How to understand the first paragraph of Article 63 of the Criminal Law

1. Article 63, paragraph 1: Where criminals have mitigating circumstances provided for in this Law, they shall be sentenced to a criminal punishment below the legally-prescribed penalty. This provision is not clear enough, and in practice there is considerable controversy over the extent of mitigation.

The Eighth Amendment to the Criminal Law, which came into effect on May 1, 2011, amends the first paragraph of Article 63 of the Criminal Law to read: "Where criminals have mitigating circumstances provided for in this Law, they shall be sentenced to a punishment below the legally-prescribed penalty; Where this law provides for several sentencing ranges, a sentence shall be given within the next sentencing range of the legally-prescribed sentencing range. "The magnitude of the reduction was further clarified.

2. In the correct application of mitigating circumstances, it is still necessary to pay attention to the following issues: first, commutation of punishment includes two situations: the commutation of the type of punishment and the commutation of the sentence; Second, mitigating punishment cannot be sentenced to the statutory minimum sentence, but can only be imposed below the statutory minimum sentence, otherwise it will be confused with a lighter punishment, and the mitigating punishment cannot be reduced to the extent of exempting punishment, otherwise it will be confused with exemption from punishment.

The first paragraph of Article 63 is [Sentencing Principles for Commutation of Punishment], that is, "Where criminals have mitigating circumstances as provided for in this Law, they shall be sentenced to a punishment below the legally-prescribed penalty." This statutory sentence refers to the statutory minimum sentence or less. In the case of robbery, where a sentence of 3 to 10 years imprisonment is due, the commutation may be given to two years, one year, and so forth.

Article 5 of Amendment (8) to the Criminal Law clearly stipulates this issue.

Article 63, Paragraph 1: [Commutation of Punishment]Where criminals have the mitigating circumstances provided for in this Law, they shall be given a criminal punishment below the legally-prescribed penalty.

Commutation of punishment is different from lenient punishment in that it refers to the selection of a lighter type of punishment or a shorter sentence below the statutory penalty provided for in the provisions of the Criminal Law.

For example, the statutory sentence for the crime of illegal detention is three to seven years, and if the circumstances of the crime are minor, three years can be pre-sentenced first, which is the base sentence, and if there is still meritorious service, the sentence can be reduced by 20 percent, and the sentence is two years and five months, which is the declared sentence, that is, the final sentence.

The third paragraph of Article 67 of the Criminal Law stipulates that it is a provision for voluntary surrender, and for those who voluntarily surrender after committing a crime, as long as the conditions for applying a suspended sentence are met, the punishment can be commuted, and if the circumstances of the crime are very minor, the punishment can also be directly waived. Even if you do not voluntarily surrender after committing a crime, it is not a crime where the circumstances of the crime are very minor, and as long as you truthfully confess your own or others' crimes after committing the crime, you can be given a lighter punishment.

As long as the conditions for the application of probation are met, the probation can be applied. Article 72 of the Criminal Law stipulates that criminals sentenced to short-term detention or fixed-term imprisonment of not more than three years; Where the following conditions are met at the same time, a suspended sentence may be announced, and a suspended sentence shall be announced for persons under the age of 18, pregnant women, and persons who have reached the age of 75: the crime is frank and blind, and the circumstances are relatively minor; Showing remorse; There is no danger of recidivism; The probation is not pronounced with significant adverse effects on the community in which it resides.

Legal basis. Article 67 of the Criminal Law of the People's Republic of China: [Voluntary Surrender] Those who voluntarily surrender after committing a crime and truthfully confess their own crimes are voluntarily surrendered. Criminals who surrender themselves may be given a lighter or commuted punishment. Among them, those who commit relatively minor crimes may be exempted from punishment.

Where criminal suspects, defendants, or convicts who are currently serving a sentence are to truthfully confess other crimes that the judicial organs have instructed them to do not grasp, they are to be considered to have turned themselves in.

Where criminal suspects do not have the circumstances provided for in the preceding two paragraphs of voluntary surrender, but truthfully confess their own crimes, they may be given a lighter punishment; Where they truthfully confess their own crimes to avoid especially serious consequences, punishment may be commuted.

Paragraph 1 of Article 176 of the Criminal Procedure Law states that if the People's Procuratorate finds that the facts of the criminal suspect's crime have been clarified, the evidence is credible and sufficient, and that criminal responsibility should be pursued in accordance with law, it shall make a decision to prosecute, initiate a public prosecution in the people's court in accordance with the provisions on trial jurisdiction, and transfer the case file materials and evidence to the people's court.

Criminal Law of the People's Republic of China

Article 67.

Those who voluntarily surrender after committing a crime and truthfully confess their crimes are voluntarily surrendered. Criminals who surrender themselves may be given a lighter or commuted punishment. Of these, where the crime is relatively minor, punishment may be waived.

Where criminal suspects, defendants, or convicts who are currently serving a sentence who have been subjected to compulsory measures truthfully confess other crimes that the judicial organs have called for that they have not yet grasped, they are to be considered to have voluntarily turned themselves in. Where criminal suspects do not have the circumstances provided for in the preceding two paragraphs of voluntary surrender, but truthfully confess their own crimes, they may be given a lighter punishment;

Where they truthfully confess their own crimes to avoid especially serious consequences, punishment may be commuted.

Legal analysis: Article 67 of the "Criminal Records Law of the People's Republic of China" stipulates that a person who voluntarily surrenders after committing a crime and truthfully confesses his or her crime is a voluntary surrender. Criminals who surrender themselves may be given a lenient punishment or a reduced punishment.

Among them, those who commit a good crime in the state are relatively minor, and the punishment may be waived. Where criminal suspects, defendants, or convicts currently serving a sentence who have been subjected to compulsory measures truthfully confess other crimes of their own that are not yet known to the judicial organs, they are to be considered to have voluntarily surrendered.

Legal basis: Criminal Law of the People's Republic of China Article 67: Those who voluntarily surrender after committing a crime and truthfully confess their own crimes are voluntarily surrendered. Criminals who surrender themselves may be given a lighter or commuted punishment.

Of these, where the crime is relatively minor, punishment may be waived. Where criminal suspects, defendants, or convicts currently serving a sentence who have been subjected to compulsory measures truthfully confess other crimes of their own that are not yet known to the judicial organs, they are to be considered to have voluntarily surrendered.