In a criminal case handled a few months ago, the local investigation and prosecution authorities repeatedly mentioned "partial understanding" and "full understanding". The prosecution's sentencing recommendation for a certain defendant was inappropriate, citing that the understanding obtained by the defendant was a "partial understanding". This raises the author's question: How much does different degrees of understanding have a different impact on sentencing?

1、 The positioning of forgiveness in the sentencing mechanism

Article 26 of the Judicial Interpretation of the Supreme People's Court on Further Strengthening Criminal Trial Work (issued and implemented on August 28, 2007) stipulates: "The sentencing circumstances shall be correctly applied in accordance with the law. Criminals who seriously endanger social security, cause significant losses to the interests of the country and the people, and have a legally heavier punishment must be severely punished in accordance with the law. For minor crimes and defendants who have voluntarily surrendered, made meritorious contributions, or have a legally lighter or mitigated punishment, lenient punishment shall be given in accordance with the law.".

Subsequently, Article 27 stipulates: "Non custodial punishment shall be correctly applied in accordance with the law. Criminals who commit minor crimes, first-time crimes, accidental crimes, negligent crimes, etc., have a low degree of subjective malice, a low degree of personal danger, show signs of repentance, actively compensate for losses and obtain forgiveness from the victims, and will not harm society again, shall be dealt with leniently in accordance with the law and given opportunities for reform as much as possible..."

Article 10 of the "Several Opinions of the Supreme People's Procuratorate on Implementing the Criminal Justice Policy of Tempering Justice with Mercy in Prosecutorial Work" (issued and implemented on December 28, 2006) states: "... For cases where the defendant pleads guilty and actively compensates for losses, the victim understands, cases of juvenile delinquency, and cases with statutory leniency or mitigated circumstances, the people's court generally does not file a protest if the punishment is relatively light..."

Therefore, "forgiveness" is not a statutory mitigating circumstance in sentencing, but a discretionary mitigating circumstance, and the scope of applicable cases has many limiting conditions. In some cases, understanding or not is not considered a factor at all, even if the parties or their families make many efforts to raise funds to obtain the letter of understanding, it is in vain. For example, in the sexual assault case of Zhou, which was reviewed by the Supreme People's Court in October 2022 and reviewed by a provincial high court for the second time, the defendant's family compensated millions of yuan to seven victims and obtained forgiveness. In the end, the second trial committee still upheld the death penalty verdict.

2、 Differences in sentencing between "partial understanding" and "complete understanding"

What is a part, what is the whole? In certain cases, such as the crime of property infringement, the victim usually issues a letter of understanding directly to the defendant. At this point, "part" and "all" indicate the victim's level of understanding towards the defendant. In cases of violating the personal rights of citizens, such as sexual assault, traffic accident, intentional injury, etc., a letter of understanding is generally issued by the victim's family. At this point, "partial" and "complete" are manifested as "obtaining forgiveness from some of the victim's relatives" and "obtaining forgiveness from all of the victim's relatives".

1. There is not much difference in sentencing between "partial forgiveness" and "full forgiveness"

In the case of Shanghai Putuo District People's Court (2022) Hu 0107 Xing Chu 403 (fraud case by Mao et al.), the defense counsel issued a letter of understanding and a transfer record to prove that the defendants Zhu and Mao refunded part of the victim's losses and obtained partial understanding. The court believes that the defendants, Zhu and Mao, have refunded some of the victim's losses and obtained forgiveness, and may be given a lighter punishment at their discretion.

In the case of Gui Shi Xing Yi Zhong Zi No. 21 (Wang's Illegal Detention Case) issued by the Intermediate People's Court of Guilin City, Guangxi Province (2014), the defense counsel disagreed with the first instance judgment and proposed that the original judgment deemed it to be a partial understanding rather than a complete one, which is contrary to the facts. The Intermediate People's Court has clearly responded to this, and the three appellants and their defense counsel have stated that obtaining full understanding from the victim's relatives, rather than partial understanding, is no longer sufficient to affect the final sentence of the three appellants.

In the above two cases and most other cases that the author has researched, the court generally does not distinguish between "partial understanding" and "full understanding", and treats them equally.

2. There is a sentencing gap between "partial understanding" and "full understanding"

In the case of Fujian Xiamen Intermediate People's Court (2020) Min 02 Xing Zhong 486 (Jiang's intentional injury case), the first instance court found that Jiang had compensated the second victim for some economic losses and obtained partial forgiveness, and the victim in this case was also at fault. Therefore, the defendant may be given a lighter punishment at their discretion. The defense counsel appealed that Jiang had compensated the victims Yu and Yang for their economic losses and obtained Yu's understanding, but the social harm was relatively small. They requested a change in sentence suspension. The Intermediate People's Court of the second instance believes that Jiang did not compensate the victim for all economic losses and did not obtain full forgiveness from the victim, which poses significant social harm and is not suitable for probation. The original verdict is upheld.

The People's Court of Beiliu City, Guangxi (2020) Gui0981 Criminal Case No. 253 (Li Traffic Accident Case), the defense counsel's defense opinion is that Li is a first-time offender with a self surrender circumstance, has obtained full understanding from the victim's family, and requests a lighter punishment and probation. The court believes that after verification, the letter of understanding was only issued by some of the victim's family members. Therefore, Li only obtained forgiveness from some of the victim's family members after the incident. Therefore, this defense opinion is inconsistent with the facts found, and the court will not accept it... Taking into account the criminal facts and circumstances of this case, the court believes that it is not appropriate to apply probation to him.

In the above two cases, the court focused on examining and emphasizing in the reasoning section whether the understanding obtained by the defendant was "partial understanding" or "full understanding", but the court also specifically mentioned the impact of other circumstances on the judgment.