that the criminal perpetrator has committed a single criminal act before reaching the level of a crime, and the amount, quantity, and number of times of committing the same criminal act have cumulatively reached the level of a crime, and then constitute a crime. If the previous criminal conduct does not constitute a crime, but has already exceeded the statutory maximum penalty period corresponding to the statutory sentencing range of the first sentencing file for that crime, it is considered that the time limit for prosecution has exceeded and no prosecution is to be pursued. If A accepts 20,000 yuan from B and then 10,000 yuan from C five years later, the amount of money constitutes the crime of accepting bribes, but the previous criminal conduct has exceeded the time limit for prosecution, and generally no prosecution will be pursued.

Source: People's Court Daily

Author: Li Lei, Henan Provincial High People's Court