The Criminal Law of the People's Court Daily should stipulate "positive recovery after a crime" as a statutory sentencing circumstance

"Positive post-crime recovery conduct" refers to the conduct of the perpetrator, based on repentance or other reasons, to actively and effectively take corresponding remedial measures to restore the harm caused by the previous act after the crime has been committed, and before the procuratorate initiates a public prosecution, so as to reduce or eliminate the harmful results or dangerous state that has been caused. Typical behaviors such as embezzling other people's property and returning it before the other person reports the crime; The act of stealing another person's property and returning it before the crime. In judicial practice, there are a large number of "positive post-crime recovery behaviors", but due to the lack of unified provisions on such phenomena in the current criminal law, there is no consistent standard for dealing with such phenomena in judicial practice. Some verdicts have commuted their sentences substantially, or even punished them for their crimes; In some cases, however, they were not taken into account in sentencing. Although the Criminal Law and judicial interpretations have given leniency to some "positive recovery behaviors after crimes", for example, paragraph 4 of Article 201 of the Criminal Law stipulates that if there is an act in paragraph 1, after the tax authorities have issued a recovery notice in accordance with the law, the tax payable shall be paid back and the late payment penalty shall not be investigated, and the criminal liability shall not be pursued; Paragraph 3 of the crime of refusing to pay labor remuneration in Article 276-1 of the Criminal Law stipulates that where there are acts in the preceding two paragraphs, and serious consequences have not been caused, the labor remuneration of the laborer is paid before the public prosecution is initiated, and the corresponding liability for compensation is borne in accordance with law, the punishment may be commuted or waived; Paragraph 3 of Article 351 of the Criminal Law stipulates that those who illegally cultivate opium poppy or other narcotic plants may be exempted from punishment if they are automatically eradicated before harvesting; and Article 12 of the Criminal Law Amendment (11) on the "crime of illegally absorbing public deposits", that is, "where there are acts in the preceding two paragraphs, and the stolen goods are actively returned before the public prosecution is initiated, and the damage is reduced, the punishment may be mitigated or commuted". However, such provisions are only scattered sporadically in some criminal law crimes, and it is difficult to play a role in the "positive rehabilitation behavior after crime" in other crimes. In summary, due to the lack of uniform provisions in the current criminal law, the handling of such acts in judicial practice is not uniform, some of them are regarded as sentencing circumstances, and some courts do not consider them when sentencing, resulting in large differences in sentencing between similar judgments. In view of this, the author believes that "positive recovery after a crime" should be defined as a statutory lenient sentencing circumstance, that is, it should not only stay in some typical crimes in the specific provisions of the Criminal Law, but should also be clearly stipulated in the relevant provisions of the General Provisions of the Criminal Law, so as to provide clear guidance for judicial practice in handling such cases, and then realize similar cases and similar judgments. The reasons are as follows: First, there is a lack of retribution and the need for prevention. Compared with crimes in which there is no "positive post-crime restoration", although the perpetrator's wrongful acts have caused the legal consequences of the completion of the crime, the difference is that in the phenomenon of post-crime positive restoration, the perpetrator actively restores the damage caused by the previous act based on repentance or other reasons. It also shows that, on the one hand, the necessity of applying the retributive penalty to him is reduced or even lost, mainly because the "positive post-crime recovery behavior" has the function of making up for and repairing the harm caused, so that the degree of social harm of the criminal behavior is relatively light; On the other hand, the perpetrator's active reinstatement based on his own choice after the crime has been committed reflects the perpetrator's inner repentance for the previous crime, and to a certain extent, it also shows that it is unlikely that such a crime will be committed again, and the overall personal danger is reduced. Based on this, giving lenient treatment to criminals and giving preferential treatment in sentencing undoubtedly meets the basic requirements of the principle of proportionality of criminal responsibility and punishment. Second, it helps to encourage perpetrators to take proactive measures to remedy the situation. As mentioned above, the current judicial practice deals with "positive post-crime reinstatement" in different ways. Because the criminal law evaluation of "positive rehabilitation after crime" is inconsistent and there is great uncertainty about whether it will be lenient, in the long run, it will inevitably be unfavorable for the perpetrator to actively repent after committing the crime, and it is also not conducive to the effective protection of the victim's rights and interests. On the contrary, if "positive recovery after a crime" is defined as a statutory sentencing circumstance, and statutory leniency circumstances such as "not considered a crime", "conviction and exemption from punishment", and "mitigating or commuting punishment" are used to encourage the perpetrator after the crime has been committed, it is undoubtedly equivalent to setting up a "road back" and "bridge of repentance" after the crime is committed, and it is helpful to encourage the perpetrator to promptly and actively take relevant measures to remedy the mistakes he has committed. Third, it is conducive to better protecting the rights and interests of victims. Generally speaking, the protection of victims in criminal law is a kind of post-facto protection and remedy, that is, after the criminal act has occurred, the victim's feelings of retribution are satisfied through the prosecution and punishment of the offender. Unfortunately, however, the damage has already taken place, and it is almost impossible to recover the actual damage. Compared with the criminal prosecution of state organs, the perpetrator's "active post-crime restoration" has the characteristics of timeliness, economy, and effectiveness for the rescue and restoration of the victim's damaged rights and interests. This is because taking corresponding and active remedial actions after the completion of a crime and before initiating a public prosecution can better prevent and avoid the further expansion of harmful results, and timely and efficiently rescue the damaged legal interests. Therefore, elevating "positive post-crime recovery behavior" to a statutory sentencing circumstance is conducive to motivating perpetrators to actively take relevant measures, so as to protect the victim's damaged rights and interests to the greatest extent. Fourth, further improve the system of leniency in the criminal law. Judging from the provisions of the criminal law, the criminal law gives the perpetrator the opportunity to repent and change his crime, both during and after the crime is committed. For example, in the course of committing a crime, the criminal law provides for a system of suspension of crime; After the crime has been committed, you can go to obtain leniency for the punishment by turning yourself in, confessing, etc. These are undoubtedly "golden bridges" built for criminals, which will help criminals "change their ways" in a timely manner. However, even so, the author believes that the current criminal law still has certain shortcomings in giving criminals the option of leniency. Typically, after the completion of the crime mentioned in this article, the perpetrator carries out a positive recovery act based on a certain motive, so that the harm caused by the previous act is completely mitigated and remedied. From the perspective of reducing the infringement of legal interests caused by crimes, such acts are undoubtedly more significant than acts such as voluntary surrender and confession, and should be subject to better punishment reduction. However, this is not the case, and under the current criminal law norms, "positive rehabilitation after a crime" can only be used as a discretionary sentencing circumstance. Therefore, the legalization of "positive post-crime reinstatement" not only opens up a broader road for offenders to repent, but also can greatly make up for the shortcomings of the time limit for the suspension of crimes, and thus help to further improve the criminal law leniency system.

Source: People's Court Daily, page 6, September 29, 2022.

Author: Shu Dengwei, School of Law, Beijing Normal University.