I have recently been asked a number of time about the recent detention of UCLA basketball players in China, and wanted to share a legal overview:
Crime, Punishment, and Administrative Violations
In China, shoplifting can be either a crime or an administrative violation.
Administrative violations include a lot of conduct that would be considered misdemeanor crimes in the US, and are punishable by warnings, fines, or detention of up to 15 days.
Whether shoplifting is a crime or a violation largely depends on the value of the allegedly stolen goods: generally speaking at least 1,000 RMB ($150) needs to have been stolen for the crime to apply，although the number of thefts and other aggravating factors are also relevant.
The distinction between administrative and criminal offenses is important because criminal offenses are heard by the courts and subject to the Criminal Procedure Law while the police can directly consider and punish violations.
The administrative violation version of theft is punishable by 5-15 days detention depending on the seriousness and amount in question. [article 49 of Public Safety Administrative Punishments Law]
The criminal version is punishable by controlled release (a type of probation), 1-6 months detention in a jail, or imprisonment of between 6 months-10 years or 10 months or higher in rare situations. [Article 264 of the Criminal Law].
Returning the goods, expressing remorse, admitting guilt and accepting fault and punishment can all reduce the sentence; and are important mitigating factors, especially for first time offenders.
The chart below shows the general sentencing guidelines for the crime of theft:
[UPDATE] Washington Post reports that sunglasses in the Louis Vuitton store in Hangzhou are priced at or around 4,900 yuan ($750), putting it in the first category below- which could then be modified upward or downward based on specific circumstances. Reduction from short term detention can include reduction to probation-type penalties with no jail time.
A chart for timing in the criminal process can be found here: http://www.chinalawtranslate.com/case-handling-chart/?lang=en
37 days is the maximum amount of time a person can be held by police before getting approval from prosecutors to approve arrest, allowing continued detention. Detention prior to charges being filed with the court can actually be much longer once arrest is approved.
For Shoplifting, however, it’s unlikely that one would be held very long- they should be released under a ‘bail’ equivalent (release on guarantee pending further investigation) as they are not a threat to society, and the punishment is likely to be probation or a relatively short period of detention. If they are admitting guilt it might even go to trial and be resolved very quickly under new speedy trial procedures.
While we need to see more facts to really evaluate the situation, one thing that is clear is that foreigners suspected of breaking the law can be stopped from leaving the country until it is resolved. [ Article 23 of the Entry and Exit Law]
Papers are now saying that the three UCLA players have been released on “bail” [ 取保候审] , meaning it is likely a proceeding as a criminal case.
The base sentencing guidelines chart above can be modified by mitigating and aggravating factors. The likely relevant mitigating factors include certain personal characteristics, such as the players youth (if 18 or younger, as at least one seems to be) , but also there willingness to ‘make it right’. The victim’s forgiveness is a key factor, as are paying compensation and truthfully admitting wrongdoing.
If the players are admitting guilt, and reach a settlement agreement with the victims, the case could actually be resolved very quickly.
|Adjustment to Base Sentence||
|Crime committed when 16-18 years old||10 – 50% reduction|
|Accomplice||20 – 50% reduction or more||Waive punishment or give 50% reduction where the crime was minor|
|Confess||Up to 20% reduction for truthful confession; 10 – 30% for confessing a crime of the same type that the judicial organs were unaware of; and 30 – 50% reduction for truthful confession that avoids a serious outcome from occurring.|
|Admit crime at court||up to 10% reduction||except where verified as confession, or voluntary surrender|
|Made active compensation but was not forgiven by the victims||up to 30% reduction|
|Actively made compensation and received the victims’ forgiveness||up to 40% reduction|
|Did not make compensation, but received the victims’ forgiveness||Up to 20% reduction|
|Criminal settlement||Up to 50% reduction, and where the crime was minor, 50% or more reduction or waive punishment||Settlement in accordance with article 277 or the CPL|