Deliberative Conclusions Report Regarding " Ninth Amendment to the Criminal Law of the People's Republic of China (Draft)"

From:http://www.legaldaily.com.cn/index_article/content/2015-08/24/content_6235917.htm?node=5955

National People's Congress Legal Committee report on deliberation conclusions regarding the Ninth Amendment to the Criminal Law of the People's Republic of China (Draft)

Standing Committee of the National People's Congress:

　The 15th meeting of the Standing Committee of the 12th National People's Congress performed additional review of the Draft Criminal Law Amendment (9). After the meeting, the Second Reading Draft was placed on the National People's Congress website to solicit public opinions. The legal committee and legislative affairs commission conducted deep research into the draft's primary problems, going to Shanghai and other locations to investigate, communicating repeatedly with relevant parties, convening symposia, and hearing the opinions of relevant departments and experts. On July 27, the Legal Committee convened a meeting, and based on the Standing Committee members' deliberative opinions and other parties' opinions, carried out deliberations of the draft. The relevant comrades responsible from the Central Political Legal Commission, the NPC Internal and Judicial Affairs Committee, and Legislative Affairs Office of the State Council attended the meeting. On August 18, The Legal Committee convened a meeting, to again conduct deliberations. The Legal Committee found that after going through two rounds of deliberations, the draft was already quite mature. And at the same time, submitted the following proposed changes:

I. Article 7 of the Second Reading Draft Provides: Where methods such as violence or coercion are used to compel others to wear or adorn themselves with apparel or emblems promoting terrorism or extremism, it is punished by up to three years imprisonment, short-term detention or controlled release. Some Standing Committee members suggested adding provisions on punishments against property, increasing the degree of punishment, and making it the same as provisions on punishment of social terrorism and extremism crimes. Having studied these suggestions the Law Committee recommends adopting this suggestion and adding a provision "and impose fines." (Article 7, Draft Third Reading Amendment)

II. Article 40 of the Second Reading Draft made revisions to the crime of kidnapping, providing that when kidnapping, "intentionally harming or killing a kidnapped person, and causing serious injury or death, the punishment is indefinite imprisonment or death, and confiscation of property." Some members of the Standing Committee and relevant departments submitted that where kidnappers intend to kill the kidnapped person, they should be severely punished regardless of whether they complete the act and whether they cause serious injury or death, so as to truly protect citizens' safety in their lives. The Legal Committee, upon agreement with research of the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and other relevant departments, suggests adopting this opinion and revising this article to read: Where committing the crime of kidnapping, "killing a kidnapped person, or intending to kill a kidnapped person and causing serious injury or death, the punishment is indefinite imprisonment or death, and confiscation of property." (Article 14, Draft Third-reading Amendment)

III. Article 19 of the Second Reading Draft made provisions regarding the crime of abusing a ward or person under one's care, and article 34 made provisions for the crime of false lawsuits. Some National People's Congress delegates and relevant parties submitted that in practice there are also situations of units [entities] committing criminal acts described above, and suggested adding provisions for the offenses by units. Having studied these suggestions the Law Committee recommends adopting this suggestion and adding relevant provisions ." (Articles19, 35 of the Draft Third Reading Amendment)

IV. A few National People's Congress delegates, the Central Political legal commission, the Ministry of Public Security and other relevant departments repeatedly submitted adding the crime of attacking a police officer. The Legal Committee, together with relevant parties, has researched and found that in practice, attacking a police officer has always been dealt with as the crime of impeding a public official in article 277 of the Criminal Law. In view of the prevalence of social conflicts today, and the occasional occurrence of cases of violent attacks on police in practice, clearly listing attacking police in the crime of impeding public officials might give better play to the functions of deterring and preventing crime. Accordingly, it is recommended that a clause be added to article 277: Violently attacking people's police that are currently preforming their official duties in accordance with law, is given a heavy punishment in accordance with the crime of impeding public officials. (Article 21 of the Draft Third Reading Amendment)

V. Article 34, paragraph 1 of the Second Reading Draft provides that "those raising a civil lawsuit on concocted facts, and seriously obstructing judicial order, are sentenced to up to three years imprisonment, short-term detention or controlled release and/or a fine. Some Standing Committee members submitted that circumstances o false litigation are complicated and not only impede judicial order, but sometimes can cause major harm to others' lawful rights and interests and serious social harm, and reccomended increasing the criminal penalty; therefore, the law committee recommends modifying this article to read: " Those raising a civil lawsuit on concocted facts, and obstructing judicial order or seriously infringing on the lawful rights and interests of others, are sentenced to up to three years imprisonment, short-term detention or controlled release and/or a fine. (Article 35 of the Third Reading Draft Amendment)

VI: Article 36 of the Second Reading Draft ammended article 309 of the Criminal Law on the crime of lawyers' disruption of courtrooms. A few members of the Standing Committee and some departments, areas and lawyers associations submitted, that item 3 of this article regarding "insulting, defaming, or threatening judicial personnel or litigation participants, and the provisions of item 4 regarding 'having other conduct disrupting courtroom order", might be abused in practice, and suggested cancelling it. The legal committee, has researched, and item 3 of the draft is the same as Criminal Procedure Law article 194, Civil Procedure Law article 110 (Criminal Procedure Law article 194, paragraph 2 provisions that :"Criminal responsibility should be pursued in accordance with law for assembling crowds to create a commotion or rush the courtroom; insulting, defaming, threatening or attacking judicial personnel or litigation participants; and serious disruptions of courtroom order; where they constitute a crime." Civil Procedure Law article 110, paragraph 3 provides:"People's courts pursue criminal responsibility in accordance with law of persons creating a commotion or rushing the courtroom; insulting, defaming, threatening or attacking judicial personnel or litigation participants; and seriously disrupting courtroom order; where the circumstances are minor, a fine is given, or they are taken into custody. ") and cancellation is not proper for reasons of symmetry; The provisions of item 4, "other conduct seriously disrupting courtroom order" is also a necessary regulation to protect courtroom order and judicial authority, at the same time, to further clarify the line between crimes and non-crimes, and prevent expanding application, it is reccomended that this item be modified to read: "Destruction of court facilities, stealing or damaging litigation documents or evidence, and other conduct disrupting courtroom order where the circumstances are serious." (Article 37 of the Draft Third Reading Amendment)

VII, A few members of the Standing Committee submitted abolishing the crime of patronizing underage prostitutes. The Legal Committee and the Legislative Affairs Committee have been continuously conducted deep investigative research into this issue, convening symposia, and widely hearing the opinions of relevant departments, experts and all aspects of society. This crime was added in 1997 when the Criminal Law was revised, adding provisions directed at protecting young girls. Considering that in recent years a few new situations have emerged on this unlawful crime and a few problems in law enforcement, relevant parties have continuously proposed abolishing the crime of patronizing underage prostitutes. Upon research, the Legal Committee recommends adopting this opinion, abolishing the crime of patronizing underage prostitutes in paragraph 2 of article 360 of the Criminal Law, and that the Criminal Law article 236 crime of fornication with underage girls treatment as rape and severe punishments may be applied to this kind of conduct, no longer having special provisions. (Article 43 of the Draft Third Reading Amendment)

VII. Some members of the standing committee and competent departments have proposed that indefinite imprisonment be stipulated for those who committee major corruption crimes. After research with the political legal committee and other relevant departments, the legal committee has found that for criminals where the amount embezzled is especially large and the circumstances especially serious, particularly for those who should be sentenced to death, then on the basis of the criminal policy of cautiously using the death penalty and the specific circumstances of the case, that sentencing them to a death penalty with two year suspended sentence conforms to criminal law principles, preserves judicial fairness, prevents the emergence in practice of circumstances where commutation and other means are used to make sentences for this sort of criminal too short, and complies with the criminal law policy of blending severity and leniency. Therefore, it is suggested that a paragraph be added to Criminal Law article 383 providing that those sentenced to a suspended death sentence for corruption or receiving kickbacks, the court, on the basis of the circumstances of the case and other circumstances, may at the same time decide that after the two year suspended sentence is completed and commuted to indefinite imprisonment, that they will remain in prison for life, must an must not receive a commutation or parole. (Article 44 of the Draft Third Reading Amendment)

There is still an issue that needs to be reported. A few members of the Standing Committee and relevant societal parties recommended making "drug driving' [Driving Under the Influence of Drugs] a crime. On this issue, the legal committee and legislative affairs committee repeatedly convened evidentiary review hearings with relevant parties, and all parties felt that from the perspectives of strictly restricting drugs and protecting public safety, it was necessary to make provisions including driving a car after smoking, imbibing or injecting drugs, and thus endangering public safety, within the Criminal Law. Some departments and experts raised that there are currently more than 200 types of psychoactive drugs and narcotics listed as controlled, and that it still needs to be researched which drugs should be included in the crime; at the same time, it is currently only possible to do rapid testing of a few commonly seen drugs, and there are also a few technical law enforcement issues that need to be resolved, that law enforcement methods need to be further improved, making it more enforceable, and ensuring that the law is strictly and fairly enforced. Upon research, the Law Committee feels that, considering that relevant parties' differ in their understanding of criminalizing 'drug driving' and that there are still issues that need to be resolved, such as the delineation of when 'drug driving' becomes criminal and enforcement, for now, methods such as revocation of drivers licenses and compulsory isolation and detox may be employed, and in cases where 'drug driving' causes serious consequences, criminal responsibility for traffic accidents and reckless endangerment of public safety may be pursued on the basis of the specific case facts. Therefore, "drug driving" has not been included in the draft Criminal Law Amendment (9).

On August 10, the Legislative Affairs Committee convened a meeting inviting representatives of the National People's Congress, expert scholars, lawyers and representatives of basic level judicial organs, to conduct an assessment of issues such as the Amendments' implementability, the timing of its release, the social impact of its implementation and problems that might emerge. The overall assessment was: The draft summarizes the experiences of the struggle against crime in the recent period, does a good job of responding to societal concerns, further improves the Criminal law provisions, and can be adapted to the current needs for prevention and punishment, and is advantageous to bringing into play the the guidance and advancing roles of the Criminal Law in preserving the socialist core values and regulating aspects of societal life. After going through two rounds of deliberation, the draft is quite mature, is both very directed and very operationable, and its release now is both timely and necessary. At the same time, a few specific revisions to the draft were also submitted, and the law committee conducted earnest research and adopted some of these opinions.

In addition, some editorial changes to the second reading draft amendment have been made.

The draft amendment has been amended for its third deliberation per the above. Members of the Political and Legal Affairs Commission may recommend that it be passed to the NPC Standing Committee meeting for approval.

Please deliberate whether the amended third reading draft and this report are proper.