Explanation to the Ninth Amendment to the Criminal Law of the People's Republic of China (Draft)




The Criminal Law is one of China's basic laws and the National People's Congress has always attributed great importance to amending and improving it. Since the 1997 revision of the Criminal Law, the Standing Committee of the National People's congress has enacted One Decision and Eight Amendments to the Criminal Law, that have amended and perfected the Criminal Law, on the basis of the needs to punish crime, protect the People and maintain a normal social order. Since the current term [of the National People's Congress], the Legislative Work Commission has formed the "Ninth Amendment to the Criminal Law of the People's Republic of China (Draft) in accordance with the legislative plan that has been approved by the Central Party [organs] and with the needs of the Standing Committee of the National People's Congress; in accordance with the Spirit of the Centre and with the criminal policy of Balancing Leniency and Severity". A consensus on Main problems has been achieved through several rounds of research and consultation among the Central Commission for Discipline Inspection; the Central Political-Legal Committee; the Supreme People's Court; the Supreme People's Procuratorate; the Ministry of Public Security, relevant departments of the State Council and relevant department of the Armed Forces on new circumstances and new problems emerged from the practice in recent years, by broadly listening to the opinion of each party. I. On the necessity and guiding ideology of the amendments to the Criminal Law

For some time, the National People's Congress, political-legal organs and relevant departments have raised opinions on amending the Criminal Law. Among them, representatives to the National People's Congress have raised 81 motions to amend the Criminal Law since the First Session of the twelfth National People's Congress, The main problems to be solved by amending the Criminal Law: First, in recent years several instances of terrorism and violent crimes have occurred in some places. Internet crimes too are showing new features, and there is a need to proceed from overall view of national security and to holistically consider integrating, ammending and supplementing the Criminal Law in light of the Anti-terrorism Law and the Counter-espionage Law that this meeting of the National People's Congress Standing Committee has enacted.and other laws, drafts for the protection of the national security. Second, following the deepening of the struggle against corruption, it is necessary to further improve relevant Criminal Law provisions so as to provide legal support for the punishment and the eradication of corruption. Third, implementing the Centre's request to gradually reduce the number of death penalty crimes, and making legal links following the abolition of the re-education through labour system. Therefore, The Criminal Law must be adjusted and improved on the basis of these new circumstances and addressing the aforementioned problems.

Guiding ideology of this amendment:First,uphold the correct political direction, implement relevant requests posed by the Fourth Plenum of the 18th Party Congress, and the tasks of the Central Judicial System Reform, to fully bring into play the functions of the Criminal Law in punishing crime and protecting the People. Second, adhere to a problem-orient[ed] approach, starting from our National circumstance, promptly adjusting the criminal to address new circumstances and new problems in practice, in order to meet the needs of protecting national security and social stability. Third, adhere to the criminal policy of Blending Leniency and Severity to maintain social fairness and justice; do not reduce the punishment of crimes that severely harm society, and keep up high pressure;.at the same time, leave the leeway and space to leniently punish some crimes with minor harm to society or for which mitigating circumstances exist. Fourth, adhere to innovative concepts in criminal legislation , to further bring into play the roles of the criminal law in protecting the core socialist values system whereby the Criminal Law protects Socialism, and leading and promoting the regulation of social life.

II. Principle issues in the amendment to the Criminal Law

(1) Gradually reducing the number of crimes punishable by the death penalty

The Third Plenum of the Eighteenth Central Committee proposed to "gradually reduce the number of crimes punishable by the death penalty." The Central Committee's task to intensify systemic judicial and social reform also requires improving laws and regulations on the death penalty and gradually reducing the number of crimes for which the death penalty is applicable. Based on this, and drawing on our nation's consistent method of both maintaining the death penalty and at the same time strictly controlling its cautious application; after several rounds of research by the Central Legal-Political Committee on every relevant aspect , a reduction of the crimes punishable by the death penalty will be achieved in the two following ways:

First, is further reducing the number of crimes punishable by the death penalty. After research all relevant aspects, sentencing rules on 9 crimes have been adjusted, abolishing the death penalty for the crimes of: smuggling weapons or ammunition; smuggling nuclear materials; smuggling counterfeit currency; counterfeiting currency; fraudulent fundraising; organizing prostitution; forcing others to prostitute; obstructing the performance of military duties; and spreading rumors during a state of war. (The death penalty currently applicable to 55 crimes in China; after cancelling the death penalty for these 9 crimes, there will be 46 for which the death penalty is applicable.) (Articles 8, 10, 11, 38, 45, 46, Draft Amendment)

Since Amendment Eight to the Criminal Law was passed in 2011, abolishing the death penalty for 13 non-violent economic crimes, public order in China has been stable and controllable overall, and some grave crimes have been stable or on a slight decline. Practice shows that the abolition of the death penalty for the 13 crimes has not had a negative influence on public order. All aspects of society have expressed positive opinion in favor of reducing the number of crimes for which the death penalty is used. The 9 crimes for which we are preparing to abolish the death penalty are crimes for which in practice the death penalty is seldom used, and after its abolition the maximum punishment will still be indefinite imprisonment. After the abolition of the death penalty for these crimes, through increasing enforcement and severely punishing those who according to the law need to be severely punished severely., it is possible not to decrease the overall focer of punishment so as to ensure the general stability of public order Moreover, after the abolition of the death penalty for the above crimes, if particularly heinous circumstances occur, those eligible for combined punishment for multiple crimes or other relevant provisions, may still be given a heavier punishment in accordance with law.

Second is further raising the threshold for executing prisoners given the death penalty with a suspended sentence. Article 55 of the Criminal Law provides that those sentenced to the death penalty with a suspended sentence who commit an intentional crime during the period of their suspended sentence shall be executed if, after investigation, and approval of the execution by the Supreme People's Court, the facts of their crime are true. The above mentioned provision has been amended: those who commit an intentional crime during the time when their execution is suspended, and where the circumstances are heinous, shall be executed after their case has been reported to and approved by the Supreme People's Court. where after an intentional crime the prisoner is not executed, the time of their suspended sentence shall be counted anew, and a report shall be filed to the Supreme People's Court for the record. (Article 2, Draft Amendment)

(2) Maintaining public security and increasing the strength of punishments for the crimes of terrorism and extremism

Addressing new situations and features that have appeared in violent terrorist crimes in recent years; summarizing experience from the struggle against this type of crime, and on the basis of current provisions in the Criminal Law, the following amendments and supplements have been made:

First, provisions on penalties against property have been added against the crimes of organizing, leading, or participating in a terrorist organization. (Article 5, Draft Amendment)

Second, provisions have been added on the crimes of spreading terrorism or extremism or instigating violent terrorism activities through the production and dissemination of materials, the issuance of information, in-person teaching and other means; or using audiovisuals, and telecommunication networks. Provisions have been added on crimes of using extremism to instigate or coerce the masses into disrupting the marriage system, the judicial system, the educational system, the social management system as they [have been] instituted by the state law. Provisions have been added on the crime of possessing items, publications, audiovisuals and other materials that advocate terrorism or extremism. Provisions have been added on the crime of refusing to provide evidence on crimes of terrorism or extremism. (Article 6, Draft Amendment)

Third, provisions have been added on the crime of compelling others, through violence, threats or other means, to wear or bear clothes or symbols that advocate terrorism or extremism in a public place . (Article 15, Draft Amendment)

(3) Maintaining information network security and improving laws and regulations which penalize internet crimes

Addressing new circumstances of internet crimes and illegal conduct, provisions in the Criminal Law on internet crime have been further improved:

First, to further strengthen the protection of citizens' personal information, provisions on the crime of selling or illegally providing citizens' personal information obtained during the performance of one's duties or during the performance of a service have been amended. The scope of the subject of these crimes has been broadened. At the same time, provisions on the crime of selling or illegally providing citizens' personal information have been added. (Article 16, Draft Amendment)

Second, provisions have been added addressing situations where internet service providers do not fulfill their network security management duties, causing serious consequences. Internet service providers who do not fulfill their network security management duties, and refuse to adopt the remedial measures when notified by the supervising departments, leading to the disclosure of large amounts of illegal information or the leakage of user information and causing serious consequences; or the loss or destruction of criminal evidence severely obstructing the prosecution of crimes by judicial organs; shall be pursued for criminal responsibility. (Article 25, Draft Amendment)

Third, rules on criminal prosecution have been further clarified with regards to the acts of setting up websites, communication groups, and issuing information in order to commit criminal or illegal acts of fraud or the sale of prohibited or restricted items. Provisions have been added addressing the frequently occurring situation of online acts instructing others in criminal methods or aiding crimes. Whoever clearly knows that another person is using information networks to commit a crime, and provides network access, server hosting, network storage, transmission or other technical support, or provides help in advertising and promotion or paying bills, and the circumstances are grave, shall be criminally prosecuted. (Article 26, Draft Amendment)

Fourth, the crime of disrupting the order of wireless communication has been amended. The threshold of liability has been lowered, thus increasing its enforceability in situations where the rights and interests of citizens are violated by the creation of “bogus mobile phone base stations”, which severely disrupt the order of wireless communications. (Article 27, Draft Amendment)

Fifth, provisions have been added on the crime of fabricating and disseminating false information, as the fabrication and dissemination of false information on information networks or other media, done with a malicious intent, severely disrupts social order. (Article 29, Draft Amendment)

Further, criminal responsibility of legal persons has been introduced for the crime of intruding into or destroying computer information networks. (Articles 23, 24, Draft Amendment)

(4) Further strengthening the guarantee of human rights and intensifying the protection of citizens' personal rights

In circumstances where cases of acting indecently against children, abusing children, and abusing the elderly occur, and have a heinous social influence, relevant provisions in the Criminal Law have been further improved:

First, the scope of application of the crimes of acting indecently or abusing women, acting indecently towards children has been widened, and at the same time punishment for [the commission of any such crimes] in heinous circumstances has been stepped up. (Article 12, Draft Amendment)

Second, [provisions on the crime] of buying a trafficked woman or a child have been amended, and the conduct of buying women or children will always be treated as a crime. The provision whereby those who buy a trafficked woman or child, and follow their wishes, and do not obstruct their returning to their original place of residence, or who do not abuse bought children and do not obstruct their rescue has been amended from "may go un-prosecuted" to "may have a light or commuted sentence, or have their punishment waived". (Article 13, Draft Amendment)

Third, provisions have been added on the criminal prosecution of legal guardian or persons with professional duty to watch over or care for juveniles, the elderly, the ill, persons with disabilities, who abuse the person they watch over or care for, and where the circumstances are heinous. (Article 48, Draft Amendment)

(5) Further improving systemic anti-corruption regulations and increasing the penalty for the crime of corruption

According to the Third Plenum of the 18th Congress' request to strengthen anti-corruption work; perfect legal rules on the punishment of corruption, step up the punishment for crimes of corruption, the following amendments have been made to the Criminal Law:

First, the criteria to determine guilt and the sentencing criteria for the crimes of embezzlement and bribery have been modified. The current criteria to determine guilt and the sentencing criteria for these crimes are monetary criteria. These rules were made in 1988 by the National People's Congress Standing Committee according to the actual needs of punishing embezzlement and bribery, and according to requests by judicial organs. From a practical point of view, rules on monetary amount are clear and concrete but the difference in the circumstances of this kind of crimes is great, the circumstances are complicated, and the social dangerousness of crimes can hardly be reflected by the mere consideration of monetary amounts. At the same time, provisions on monetary amounts are rigid, and in some cases it is difficult to fit the punishment to the different circumstances of the crimes, and sentencing is not uniform. In accordance with the opinion of each party, the concrete monetary amounts set for the crimes of embezzlement and bribery have been deleted. In principle three kinds of circumstances have been provided for: where the amount is relatively big or circumstances are relatively serious; where the amount is big or the circumstances are serious, where the amount is particularly big or the circumstances are particularly serious, with the corresponding ranges of penalties. The death penalty has been maintained [for cases where] the amount is particularly big and the damage that has been caused to the interest of the state and the People is particularly big. The concrete criteria for conviction and sentencing may be determined by judicial organs according to the concrete circumstances of cases, or may be specified by the Supreme People's Court and the Supreme People's Procuratorate by formulating a judicial interpretation. At the same time, considering the real needs of the anti-corruption struggle, provisions on lenient punishment have been made for those who commit crimes of embezzlement and corruption and make a truthful confession of their crimes; show sincere repentance; enthusiastically return the proceeds of their crime; avoid or reduce the losses resulting therefrom. (Article 39, Draft Amendment)

Second, punishment on the crime of bribery has been increased. Mainly, first, provisions on property-oriented penalties for the crime of active bribery have been perfected, and criminals who receive personal penalties will at the same time be unable to enjoy any economic benefit. (Articles 9, 41, 42, 43, 44, Draft Amendment) Second, mitigating circumstances for the crime of bribery have been further restricted. The provision "Where a person giving bribes proactively confesses their acts of bribery before being prosecuted, the punishment may be mitigated or he may be exempted from punishment" has been amended: "Where a person giving bribes proactively confesses their acts of bribery before being prosecuted, the punishment may be lightened or commuted. Of these, where the crime is relatively minor, and the report or disclosure of the acts plays a critical role in breaking a major case or where there are other major meritorious services, punishment may be waived." (Article 41, Draft Amendment)

Third, the loop of the law punishing crimes of active bribery has been tightened, and provisions have been added on the crime of offering bribes to relatives of state employees or other persons close to state employees to use the influence of state employees obtain improper benefit. (Article 40, Draft Amendment)

Besides, according to the opinion of relevant parties, provisions on preventive measures have been improved, and People's Courts can restrict from engaging in the relevant profession those who have committed a crime facilitated by exploiting their office, or a crime contrary to particular requirements of their office, and have been given a criminal punishment. [Restriction will] begin on the day that enforcement of the criminal punishment or of parole is completed, [and last for] five years. (Article 1, Draft Amendment)

(6) Maintaining social trust and punishing dishonesty and breeches of trust

Considered the present lack of trust in society, the numerous occurrences of swindling and other dishonest conducts, the actual circumstances of [their] severe social harm, to develop the Criminal Law's function of guiding the value system that orientates citizens' actions, the Criminal Law has been modified and integrated as follows:

First, provisions on the crime of counterfeiting or altering resident identification cards have been amended, and the scope of documents has been widened to include passports, social security cards, driving licenses. The conducts of trading in resident identification cards, passports and of using counterfeited resident identification cards and passports have been criminalized. (Articles 20, 21, Draft Amendment)

Second, provisions have been added on the crime of organizing cheating during testing. The conducts of those who organize students to cheat during state exams; provide others the equipment to cheat; illegally sell or provide to others exam questions or answers; sit an examination on behalf of another or have a third person sit an examination on behalf of another thereby disrupting the order of examinations have been criminalized. (Article 32, Draft Amendment)

Third, provisions on the crime of false lawsuits have been added. The conduct of those who raise a civil lawsuit on concocted facts to obtain an improper benefit, thereby seriously disrupting judicial order has been criminalized. (Article 33, Draft Amendment)

(7) Increasing social governance and maintaining social order

The following amendments to the Criminal Law were made in light of new states of affairs that have appeared in respect to public order:

First, provisions on punishing disruptions to social order have further been improved, mainly: first, the crime of dangerous driving has been amended, adding the circumstance where dangerous driving shall be prosecuted. (Article 7, Draft Amendment) Second, the crime of robbery by sudden snatching has been amended, by criminalizing multiple robberies by sudden snatching. (Article 19, Draft Amendment) Third, the conduct of [illegally] producing, selling specialized equipment for wiretapping or specialized cameras has been criminalized. (Article 22, Draft Amendment) Fourth, the conduct of disrupting the work order of state organs for multiple times, without correcting [one’s behaviour] after several punishment, thereby causing serious consequences, and the conduct of organizing and financially supporting others to illegally assemble for multiple times, thereby disrupting social order in serious circumstances has been criminalized. (Article 28, Draft Amendment) Fifth, the crime of organizing or exploiting superstitious sects, cult organizations to undermine the implementation of law has been further improved by stepping up punishment for conducts enacted in especially serious circumstances. At the same time, it has been provided that [such conducts] shall be punished where they have been enacted in relatively minor circumstances. (Article 30, Draft Amendment)

Second, relevant Criminal Law provisions have been improved to guarantee People’s Courts’ independent and impartial adjudication according to the law. Mostly: first, the conduct of judicial personnel, defenders, agents ad litem or other parties to litigation who reveal information that should not be disclosed about a case that according to the law is not tried in public, disseminating such information openly or causing serious consequences has been criminalized. (Article 34, Draft Amendment) Second, the crime of disrupting the courtroom order has been amended, and on the basis of earlier provisions on gathering a crowd to racket or attack the court, beat judicial work personnel as well as other conducts, conducts which severely disrupt the courtroom order, such as beating parties to litigation or insulting, defaming or threatening judicial work personnel or other parties to litigation, and not heeding the court’s admonition have been criminalized. (Article 35, Draft Amendment) Third, provisions on the crime of refusing to carry out a people's court judgment or ruling have been further improved, by adding one range of penalty as well as provisions on crime by legal persons. (Article 36, Draft Amendment)

Third, specific provisions have been made on the conducts of producing, transporting chemicals used in the manufacture of drugs, on accounts of the severe real circumstances of drug crimes and the needs of punishing crime. (Article 37, Draft Amendment)

While performing investigations and soliciting opinions, judicial organs and relevant parties raised further opinions on the amendment to the Criminal Law. Having considered how various parties had a divergent understanding of such matters, and further discussion and research were needed, [their opinions] are not included in the present Draft.

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