The criminal policy of combining leniency with severity is the basic criminal policy in China, which runs through the whole process of criminal legislation, criminal justice and penalty execution. It is the inheritance, development and perfection of the policy of combining punishment with leniency in the new period, and it is the guide for judicial organs to punish crimes, prevent crimes, protect people, safeguard human rights and correctly implement national laws. In order to effectively implement this policy in criminal trial work, this opinion is formulated.

1. General requirements for carrying out the criminal policy of combining leniency with severity

1. To carry out the criminal policy of combining leniency with severity, we should treat it differently according to the specific circumstances of crimes, so that the leniency is lenient, while the strictness is strict, and the leniency and severity are combined with punishment, so as to crack down on and isolate the very few, educate, influence and save the majority, minimize social opposites, promote social harmony and stability, and safeguard the long-term stability of the country.

2. We should correctly grasp the relationship between leniency and strictness, and effectively combine leniency and strictness. We should not only pay attention to overcoming the influence of the ideology of severe punishment, but also avoid being influenced by the ideology of light punishment and blindly lenient.

3. To carry out the criminal policy of combining leniency with severity, we must strictly handle cases according to law, earnestly implement the principles of a legally prescribed punishment for a specified crime, the principle of suiting punishment to crime and the principle of equality before the law, and accurately convict and sentence according to the law. Leniency and strictness must be carried out in accordance with the law, so that leniency and strictness can be justified and punished as crimes.

4. According to the development of economy and society and the change of public security situation, especially according to the change of crime situation, the object, scope and intensity of leniency and strictness should be adjusted in time within the scope prescribed by law. It is necessary to comprehensively and objectively grasp the economic and social situation and social security situation in different periods and regions, fully consider the people's sense of security and the actual needs of punishing crimes, and pay attention to severely cracking down on crimes that seriously endanger national security, social security and the interests of the people. For crimes that are not serious in nature, less serious in circumstances and less harmful to society, and if the defendant pleads guilty and repents, lenient punishment is more conducive to social harmony and stability, it can be lenient according to law.

5. To implement the criminal policy of combining leniency with severity, we must strictly abide by the law, safeguard the unity and authority of the law, and ensure good legal effect. At the same time, we must fully consider whether the handling of cases is conducive to winning the support of the broad masses of the people and social stability, disintegrating crimes and resolving contradictions, educating and reforming criminals and returning to society, reducing social confrontation, promoting social harmony and striving for better social effects. Attention should be paid to fully explain the reasons for the judgment in the judgment documents, especially the reasons for leniency or strictness, so as to urge the defendant to plead guilty to the law, pay attention to educating the masses, and realize the organic unity of the legal effect and social effect of the case judgment.

2. Accurately grasp and correctly apply the policy requirements of "being strict according to law"

6. The "being strict" in the criminal policy of combining leniency with severity mainly means that if the crime is very serious and the social harm is great, it should be sentenced to heavy punishment or death according to law; Defendants who do great harm to society or have statutory and discretionary circumstances of heavier punishment, as well as those who are deeply subjective and have great personal danger, should be severely punished according to law. In the trial activities, by reflecting the policy requirements of "strictness according to law", criminals and social unstable elements are effectively deterred, and the purpose of effectively curbing crime and preventing crime is achieved.

7. To implement the criminal policy of combining leniency with severity, we must unswervingly adhere to the policy of severely punishing serious criminal offences according to law. For crimes that seriously endanger the stability of state power and social order, such as crimes that endanger national security, crimes committed by terrorist organizations, crimes committed by cult organizations, crimes committed by evil forces, and crimes that intentionally endanger public security, serious violent crimes such as intentional homicide, intentional injury, death, rape, kidnapping, abduction and trafficking of women and children, robbery, major looting, and major theft, and crimes that seriously affect people's sense of security, smuggling, selling, transporting, and manufacturing drugs are poisonous. Especially for criminals who are extremely hostile to the country and society, target unspecified people, and commit particularly serious crimes, those who are severely sentenced should resolutely be severely sentenced according to law, and those who are sentenced to death should resolutely be sentenced to death according to law.

8. Serious crimes of corruption, bribery, abuse of power, dereliction of duty by state functionaries, crimes committed by evil forces, major safety accidents, manufacturing and selling fake and inferior foods and medicines, which seriously harm the interests of the masses, have a bad social impact and are strongly reflected by the masses in social security, land acquisition and demolition, post-disaster reconstruction, enterprise restructuring, medical care, education, employment and other fields, occur in key areas of economic and social construction.

For the crimes committed by state functionaries by taking advantage of their duties and commercial bribery, which are of bad nature, serious circumstances, involving a wide range of cases and having a great influence, or those who refuse to plead guilty and repent after the crime, such as concealing the facts of the crime, destroying evidence, forming an offensive and defensive alliance, absconding with a negative case, we must resolutely and severely punish them according to law.

The cases of duty crimes and commercial bribery, in which the defendant's criminal gains are not large, but have caused great losses to state property and people's interests and extremely bad social impact, should also be severely punished according to law.

it is necessary to strictly grasp the determination standard of statutory mitigating circumstances of duty crimes and the extent of mitigating punishment, strictly control the scope of probation for fixed-term imprisonment of less than three years after mitigating punishment according to law, and effectively standardize the application of probation and exemption from criminal punishment for duty crimes.

9. At present and in the future, for crimes that seriously endanger the financial order, such as fund-raising fraud, loan fraud, making and selling counterfeit money, disrupting and manipulating the securities and futures markets, crimes that seriously endanger the safety of food and drugs, such as producing and selling counterfeit drugs, inferior drugs, toxic and harmful foods, crimes that seriously infringe on the national economic interests, such as smuggling, serious accidents with serious consequences, serious environmental pollution, illegal mining, illegal logging and other serious damages.

1. To severely punish serious criminal offences, the subjective malignancy and personal danger of the defendant must be fully considered. Defendants who have carefully planned and planned crimes in advance, defendants with recidivism, professional crimes and other circumstances, or defendants who have been criminally punished for intentional crimes and committed crimes during the probation period of probation and parole should be severely punished according to law to realize the function of special prevention of punishment.

11. Recidivism and drug recidivism should be severely punished according to law. Anyone who constitutes recidivism and drug recidivism according to law, even if the circumstances of the crime are minor, should also reflect the spirit of severe punishment. Especially for recidivists whose former crimes are violent crimes or who are sentenced to heavy sentences, they should be severely punished according to law.

12. We should pay attention to the comprehensive use of various punishment methods, especially the application of property punishment according to law to effectively punish crimes. If there is additional property punishment according to the law, it should be applied according to law. For the crimes of invading money and greedy for profit, we should pay more attention to making criminals suffer economic punishment and depriving them of the ability and conditions to commit crimes again by applying property punishment according to law. It is necessary to strengthen the execution of property punishment to ensure the severity of punishment and the realization of punishment function. If the defendant illegally occupies or disposes of the victim's property and cannot return the stolen goods, it should be considered as an important circumstance when deciding the punishment, reflecting the spirit of severe punishment.

13. The defendant in a criminal case should be investigated for criminal responsibility in strict accordance with the law, so as to make sure that everything is right. We should strive to improve judicial efficiency on the premise of ensuring judicial justice. Especially for those criminal cases that seriously endanger social order and arouse social concern, we should pay close attention to the trial and pronounce sentences in time on the premise of ensuring the quality of the cases.

3. Accurately grasp and correctly apply the policy requirements of "leniency" according to law

14. The leniency in the criminal policy of combining leniency with severity mainly refers to the fact that the defendant can be given a lighter, mitigated or exempted punishment according to law for a crime with minor circumstances and less social harm, or the crime is serious, but it has statutory and discretionary lenient punishment circumstances, and the subjective malignancy is relatively small and the personal danger is not great. Acts that have certain social harm, but the circumstances are obvious and slightly harmful, are not treated as crimes; For those who can not be imprisoned according to law, probation or non-imprisonment sentences such as public surveillance and a single fine shall be applied as far as possible.

15. If the defendant's behavior has constituted a crime, but the circumstances of the crime are minor, or minor crimes are committed by minors or students at school, or the defendant has the circumstances of preparing for the crime, discontinuing the crime, being an accessory, being an accomplice under duress, being too defensive, and being too evasive, and there is no need to be sentenced to criminal punishment according to law. Those who are exempted from criminal punishment shall, in accordance with the provisions of Article 37 of the Criminal Law, do a good job in rehabilitation, help and education or hand it over to the relevant departments for handling, so as to strive for better social effects.

16. Criminals who commit minor crimes, are not deeply subjective and vicious, have less personal danger, show repentance, and will not endanger society again should be treated leniently according to law. For those who meet the conditions, non-custodial sentences such as probation or public surveillance, single penalty and so on shall be applied according to law. At the same time, cooperate with community correction, strengthen education, probation, help and rescue work.

17. Generally, defendants who surrender themselves should be given lenient punishment according to law, except those who commit extremely serious crimes, are extremely subjective and vicious, and are extremely dangerous, or maliciously use surrender to evade legal sanctions.

In principle, those who are deemed to have surrendered themselves because their relatives sent the accused to justice in different forms or assisted the judicial organs in arresting the accused should be given lenient punishment according to law; Although some of them can't be considered as voluntary surrender, considering that the relatives of the defendant support the work of the judicial organs and urge the defendant to appear in court, plead guilty and repent, they should also be fully considered when deciding on the specific punishment for the defendant.

18. Generally, if the defendant makes meritorious service by exposing others' crimes, he should be given a lenient punishment according to law. If the defendant makes meritorious deeds without a very bad criminal circumstance or a very serious criminal consequence, the range of lenient punishment should be greater.

19. First-time offenders and occasional offenders of minor crimes should be given a lenient punishment as appropriate, taking into account their motives, means, circumstances, consequences and subjective state at the time of committing the crime. First-time offenders and occasional offenders who commit minor crimes may be exempted from criminal punishment; If criminal punishment should be imposed according to law, probation or non-imprisonment punishment such as public surveillance and a single fine should also be applied as far as possible.

2. For juvenile delinquency, while considering the motive and purpose, the nature of the crime, the plot and the degree of social harm, we should also fully consider whether it is a first-time offender, whether it repents after being brought to justice, personal growth experience and consistent performance, and adhere to the principle of "education first, punishment second" and the principle of "education, probation and salvation" to deal with it. For occasional theft, robbery and fraud, if the amount has just reached a large standard, and the stolen goods can be truthfully confessed and actively returned after the incident, it can be considered that the circumstances are obviously minor and not treated as a crime. For minor crimes, probation or non-custodial sentences such as public surveillance and a single fine can be appropriately applied according to law; Those who are exempted from criminal punishment according to law shall be exempted from criminal punishment. Minors who commit serious crimes shall also be given a lighter or mitigated punishment in accordance with the provisions of the third paragraph of Article 17 of the Criminal Law. For juvenile offenders who have reached the age of 14 but not 16, they are generally not sentenced to life imprisonment.

21. For crimes committed by the elderly, we should give full consideration to their motives, purposes, circumstances, consequences and repentance, and combine their personal danger and the possibility of recidivism, and give them lenient punishment as appropriate.

22. For crimes caused by the intensification of civil conflicts such as love, marriage, family and neighborhood disputes, crimes caused by labor disputes, mismanagement and other reasons, crimes with bad motives, and sudden crimes caused by the fault of the injured party or based on indignation or defensive factors, lenient punishment should be given as appropriate.

23. If the defendant actively compensates the victim after the crime, and pleads guilty or repents, it can be considered as a discretionary sentencing circumstance according to law. For crimes caused by the intensification of civil disputes such as marriage and family, if the victims and their families express their understanding to the defendant, they should be considered as discretionary sentencing circumstances. If the circumstances of the crime are minor and the victim's understanding is obtained, it can be dealt with leniently according to law, and if no penalty is required, it can be exempted from criminal punishment.

24. For criminal defendants, if non-custodial compulsory measures such as obtaining a guarantor pending trial and residential surveillance are sufficient to prevent social danger and do not affect the normal conduct of criminal proceedings, custody measures are generally not required. If a public prosecution is brought against a people's procuratorate and the defendant has not been arrested, the people's court may generally not decide to arrest the defendant, except that the defendant escapes, conspires to confess, commits a crime again and other situations that are personally dangerous or may affect the normal conduct of criminal proceedings.

Fourth, accurately grasp and correctly apply the policy requirements of "combining leniency with severity"

25. The "combining leniency with severity" in the criminal policy mainly means that when punishing various crimes according to law, we should be good at comprehensively using both leniency and severity, and treat different crimes and criminals differently, so as to be lenient among the strict and lenient with severity; There is strictness in leniency, and strictness is lenient.

26. While severely punishing serious criminal offences in accordance with the law, we should also pay attention to leniency and severity if there are statutory or discretionary circumstances of lenient punishment for the defendant, such as surrender, meritorious service and accessory. According to the specific circumstances of the crime, we should fully consider the lenient punishment according to the law.

27. While lightly punishing minor criminal offences according to law, we should pay attention to severity and leniency, and fully consider whether the defendant has been punished severely, such as repeated admonitions, serious nuisance to society, and strong reaction from the masses. For those who are not strict enough to effectively punish, they should also be reflected in the sentencing, so that criminals can be punished severely and the reform effect can be effectively enhanced.

28. For cases in which the defendant has both statutory and discretionary severity and statutory and discretionary leniency, we should make a comprehensive analysis and judgment on the basis of a comprehensive investigation of the facts, nature, circumstances and degree of social harm of the crime, combined with the defendant's subjective malignancy, personal danger, social security situation and other factors, and be generally strict or lenient.

29. We should accurately understand and strictly implement the policy of "retaining the death penalty, strictly controlling and prudently applying it". For criminals who have committed extremely serious crimes and should be sentenced to death for their crimes, they should be resolutely sentenced to death according to law. It is necessary to strictly control the application of the death penalty according to law, unify the judgment standards of death penalty cases, and ensure that the death penalty is only applicable to a very small number of criminals with extremely serious crimes. The evidence of conviction or sentencing in a specific case to be sentenced to death must be true and sufficient, and a unique conclusion must be drawn. The crime is extremely serious, but as long as it can not be executed immediately according to law, the death penalty should not be sentenced to immediate execution.

3. When dealing with crimes committed by terrorist organizations, cult organizations, underworld organizations and criminal groups engaged in smuggling, fraud, drug trafficking and other criminal activities, we should treat them differently according to different situations: the leaders, commanders, planners and key elements in criminal organizations or groups should be severely punished according to law, and those who are sentenced to heavy punishment or death penalty should be resolutely sentenced to heavy punishment or death penalty; An accomplice who is deceived or coerced into participating in a criminal organization or criminal group or just a general participant and plays a secondary or auxiliary role in a crime shall be given a lighter or mitigated punishment according to law. If the conditions for probation are met, probation may be applied.

For crimes such as murder, arson, robbery and injury in mass incidents, we should pay attention to the key crimes.