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Notice of the Supreme People's Court and the Supreme People's Procuratorate on Issuing the Opinions on Several Issues concerning the Determination of Voluntary Surrender, Meritorious Performance and Other Sentencing Factors in Handling Duty-related Criminal Cases [Effective]
最高人民法院、最高人民检察院印发《关于办理职务犯罪案件认定自首、立功等量刑情节若干问题的意见》的通知 [现行有效]
【法宝引证码】

 

Notice of the Supreme People's Court and the Supreme People's Procuratorate on Issuing the Opinions on Several Issues concerning the Determination of Voluntary Surrender, Meritorious Performance and Other Sentencing Factors in Handling Duty-related Criminal Cases 

最高人民法院、最高人民检察院印发《关于办理职务犯罪案件认定自首、立功等量刑情节若干问题的意见》的通知


(No. 13 [2009] of the Supreme People's Court)
 
(法发〔2009〕13号)


The higher people's courts and the people's procuratorates of all provinces, autonomous regions and municipalities directly under the Central Government, the Military Court and Procuratorates of the People's Liberation Army, the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uigur Autonomous Region, and the People's Procuratorate of Xinjiang Production and Construction Corps:
 
各省、自治区、直辖市高级人民法院、人民检察院,解放军军事法院、军事检察院,新疆维吾尔自治区高级人民法院生产建设兵团分院、新疆生产建设兵团人民检察院:

We hereby issue the Opinions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Determination of Voluntary Surrender, Meritorious Performance and Other Sentencing Factors in Handling Duty-related Criminal Cases to you. Please earnestly implement them.
 
现将最高人民法院、最高人民检察院《关于办理职务犯罪案件认定自首、立功等量刑情节若干问题的意见》印发给你们,请认真贯彻执行。

Supreme People's Court
 
最高人民法院

Supreme People's Procuratorate
 
最高人民检察院

March 12, 2009
 
二OO九年三月十二日

Opinions on Several Issues concerning the Determination of Voluntary Surrender, Meritorious Performance and Other Sentencing Factors in Handling Duty-related Criminal Cases
 
关于办理职务犯罪案件认定自首、立功等量刑情节若干问题的意见

To punish duty-related crimes such as embezzlement, bribery and dereliction of duty, in accordance with the Criminal Law and the relevant judicial interpretations and in consideration of the case-handling actualities, we hereby put forward the following opinions on the determination and treatment of voluntary surrender, meritorious performance and other sentencing factors in handling duty-related criminal cases:
 
为依法惩处贪污贿赂、渎职等职务犯罪,根据刑法和相关司法解释的规定,结合办案工作实际,现就办理职务犯罪案件有关自首、立功等量刑情节的认定和处理问题,提出如下意见:

 
I. Determination and treatment of voluntary surrender 你怀了我的猴子  一、关于自首的认定和处理

According to paragraph 1 of Article 67 土豪我们做朋友好不好of the Criminal Law法小宝, two essential elements shall exist at the same time to form a voluntary surrender: voluntarily turning oneself in and truthfully confessing one's crime. Where the case-handling organ does not know the criminal facts or offender or where the case-handling organ knows the criminal facts or offender but the offender has not been interviewed for investigation or interrogated or no investigative measure orcompulsory measure has been announced to be taken against the offender, if the offender turns himself in to a case-handling organ, he shall be deemed as voluntarily turning himself in. If he also truthfully confesses his major criminal facts during this period, it shall be deemed as a voluntary surrender.
 
根据刑法六十七条第一款的规定,成立自首需同时具备自动投案和如实供述自己的罪行两个要件。犯罪事实或者犯罪分子未被办案机关掌握,或者虽被掌握,但犯罪分子尚未受到调查谈话、讯问,或者未被宣布采取调查措施或者强制措施时,向办案机关投案的,是自动投案。在此期间如实交代自己的主要犯罪事实的,应当认定为自首。

Where an offender turns himself in to any entity or organization or any relevant person in charge thereof other than the case-handling organ, such as the entity where he works, he shall be deemed as voluntarily turning himself in.
 
犯罪分子向所在单位等办案机关以外的单位、组织或者有关负责人员投案的,应当视为自动投案。

Where an offender, who fails to voluntarily turn himself in, truthfully confesses the criminal facts to which clues have been known by the case-handling organ during the period when the case-handling organ interviews him for investigation, interrogates him or takes any investigative measure or compulsory measure against him, it shall not be deemed as a voluntary surrender.
 
没有自动投案,在办案机关调查谈话、讯问、采取调查措施或者强制措施期间,犯罪分子如实交代办案机关掌握的线索所针对的事实的,不能认定为自首。

Where an offender fails to voluntarily turn himself in, but falls under any of the following circumstances, it shall be deemed as a voluntary surrender: (1) The offender truthfully confesses his crime which is not known by the case-handling organ and is not in the same kind as the crime already known by the case-handling organ; or (2) The alleged criminal facts to which clues are known by the case-handling organ are false, but the offender confesses his crime of the same kind beyond the aforesaid criminal facts.
 
没有自动投案,但具有以下情形之一的,以自首论:(1)犯罪分子如实交代办案机关未掌握的罪行,与办案机关已掌握的罪行属不同种罪行的;(2)办案机关所掌握线索针对的犯罪事实不成立,在此范围外犯罪分子交代同种罪行的。

In a criminal case committed by an entity, where the entity voluntarily turns itself in upon a collective decision or a decision of the person in charge of the entity and truthfully confesses its criminal facts, or the directly liable person in charge of the entity voluntarily turns himself in and truthfully confesses the criminal facts of the entity, it shall be deemed as a voluntary surrender of the entity. Where an entity voluntarily surrenders itself, if the directly liable person in charge or any other directly liable person fails to voluntarily turn himself in but truthfully confesses the criminal facts that he knows, it may be deemed as a voluntary surrender of him; if he refuses to confess the criminal facts that he knows or tries to evade his legal liability, it shall not be deemed as a voluntary surrender of him. Where the entity does not voluntarily surrender itself, but any directly liable person voluntarily turns himself in and truthfully confesses the criminal facts that he knows, it shall be deemed as a voluntary surrender of him.
 
单位犯罪案件中,单位集体决定或者单位负责人决定而自动投案,如实交代单位犯罪事实的,或者单位直接负责的主管人员自动投案,如实交代单位犯罪事实的,应当认定为单位自首。单位自首的,直接负责的主管人员和直接责任人员未自动投案,但如实交代自己知道的犯罪事实的,可以视为自首;拒不交代自己知道的犯罪事实或者逃避法律追究的,不应当认定为自首。单位没有自首,直接责任人员自动投案并如实交代自己知道的犯罪事实的,对该直接责任人员应当认定为自首。

For an offender with the factor of voluntary surrender, the case-handling organ shall give an account of it and hand over the relevant evidential materials when transferring the case.
 
对于具有自首情节的犯罪分子,办案机关移送案件时应当予以说明并移交相关证据材料。

For an offender with the factor of voluntary surrender, the judicial organ shall, according to the facts, nature, circumstances and extent of damage to the society of the crime and in consideration of the motive, phase and environment of the offender's voluntarily turning himself in, the integrality and stability of the criminal facts confessed, the repentance of the offender and other specific circumstances, decide whether to give a lighter or mitigated punishment or exempt the offender from punishment and the extent to which a lighter or mitigated punishment shall be given.
 
对于具有自首情节的犯罪分子,应当根据犯罪的事实、性质、情节和对于社会的危害程度,结合自动投案的动机、阶段、客观环境,交代犯罪事实的完整性、稳定性以及悔罪表现等具体情节,依法决定是否从轻、减轻或者免除处罚以及从轻、减轻处罚的幅度。

 
II. Determination and treatment of meritorious performance   二、关于立功的认定和处理

A meritorious performance must be an act of the offender himself. Where any relative or friend of an offender directly reveals any crime committed by another person to a relevant organ, provides any important clue for investigating and solving any other case, or helps the judicial organ arrest any other criminal suspect, in order for a lighter punishment on the offender, it shall not be deemed as a meritorious performance of the offender.
 
立功必须是犯罪分子本人实施的行为。为使犯罪分子得到从轻处理,犯罪分子的亲友直接向有关机关揭发他人犯罪行为,提供侦破其他案件的重要线索,或者协助司法机关抓捕其他犯罪嫌疑人的,不应当认定为犯罪分子的立功表现。

The materials on a crime committed by any other person for the establishment of a meritorious performance shall indicate the specific criminal facts; a clue or an act of assistance for the establishment of a meritorious performance shall actually play a role in investigating and solving a case or arresting a criminal suspect. If an offender fails to point out the specific criminal facts when revealing a crimes committed by another person, the criminal facts revealed are not relevant to the criminal facts ascertained, the clue or assistance provided does not actually play a role in investigating and solving any other case or arresting any other criminal suspect, it shall not be deemed as a meritorious performance.
 
据以立功的他人罪行材料应当指明具体犯罪事实;据以立功的线索或者协助行为对于侦破案件或者抓捕犯罪嫌疑人要有实际作用。犯罪分子揭发他人犯罪行为时没有指明具体犯罪事实的;揭发的犯罪事实与查实的犯罪事实不具有关联性的;提供的线索或者协助行为对于其他案件的侦破或者其他犯罪嫌疑人的抓捕不具有实际作用的,不能认定为立功表现。

An offender shall not be deemed as having a meritorious performance unless the crime committed by another person that he reveals or the important clue that he provides for investigating and solving any other case is verified as true. When examining whether a meritorious performance is formed, the judicial organ shall examine not only the explanatory materials provided by the case-handling organ, but also the relevant facts and evidence and the legal documents relating to the determination of the nature and punishment of the case, such as decision on filing a case, arrest warrant, report on close of investigation, opinion on commencing prosecution, indictment and judgment.
 
犯罪分子揭发他人犯罪行为,提供侦破其他案件重要线索的,必须经查证属实,才能认定为立功。审查是否构成立功,不仅要审查办案机关的说明材料,还要审查有关事实和证据以及与案件定性处罚相关的法律文书,如立案决定书、逮捕决定书、侦查终结报告、起诉意见书、起诉书或者判决书等。

Where the source of a clue or material for the establishment of a meritorious performance falls under any of the following circumstances, it shall not determined as a meritorious performance: (1) the offender obtains it by illegal means or channels; (2) the offender obtains it through a post formerly held by him in investigating and banning criminal activities; (3) it is provided by any other person to the offender in violation of regulatory provisions; or (4) it is provided by a functionary of a state organ having the duties of investigating and banning criminal activities or any other functionary of the state by taking advantage of his position.
 
据以立功的线索、材料来源有下列情形之一的,不能认定为立功:(1)本人通过非法手段或者非法途径获取的;(2)本人因原担任的查禁犯罪等职务获取的;(3)他人违反监管规定向犯罪分子提供的;(4)负有查禁犯罪活动职责的国家机关工作人员或者其他国家工作人员利用职务便利提供的。

Where an offender reports or reveals any crime committed by another person, provides any important clue for investigating and solving any other case, stops any criminal activity of another person, or helps the judicial organ arrest any other criminal suspect, and the involved criminal suspect or defendant may be sentenced to life imprisonment or a heavier punishment in accordance with law, he shall be deemed as having a major meritorious performance. The phrase “may be sentenced to life imprisonment or a heavier punishment” means that the criminal suspect or defendant may be sentenced to life imprisonment or a heavier punishment according to the facts and circumstances of the crime. If a judgment has already been made on the case, the punishment determined in the actual sentence shall be referred to. However, if a convict, who shall have been sentenced to life imprisonment or a heavier punishment according to the facts and circumstances of the crime, is sentenced to fixed-term imprisonment which is a lighter or mitigated punishment imposed according to any statutory circumstance, the offender shall be deemed as having a major meritorious performance.
 
犯罪分子检举、揭发的他人犯罪,提供侦破其他案件的重要线索,阻止他人的犯罪活动,或者协助司法机关抓捕的其他犯罪嫌疑人,犯罪嫌疑人、被告人依法可能被判处无期徒刑以上刑罚的,应当认定为有重大立功表现。其中,可能被判处无期徒刑以上刑罚,是指根据犯罪行为的事实、情节可能判处无期徒刑以上刑罚。案件已经判决的,以实际判处的刑罚为准。但是,根据犯罪行为的事实、情节应当判处无期徒刑以上刑罚,因被判刑人有法定情节经依法从轻、减轻处罚后判处有期徒刑的,应当认定为重大立功。

For an offender with the factor of meritorious performance, the judicial organ shall, according to the facts, nature, circumstances and extent of damage to the society of the crime and in consideration of the extent of the role of the meritorious performance, the severity of the crime in the criminal case solved, the statutory penalty that the arrested criminal suspect may be sentenced to, the time of the meritorious performance and other specific circumstances, decide whether to give a lighter or mitigated punishment or exempt the offender from punishment and the extent to which a lighter or mitigated punishment shall be given.
 
对于具有立功情节的犯罪分子,应当根据犯罪的事实、性质、情节和对于社会的危害程度,结合立功表现所起作用的大小、所破获案件的罪行轻重、所抓获犯罪嫌疑人可能判处的法定刑以及立功的时机等具体情节,依法决定是否从轻、减轻或者免除处罚以及从轻、减轻处罚的幅度。

 
III. Determination and treatment of truthfully confessing criminal facts   三、关于如实交代犯罪事实的认定和处理

If an offender fails to meet the legal conditions for a voluntary surrender, but truthfully confesses the criminal facts and falls under any of the following circumstances, he may be subject to a lighter punishment in light of the circumstances: (1) The case-handling organ knows part of the criminal facts, and the offender confesses other criminal facts in the same kind; or (2) the case-handling organ has insufficient evidence, and the offender's truthful confession facilitates the gathering of decisive evidence for conviction.
 
犯罪分子依法不成立自首,但如实交代犯罪事实,有下列情形之一的,可以酌情从轻处罚:(1)办案机关掌握部分犯罪事实,犯罪分子交代了同种其他犯罪事实的;(2)办案机关掌握的证据不充分,犯罪分子如实交代有助于收集定案证据的。

Where an offender truthfully confesses the criminal facts and falls under any of the following circumstances, he shall be generally subject to a lighter punishment: (1) the case-handling organ only knows a small part of the criminal facts, and the offender confesses most of the unknown criminal facts in the same kind; or (2) the offender's truthful confession plays an important role in the gathering of decisive evidence for conviction.
 
犯罪分子如实交代犯罪事实,有下列情形之一的,一般应当从轻处罚:(1)办案机关仅掌握小部分犯罪事实,犯罪分子交代了大部分未被掌握的同种犯罪事实的;(2)如实交代对于定案证据的收集有重要作用的。

 
IV. Treatment of recovery of illegally obtained money or property, etc.   四、关于赃款赃物追缴等情形的处理

Where, in an embezzlement case, all or most of the illegally obtained money or property has been recovered, a lighter punishment shall be generally considered.
 
贪污案件中赃款赃物全部或者大部分追缴的,一般应当考虑从轻处罚。

Where, in a bribery case, all or most of the illegally obtained money or property has been recovered, a lighter punishment may be considered in light of the specific circumstances.
 
受贿案件中赃款赃物全部或者大部分追缴的,视具体情况可以酌定从轻处罚。

Where an offender and his relatives and friends actively return the illegally obtained money or property or actively cooperate with the case-handling organ in recovering the illegally obtained money or property, at the time of sentencing, the case shall be differentiated from one in which the case-handling organ recovers the illegally obtained money or property on its own according to its powers in the process of investigation.
 
犯罪分子及其亲友主动退赃或者在办案机关追缴赃款赃物过程中积极配合的,在量刑时应当与办案机关查办案件过程中依职权追缴赃款赃物的有所区别。

After a duty-related criminal case is opened, the economic losses recovered by the offender and his relatives and friends on their own, the economic losses recovered by the judicial organ or the entity where the offender works or its superior department, or the economic losses reduced for objective reasons shall not be deducted, but may be regarded as a circumstance for imposing a lighter punishment in consideration of the circumstances.

 
职务犯罪案件立案后,犯罪分子及其亲友自行挽回的经济损失,司法机关或者犯罪分子所在单位及其上级主管部门挽回的经济损失,或者因客观原因减少的经济损失,不予扣减,但可以作为酌情从轻处罚的情节。
 

     
     
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