Criminal Law OF THE PEOPLE'S REPUBLIC OF CHINA

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Criminal Law OF THE PEOPLE'S REPUBLIC OF CHINA
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Preface

• The current criminal law was Adopted
  by the Second Session of the Fifth National
  People's Congress on July 1, 1979 and
  substantially amended by the Fifth Session of the
  Eighth National People's Congress on March 14,
  1997.
• It was not until 1979 that the first
  codes of criminal law and criminal procedure law
  were enacted in China. The 1990s have seen
  significant further reform of the criminal
  justice system which has mainly focused on
  criminal law and criminal procedure law.

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Articles distribution in Criminal Law
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Criminal Law

• Criminal law is a substantive law that is branch
  of the law which
• defines criminal conduct
• establishes criminal punishments

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The Basic Contents

• The Law governs Tasks, Basic Principles, and
  Scope of Application of the Criminal Law, Crimes,
  Punishments, The Concrete Application of
  Punishments and Ten Categories of Crimes.

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Principles

• There are three fundamental principles
  structuring Chinese law
• Legality
• The requirement that laws clearly define crimes
  in advance of the conduct sought to be punished.
• There can be no crime and no punishment without
  law.
• Article 3 An act which is expressly defined by
  law as a criminal act shall be convicted of a
  crime and sentenced in accordance with law and
  if it is not expressly defined by law as a
  criminal act, it may not be convicted of a crime
  and sentenced.

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Equality Equality Before the Law

• The requirement that the law accord the same
  treatment to all similarly situated classes of
  law violators. In other words, the law does not
  discriminate, either on its face or in its
  enforcement .
• Article 4 Any person who commits a crime shall
  be equal in applying the law. No person is
  privileged to be beyond the law.

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Proportionality

• The requirement that punishment or the degree of
  punishment bear some relationship to the
  seriousness of the conduct to be punished.
• Article 5 The seriousness of punishment shall be
  determined in accordance with the crime committed
  by the criminal and his criminal responsibility.

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The validity scope of Criminal Law

• Territory Principle
• This principle means China has jurisdiction over
  crimes happening within Chinese territory. And in
  China, the Objective Territory Principle is
  applicable, according to Chinese relevant law,
  Chinese court has jurisdiction over conducts
  started in other country but complete within
  Chinese territory or causing gravely harmful
  effects on the social or economic order in
  Chinese territory.

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• Personal principle
• According to the international law, on the basis
  of the Nationality Principle, Chinese authorities
  have jurisdiction to prosecute and punish the
  person who violates Chinese criminal law and
  regulations within the territory of China or
  abroad.

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• Protective principle
• This principle stated that if one person violated
  or committed crimes with or within the territory
  of country, they will be prosecuted under the
  criminal law of that country.
• This principle is rarely adopted because it is
  difficult to sue a person when he committed
  crimes outside the country.

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• Universal principle
• This principle stated that the criminal law is
  applicable to the offences committed by any
  person. This principle is widely accepted by the
  world as it combined the above three principles
  and it is also the most comprehensive.
• The Chinese Criminal Law also adopted this
  principle that it is applicable to any person who
  committed crimes aboard ships or aircrafts of the
  PRC . PRC also adopted the principle of
  territorial application the criminal
  responsibility of foreigners who enjoy diplomatic
  privileges and immunity will be resolved through
  diplomatic channels.

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The scope of validity
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What is a Crime?

• The law defines crime as any act that endangers
  society and is subject to punishment.
• The act has the nature of social harm
• The act violates the criminal law
• The act should be punished according to the
  criminal law
• All three features must be co-exist in order to
  constitute crime.

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Distinction between a criminal and an unlawful
act.

• An act that endangers society is not deemed a
  crime, however, where "the circumstances are
  obviously minor and the harm done is not serious"
  (CL, Art. 13). An act that endangers society but
  with minor circumstances or consequences is
  referred to as an unlawful act.
• PRC criminal law draws a clear distinction
  between a criminal and an unlawful act.
• A criminal act is defined by the Criminal Law,
  investigated and prosecuted according to the
  procedures set out in the PRC Criminal Procedure
  Law (CPL) and subject to criminal penalties.
• An unlawful act is defined by administrative laws
  and regulations, punished by administrative
  organs according to administrative procedures,
  and subject to administrative penalties.

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• The National People's Congress (NPC), or its
  Standing Committee determines the threshold
  separating a criminal act from an unlawful act by
  specifying the extent of seriousness of the
  consequences and circumstances to which an act
  warrants a criminal penalty.
• The legislature may define the seriousness of the
  consequences by setting a fixed amount enumerated
  in Chinese currency, renminbi, or use other
  criteria to determine the consequences of the
  offense, which will trigger application of the
  Criminal Law. For example, accepting a bribe will
  only be considered an offense if the amount of
  the bribe exceeds 5,000 yuan (CL, Art. 383).
• The Criminal Law applies if the amount reaches
  the specified minimum. Otherwise, such acts are
  considered "unlawful" and thus subject only to
  administrative penalties.
• The triggering amount, while a key determinant
  for criminal liability, is not conclusive. A
  crime may still be declared, even if the minimum
  amount has not been reached, where aggravating
  circumstances exist.

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• the legislature has defined the parameters of
  criminal acts more clearly by specifying a
  trigger amount.
• the Criminal Law largely continues to set only
  general standards, applying ambiguous terms such
  as light, serious, or very serious in relation to
  various circumstances and large, huge, and
  especially huge in relation to their
  consequences.
• The Criminal Law leaves detailed criteria to be
  determined by the Chinese courts and other
  institutions in the application and enforcement
  of the Criminal Law.

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Elements of a Crime

• To constitute a crime there must be a wrongful
  act or omission accompanied by criminal intent.
• The criminal law requires a wrongful act because
  it is concerned with infliction of harm and not
  simply with someones evil thoughts.
• The law normally requires guilty mind because we
  dont normally punish people for accidents.

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Capacity to bear criminal responsibility
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The age for bearing criminal responsibility

• The age for bearing criminal responsibility is
  sixteen.
• Minors under the age of fourteen are entirely
  exempted from criminal responsibility, even if
  they commit acts harmful to society.
• Minors aged fourteen but under the age of sixteen
  shall partially bear criminal responsibility,
  that is to say they are responsible criminally
  only in cases involving crime of intentional
  homicide, intentionally injuring another person
  to serious bodily injury or death, rape, robbery,
  selling drugs, arson, explosion or spreading
  poison.
• For delinquents aged fourteen to seventeen but
  younger than eighteen, the Law requires a lenient
  punishment. When minors are not punished because
  they are under sixteen, the heads of their
  families or their guardians are to be ordered to
  subject them to discipline or when necessary, the
  minors may be given shelter or rehabilitation by
  the Government.

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Unit Criminality

• The unit criminality is defined that crime is
  committed by not only person but a unit or legal
  person, such as companies, organization,
  enterprises, institutions, state organs and
  corporation.
• This not only included the unit but also included
  persons who are involved in the unit.
• Criminal Law uses the term Unit Crime instead
  of corporation crime because unit is to
  involve not only companies, but also other
  unincorporated organizations.
• The only criminal punishment which is applicable
  to Unit Crime is fine.

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Guilty mind
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Punishments

• Forms of punishment fall into the following
  categories
• Principal Punishments
• Public surveillance (Control)
• Criminal detention
• Fixed term imprisonment
• Life imprisonment
• Death penalty of immediate execution and death
  penalty with a two-year suspension.

• supplementary punishments
• fines
• deprivation of political rights
• confiscation of property
• Deportation may be applied independently or
  supplementarily to an alien who commits a crime.

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• Public surveillance is a criminal penalty imposed
  for minor offences.
• The offender continues to work in his place of
  employment and continues to receive his normal
  wages, while undergoing the supervision of the
  public security organs (police) and the masses.
• The term of public surveillance shall not be less
  than three months and not more than two years.

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• Criminal detention is a criminal penalty imposed
  for relatively minor offences, and totally
  different from pre-trial detention.
• The criminal on whom this penalty is imposed is
  deprived of his freedom and confined in a
  detention house by the local organ of public
  security rather than being put in prison.
• He/she may go home for one or two days each
  month and be paid for work.
• The term of criminal detention shall not be less
  than one month and not more than six months.

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• The term of fixed-term imprisonment is not less
  than six months and nor more than fifteen years.
• An offender sentenced to fixed term imprisonment
  or life imprisonment is to have his sentence
  executed in prison for reform through labour.
• Reform through labour is to be carried out on any
  offender who is imprisoned, as long as he has the
  ability to labour.

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• The death penalty is only to be applied to those
  offenders who commit the most heinous crimes. A
  total of 68 crimes are punishable by death,
  including non-violent crimes such as bribery.
• The Criminal Law provides for two types of death
  penalty
• death penalty without suspension of execution.
• death penalty with two year suspension of
  execution

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Death penalty with two year suspension

• In the case of a criminal who should be sentenced
  to death, but for whom immediate execution is not
  essential, a two-year suspension of execution may
  be pronounced at the time the sentence of death
  is imposed
• The criminal will be put into prison and
  reform-through-labour carried out and the results
  observed.
• If the criminal repents during the period of
  suspension, he is to be given a reduction of
  sentence to life imprisonment upon the expiration
  of the two-year period
• if he not only truly repents but also
  demonstrates meritorious service, he is to be
  given a reduction of sentence to not less than
  fifteen years and not more than twenty years of
  fixed-term imprisonment upon the expiration of
  the period.
• Only those who have committed new crimes, are to
  be executed upon a ruling or an approval of the
  Supreme Court.

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Supplementary punishments

• Fines,
• Deprivation of political rights,
• Confiscation of property.
• Deportation
• These supplementary punishments may also be
  applied independently.

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Administrative penalties

• There are two main types of administrative
  penalties. Punishment is administered by the
  police
• One is the public order punishment, authorized by
  the Regulations on Penalties for Public Order.
• including a warning, a fine, or administrative
  detention of not more than fifteen days.
• The other type of administrative punishment is
  Reeducation Through Labor (RTL). The limit of
  time is three years.

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Criminal and Administrative penalties
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Goals of punishment

• The Goals of punishment in China can be said to
  be a hybrid of Retributivism and Utilitarism
• Retribution
• Denunciation
• Deterrence
• Rehabilitation
• Incapacitation

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Retribution

• Retribution is the idea that the criminal must
  pay for wrongs perpetrated against society.
  Individuals are responsible for their actions and
  must be accountable for them.
• Another oft-used phrase is that criminals must be
  given their just deserts.
• The desire for revenge is deep-seated in the
  human psyche and that if the state does not exact
  vengeance individuals will resort to vigilantism.
  
• The need for expiation of guilt--criminals must
  suffer in order to atone for their wrongs.

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Denunciation

• Denunciation is the idea that in the context of
  sentencing, is achieved by the imposition of a
  sentence the severity of which makes a statement
  that the offence in question is not to be
  tolerated by society either in general or in a
  specific instance.
• To prevent crime by making a public statement
  that certain offences will not be tolerated.
• To achieve social coherence through the making of
  symbolic statements that certain crimes will not
  be tolerated by the community.
• To appease victims of crimes.
• To make a symbolic statement to the offender that
  society will not tolerate the commission of the
  crime for which he or she has been convicted.

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Deterrence

• Deterrence is the idea that punishing persons who
  commit crimes will prevent other similarly
  disposed individuals from committing like
  offenses.
• Criminals must be punished to the degree
  necessary to impress those who would emulate them
  of the undesirable consequences of crime.
• Potential offenders discount the negative
  consequences of crime by the improbability of
  being caught.
• To be an effective deterrent, punishment would
  have to be so severe that even those who did not
  believe that they were going to be caught would
  not take the risk.

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Rehabilitation

• Rehabilitation means changing the offender to
  function in society without resorting to criminal
  behavior. It is the loftiest goal of the criminal
  justice system.
• Rehabilitation entails various sorts of programs
  and therapies based on its own theory of what
  causes criminal behavior.
• Rehabilitative theories rely heavily on the idea
  that social, psychological, psychiatric or other
  factors outside a persons direct control wholly
  or partly determine or influence that persons
  actions, including the commission of crimes.
• Rehabilitative approaches assume that the factors
  leading to the commission of crime can be
  identified, and that treatment or assistance can
  be prescribed to remove the causes of the
  undesirable behaviour.

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Incapacitation

• Incapacitation is the idea that punishment should
  prevent criminals from committing additional
  crimes.
• Contemporary society resorts to imprisonment or,
  in extreme cases, execution to rid itself of
  seriously threatening behavior.

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Specific ProvisionsCategories and Number of Crime
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