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Guiding Case No. 245 of the Supreme People's Procuratorate: Case of Supervision over Commutation of Chen [REDACTED]'s Sentence
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检例第245号：陈某减刑监督案
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【法宝引证码】
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- Legal document：
Ruling
- Judgment date：
04-28-2024
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| Guiding Case No. 245 of the Supreme People's Procuratorate: Case of Supervision over Commutation of Chen [REDACTED]'s Sentence | | 检例第245号：陈某减刑监督案 |
| (SPP Guiding Case No. 245) | | 检例第245号 |
| [Keywords] | | 【关键词】 |
| Supervision over sentence execution; a pending case before being committed to prison; rendering a new judgment; starting time of sentence commutation; date of execution of the original judgment | | 刑罚执行监督 入监前未结案件 作出新判决 减刑起始时间 原判决执行之日 |
| [Key Points] | | 【要旨】 |
| During the execution of a sentence, if the people's court renders a new judgment against a crime that has been put on file for criminal investigation before the original judgment is pronounced and to which the offender has truthfully confessed, when the offender submits a request for commutation of his sentence for the first time, the starting time of sentence commutation shall be calculated as commencing on the date when the original judgment is executed. When handling a case of supervision over sentence commutation, the people's procuratorate shall conduct a comprehensive examination of whether the starting time of sentence commutation as determined by the prison, whether the offender meets the conditions for sentence commutation, and the extent of sentence commutation are appropriate, to uphold fairness and impartiality in the sentence execution. | | 刑罚执行期间，人民法院对原判决宣告前已经立案侦查且罪犯如实供述的罪行作出新判决后，该罪犯首次提请减刑时，其减刑起始时间应当自原判决执行之日起计算。人民检察院办理减刑监督案件，应当对监狱认定的减刑起始时间、罪犯是否符合减刑条件以及减刑幅度是否适当，进行全面审查，维护刑罚执行的公平公正。 |
| [Basic Facts] | | 【基本案情】 |
| The offender, Chen [REDACTED], male, born in 1980, former third-class police sergeant at [REDACTED] Police Station of the Lizhou Branch of the Public Security Bureau of Guangyuan City, Sichuan Province. | | 罪犯陈某。 |
| On June 4, 2019, the Supervisory Commission of Lizhou District of Guangyuan City decided to file a case against Chen [REDACTED] for criminal investigation as he was on suspected of committing a serious duty-related violation and on the same day, it decided to take a detention measure against Chen [REDACTED]. On September 21, 2020, Chen [REDACTED] was sentenced to fixed-term imprisonment of five years and six months by the Primary People's Court of Lizhou District of Guangyuan City, Sichuan Province for the crime of bending the law for personal gains. Chen [REDACTED] raised no objection to the charge against him, but appealed on the ground that the sentence was excessively severe. The Intermediate People's Court of Guangyuan City, Sichuan Province held upon trial that the sentencing in the judgment of first instance was appropriate and ruled on December 10, 2020 to dismiss the appeal and affirm the original judgment. On January 27, 2021, Chen [REDACTED] was committed to the Jintang Prison in Sichuan Province to serve his sentence. Before the judgment against Chen [REDACTED] for the crime of bending the law for personal gains was pronounced, the case where he was on suspicion of sheltering an organization of a gangland nature was put on file by the public security organ for criminal investigation. During the execution of his sentence, on December 30, 2022, Chen [REDACTED] was sentenced by the Primary People's Court of Wangcang County of Sichuan Province to fixed-term imprisonment of three years. He was given a combined punishment for the above-mentioned crime and the former crime of bending the law for personal gains. It was decided to execute fixed-term imprisonment of eight years and the sentence term was from June 4, 2019 to June 3, 2027 (the time of being held in custody before the judgment against the crime of sheltering an organization of a gangland nature was rendered was deducted from his sentence). | | 2019年6月4日，陈某因涉嫌严重职务违法被广元市利州区监察委员会决定立案调查，并于同日决定采取留置措施。2020年9月21日被四川省广元市利州区人民法院以犯徇私枉法罪判处有期徒刑五年六个月。陈某对指控罪名无异议，但以量刑过重为由提出上诉。四川省广元市中级人民法院经审理认为一审量刑适当，于2020年12月10日裁定驳回上诉，维持原判。2021年1月27日陈某被交付四川省金堂监狱执行刑罚。在徇私枉法罪判决宣告前，陈某因涉嫌包庇黑社会性质组织案于2020年8月9日被公安机关立案侦查。刑罚执行期间，陈某于2022年12月30日被四川省旺苍县人民法院以包庇黑社会性质组织罪，判处有期徒刑三年，与前罪徇私枉法罪并罚，决定执行有期徒刑八年，刑期自2019年6月4日起至2027年6月3日止（判决前先行羁押时间折抵刑期）。 |
| [Process of Performance of Duties by the Procuratorial Organ] | | 【检察机关履职过程】 |
| Examination of the written request for sentence commutation. On October 11, 2023, the Jintang Prison in Sichuan Province submitted a request for sentence commutation to the Intermediate People's Court of Chengdu City on the grounds that Chen [REDACTED] had served fixed-term imprisonment for more than two years and shown true repentance and copied the same to the People's Procuratorate of Chengdu City, Sichuan Province. The People's Procuratorate of Chengdu City held upon examination that paragraph 1 of Article 6 of the Provisions of the Supreme People's Court on the Application of Law for Handling Commutation and Parole Cases provides that the starting time for commutation of fixed-term imprisonment shall be calculated as commencing on the date of execution of the judgment. However, there are no specific provisions on how to calculate the starting time for commutation of the sentence of an offender who is given a combined punishment for several crimes due to an omitted crime during the execution of the sentence or a case that is not closed before being committed to prison. In this case, the judicial organ had grasped Chen [REDACTED]'s crime of sheltering an organization of a gangland nature before the original judgment was pronounced, but it did not give a combined punishment since it was necessary to wait for the trial result of an associated case. During the execution of sentence, the procuratorial organ initiated prosecution against Chen [REDACTED] for the crime of sheltering an organization of a gangland nature and the court gave a combined punishment for the crimes in accordance with the provisions of Article 70 of the Criminal Law. In such a situation, due to lack of specific provisions on whether the starting time for sentence commutation should be calculated as commencing on the date when the original judgment was executed or the date when the new judgment became final, different prisons have differing cognitive divergences in the request for sentence commutation. | | 审查提请减刑建议书。2023年10月11日，四川省金堂监狱以陈某执行刑期二年以上，确有悔改表现为由，向成都市中级人民法院提请减刑，并抄送四川省成都市人民检察院。成都市人民检察院审查认为，《最高人民法院关于办理减刑、假释案件具体应用法律的规定》第六条第一款规定，有期徒刑减刑的起始时间自判决执行之日起计算。但是，对于在刑罚执行期间因漏罪或者入监前未结案件被数罪并罚的，如何计算减刑起始时间没有明确规定。本案中，司法机关对陈某包庇黑社会性质组织的犯罪事实在原判决宣告前就已经掌握，但因需要等待关联案件审判结果而没有并案处理。刑罚执行期间，检察机关对该罪起诉，法院根据刑法第七十条的规定判决数罪并罚。这种情形下，减刑起始时间应当自原判决执行之日计算还是自新判决确定之日起计算，因缺乏明确规定，不同监狱在提请减刑时存在认识分歧。 |
| Investigation and verification. For the purpose of ascertaining whether Chen [REDACTED] met the conditions for sentence commutation, the People's Procuratorate of Chengdu City conducted the following investigation and verification work: First, investigating the execution of Chen [REDACTED]'s sentence and whether he showed repentance. It furnished the Notice of Execution involving the offender, the registration form of committal to prison, the score-based assessment ledger, the educational rehabilitation registration records, and other relevant materials, inquired the supervising police officers, and ascertained that Chen [REDACTED] admitted guilt and showed repentance during the period of serving his sentence, consciously abode by laws, regulations, and prison rules, accepted educational rehabilitation, and proactively participated in labor, and his acts complied with the provisions on "showing true repentance." Second, investigating and verifying the criminal investigation and trial of the original lawsuit involving Chen [REDACTED]. It furnished materials such as the case-filing registration document, the criminal judgment, and the confession of the offender, inquired the original case-handling organ of the criminal investigation and handling process, ascertained that during the criminal investigation into the case of bending the law for personal gains by Chen [REDACTED], the local supervisory organ grasped the clues to the case of sheltering an organization of a gangland nature by Chen [REDACTED], and transferred the clues to the public security organ for case-filing and criminal investigation. The Primary People's Court of Lizhou District of Guangyuan City, Sichuan Province did not try those several crimes committed by Chen [REDACTED] in a combined manner, sentenced Chen [REDACTED] for the crime of bending the law for personal gains, and committed Chen [REDACTED] to the prison for execution on January 27, 2021. During the period when Chen [REDACTED] served his sentence, the Primary People's Court of Wangcang County of Sichuan Province rendered a judgment for his crime of sheltering an organization of a gangland nature on December 30, 2022. Third, investigating and verifying the reasons why the two crimes committed by Chen [REDACTED] were not tried in a combined manner. It learned from the original case-handling organ that the judicial organ grasped the facts of Chen [REDACTED]'s crime of sheltering Xu [REDACTED], head of an organization of a gangland nature who ran a gambling house, and Chen [REDACTED] constantly confessed to the above-mentioned facts, but no judgment was rendered for the case involving Xu [REDACTED] and Chen [REDACTED] may be convicted after a judgment was rendered against Xu [REDACTED]. Therefore, the original case-handling organ did not try the crime of sheltering an organization of a gangland nature in a combined manner with the crime of bending the law for personal gains. | | 调查核实。为查明陈某是否符合减刑条件，成都市人民检察院开展了以下调查核实工作：一是调查陈某刑罚执行情况以及有无悔改表现。调取了罪犯执行通知书、入监登记表、计分考核台账和教育改造登记等材料，并询问监管民警，查明陈某在服刑期间能够认罪悔罪，自觉遵守法律法规及监规，接受教育改造，积极参加劳动，符合“确有悔改表现”的规定。二是调查核实陈某原案件侦办审理情况。调取了立案登记、刑事判决书、罪犯供述等材料，并向原办案机关询问案件侦办过程，查明在陈某徇私枉法案调查期间，当地监察机关已掌握其包庇黑社会性质组织案件线索，并将线索移送公安机关立案侦查。四川省广元市利州区人民法院未将陈某所犯数罪并案审理，以徇私枉法罪一罪对陈某作出判决，并于2021年1月27日交付执行。在陈某刑罚执行期间，四川省旺苍县人民法院于2022年12月30日对其包庇黑社会性质组织罪作出判决。三是调查核实陈某两罪未并案审理的原因。经向原办案机关了解，司法机关虽已掌握其包庇黑社会性质组织头目徐某开设赌场的犯罪事实，且陈某对上述犯罪事实一直供认不讳，但因徐某案尚未判决，需待判决后方可对陈某定罪，故未与徇私枉法罪并案审理。 |
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