立案后消极不主动投案是否属逃避侦查的探讨

Probe into the Problem of Whether Criminal Suspects Inactively Turn Themselves up to the Police Is Considered as an Evasion from Investigation

刑法第八十八条第一款规定"在人民检察院、公安机关、国家安全机关立案侦查或者在人民法院受理案件以后,逃避侦查或者审判的,不受追诉期限的限制",该规定表明刑事案件超过诉讼时效后,嫌疑人是否有逃避侦查或审判的行为是判定该案件是否继续追诉的决定性因素。实践中超过诉讼时效案件嫌疑人常呈现出积极逃避侦查和消极不主动投案两种情形。积极逃避当属逃避侦查没有异议,但消极不主动投案则因主观上无逃避积极性、客观上无积极逃避行为等表现导致其是否属于逃避侦查常成为司法实务工作中争议的焦点。合理区分积极逃避侦查与消极不主动投案行为、理清刑法第八十八条第一款的立法原意、廓清逃避侦查范围界限对司法机关正确决策是否需对相关案件启动追诉程序有积极意义。

The first statement of Article 88 of Criminal Law provides, ＂No limitation on the period for prosecution shall be imposed with respect to criminals who escape from investigation or trial after a people＇s procuratorate or public security organ or state security organ places the case on file and conducts investigation.＂ This provision shows that after a criminal case exceeds the period of prosecution, whether a criminal suspect escapes from investigation or trial is a decisive factor to judge whether such a case should continue to be tried. There is no doubt that an active escaper should be prosecuted, but whether inactively turning themselves up to the police because of no subjectively active escape or no objectively active escape has become a focus of controversy in judicial practice. It is significant for judicial agencies to reasonably differentiate active escape from investigation from inactively turning themselves up to the police and to clarify the original meanings of case filing in the first statement of Article 88 and to understand the range of escape.