| Notice by the Supreme People's Procuratorate of Issuance of the Sixtieth Group of Guiding Cases of the Supreme People's Procuratorate | | 最高人民检察院关于印发最高人民检察院第六十批指导性案例的通知 |
| The people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Procuratorate of the People's Liberation Army; and the People's Procuratorate of Xinjiang Production and Construction Corps: | | 各省、自治区、直辖市人民检察院，解放军军事检察院，新疆生产建设兵团人民检察院： |
| As decided at the 64th Session of the Fourteenth Procuratorial Committee of the Supreme People's Procuratorate on December 5, 2025 and the 66th Session of the Fourteenth Procuratorial Committee of the Supreme People's Procuratorate on December 19, 2025, three cases including the case of supervision over calculation of the probation period for suspension of Xu [REDACTED] (SPP Guiding Case No. 244-246) are hereby issued as the sixtieth group of guiding cases with a theme of supervision over sentence execution for reference in application. | | 经2025年12月5日最高人民检察院第十四届检察委员会第六十四次会议、2025年12月19日最高人民检察院第十四届检察委员会第六十六次会议决定，现将“徐某某缓刑考验期计算监督案”等三件案例（检例第244-246号）作为第六十批指导性案例（刑罚执行监督主题）发布，供参照适用。 |
| Supreme People's Procuratorate | | 最高人民检察院 |
| December 30, 2025 | | 2025年12月30日 |
| Case of Supervision over Calculation of the Probation Period for Suspension of Xu [REDACTED] | | 徐某某缓刑考验期计算监督案 |
| (SPP Guiding Case No. 244) | | （检例第244号） |
| [Keywords] | | 【关键词】 |
| Supervision over execution of a sentence; facts of the same crime; granting probation; modification of the original judgment upon retrial; deduction of the probation period | | 刑罚执行监督 同一犯罪事实 宣告缓刑 再审改判 考验期扣除 |
| [Key Points] | | 【要旨】 |
| If an offender who is granted probation is retried based on the facts of the same crime and is granted probation again, the original probation period for suspension that has been served shall be included in the probation period for suspension as determined in the retrial judgment. If the people's procuratorate discovers that the probation period for suspension that has been served before the date when the retrial judgment becomes final is not deducted in the Execution Notice, it shall supervise the correction of such Execution Notice in accordance with the law. | | 被宣告缓刑的罪犯基于同一犯罪事实再审后仍被判决宣告缓刑的，之前已经过的缓刑考验期应当计算在再审判决确定的缓刑考验期以内。人民检察院发现人民法院送达社区矫正机构的《执行通知书》没有将再审判决确定之日以前已经过的缓刑考验期予以扣除的，应当依法监督纠正。 |
| [Basic Facts] | | 【基本案情】 |
| The offender, Xu [REDACTED], male, born in 1969, operator of [REDACTED] Engineering Machinery Leasing Company in Panshi City of Jilin Province. | | 罪犯徐某某，男，1969年出生，系吉林省磐石市某工程机械租赁公司经营者。 |
| On June 5, 2020, the Primary People's Court of Panshi City of Jilin Province sentenced Xu [REDACTED] to fixed-term imprisonment of three years with suspended execution of four years. The probation period for suspension was from June 16, 2020 to June 15, 2024. Xu [REDACTED] did not appeal and the judgment became legally effective. On June 16, 2020, Xu [REDACTED] started community correction at [REDACTED] Judicial Office in Panshi City. On October 9, 2020, the People's Procuratorate of Jilin City lodged a protest with the Intermediate People's Court of Jilin City on the ground that the original judgment was inaccurate in determining the nature of Xu [REDACTED]'s acts as a crime of intentional injury and inappropriate in sentencing. On October 26, 2020, the Intermediate People's Court of Jilin City made a decision of retrial and ordered the Primary People's Court of Panshi City to retry the case. On April 2, 2021, the Primary People's Court of Panshi City set aside the original judgment, sentenced Xu [REDACTED] to fixed-term imprisonment of two years with suspended execution of three years for the crime of causing a serious injury by negligence, and issued the Execution Notice. The probation period for suspension was from April 14, 2021 to April 13, 2024. | | 2020年6月5日，吉林省磐石市人民法院以故意伤害罪判处徐某某有期徒刑三年，缓刑四年，缓刑考验期限自2020年6月16日至2024年6月15日。徐某某未提出上诉，判决发生法律效力。2020年6月16日，徐某某开始在磐石市某司法所接受社区矫正。2020年10月9日，吉林市人民检察院以原审判决认定徐某某犯故意伤害罪定性不准、量刑不当为由，向吉林市中级人民法院提出抗诉。2020年10月26日，吉林市中级人民法院作出再审决定，指令磐石市人民法院再审。2021年4月2日，磐石市人民法院撤销原判决，以过失致人重伤罪改判徐某某有期徒刑二年，缓刑三年，并下达《执行通知书》，缓刑考验期自2021年4月14日至2024年4月13日。 |
| [Process of Performance of Duties by the Procuratorial Authority] | | 【检察机关履职过程】 |
| Identification of clues. On April 21, 2021, during a visit to Xu [REDACTED], an offender receiving community correction, by the People's Procuratorate of Panshi City, Xu [REDACTED] reported that he started community correction on June 16, 2020; the court later rendered a retrial judgment and issued the Execution Notice, but the probation period for suspension that had been served before the date when the retrial judgment was rendered was not deducted. | | 线索发现。2021年4月21日，磐石市人民检察院在走访社区矫正对象徐某某过程中，徐某某反映其于2020年6月16日接受社区矫正，后法院再审改判并下达《执行通知书》，未将再审判决前已经过的缓刑考验期予以扣除。 |
| Investigation and verification. After discovering the supervision clues, the procuratorial authority carried out the following investigation and verification: First, consulting Xu [REDACTED]'s community correction files and examining Xu [REDACTED]'s judgments and the Execution Notice. It was learned that Xu [REDACTED] started community correction on June 16, 2020 after the judgment of first instance took effect. After the procuratorial authority lodged a protest, the court retried the case and rendered a retrial judgment. The probation period for suspension recorded in the Execution Notice was from April 14, 2021 to April 13, 2024. As of April 14, 2021, Xu [REDACTED] had been under community correction for nine months and 29 days. Second, inquiring of the staff at the community correction institution. It was learned that the community correction institution implemented classified correction on the basis of risk evaluation and daily assessment and management. The risk level of Xu [REDACTED] had been downgraded from high to low for his good performance and the level of correction had also been adjusted accordingly. Third, learning the relevant information on the recalculation of the probation period for suspension from the Primary People's Court of Panshi City. In the view of the court, paragraph 3 of Article 73 of the Criminal Law provides that "the probation period for suspension shall be calculated as commencing on the date when the judgment becomes final."Since the original judgment has been set aside in accordance with the law, the probation period for suspension should be calculated as commencing on the date when the retrial judgment became final. There is no provision on the deduction of the probation period for suspension for a retrial case in the Criminal Law. Therefore, the retrial court rendered a retrial judgment in accordance with the provisions of paragraph 3 of Article 73 of the Criminal Law and issued the Execution Notice, without taking into account whether the probation period for suspension should be deducted. | | 调查核实。检察机关发现监督线索后，开展了以下调查核实工作：一是查阅徐某某社区矫正档案，审查徐某某判决书及执行通知书。了解到一审判决生效后，徐某某于2020年6月16日开始接受社区矫正。经检察机关抗诉，法院再审作出改判，《执行通知书》记载的缓刑考验期自2021年4月14日至2024年4月13日。至2021年4月14日，徐某某已经接受社区矫正9个月29天。二是询问社区矫正机构工作人员。了解到社区矫正机构根据风险评估和日常考核管理实行分级矫正。徐某某因表现良好，已经由高风险降为低风险，矫正级别也已作出调整。三是向磐石市人民法院了解缓刑考验期重新计算的相关情况。法院认为，刑法第七十三条第三款规定，缓刑考验期限从判决确定之日起计算。由于原审判决已经被依法撤销，缓刑考验期应当从再审判决确定之日起计算。刑法没有对再审案件缓刑考验期限扣除作出规定。因此，再审法院依据刑法第七十三条第三款的规定作出再审判决并下达《执行通知书》，没有考虑缓刑考验期是否应当扣除的问题。 |
| Supervision opinions. The People's Procuratorate of Panshi City held upon examination that the probation period for suspension that had been served after the judgment of first instance against Xu [REDACTED] became effective should be deducted from that as determined in the retrial judgment. First, the two effective judgments involving probation were based on the facts of the same crime, the crime of intentional injury in the original effective judgment was modified to the crime of causing a serious injury by negligence in the retrial judgment, and the fixed-term imprisonment and the probation period for suspension were shortened accordingly. If the probation period for suspension that had been served was not deducted, it was equivalent to extending the probation period for suspension in a disguised form. Second, Xu [REDACTED] had received community correction for nine months and 29 days before the retrial judgment was rendered. If the probation period for suspension was recalculated anew, it was not conducive to motivating the offender receiving community correction to accept educational rehabilitation. Third, with regard to whether the probation period for suspension may be deducted in a case where probation was still granted upon retrial, although there was no explicit legal provision, the calculation of the probation period for suspension was related to the restriction of citizens' personal freedom. Therefore, the principle that severity of the punishment is commensurate with the crime committed and the criminal liability to be borne by the offender should be implemented and the people's court should make an interpretation in line with the purpose of the Criminal Law and conducive to an offender's acceptance of correction. On April 21, 2021, the People's Procuratorate of Panshi City submitted a written supervision opinion to the Primary People's Court of Panshi City and recommended that the Execution Notice be corrected and the probation period for suspension that had been served by Xu [REDACTED] should be included in the probation period for suspension as determined in the retrial judgment. | | 监督意见。磐石市人民检察院经审查认为，徐某某一审判决生效后已经过的缓刑考验期应当在再审判决确定的缓刑考验期中予以扣除。一是两次宣告缓刑生效判决均针对同一犯罪事实，再审判决将原生效判决的故意伤害罪改判为过失致人重伤罪，判处的有期徒刑刑期和宣告缓刑的考验期也相应缩短，如果不扣除已经过的缓刑考验期，相当于变相延长缓刑考验期。二是徐某某在再审宣判前已接受了9个月29天的社区矫正，如果缓刑考验期重新计算，不利于激励社区矫正对象接受教育改造。三是对于再审仍宣告缓刑的案件考验期限能否扣除，虽然法无明文规定，但缓刑考验期的计算关乎限制公民人身自由，应当贯彻罪责刑相适应原则，作出符合刑法目的、有利于罪犯接受矫正的解释。2021年4月21日，磐石市人民检察院向磐石市人民法院提出书面监督意见，建议更正《执行通知书》，将徐某某已经过的缓刑考验期计算在再审判决确定的缓刑考验期以内。 |
| Supervision results. On April 28, 2021, the Primary People's Court of Panshi City replied in a letter to the People's Procuratorate of Panshi City that it had modified the Execution Notice and the probation period for suspension of nine months and 29 days that had been served before the retrial judgment was rendered was deducted in the execution of the retrial judgement. On June 15, 2023, the community correction institution publicly declared that the probation period for suspension of Xu [REDACTED]'s sentence expired, the sentence in the original judgment would no longer be executed, and the community correction was lifted in accordance with the law. | | 监督结果。2021年4月28日，磐石市人民法院向磐石市人民检察院回函称，已经更改《执行通知书》，将徐某某在再审判决作出以前已经过的9个月29天缓刑考验期在执行再审判决时予以扣除。2023年6月15日，社区矫正机构公开宣告徐某某缓刑考验期满，其原判的刑罚不再执行，依法解除社区矫正。 |
| [Guiding Significance] | | 【指导意义】 |
| If an offender who is granted probation is granted probation again based on the facts of the same upon retrial, the probation period for suspension that has been served before the date the retrial judgment becomes final shall be included in the probation period for suspension as determined in the retrial judgment. Paragraph 3 of Article 73 of the Criminal Law provides that the probation period for suspension shall be calculated as commencing on the date when the judgment becomes final. For an offender who is still granted probation upon retrial, since the original effective judgment has been set aside, the probation period for suspension of the offender's sentence shall be calculated as commencing on the date when the retrial judgment becomes final. The provisions of the Criminal Law on the probation period for suspension shall apply accurately under the guidance of the principle and spirit of the rule of law. The principle that the severity of punishments must be commensurate with the crime committed by an offender and the criminal responsibility he bears is a fundamental principle in the Criminal Law, which runs through the entire process of discretion and execution of sentences. If the probation period for suspension that has been served before the retrial judgment is rendered is not deducted, it will actually extend the probation period for suspension of the offender's sentence, which does not conform to the principle that the severity of punishments must be commensurate with the crime committed by an offender and the criminal responsibility he bears. For an offender who is still granted probation upon retrial, including the probation period for suspension that has been served before the date when the retrial judgment becomes final into the probation period for suspension as determined in the retrial judgment conforms to the purpose for establishing the probation system in the Criminal Law, and is conducive to encouraging the offender to reform and rehabilitate himself, abide by the relevant supervision and management regulations during the remaining probation period, and consciously accept community correction. If the people's procuratorate discovers that the probation period for suspension that has been served before the date when the retrial judgment becomes final is not deducted in the Execution Notice, it shall supervise the correction of such Execution Notice in accordance with the law. | | 被宣告缓刑的犯罪分子基于同一犯罪事实再审后仍宣告缓刑的，再审判决确定之日以前已经过的缓刑考验期应当计算在再审判决确定的缓刑考验期以内。刑法第七十三条第三款规定，缓刑考验期限，从判决确定之日起计算。对于再审改判后仍宣告缓刑的罪犯，因原生效判决已被撤销，其缓刑考验期应当从再审判决确定之日起计算。刑法关于缓刑考验期的规定，应当在法治原则、法治精神指引下准确适用。罪责刑相适应原则是刑法的基本原则，贯穿于刑罚裁量和刑罚执行全过程。如果对再审判决前已经过的缓刑考验期不予扣除，则实际上延长了罪犯的缓刑考验期，不符合罪责刑相适应原则。对于再审后仍宣告缓刑的罪犯，将再审判决确定之日以前已经过的缓刑考验期计算在再审判决确定的缓刑考验期以内，符合刑法设置缓刑制度的目的，有利于促使罪犯改过自新，在剩余的考验期内遵守相关监督管理规定，自觉接受社区矫正。人民检察院发现《执行通知书》没有将再审判决确定之日以前已经过的缓刑考验期予以扣除的，应当依法监督纠正。 |
| [Relevant Legislation] | | 【相关规定】 |
| Article 5 and paragraph 3 of Article 73 of the Criminal Law of the People's Republic of China | | 《中华人民共和国刑法》第五条、第七十三条第三款 |
| Paragraph 2 of Article 8 and Article 34 of the Community Correction Law of the People's Republic of China | | 《中华人民共和国社区矫正法》第八条第二款、第三十四条 |
| Article 625 of the Rules of Criminal Procedure for People's Procuratorates (Interpretation No. 4 [2019] of the Supreme People's Procuratorate) | | 《人民检察院刑事诉讼规则》（高检发释字〔2019〕4号）第六百二十五条 |
| ．．．．．． | | ．．．．．． |
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