“以自首论”概念及客观构成条件探析

An Analysis on the Concept and Objective Conditions of "Voluntary Surrender"

界定"以自首论"的概念,指出它是自首情节下派生的一种量刑情节,同一般自首的区别主要在于它采取的是被动地向司法机关供述罪行的行为方式;"以自首论"同坦白都处在被动情形之下,只是二者供述的内容被司法机关掌握的度不同。阐述"以自首论"在客观构成上要求犯罪人主动向有关的司法机关如实供述他还没有被掌握的其他罪行,"如实供述"应是据实地交代自己所实施的还没有被发现的触犯法律的行为;对"司法机关"要作弹性理解,犯罪人能够接触到的、与案件有关联的一定地域内的有关机关都应符合要求;犯罪人供述的"其他罪行",是要与已被追诉的罪行无因果联系即可,而不应限定在不同种性质罪行上。

'Voluntary surrender' is circumstances of sentencing derived from surrender plot. The main difference between it and the general voluntary surrender is that it is a passive manner to the judicial authorities to commit crimes; 'Voluntary surrender' and confession are all in a passive situation, but the content of the confession committed to the judicial authority is different. 'Voluntary surrender' in the objective constitution requires the offender to truthfully confess the crimes that has not been mastered by the judicial authorities. 'Truthful confession' is to confess their illegal behavior that has not been discovered. To understand the 'judicial authority', there are some requirements, such as, the organs that criminals can reach, and the organs associated with the case in a certain area; 'Other crimes' confessed by the criminals should be out of causal links with those has been prosecuted, and should not be limited in terms of the different nature of the crimes.