Probation is not a punishment, but a criminal execution system stipulated in China's criminal law, often applied in cases of minor offenses where the defendant pleads guilty and repents. But sometimes there may be situations where a person commits multiple crimes and each crime meets the conditions for probation, so can probation be applied after multiple crimes are punished together? There is considerable controversy over this, and opinions are not unified. The negation theory holds that probation is only applicable to crimes with relatively minor offenses. For individuals who have been punished for multiple offenses, even if the social harm of each offense is not significant and their personal danger is high, probation cannot be applied anymore. It is certain that probation is only a form of punishment execution and has no direct connection with the provision of "combined punishment for multiple crimes". For those who are punished for multiple crimes, as long as they meet the conditions for probation declaration, probation can also be applied.

The author agrees with the affirmative viewpoint mentioned above that combined punishment for multiple crimes can be subject to probation. There may be several reasons as follows:

Firstly, the Criminal Law of our country does not prohibit the announcement of probation when multiple crimes are punished together.

According to Article 72 of the Criminal Law, the conditions for applying probation are that the criminal is "sentenced to criminal detention or fixed-term imprisonment of not more than three years". If all four conditions are met simultaneously, probation can be applied. From this regulation, it can be seen that the Criminal Law does not restrict the application of probation for "combined punishment for multiple crimes". Although Article 2, Paragraph 4 of the "Opinions on Strictly Applying Probation and Exemption from Criminal Punishment in Handling Cases of Duty Crimes" (Fa Fa [2012] No. 17) issued by the Supreme People's Court and the Supreme People's Procuratorate in 2012 stipulates that "criminals who have committed multiple duty crimes and are punished in accordance with the law or treated as one crime generally do not apply probation", Article 5 of the opinion stipulates that "for any of the situations specified in Article 2 of this opinion, but based on the facts and sentencing circumstances of the entire case, if the procuratorial organ deems it necessary to apply probation or exempt from criminal punishment and proposes a sentencing recommendation accordingly, it shall be discussed and decided by the procuratorial committee; if the trial court deems it necessary to apply probation or exempt from criminal punishment, it shall be discussed and decided by the trial committee". The sentence is:. It can be said that this judicial interpretation further clarifies that a criminal who commits multiple crimes and is punished together can apply probation.

Secondly, when multiple crimes are punished together, their criminal circumstances and repentance can still meet the conditions for probation.

According to Article 72 of the Criminal Law, the four substantive conditions for applying probation are: "(1) the circumstances of the crime are relatively minor; (2) there is repentance; (3) there is no risk of recidivism; (4) the probation is declared to have no significant adverse impact on the community where the offender resides." Therefore, regardless of whether the offender commits one or several crimes, as long as they meet the above conditions and the sentence is within the range of "being sentenced to detention or fixed-term imprisonment of less than three years", probation can be applied. It is biased for those who hold a negative view to infer that the perpetrator must be at high personal risk based on the fact that they have committed multiple crimes. Reality is complex, and the combined punishment for multiple crimes is not the only criminal circumstance in a case. A person committing multiple crimes does not necessarily mean that their personal danger is high. If they are coerced to participate in multiple crimes, if all crimes are suspended or attempted, or if they surrender after committing multiple crimes, they can still meet the four substantive conditions for probation. Therefore, it cannot be assumed that criminals who commit multiple crimes necessarily have a high level of personal danger, and therefore the application of probation cannot be ruled out. Specific cases should be analyzed on a case by case basis. Indeed, the fact that criminals have committed multiple crimes indicates that they have committed consecutive crimes, with a relatively high subjective malice and the possibility of recidivism. When considering the application of probation, strict control can be exercised.

Thirdly, the application of probation for combined punishment of multiple crimes does not conflict with the revocation of the probation system under Article 77 of the Criminal Law.

Article 77 of the Criminal Law of our country stipulates the revocation and handling of probation, which means that if a criminal who has been granted probation commits a new crime during the probation period or discovers that there are other crimes that have not been sentenced before the judgment is announced, the probation shall be revoked, and a judgment shall be made for the new crime or newly discovered crime. The punishment for the previous and subsequent crimes shall be determined in accordance with the provisions of Article 69 of this Law. The source of the viewpoint that "combined punishment for multiple crimes does not apply to probation" is mostly related to this provision.

However, the author believes that firstly, this provision stipulates the principles for handling omissions and new crimes committed during the probation period. Revoking the previous probation does not mean prohibiting the application of probation after multiple crimes are punished together. The reason for revoking the previous probation in the case of missed charges is that the original judgment did not fully investigate all the criminal facts, did not accurately determine the charges, and did not correct the application of the punishment. This does not mean that after re investigating the criminal facts and charges, the probation cannot be applied again; If a new crime is committed and the suspended sentence is revoked, it indicates that the suspended sentence execution method has not had a good corrective effect on the criminal. This situation is not the focus of this article. Secondly, compared to the withdrawal of suspended sentences for omissions (indicating that the party has concealed some illegal and criminal behavior), it does not absolutely rule out the possibility of applying suspended sentences again after the combined punishment of several crimes. When there is no omission of a crime, that is, when all the criminal facts and charges have been identified, it means that the party can truthfully and thoroughly confess all their illegal and criminal activities. If they meet the four substantive conditions of suspended sentences, then the application of suspended sentences for the combined punishment of several crimes should not be excluded.

Fourthly, in judicial practice, there are many cases where probation is applied in cases of combined punishment for multiple crimes.

For example, in Case No. 217 of the Criminal Trial Reference, the case of Wan Guoying (former deputy manager of Baiyin Nonferrous Metals Company in Baiyin City, Gansu Province) accepting bribes, misappropriating public funds, and having a huge amount of property of unknown origin was punished for three crimes and sentenced to three years' imprisonment with a three-year probation. For example, (2021) Hu 0107 Criminal Chu No. 868 "Cheng committed the crimes of counterfeiting registered trademarks and selling counterfeit registered trademark goods", and was punished for multiple crimes. The judgment decided to execute a three-year sentence with a three-year probation. For example, (2023) Jing 0114 Xing Chu 937 "Tian committed the crimes of assisting in information network criminal activities and aiding in the destruction of evidence", and was punished for multiple crimes. The judgment decided to execute one year and five months of imprisonment with a two-year probation. It can be seen that although probation is less commonly applied in the case of combined punishment for multiple crimes in judicial practice, it is not excluded and there are authoritative cases supporting the application of probation in this situation.

Finally, allowing the application of probation in combined punishment for multiple crimes is in line with the value of the probation system.

Firstly, the probation system is actually a form of leniency towards punishment, which helps criminals reintegrate into society. This tolerance is beneficial for criminals to sincerely repent and reform themselves. The specific application of probation can make criminals feel the deterrent effect of punishment and fear that the suspended punishment may be actually executed. In the process of not being detained and being investigated by specific authorities, they can more consciously examine their behavior, abandon evil and turn to good, and achieve the purpose of punishment. Secondly, the probation system can avoid the drawbacks of short-term free sentences and optimize the function of punishment. Probation conforms to the concept of economic punishment, which can avoid the drawbacks of isolating criminals from society, making it difficult for them to reintegrate into society, and cross infection caused by the actual execution of short-term free sentences. It achieves the functions of punishment, deterrence, education, and reform in the most economical way possible.

The application of probation to criminals who commit multiple crimes, but all of them are minor and have confessed and repented, without the risk of recidivism, not only does not violate the relevant provisions of the law and judicial interpretations, but also meets the specific needs of judicial practice, and can more fully and comprehensively promote the realization of the value of the probation system, demonstrating the humanitarian ideology of criminal law. Therefore, for criminals who are punished for multiple crimes, as long as they meet the conditions for probation, probation can also be applied.

references

[1] (1) The criminal circumstances are relatively minor; （2） Showing remorse; （3） There is no risk of recidivism; （4） The announcement of probation has no significant adverse effects on the community where the individual resides.

Author Introduction

Lawyer Ai Jing

Doctor of Law, Postdoctoral Fellow in Law, Senior Partner and Lawyer in Beijing, Director of Beijing Criminal Practice Research Center. Published a personal monograph titled "Reform and Improvement of China's Criminal Summary Procedure" (published by Law Press) and co authored multiple books. As an associate editor or writer, participated in the compilation of important judicial reference books such as "Comprehensive Code for the Application of Criminal Procedure Norms" and "Understanding and Judicial Application of Criminal Law Articles"; I have published dozens of important papers in core journals and magazines such as Legal Daily, People's Court Daily, Chinese Criminal Law Journal, Journal of the National Prosecutor's College, and People's Congress Copy Materials. Since practicing law, I have represented multiple influential and complex criminal cases, including over ten cases of duty related crimes committed by former deputy ministerial level and department level leaders, as well as economic crimes committed by well-known corporate executives. He has served as a perennial legal adviser to a number of leading companies in the financial and Internet fields, and has rich experience in criminal litigation and criminal non litigation business. I am currently serving as a member of the Legal Risk Prevention and Control Committee of the China Behavioral Law Society and a guest commentator on the CCTV program "Today's Talk".

Lawyer Wang Yaoqian

I hold a Master's degree in Law from China University of Political Science and Law, specializing in criminal defense and representation services. I have participated in handling various types of criminal cases, including those related to organized crime, corruption, financial and economic crimes, crimes endangering public safety, smuggling crimes, and crimes endangering national security.

Team Introduction

The Beijing Aijing lawyer team is an experienced, theoretically solid, and professional defense team. There are a total of 6 team members, including 2 with a doctoral degree in law and 4 with a master's degree in law (including law), all of whom graduated from top law schools in China. Dr. Ai Jing, the team leader, has previously worked in a criminal trial court in Beijing and has extensive experience in criminal trial work. The team adheres to the principle of "craftsmanship carving jade, professionalism benefiting the future", and has meticulously worked on the path of criminal legal services. They have represented a series of major, difficult, and complex criminal cases, especially in the defense of duty crimes and economic crimes, and have obtained multiple effective defense cases such as innocence and reduced punishment, providing clients with comprehensive, professional, and high-quality legal services.