Background overview of the case:

Yang is the president of Star Company. In February 2014, a district procuratorate in Shenzhen filed a case for corruption investigation and arrested Liang Mou; In August 2016, the Shenzhen Intermediate Court sentenced Liang Mou to life imprisonment for corruption. In December 2016, the Guangdong Provincial High Court ruled to revoke the original verdict and remanded it for retrial on the grounds of unclear facts and insufficient evidence. In December 2017, the Shenzhen Intermediate Court retried the first instance and convicted Liang Mou of duty encroachment and sentenced him to 15 years in prison. Liang refused to accept the retrial of the first instance judgment, filed an appeal. In December 2019, the Guangdong Provincial High Court held a trial, and the prosecutor proposed in court that the conviction of the first instance was wrongly characterized, and demanded that Liang's charge be changed from the crime of duty embezzlement to the crime of embezzlement.

Focus of dispute:

During the second instance of a criminal case caused by an appeal, the procurator appears in court to express his opinion that the charges of the first instance are wrongly defined and he requests the court to change the sentence to a heavier one. Does this violate the principle of no additional penalty on appeal, or does the procuratorate's legal supervision power have a clear boundary?

Article 237 of the Criminal Procedure Law provides that "When a people's Court of second instance tries a case appealed by the defendant or his legal representative, defender or close relatives, the penalty of the defendant shall not be increased." In a case remanded by a people's court of second instance to a people's court of first instance for a new trial, the people's court of first instance shall not increase the punishment of the defendant, except where there are new criminal facts and the people's procuratorate makes additional prosecutions." The so-called "no additional penalty on appeal" is a brief name given by Chinese scholars to the above legal provisions, which refers to the trial principle applied by the court in the trial of the second instance criminal case caused only by the defendant's appeal. In judicial practice, the principle of no penalty on appeal has also encountered different understandings, such as some people think that "no penalty can be added on appeal, but the original sentence can be revoked and the additional penalty can be added after retrial", some people think that "the main penalty remains unchanged, and the additional penalty is added", and some people think that "canceling the suspended sentence and changing the real penalty is not an increase in penalty".

The author believes that in the second instance procedure caused by the appeal of the defendant in the first instance, if the procuratorate does not lodge a protest, nor does it supplement the prosecution or put forward new facts, the procurator of the second instance should also follow the principle of not increasing the penalty on appeal when appearing in court to express his opinion, and can not arbitrarily ask the court to change the charges, especially the charges with relatively heavy penalties. For example, the crime of embezzlement was changed to corruption.

1. Tracing to the source, the essence of not increasing the penalty on appeal is that the defendant cannot be placed in a more unfavorable position, which is the core value of protecting the litigation rights of the defendant in the criminal Procedure law.

The legislation of no additional penalty on appeal was first seen in the German Criminal Procedure Law in 1877, Article 398 of which stipulates that "when the defendant appeals against the judgment, the new judgment shall not be imposed a heavier penalty than the original sentence", which was first widely adopted by countries in the civil law system. Article 265 of the Japanese Code of Criminal Procedure of 1891 states: "If only the defendant, defender or legal agent complains, it is not permitted to change the original judgment against the defendant." The common law countries adopted the principle of no additional penalty on appeal relatively late, and some countries called it "prohibition of non-interest change principle". Although the title of this principle may not be exactly the same in foreign countries, the basic meaning is that the judgment of the appeal trial shall not put the defendant in a more unfavorable situation.

It can be seen that both at home and abroad, this principle emphasizes that the court of second instance is forbidden to make any change of punishment or punishment unfavorable to the defendant in the second instance procedure caused by the defendant's appeal.

(2) The defendant's penalty shall not be increased, and shall not be increased in the three aspects of crime, punishment and sentencing.

In judicial practice, people usually understand the principle of no additional penalty on appeal as not to increase the sentence. We believe that the punishment of the defendant should not be aggravated and should include three aspects: crime, punishment and sentencing. The types of punishment and charges mainly reflect the nature of the crime and the nature of the penalty category. No additional penalty on appeal is reflected in the types of punishment: the heavier main penalty shall not be changed; No additional penalty may be added to the main penalty; A heavier additional punishment shall not be commuted. A charge is a summary of the nature of a crime, that is, what is usually called a crime. The crime reflects the social harm of the crime. Different charges, even if the sentence is the same, the social harm reflected and the public's evaluation are also different. In the movie "A World Without Thieves", the thief King played by Ge You thinks that the robber played by Fan Wei "does not have any technical content", which can be seen that the social harm and evaluation of the crime of theft and robbery by the public are very different. The change to a heavier penalty charge will also cause potential adverse effects on the defendant, such as changing from a negligent crime to an intentional crime charge, or changing to a special recidivism charge, which foreshadovers the defendant's future crime may constitute a recidivism or a special recidivism.

In this case, compared with the crime of embezzlement, the crime of duty embezzlement is not only a change of charges, but also means that the procuratorate believes that the first instance judgment contains incorrect identification of charges, light sentence of serious crimes, and obvious improper application of penalties. The above circumstances belong to the legal circumstances for the people's procuratorate to lodge a protest according to law, and the procuratorate shall lodge a protest within the legal time limit to achieve the purpose of changing the charges.

3. Protest and appeal are independent procedural paths, the procuratorate has the obligation to protest, and the defendant has the right to appeal.

According to Article 583 of the Rules for Criminal Procedure of the People's Procuratorates, a people's procuratorate shall lodge a protest against a true wrong judgment or order of a people's court. Article 584 stipulates six legal circumstances under which the procuratorate should lodge a protest, including: (3) where a felony is given a light sentence, a misdemeanor is given a heavy sentence, and the application of the penalty is obviously improper; (4) The conviction of the charges is incorrect, a crime is convicted of several crimes, several crimes are convicted of one crime, affecting the sentencing or causing serious social impact. Therefore, for the change of charges, especially the change between the crime of embezzlement and the crime of embezzlement, it is related to the nature of the whole case, and the major change of the focus of the dispute belongs to the legal situation that the procuratorate should lodge a protest.

The procuratorate's protest shall comply with the statutory time limit and be timeliness. Although the criminal procedure rules of the Procuratorate do not explicitly stipulate whether the protest submitted after the protest period is valid, and whether the protest opinion can be submitted after the protest period, the timely review once again emphasizes the timeliness of the protest from the provisions of Rule 585 "The people's procuratorate shall review in time after receiving the judgment or ruling of the first instance". In this case, the procuratorate did not protest the judgment of the first instance, it can be regarded as the procuratorate believes that there is never a case that should be protested in a trial, that is, there is no case that the charges need to be changed.

(4) The legal supervision power of the procurators of second instance does not include the protest opinion of changing the charges on the spot.

Article 446 of the Criminal Procedure Rules of the People's Procuratorates stipulates the tasks of procurators attending second instance: (1) supporting the protest or hearing the opinions on appeal, and making corrective comments on the erroneous judgments or rulings made by the original people's court.

The author believes that the procurator of second instance exercising the right of legal supervision is to put forward corrective opinions on the judgment or ruling of the original trial, but does not include the protest opinions of changing the charges on the spot. The corrective opinion here is one of the methods adopted by the procuratorate to carry out legal supervision on the criminal proceedings. Article 551 of the Rules for Criminal Procedure stipulates that people's procuratorates have the right to exercise legal supervision over criminal proceedings, and may, upon discovering illegal activities, make a protest, corrective comments or procuratorial suggestions. Therefore, corrective opinion and counterappeal are legal supervision methods applicable to different situations respectively. The corrective opinions are applicable to the illegal acts existing in the process of criminal proceedings, that is, the legal supervision of the illegal criminal proceedings, usually by the procurator orally, and for the more serious cases, the corrective notice is issued. The protest is applicable to the legal error of the first instance judgment, that is, the legal supervision of the substantive violation of the first instance judgment, according to law, should be put forward in writing within the protest period.

At the same time, the author noted that the Supreme People's Procuratorate on the issuance of the "People's Procuratorate Handling Death Penalty cases of Second Instance and review of the supervision of the work Guidelines" Article 28, paragraph 3 of the "appeal of the case, after the review of the following opinions: Where there is no error in the determination of facts in the original judgment, but there is an error in the application of the law, resulting in a wrong conviction or improper sentencing, opinions shall be put forward suggesting a revision of the sentence, but shall not violate the principle of no increase in the penalty on appeal." The "revised sentence opinion" here should be understood in combination with the function of the procuratorial organ in criminal proceedings, that is, to punish crimes and protect human rights, that is, from the perspective of benefiting the defendant, the appeal does not increase the penalty, so if there is a change in the revised sentence opinion, it can only be changed to a relatively light penalty.

To sum up, in the case that the procuratorate has not filed a protest and the defendant has filed an appeal in the criminal procedure of second instance, the procurator of second instance should follow the principle of no additional penalty on appeal, perform the statutory duty to appear in court after listening to the appeal, and cannot arbitrarily change the charge to a heavier penalty, let alone in the name of exercising the right of legal supervision.