On the applicable conditions and may be exempted from criminal punishment

Recently a report on exemption from prosecution, caused the author to be exempted from criminal punishment and applicable:

The person in charge of the enterprise tax evasion200Million yuan, if charged, enterprise development will get into trouble, many employees facing crisis of survival. Recently, Dongcheng Procuratorate in accordance with the newly revised "criminal law", is responsible for a tax exemption sued Wang, this is the city's first "amnesty" tax dodger. Evaluation of the National Judges College Professor Zhang Sihan, "in the past, the criminal law as a scourge, and now this one reflects the educational function of the criminal law."
　　2005Years5January2007Years12Month, the general manager of a company in Beijing, the actual operator Wang in the company operating period, the interest income1100Million yuan is not recorded, the amount of tax evasion200Million yuan. Wang after the tax department, the company in2008Years7Monthly pay the full amount of all taxes and fines. According to the revision of criminal law article201The provisions of article, the person directly responsible suspect Wang as the company, shall be convicted and punished for tax evasion. According to the regulations, tax evasion200Million yuan of taxes, to face3Years or more in prison. This year3Month4Day, the public security organ to the crime of evading taxes will Wang Mou to Dongcheng procuratorate for examination and prosecution.
This year2Month28Day, the eleven session of the National People's Congress Standing Committee of the seventh meeting of the criminal law amendment (seven), Dongcheng procuratorate timely amendment to the case with new spirit are discussed. The undertaker thought Wang tax amount of tax payable is below thirty percent, the second is positive, and in back taxes and fines, and has to accept the administrative punishment, in accordance with the introduction of the new criminal law amendment (seven) shall not be prosecuted under any of the circumstances prescribed in the criminal responsibility of the crime of tax evasion. Accordingly, the court of Wang made the decision not to initiate a prosecution. Then, the undertaker timely and investigative organ communication, the investigation organ to the procuratorate for examination and prosecution for withdrawal, the procuratorate for examination and prosecution have agreed to withdraw treatment. After receiving the decision not to initiate a prosecution, Wang handle cases according to law in thanks to the procuratorial organs at the same time, said to take lessons, carefully obey the law run enterprises. "This time we can feel at ease to work!" Enterprise employees so steadfast down ("Beijing Youth Daily"2009Years3Month23Day,A6Version).
 

The so-called exempted from criminal punishment, is refers to the people's court that a certain act constitutes a crime, but the crime plot slight, a punishment exempt from penalty judgment. China's "criminal law" thirty-seventh stipulates:"For minor crimes, without penalty, can be exempted from criminal punishment......"That is to say, though, the defendant constitutes a crime as long as they meet certain conditions, to achieve"The circumstances of the crime are minor and do not require punishment"Statutory requirements, can be exempted from criminal punishment. Exempted from criminal punishment, is the people's court to the defendant guilty as the premise, to"The circumstances of the crime are minor and do not require punishment"With the method of choice for general conditions; is exempted from criminal liability of the defendant and the defendant did not exempt from punishment.

    Conditions on the exempted from criminal punishment of the criminal law in our country, both the regulations, provisions and recessive. The regulations, refers to the provisions of the criminal law, including the general provisions and the specific provisions of the relevant provisions in accordance with the law shall be exempted from criminal punishment. The so-called hidden rules, is in addition to the above provisions shall or may be exempted from criminal punishment of sixteen terms, other relevant provisions of law to make a decision may be exempted from criminal punishment.

China's criminal law expressly to be exempted from criminal punishment in terms of a total of sixteen, distributed in the general provisions and the specific provisions of criminal law. The general principles of criminal law relating to exempted from criminal punishment in terms of total11Article four categories, respectively is: (1) provisions on the scope of application of criminal law. Article tenth of the criminal law on the crime, in foreign countries, according to China's criminal law should bear criminal responsibility, if the foreign judgment, in foreign countries have been affected by the punishment can be reduced or exempted punishment. (2) provisions on crime and criminal responsibility. Article nineteenth of the criminal law on the deaf mute or blind person who commits a crime, shall be given a mitigated punishment or be exempted from punishment. As prescribed in article twentieth, causing major damage than the justifiable defense necessary limits, he should bear criminal responsibility, shall be reduced or exempted from punishment. Other exemption provisions and article twenty-first of the criminal law on the punishment of the emergency exceeds the limits of necessity and penalties; twenty-second on preparatory crime, article twenty-fourth of the discontinuation of crime, punishment, article twenty-seventh of the accessory twenty-eighth about coerced offender provisions. (3Provisions on Punishments in). The criminal law thirty-seventh stipulation: the crime are minor and do not require punishment, can be exempted from criminal punishment. (4About voluntary surrender and meritorious service) from the provisions of punishment. As the criminal law sixty-seventh stipulation on the lesser crime surrender molecules can be exempted from punishment; the provisions of article sixty-eighth, the criminal major meritorious services, can be reduced or exempted from punishment.

In the specific provisions of criminal law to be exempted from criminal punishment in terms of a total of five, respectively:

(1) of article one hundred and sixty-four of the criminal law, bribery of company personnel, before prosecution confesses his bribery behavior, can be reduced or exempted from punishment.

(2"Criminal law") three hundred and fifty-one on the illegal cultivation of mother drug plants, the eradication of self before harvest, may be exempted from punishment.

(3) "criminal law" the provisions of article three hundred and eighty-three, on an individual who embezzles less than ten thousand yuan in five thousand yuan of above, after committing the crime of repentance, positive gains can be exempted from criminal punishment.

(4"Criminal law" article three hundred and ninety) before prosecution on briber confesses his bribery provisions, may be exempted from punishment.

(5"Criminal law") in article 392nd of the introducing bribe people before prosecution voluntarily confesses the bribery provisions, can be reduced or exempted from punishment.

    Recessive about exempted from criminal punishment of criminal law have:

   (1"In the specific provisions of criminal law") on the minimum statutory penalty for control, and also has other mitigating circumstances, can be reduced to be exempted from criminal punishment. The principal types of our country from low to high order, order control, criminal detention, fixed-term imprisonment, the death penalty. If the crime may be sentenced to control, and mitigating circumstances, is in accordance with the law in the relief for the control punishment may be exempted from criminal punishment. Otherwise, only in accordance with the principal penalty from high to low order decline, while not directly reduced to be exempted from criminal punishment. For example, the crime of illegal possession of firearms has performed meritorious service, committed, can be exempted from criminal punishment. Because the criminal law sixty-eight stipulation of general meritorious performance can be mitigated punishment, the provisions of article one hundred and twenty-eight of the minimum statutory penalty of illegal possession of firearms for control, and has performed meritorious service, make the crime of losing firearms without report, may not be directly applicable to be exempted from criminal punishment. Because the criminal law one hundred and twenty-nine stipulation, the loss of the minimum statutory penalty of guns without reporting the crime rather than control for detention, even a mitigated punishment, can only be gradually reduced as the control, while not directly reduced to be exempted from criminal punishment.

(2According to the "criminal law") sixty-third, approved by the Supreme People's court, the special situation of penalty below the legally prescribed punishment.

    To sum up, be exempted from criminal punishment only the following three kinds of circumstances:

(1In general, the specific provisions) expressly exempted from criminal punishment clause (article thirty-seventh of the criminal law except).

(2The specific provisions) in the minimum statutory penalty for control, and has general provisions can be mitigated punishment legal circumstances.

 (3) do not have the above conditions, but with the approval of the Supreme People's court.