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Chinese criminal law contains the offense of ‘organizing or exploiting cults to undermine the enforcement of law’, but understanding what groups and what conduct are covered has never been entirely intuitive. In a new Interpretation by the nation’s highest court and procuratorate last week, China not only tried to standardize the law, but also subtly empowered its judiciary.
The Interpretation begins with a definition of ‘cult organizations which remains largely unchanged from that found in older interpretations. Like many attempts to distinguish cults from accepted religions, this definition ultimately relies on vague and subjective criteria:
- Established under pretext of religion, Qigong, or ‘something else’
- Deifies or aggrandizes its leadership
- Produces and distributes superstitious and false information to deceive others
- Recruits and controls members
- Endangers society
While the definition of cult remains problematic, a slight change in the phrasing hides an important shift. Rather than simply reciting the definition, as before, the new Interpretation now says that organizations meeting these criteria will be ‘designated’ as cult organizations. This means that the judicial organs will now label organizations as cults in the course of hearing a specific criminal case.
In China, individual case decisions do not create binding authority, but are increasingly consulted by lawyers and courts as access improves to a wider pool of decisions. The Interpretation’s slight change in language clearly reflects the intention that the designation of cults would have an impact beyond individual cases, seemingly claiming a new authority for the courts.
Previously, formal designations of cult organizations have been made by the Ministry of Public Security, as part of its work in shutting down such illegal organizations, or jointly by the General Offices of the State Council and Central Party Committee. Over the last several years, however, the courts have quietly begun to make their own designations while handling a few prominent cases in which the defendants argued that they were not exploiting cults as their organization was not a designated cult:
- 2014/10/11 – Yantai Intermediate People’s Court – designating (全能神) [Almighty God] (because this group is an offshoot of another group that was previously banned in the 1990’s, there is some confusion about the status of this group)
- 2015/7/ A Nanning District People’s Court – designating Galactic Federation (银河联邦) [Galactic Federation]
- 2015/10/30– Zhuhai Intermediate People’s Court Designates designating华藏宗门
Having the courts designate cults would seem to encourage impartiality, but making designations on a case-by-case basis provides citizens with little guidance as to their culpability for participating in an organization before a case emerges. This could cause a chilling effect with people being afraid to participate in even non-criminal groups, and also takes away the deterrent value of labeling a group off limits.
There is also nothing in the Interpretation to suggest that the judicial organs will now become the exclusive, or even primary, organs for designating cults, or that their designations go beyond the purposes of this crime. So, even assuming the judiciary was sufficiently independent so that locating the designation-power with it would provide some insulation against politically-motivated labeling of unpopular groups, other organs could probably still brand them as undesirables.
Finally, the new Interpretation is released not only by the courts, but by China’s other judicial organ, the Procuratorate as well. The Procuratorate includes the state prosecutors and there is no clear division of labor as to who should designate organizations as cults. The final determination of any criminal case on the merits, including whether the cult designation is appropriate, is made by the courts, but China’s astronomically high conviction rates show how rarely courts rule against the prosecution. Further, if it ever came to a real disagreement, the Procuratorate also has the power to challenge court decisions through a number of channels in its capacity as ‘supervisor of the law’.
While the definition of cults is not substantially changed, the new Interpretation does clean up and elaborate on some of the specific conduct that constitutes a violation of Criminal Law article 300. This includes merging the two previous interpretations of the offense, and adding conditions for more mild punishments which were authorized in recent revisions of the Criminal Law.
The most substantial revisions and additions concern violations of producing and disseminating cult propaganda. Quantified standards for when dissemination of different types of materials becomes a crime are provided (summarized in the chart below), with a separate section covering the use of communications networks—phones, mobile, etc. – to spread materials. The quantities involved for the online offenses are surprisingly lower than for physical materials, despite the ease in mass broadcasting; perhaps to add further deterrent.
Most interesting in light of the discussion above on who designates what organizations are cults, is an article saying that where it is difficult to know if materials count as cult propaganda, the police may be asked to give their opinion. This does not necessarily refer to the police handling the case, but is a policing organization at the municipal-level above.
Where different types of information are involved, they can be combined pro rata based on
the chart above and addressed together. [article 6]
The three levels of punishment as defined in the criminal law are:
- More Minor Circumstances: punishable by up to three years imprisonment, short-term detention (up to 6 months), controlled release, or deprivation of political rights, and/or a concurrent fine
- Base Offense: between three and seven years imprisonment and a concurrent fine
- More Serious Circumstances: 7 or more years imprisonment or indeterminate detention, and given a concurrent fine or confiscation of assets:
If no crime is found, there is also the possibility of administrative sanctions of up to 10 days, under article 27 of the Administrative Punishments Law.
Where a perpetrator repents and leaves the cult organization, the offense is generally reduced one grade: minor offenses being not prosecuted or waiving punishment, normal offenses being treated as minor and serious violations being treated as basic violations. [article 9]
Offenses are to be given a punishment in the higher end of the appropriate range when they are aimed at minors, carried out at schools, done together with foreigners, cross provincial-level jurisdictions, assembling in key public areas or at key times, or continuing to operate after being banned.
For further information of the full range of covered conduct, please consult the full translation here.