Tuesday, March 1, 2011

Broad Changes to China's Criminal Law Enacted

Last Friday, China’s National People’s Congress Standing Committee (NPCSC) approved an amendment including 50 revisions to the Criminal Law of the PRC by a 139-7 vote (with 11 abstentions). This was the eighth time that China has made changes to its criminal code since a complete overhaul in 1997.

The most newsworthy part of the amendment was the removal of the death penalty as punishment for 13 offenses, bringing the total number of crimes eligible for capital punishment to 55. As Dui Hua has noted before, this is unlikely to bring about a significant reduction in the number of individuals executed each year in China, as capital punishment has rarely, if ever, been imposed for most of the affected offenses. Nevertheless, the move is a concrete step signaling China’s intention to move towards further reduction in the use of the death penalty.

Over the past six months, the Chinese press and the Internet community have paid a great deal of attention to the proposed changes to the number of capital crimes, as well as a related proposal to exempt most offenders over the age of 75 from the death penalty. Some of the other changes made to specific provisions received little to no coverage prior to their announcement last week.

New Threats to State Security?

For the first time, changes were made to crimes falling under the category of “endangering state security” (ESS). The change of the greatest potential significance was made to Article 107, which prohibits funding organizations or individuals that carry out criminal activities that endanger state security. The previous statute singled out those who gave funding to “domestic organizations or individuals,” but the amendment removes this restriction.

Speaking to reporters after the amendment’s passage was announced, Wang Shangxin, a member of the NPCSC Legal Affairs Committee, explained:

China’s economic situation has changed, and the criminal situation has changed as well such that domestic organizations or individuals are supporting foreign individuals to commit acts that endanger the national security of the PRC. . . . After this revision of the criminal law provision, it doesn’t matter whether the organization or individual is foreign or domestic: as long as one funds others to commit the crimes of endangering state security specified in the criminal statute, that act will be subject to prosecution.

It is not entirely clear what this change will mean in practice. Dui Hua is aware of only two previous cases in which individuals have been convicted under Article 107. In 1999, a naturalized Spanish national named Wang Ce was sentenced to four years’ imprisonment in Zhejiang for giving US$1,000 to Wang Youcai, one of the founders of the China Democracy Party. The following year, another CDP member named Chen Zhonghe, the head of the party’s Hubei branch, was sentenced to seven years in prison for subversion and funding criminal activities that endanger state security, according to an official Chinese response provided to Dui Hua in September 2003.

Both of these cases involved an organization whose principal members were charged with subversion and convicted in court. How, under the new provision, will “organizations or individuals that commit acts endangering state security” be identified? Will an administrative designation by, for example, the Ministry of Public Security be sufficient and, if so, will such organizations be identified publicly in order to help people avoid violating the law? The recent change potentially expands the range of circumstances in which Article 107 can be applied, but it is too soon to tell whether that means it will necessarily be easier to apply.

“Pocket Crimes” and Court-Ordered Injunctions

Several other changes were made to provisions covering specific offenses, altering either the definition of an offense or the range of punishment applicable. One example of the latter case is Article 293, the crime of “creating a serious disturbance.” Heir to the old crime of “hooliganism,” Article 293 has been criticized as a “pocket crime”—meaning that because of its vague definition “anything can be stuffed into it.” A number of persistent petitioners have been convicted of “creating a serious disturbance,” among them the food-safety activist Zhao Lianhai. Now, in a change that appears specifically targeted at those who petition en masse, the maximum sentence for Article 293 has been increased from five to 10 years for “gathering others on numerous occasions to commit the crime.”

There has been an elaboration of provisions governing the punishments of “public surveillance (guanzhi, also known as “control”) and suspended prison terms. Offenders sentenced to these punishments may now, based on the circumstances of the crime, also be prohibited from participating in designated events, entering designated areas or locations, or making contact with designated individuals during the period of the sentence (Articles 38(2) and 72). Presumably, such injunctions would be imposed by the court at the time of sentencing and enforced by “community corrections” agencies (see below).

“Severity Combined with Lenience”

Besides making changes to specific offenses, many of the revisions also affect general provisions covering application of the criminal law. The net impact of these provisions is mixed, following the principle of “severity combined with lenience.” On the one hand, courts have been given authority to place restrictions on sentence reduction for the most serious offenders; individuals originally sentenced to life imprisonment or suspended death sentences will be obliged to serve longer prison terms before they can be released through parole (Article 81); and the maximum term for concurrently applied sentences has been raised from 20 to 25 years (Article 69).

On the other hand, the law now requires lenient treatment of offenders aged 75 and older, and judges have been given more specific instructions about how “lenient punishment” should be applied in sentencing (Articles 17 and 49). Individuals convicted of minor offenses (subject to punishment of five years’ imprisonment or less) as juveniles are exempted from the requirement to notify employers of their criminal record (Article 100). Parole, as well as the punishments of public surveillance and suspended prison sentences, is to be supervised by “community corrections” agencies, rather than local police stations (Articles 38, 76, and 85).

On the subject of this last provision, Lang Sheng, deputy chairman of the NPCSC Legal Affairs Committee, acknowledged that there had been debate over whether less-developed parts of China had sufficient time to develop community corrections institutions, which have been operating on a trial basis in selected locations for many years. He insisted, however, that concerted direction from the central government would ensure that these new provisions would be able to be instituted nationwide by the time the changes to the Criminal Law take effect on May 1.