Guiding Opinions on Sentencing in Common Crimes (Provisional) [2021]

ALL TRANSLATIONS ON THIS SITE ARE UNOFFICIAL AND ARE PROVIDED FOR REFERENCE PURPOSES ONLY. THESE TRANSLATIONS ARE CREATED AND CONTINUOUSLY UPDATED BY USERS –THEY ARE FREE TO VIEW, BUT PROPER ATTRIBUTION IS REQUIRED FOR DISTRIBUTION OF THESE OR DERIVATIVE TRANSLATIONS. PAGES WITHOUT IMAGES ARE WORKS IN PROGRESS.

English中文(简体)

The following Guiding Opinions are drafted on the basis of relevant provisions of the Criminal Law, the Criminal Procedure Law, relevant Judicial Interpretations and so forth, and in consideration of trial practice conditions, so as to further standardize sentencing activities, implement the policy of combining the criminal policy of blending leniency and severity and the system of leniency for those who confess and accept punishment in order to make sentencing more open and achieve fair sentencing.

I. Guiding Principles for Sentencing

(1) Sentencing shall have facts as its basis and the law as their measure, determining the sentence to be given according to the crime's facts, nature, circumstances, and degree of social harmfulness.

(2) Sentencing shall consider both the seriousness of criminal acts and the degree of culpability born by the defendant, so that the penalty is consistent with the crime, and the goals of punishing and preventing crimes are realized.

(3) Sentencing shall implement the criminal policy of combining leniency with severity to give lenient sentences when proper, and be severe when proper; blending leniency and severity to punish the given offense and to ensure the unification of the political, legal, and social efficacy of judgments.

(4) Sentencing should objectively and comprehensively grasp the changes in different times' and different locations' economic and social development and public security situation, to ensure the realization of criminal law tasks; and in cases from the same region and same time that have similar situations, the sentences given shall be essentially proportionate.

II. Basic Sentencing Methodology

Sentencing shall be based on qualitative analysis supplemented by quantitative analysis in order to determine the starting point, baseline, and declared sentence.

(1) Sentencing Steps

1. The starting sentence is to be determined within the relevant statutory penalty range on the basis of the facts constituting the crime;

2. The base sentence is to be determined by increasing the starting sentence based on other factors affecting the constitution of a crime, such as the amount in question, the number of times a crime was committed, and the consequences of the crimes;

3. The declared sentence is determined in accordance with law by adjusting the baseline penalty according to the sentencing circumstances and all factors of the case as a whole.

(2) Methods for Adjusting the Base Sentence

1. Where there is a single sentencing circumstance, directly adjust the base sentence in accordance with that circumstance's adjustment ratio.

2. Where there are multiple sentencing circumstances, the base sentence is usually adjusted using the adjustment ratio for each sentencing circumstance, employing a method of adding together factors going in one direction and subtracting those going the other direction. Where there are sentencing circumstances such as a crime committed by a juvenile offender, an elderly offender, an offender who is mentally ill with limited capacity, or a deaf-mute or blind offender; or for unjustified self-defense, excessive necessity, criminal preparation, an attempted crime, or an aborted crime; or where one is an accessory or accomplice under duress, or an abettors; first use those sentencing circumstances to adjust the baseline penalty, and use the other sentencing circumstances. to make adjustments to that foundation.

3. Where the defendant has committed a number of crimes and also has sentencing circumstances such as meritorious services or repeat offenses applicable to each offense; first apply those sentencing circumstances to adjust each crime's base sentence and determine the penalty that should be given for each offense; then decide on the punishment to be enforced by conducting combined punishment for several offenses in accordance with law.

(3) Determining the Declared Sentence

1. Where the result of adjusting the base sentence by the sentencing circumstances is within the legally-prescribed range and commensurate with culpability, it may be directly determined as the declared sentence; where there are circumstances that shall commute the punishment, a declared sentence below the legally-prescribed minimum should be determined, and where there are multiple sentencing ranges, the sentence shall be determined within the range below the legally-prescribed range.

2. Where the result of adjusting the base sentence by the sentencing circumstances is below the legally-prescribed minimum punishment, there are legally-prescribed circumstances that commute the punishment, and the penalty is commensurate with culpability, it may be directly determined as the declared sentence. Where there are only circumstances for mitigating the punishment, the legally-prescribed minimum sentence may be determined as the declared sentence in accordance with law; however, on the basis of the special facts of a case and upon review and approval from the Supreme People's Court, a punishment below the legally-prescribed minimum may also be given.

3. Where the result of adjusting the base sentence by the sentencing circumstances is above the legally-prescribed maximum, the declared sentence may be determined to be the maximum legally-prescribed penalty in accordance with law.

4. Comprehensively considering the entire case situation, a single judge or a collegiate panel can adjust the results of the adjustment within a range of 20% to determine the declared sentence. Where after adjustment the result still doesn't meet the requirements of making the punishment consistent with the crime, it shall be submitted to the adjudication committee for discussion, and determination of a declared sentence in accordance with law.

5. Where on comprehensive consideration of all case facts and circumstances, a punishment of indefinite imprisonment or higher, short-term detention, controlled release, independent use of a supplementary punishment, a suspended sentence or waiver of criminal punishment shall be given, it shall be applied in accordance with law.

(4) Where fines are given, the amount of the fine shall be decided in accordance with law based on the circumstances of the crime and comprehensively consider the defendants' ability to pay.

(5) Decisions to apply a suspended sentence shall be made in accordance with law through comprehensive consideration of the circumstances of the defendants' crimes, their shows of remorse, the risk of recidivism, as well as the impact on the community where they will reside.

III. Application of Commonly Seen Sentencing Circumstances

When sentencing, all statutory and discretionary sentencing circumstances shall be considered, and the application and adjustment ratio for each sentencing circumstance lawfully determined on the basis of the different situations of all facts of the case together with sentencing circumstances. When determining the extent of leniency for crimes such as crimes by malign forces, serious violent crimes, drug crimes, and sexual offenses against minors, punishment shall be strict; and where the criminal circumstances are relatively minor, the punishment shall fully embody leniency. When specifically determining the adjustment ration for each sentencing circumstance, the adjustment range and the actual increase or decrease to the penalty shall be comprehensively balanced to ensure that the punishment is proportionate to responsibility.

(1) For juvenile crimes, a lenient punishment shall be given, comprehensively considering the juveniles' ability to understand the crime, motive, and goals for committing a crime, age at the time of the offense, whether they are a first or casual offender, their expressions of repentance, personal experiences, and demeanor.

1. Crimes committed by minors who have reached the age of 12 but are not yet 16 years of age; reduce the base sentence by 30%-60%;

2. Crimes committed by minors who have reached the age of 16 but are not yet 18 years of age; reduce the base sentence by 10%-50%;

(2) For intentional crimes by seniors who are already 75 years old, the base sentence may be reduced by up to 40% in consideration of the nature, circumstances, consequences, and other situations of the crime; and for crimes of negligence, the base sentence may be reduced by 20%-50%.

(3) For crimes by deafmutes or the blind, the base sentence may be reduced by up to 50% inconsideration of nature, circumstances, and consequences of the crime as well as their control at the time of the crime, and other such circumstances; where the circumstances are more minor, the base sentence may be reduced by 50% or more or waived in accordance with law.

(4) For inchoate offenses, comprehensively consider circumstances such as the extent to which the crime was carried out, the size of the harm caused, and the reason why the crime was not completed, and the base sentence may be reduced up to 50% of that for the completed offense.

(5) For accessories, a lenient punishment shall be given in comprehensive consideration of their position and role in the joint offense and other such circumstances, reducing the base sentence by 20-50%; and where the offense are more minor, the base sentence may be reduced by 50% or more or waived in accordance with law.

(6) For voluntary surrender, comprehensively consider the motive, time, and method of the surrender; the seriousness of the crime; the degree of truthfulness of their account of the offense and their expression of repentance; and the base sentence may be reduced by up to 40%. Where the offense is minor, the base sentence may be reduced by 40% or more or criminal punishment may be waived in accordance with law This does not include bad will use of the voluntary surrender provisions to avoid legal sanctions and other situations not sufficient to achieve lenient punishment.

(7) For 'coming clean', comprehensively consider circumstances such as the phase when they truthfully recounted the criminal conduct, the weight of the crime and expressions of repentance, to determine the scope of leniency.

1. Where one truthfully recounts one's criminal acts, the base sentence may be reduced by up to 20%;

2. Where one honestly recounts similar serious criminal acts that the justice organs were not yet aware of, the base sentence may be reduced by 10-30%;

3. Where an especially serious consequence is avoided because one truthfully recounted their criminal acts, the base sentence may be reduced by 30-50%.

(8) Where the crime is voluntarily admitted at court, the base sentence may be reduced by up to 10% on the basis of circumstances such as the nature of the crime, the seriousness of the crime, the extent of the confession and expressions of remorse. This does not include those verified as voluntary surrendering or coming clean.

(9) For circumstances of meritorious contribution, the extent of leniency is to be determined through consideration of the size, number, content, source, and efficacy of the meritorious contributions, as well as the severity of the offense.

1. Ordinary meritorious service, the base sentence may be reduced by up to 20%;

2. Major meritorious service, the base sentence may be reduced by 20-50%, where the crime is minor, reduce the base sentence by 50% or more or waive punishment in accordance with law.

(10) For the return of unlawful gains or restitution, the nature of the crime, the degree to which the return or restitution can offset the harm, the amount returned or of restitution, and the extent to which it was done proactively shall be comprehensively considered, and the base sentence may be reduced by up to 30%. Crimes such as robbery that seriously endanger public security shall be handled sternly.

(11) Where the victim's economic damages are actively compensated and their forgiveness obtained, the base sentence may be reduced by up to 40% on comprehensive consideration of the nature of the crime, the amount of compensation, that ability to make compensation, and admissions and repentence of the offence; and where there is active compensation but forgiveness is not obtained, the base sentence may be reduced by up to 30%, but where forgiveness is obtained even though there was no compensation, the base sentence may be reduced by up to 20%. Crimes seriously endangering public security such as robbery and rape shall be handled sternly.

(12) Where parties reach a criminal settlement in accordance with article 288 of the Criminal Procedure Law, the base sentence may be reduced by up to on comprehensive consideration of the nature of the crime, the amount of compensation, formal apologies and actual repentence; where the crime is minor, the base punishment may be waived by 50% or more or punishment may be waived.

(13) Where the defendants' conduct while in custody is good, the base sentence may be reduced by up to 10%.

(14) Where defendants admit guilt and accept punishment, the base sentence may be reduced by up to 30% on comprehensive consideration of the nature of the crime, the severity of the crime, the phase at which they admitted guilt and accepted punishment, the degree and value, and expressions of remorse; and where there are circumstances of voluntary surrender, major coming clean, return or restitution of spoils, compensation, or other such circumstances, the base sentence may be reduced by up to 60%,and where the crime is more minor, the base sentence may be reduced by 60% or more or criminal punishment may be waived in accordance with law. Admission of guilt and acceptance of punishment is not to be cumulatively appraised along with sentencing factors such as voluntary surrender, coming clean, admitting guilt at court, return or restitution of spoils, compensation and forgiveness, criminal settlement, and good conduct while detained.

(15) For recidivism, the base punishment shall be increased by 10-40%, usually at least 3 months, on consideration of the nature of the previous and later crimes, the length of the period of time between completing or being released from a previous punishment and the commission of a new crime, as well as the seriousness of the previous and later crimes.

(16) For those with criminal records, comprehensively consider circumstances such as the nature of records, the length of time since the record, and the weight of the punishment; and the base sentence may be increased by up to 10%. This does not includes criminal records of crimes of negligence or juvenile crimes.

(17) Where the target of a crime is a minor, a senior, a disabled person, a pregnant woman or other vulnerable person, comprehensively consider circumstances such as the nature of the offense and the seriousness of the offense, and the base sentence may be increased by up to 20%.

(18) For intentional crimes committed during major natural disasters, during the prevention and control of an outbreak of infectious diseases, the base sentence may be increased by up to 20% according to the specific circumstances of the case.

IV. Sentencing for Common Crimes

(1) Traffic Crimes

1. Where a traffic crime is established, the starting sentence is to be determined within the ranges of the following distinct circumstances:

(1) Where a person is seriously injured or killed, or where serious harm is caused to public or private property, the starting sentence is to be set within the range of up to two years to short-term detention.

(2) Where there are especially heinous circumstances such as fleeing after causing a traffic accident, the starting sentence is to be determined within the range of 3 to 5 years imprisonment.

(3) Where a person dies as a result of their fleeing, the starting sentence is to be determined with the range of 7 to 10 years imprisonment.

2. On a foundation of the sentencing starting point, the penalty is to be increased to determine the base sentence determined based on facts impacting the establishment of the crime such as responsibility for the accident, the number of persons who were seriously injured or killed, or the amount of financial harm, as well as having fled the scene.

3. Where traffic crimes are established, the use of a suspended sentence is to be determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the responsibility for the accident, the harmful outcomes, compensation, and forgiveness, as well as factors such as the defendant's subjective malice, personal dangerousness, admission of guilt and acceptance of punishment.

(2) Criminal Reckless Driving

1. Where crimes of reckless driving are established, the sentence is to be declared within the range of 1-6 months short-term detention in accordance with law.

2. Where crimes of reckless driving are established, the amount of fines is to be determined on the basis of the acts of reckless driving, the actual harmful consequences, and other circumstances of the crime, and in comprehensive consideration of the defendant's ability to pay the fine.

3. Where traffic crimes are established, the use of a suspended sentence is to be determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the responsibility for the accident, the harmful outcomes, compensation, and forgiveness, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse.

(3) Criminally absorbing the public's savings

Where the crime of absorbing the public's savings is established, a starting sentence within the corresponding range is to be determined on the basis of the following distinct situations below:

(1) Where the circumstances are ordinary, the starting sentence is to be determined within the range of up to one year imprisonment to short-term detention.

(2) Where the starting point for 'huge sums' is reached or there are other serious circumstances, the starting sentence is to be determined within a range of 3-4 years imprisonment.

(3) Where the starting point for 'especially huge sums' is reached or there are other especially serious circumstances, the sentencing starting point is to be set within the range of 10-12 years imprisonment.

2. On the foundation of the starting sentence, increase the criminal punishment based on the facts of the crime established and determine the base sentence.

3. Where there is proactive return or restitution of spoils before a public prosecution, reducing the occurrence of harmful outcomes, the base sentence may be reduced by up to 40%; where the crime is more minor, the base sentence may be reduced more than 40%, or punishment may be waived in accordance with law.

4. Where the crime of absorbing public savings is established, the amount of fines is to be determined on the basis of the amount of the public's savings absorbed, the number of persons' savings, the amount of direct economic losses caused to each, and other circumstances of the crime, and in comprehensive consideration of the defendant's ability to pay the fine.

5. Where the crime of absorbing public savings is established, the use of a suspended sentence is to be determined through comprehensively consideration the amount of the public's savings absorved, the number of persons' savings, the amount of direct economic losses caused to each, return or restitution of funds, and other circumstances of the crime and sentencing circumstances, as well as the subjective malice and personal dangerousness of the defendant, their admission of guilt and remorse, and other such factors.

(4) Criminal fundraising fraud

1. Where the crime of fundraising fraud is established, a starting sentence within the corresponding range is to be determined on the basis of the following distinct situations below:

(1) Where the starting point for 'larger sums is reached, the starting sentence is to be determined within a range of of 3-4 years imprisonment.

(2) Where the starting point for 'huge sums' is reached or there are other serious circumstances, the starting sentence is to be determined within a range of of 7-9 years imprisonment. Those that shall be given indefinite imprisonment in accordance with law are excluded.

2. On the foundation of the starting sentence, the sentence is to be increased to determine the base sentence based on facts that establish the crime such as the amount defrauded.

3. Where crimes of fundraising fraud are established, the amount of fines is to be determined based on the amount in question, the harmful consequences, and other circumstances of the crime, and in comprehensive consideration of the defendant's ability to pay the fine.

4. Where crimes of fundraising fraud are established, the use of a suspended sentence is to be determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the amount in question, the subject defrauded, the harmful outcomes, and return or restitution of spoils compensation, and forgiveness, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse

(5) Criminal Credit Card Fraud

1. Where crimes of credit card fraud are established, the starting sentence is to be determined within the corresponding ranges based on the following circumstances:

(1) Where the starting point for 'relatively large' amounts is reached, the starting sentence is to be determined within a range of up to two years imprisonment to short-term detention.

(2) Where the starting point for 'huge sums' is reached or there are other serious circumstances, the starting sentence is to be determined within a range of 5-6 years imprisonment.

(3) Where the starting point for 'especially huge sums' is reached or there are other especially serious circumstances, the sentencing starting point is to be set within the range of 10-12 years imprisonment. Those that shall be given indefinite imprisonment in accordance with law are excluded.

2. On the foundation of the starting sentence, the sentence is to be increased to determine the base sentence based on the facts which establish the crime such as the amount defrauded.

3. Where crimes of credit card fraud are established, the amount of fines is to be determined based on the methods of fraud, the amount in question, the harmful consequences, and other circumstances of the crime, and in comprehensive consideration of the defendant's ability to pay the fine.

4. Where credit card fraud crimes are established, the use of a suspended sentence is to be determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the methods of fraud, the amount in question, harmful outcomes, and return or restitution of spoils, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse

(6) Contract Fraud

1. Where crimes of contract card fraud are established, the starting sentence is to be determined within the corresponding ranges based on the following circumstances:

(1) Where the starting point for 'relatively large' amounts is reached, the starting sentence is to be determined within a range of up to one year imprisonment to short-term detention.

(2) Where the starting point for 'huge sums' is reached or there are other serious circumstances, the starting sentence is to be determined within a range of 3-4 years imprisonment.

(3) Where the starting point for 'especially huge sums' is reached or there are other especially serious circumstances, the sentencing starting point is to be set within the range of 10-12 years imprisonment. Those that shall be given indefinite imprisonment in accordance with law are excluded.

2. On the foundation of the starting sentence, the sentence is to be increased to determine the base sentence based on facts that establish the crime such as the amount defrauded.

3. Where crimes of contract card fraud are established, the amount of fines is to be determined based on the amount in question, the amount of losses, the harmful consequences, and other circumstances of the crime, and in comprehensive consideration of the defendant's ability to pay the fine.

4. Where contract card fraud crimes are established, the use of a suspended sentence is to be determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the methods of fraud, the amount in question, harmful outcomes, and return or restitution of spoils, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse.

(7) Intentional harm

1. Where the crime of intentional fraud is established, a starting sentence within the corresponding range is to be determined on the basis of the following distinct situations below:

(1) Where intentional harm causes a minor injury to one person, the starting sentence is to be determined as within the range of two years imprisonment or short-term detention.

(2) Where intentional harm causes serious injury to one person, the starting sentence is to be determined within the range of three to five years imprisonment.

(3) Where intentional harm using especially cruel means causes serious injury to one person, causing a level-six disability, the starting sentence is to be determined within the range of 10 to 13 years imprisonment. Except for those who shall be sentenced to a penalty of indefinite imprisonment or higher in accordance with law.

2. On the foundation of the starting sentence, the penalty is to be increased to determine the base sentence on the basis of factors impacting the establishment of the crime such as the harmful consequences, the degree of harm, and the degree of heinousness of the means.

Where intentional harm causes a minor injury to one person, the degree of injury may be considered when determining the starting sentence or may be a sentencing circumstance used to modify the base sentence.

3. Where crimes of intentional harm are established, the use of a suspended sentence is to be determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the reasons for the crime, the methods, the harmful outcomes, compensation, and forgiveness, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse.

(8) Rape

Where the crime of rape is established, a starting sentence within the corresponding range is to be determined on the basis of the following situations:

(1) Where one woman is raped, the starting sentence may be determined within the range of 3-6 years imprisonment.

Where illicit relations are had with an underage girl, the starting sentence is to be determined within a range of 4-7 years imprisonment.

(2) In any of the following circumstances, the starting sentence is to be determined within the range of 10-13 years imprisonment: Where the rape of a woman or illicit relations with an underage girl was heinous, there were three victims of rape or illicit relations with underage girls, women were raped in a public place in front of others, two or more people gang-raped women, or the rape caused serious bodily injury or other grave consequences to the victim. Except for those who shall be sentenced to a penalty of indefinite imprisonment or higher in accordance with law.

2. On the foundation of the starting sentence, the penalty is to be increased to determine the base sentence on the basis of factors impacting the establishment of the crime such as the degree of heinousness in raping a woman or having illicit relations with an underage girl, the number of people raped, or the harmful consequences done.

Where multiple people were raped or there are multiple rapes, the number of people raped is a fact for increasing the penalty and the number of rapes is a circumstance for adjusting the base sentence.

3. Where rape is established, the use of a suspended sentence is to be strictly controlled and determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the methods of the rape and the harmful outcomes, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse

(9) Unlawful Confinement

1. Where the crime of unlawful confinement is established, a starting sentence within the corresponding range is to be determined on the basis of the following situations:

(1) Where the circumstances are ordinary, the starting sentence is to be determined within the range of up to one year imprisonment to short-term detention.

(2) Where one person is seriously injured, the starting sentence is to be determined with the range of 3 to 5 years imprisonment.

(3) Where one person is killed, the starting sentence is to be determined within the range of 10-13 years imprisonment.

2. On the foundation of the starting sentence the penalty is to be increased to determine the base sentence based on facts that impact the establishment of the crime such as the number of persons imprisoned, the length of the imprisonment, or deaths and injuries caused.

Where several people are unlawfully confined several times, the number of persons confined is a fact for increasing the punishment, and the number of incidents of confinement is a circumstance for adjusting the base sentence.

3. In any of the following circumstances, the base sentence is to be increased by 10%-20%:

(1) Where there were situations of beatings or beratement;

(2) Where staff of state organs abused their authority to illegally seize or confine someone;

4. Where unlawful confinement is established, the use of a suspended sentence is to be strictly controlled and determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the causes and length of the illegal confinement and the harmful outcomes, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse.

(10) Robbery

Where the crime of robbery is established, a starting sentence within the corresponding range is to be determined on the basis of the following situations:

(1) Where there is a single robbery, the starting sentence is to be determined with the range of 3-6 years.

(2) In any of the following circumstances the starting sentence may be set within the range of 10-13 years imprisonment: entered a residence to rob, robbed people on public transportation, robbed a bank or other financial institution, robbed three times, or robbed reaching the starting point for a 'huge sum', robbery causing a serious injury, impersonated a police officer when robbing, robbed fund for military use or for emergency response, disaster relief or economic relief. Except for those who shall be sentenced to a penalty of indefinite imprisonment or higher in accordance with law.

2. On the foundation of the starting sentence, the punishment is to be increased to determine the base sentence based on facts impacting the establishment of the crime such as the seriousness of the robbery, the number of robberies and amounts involved and injuries caused.

3. Where crimes of robbery are established, the amount of fines is to be determined on the amount robbed, the number of robberies, the methods, the harmful consequences, and other circumstances of the crime, and in comprehensive consideration of the defendant's ability to pay the fine.

4. Where crimes of robbery are established, the use of a suspended sentence is to be determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the causes and methods of the robbery and the harmful outcomes, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse.

(11) Theft

1. Where the crime of theft is established, a starting sentence within the corresponding range may be determined on the basis of the following situations:

(1) Where the starting point for 'relatively large amounts' is reached, or where there are three incidents of theft within two years, a residence was entered for theft, a weapon was carried in the theft or pickpocketing, the starting sentence is to be determined within the range of up to 1 year imprisonment and short-term imprisonment.

(2) Where the starting point for 'huge sums' is reached or there are other serious circumstances, the starting sentence is to be determined within a range of 3-4 years imprisonment.

(3) Where the starting point for 'especially huge sums' is reached or there are other especially serious circumstances, the sentencing starting point is to be set within the range of 10-12 years imprisonment. Those that shall be given indefinite imprisonment in accordance with law are excluded.

On the foundation of the starting sentence, the punishment is to be increased to determine the base sentence based on facts affecting the establishment of the crime such as the amount stolen, the number of thefts, and the means employed.

Where there are multiple thefts or the amount is relatively large, determine the starting sentence on the basis of the amount stolen and the number of thefts may be a circumstance for adjusting the base sentence. Where the amount is not relatively large, determine the starting sentence on the basis of the number of thefts, and exceeding three incidents is a fact for increasing the penalty.

3. Where crimes of theft are established, the amount of fines is to be determined between 1,000 RMB and two times the amount stolen, based on the circumstances of the crime such as the amounts stolen, the number of thefts, the methods, and harmful outcomes, and with comprehensive consideration of the defendant's ability to pay the fine; and where there is no amount stolen or it isn't possible to calculate the amount stolen, a fine between 1,000 and 100,000 RMB is to be given.

4. Where crimes of theft are established, the use of a suspended sentence is to be determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the causes and amounts of the theft, the number and methods of thefts, and return or restitution of spoils, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse.

(12) Criminal Fraud

1. Where the crime of fraud is established, a starting sentence within the corresponding range may be determined on the basis of the following situations:

(1) Where the starting point for 'relatively large amounts' is reached, the starting sentence may be determined within a range of 1 year imprisonment to short-term detention.

(2) Where the starting point for 'huge sums' is reached or there are other serious circumstances, the starting sentence is to be determined within a range of 3-4 years imprisonment.

(3) Where the starting point for 'especially huge sums' is reached or there are other especially serious circumstances, the sentencing starting point is to be set within the range of 10-12 years imprisonment. Those that shall be given indefinite imprisonment in accordance with law are excluded.

2. On the foundation of the starting sentence, the sentence may be increased to determine the base sentence based on facts that establish the crime such as the amount defrauded.

3. Where crimes of fraud are established, the amount of fines is to be determined based on the amount in question, the methods, the harmful consequences, and other circumstances of the crime, and in comprehensive consideration of the defendant's ability to pay the fine.

4. Where crimes of fraud are established, use of suspended sentences is to be determined on the basis of comprehensive consideration of the facts of the crime and sentencing circumstances such as the causes, methods, amounts, and harmful outcomes of the fraud, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse. Where telecommunication network fraud is carried out, the use of suspended sentences is to be strictly controlled.

(13) Forcible taking

1. Where the crime of forcible taking is established, a starting sentence within the corresponding range is to be determined on the basis of the following distinct situations below:

(1) Where the starting point for 'larger sums' is reached or there are three robberies in two years, the starting sentence is to be determined within a range of 1 year imprisonment and short-term detention.

(2) Where the starting point for huge amounts is reached or there are other serious circumstances, the starting sentence is to be determined within the range of 3-5 years imprisonment.

(3) Where the starting point for 'especially huge sums' is reached or there are other especially serious circumstances, the sentencing starting point is to be set within the range of 10-12 years imprisonment. Those that shall be given indefinite imprisonment in accordance with law are excluded.

2. On the foundation of the starting sentence, the punishment may be increased to determine the base sentence based on facts that establish the crime such as the amount taken and number of takings.

Where there are multiple takings or the amount is relatively large, determine the starting sentence on the basis of the amount taken and the number of takings may be a circumstance for adjusting the base sentence. Where the amount is not relatively large, determine the starting sentence on the basis of the number of takings, and exceeding three incidents is a fact for increasing the penalty.

3. Where crimes of forcible taking are established, the amount of fines is to be determined on the amount taken, the number of takings, the methods, the harmful consequences, and other circumstances of the crime, and in comprehensive consideration of the defendant's ability to pay the fine.

4. Where crimes of forcible taking are established, use of suspended sentences is to be determined on the basis of comprehensive consideration of the facts of the crime and sentencing circumstances such as the causes, amounts, methods, number of instances, and harmful outcomes of the takings, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse.

(14) encroachment in public office

1. Where crimes of encroachment in public office are established, the starting sentence is to be determined within the corresponding ranges based on the following circumstances:

(1) Where the starting point for 'relatively large' amounts is reached, the starting sentence is to be determined within a range of up to one year imprisonment to short-term detention.

(2) Where the starting point for 'huge sums' is reached or there are other serious circumstances, the starting sentence is to be determined within a range of 3-4 years imprisonment.

(3) Where the starting point for 'especially huge sums' is reached the sentencing starting point is to be set within the range of 10-12 years imprisonment. Those that shall be given indefinite imprisonment in accordance with law are excluded.

2. On the foundation of the starting sentence, the penalty is to be increased to determine the base sentence based on establishing the crime such as the amount taken.

3. Where crimes of encroachment in public office are established, the amount of fines is to be determined on the amount in question, the harmful consequences, and other circumstances of the crime, and in comprehensive consideration of the defendant's ability to pay the fine.

4. Where crimes of encroachment in public office are established, use of suspended sentences is to be determined on the basis of comprehensive consideration of the facts of the crime and sentencing circumstances such as the amounts, methods, and harmful outcomes of the encroachment, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse.

(15) Blackmail or extortion

1. Where the crime of blackmail or extortion is established, a starting sentence within the corresponding range is to be determined on the basis of the following situations:

(1) Where the starting point for relatively large amounts is reached or where there three incidents of blackmail or extortion within two years, the starting sentence is to be determined within the range of up to one year imprisonment and short-term detention.

(2) Where the starting point for huge amounts is reached or there are other serious circumstances, the starting sentence is to be determined within the range of 3-5 years imprisonment.

(3) Where the starting point for 'especially huge sums' is reached or there are other especially serious circumstances, the sentencing starting point is to be set within the range of 10-12 years imprisonment.

2. On the foundation of the starting sentence, the penalty is to be increased to determine the base sentence based on facts that establish the crime such as the amounts, number of times, and degree of severity.

Where there are multiple incidents of extortion or blackmail, or the amount is relatively large or higher, determine the starting sentence based on the amount and the number of incidents may serve as a sentencing circumstance for adjusting the base sentence; where the amount has not reached relatively large amounts, determine the starting sentence on the basis of the number of incidents, with more than three incidents as a fact for increasing sentencing.

3. Where crimes of blackmail or extortion are established, the amount of fines is to be decided within the range of 2,000 RMB and two times the amount extorted, on the basis of the amount and methods of the crime, the number of crimes, the harmful outcomes, and other circumstances of the crimes, and with comprehensive consideration of the defendant's ability to pay the fine; where the defendant did not obtain any property, the fine is to be between 2,000 and 100,000 RMB.

4. Where crimes of blackmail or extortion are established, use of suspended sentences is to be determined on the basis of comprehensive consideration of the facts of the crime and sentencing circumstances such as the methods, amounts, number of instances, and harmful outcomes of the crime, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse.

(16) Obstruction of official affairs

1. Where the crime of obstructing public functions is established, the starting sentence is to be determined within the range of up to 2 years imprisonment to short-term detention.

2. On the foundation of the starting sentence, the punishment may be increased to determine the base sentence based on factors such as the harm resulting from the obstruction of public order and the seriousness of the circumstances.

3. Where crimes of obstructing official affairs are established and fines are to be given as independent punishment in accordance with law, the amount of the fines is to be determined on the basis of circumstances of the crime such as the methods, harmful consequences, personal injury caused, and property destroyed, with comprehensive consideration of the defendant's ability to pay the fine.

4. Where crimes of obstruction of official affairs are established, the use of a suspended sentence is to be determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the methods of the crime, personal injury caused, property destroyed, and the impact on society, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse.

(17) Gathering crowds to fight

1. Where the crime of gathering crowds to fight is established, a starting sentence within the corresponding range is to be determined on the basis of the following situations:

(1) In ordinary circumstances, the starting sentence may be determined within the range of up to two years imprisonment to short-term detention.

(2) In any of the following situations, the starting sentence may be determined within a range of 3-5 years: where there are three incidents of gathering crowds to fight, where the number of persons organized to fight is large, the scale is large or the social impact heinous; where crowds are gathered to fight in a public forum or traffic route causing serious disruption of social order; or where armed people are gathered to fight.

2. On the foundation of the starting sentence, the punishment may be increased to determine the base sentence based on facts of the crime that influence the establishment of the crime a, such as the number of persons gathered to fight, the number of incidents, and the seriousness of the means used.

3. Where crimes of gathering crowds to fight are established, the use of a suspended sentence is to be determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the causes and methods of the robbery and the harmful outcomes, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse.

(18) Provocation and causing a disturbance [Picking Quarrels]

1. Where the crime of provocation is established, a starting sentence within the corresponding range is to be determined on the basis of the following distinct situations below:

(1) Where there is one incident of provocation, the starting sentence is to be set within the range of short-term detention to up to 3 years imprisonment.

(2) Organizing others for provocation three times (with each time constituting a crime), where social order is seriously disrupted, is to have a starting sentence set within the range of 5 to 7 years imprisonment.

2. On the foundation of the starting sentence, the punishment may be increased to determine the base sentence based on facts of the crime that influence the establishment of the crime such as the number of incidents, the injury caused, the amount forcibly taken or wantonly destroyed, or the amount of public or private property occupied.

3. Where crimes of provocation are established and a sentence of between 5 and 10 years imprisonment and a concurrent fine is given, the amount of the fine is to be decided on the basis of circumstances of the crime such as the number of instances of provocation, harmful consequences, and the extent to which social order is undermined, comprehensively considering the defendant's ability to pay the fine.

4. Where crimes of provocation are established, the use of a suspended sentence is to be determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the specific conduct, the harmful outcomes, the extent to which social order was undermined, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse.

(19) Concealing or hiding unlawful gains or the proceeds thereof

1. Where the crime of covering-up or concealing criminal proceeds and the proceeds thereof is established, a starting sentence within the corresponding range is to be determined on the basis of the following distinct situations below:

(1) Where the circumstances are ordinary, the starting sentence is to be determined within the range of up to one year imprisonment to short-term detention.

(2) Where the circumstances are serious, the starting sentence is to be determined within a range of 3-4 years imprisonment.

2. On the foundation of the starting sentence, the penalty may be increased to determine the base sentence based on the facst that impact the establishment of the crime such as the amount involved.

3. Where crimes of hiding or concealing criminal gains and the proceeds thereof, the amount of fines is to be determined based on the amount in question, the target of the crimes, harmful outcomes and other circumstances of the crime, and in comprehensive consideration of the defendant's ability to pay the fine.

4. Where provocation crimes are established, the use of a suspended sentence is to be determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the amounts, harmful consequences, precursor crimes, and extent of harm, as well as factors such as the defendant's subjective malice, personal dangerousness, and admission of guilt and expressions of remorse.

(20) the crime of smuggling, trafficking, transporting or manufacturing drugs

1. Where the crime of smuggling, selling, transporting or manufacturing drugs is established, the starting sentence is to be determined within the ranges corresponding to distinct situations below:

(1) Where smuggling, selling, transporting or manufacturing 1000 grams of opium, 50 grams of heroin or methamphetamine, or where other drugs reach the large volume point, the starting sentence is 15 years imprisonment. Except for those who shall be sentenced to a penalty of indefinite imprisonment or higher in accordance with law.

(2) Where smuggling, selling, transporting or manufacturing 200 grams of opium, 10 grams of heroin or methamphetamine, or where other drugs reach the relatively large volume point, the starting sentence is to be determined with a range of 7 to 8 year imprisonment.

(3) Where smuggling, selling, transporting or manufacturing less than 200 grams of opium, 10 grams of heroin or methamphetamine, or other small volumes of drugs, the starting sentence may be determined with a range of up to 3 years imprisonment or short-term detention; and where the circumstances are serious, the starting sentence is to be determined within a range of 3-4 years imprisonment.

2. On the foundation of the sentencing starting point, the penalty is to be increased to determine the base sentence on the basis of factors that impact the establishment of the crime such as the number of drug offenses, the number of persons and the volume of drugs.

3. In any of the following circumstances, the base sentence may be increased by 10-20%:

(1) using or inciting minors to smuggle, traffic, transport or manufacture drugs;

(2) selling drugs to minors;

(3) Drug Recidivism.

4. In any of the following circumstances, the base sentence may be reduced by up to 30%.

(1) was hired for the transport of drugs;

(2) the volume of drugs is obviously low;

(3) there was enticement for the volume.

(21) Unlawful possession of drugs

1. Where the crime of unlawful possession of drugs is established, a starting sentence within the corresponding range is to be determined on the basis of the following situations:

(1) persons who illegally possess at least 1,000 grams of opium, at least 50 grams of heroin or methamphetamines, or large quantities of other narcotic drugs are to have a starting sentence set at between 7 and 9 years imprisonment; Those that shall be given indefinite imprisonment in accordance with law are excluded.

(2) Where the circumstances of possession are serious, the starting sentence may be determined within a range of 3-4 years imprisonment.

(3) persons who illegally possess at least 200 grams of opium, at least 10 grams of heroin or methamphetamines, or large quantities of other narcotic drugs may have a starting sentence set at between 1 year imprisonment and short-term detention;

2. On the foundation of the starting sentence, the sentence may be increased to determine the base sentence based on facts that establish the crime such as the quantity of drugs.

3. Where crimes of illegal possession of drugs are established, the amount of fines is to determined based on the type and quantity of drugs and other circumstances of the crime, and in comprehensive consideration of the defendant's ability to pay the fine.

4. Where crimes of the illegal possession of drugs are established, the use of a suspended sentence is to be strictly controlled and determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the types and quantities of drugs, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse.

(22) Enabling others' use of drugs

(1) Where the crime of enabling others' use of drugs is established, the starting sentence may be determined with the range of between one year imprisonment and short-term detention.

2. On the foundation of the starting sentence, the sentence may be increased to determine the base sentence based on facts that establish the crime such as the number of persons enabled to use drugs and the number of instances.

3. Where crimes of enabling others to use drugs is established, the amount of fines is to be determined on the basis of the number of persons enabled, the number of instances, the amount of unlawful gains, the harmful consequences, and other circumstances of the crime, and in comprehensive consideration of the defendant's ability to pay the fine.

4. Where crimes of enabling others to use drugs are established, the use of a suspended sentence is to be determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the number of persons enabled, the number of instances, and the harmful outcomes, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse.

(23) Crimes of inducing, enabling, or being an intermediary for prostitution

Where the crime of inducing, enabling, or being an intermediary for prostitution is established, a starting sentence within the corresponding range is to be determined on the basis of the following situations:

(1) Where the circumstances are ordinary, the starting sentence is to be determined within the range of up to two years imprisonment to short-term detention.

(2) Where the circumstances are serious, the starting sentence may be determined within a range of 5-7 years imprisonment.

2. On the foundation of the starting sentence, the sentence may be increased to determine the base sentence based on facts that establish the crime such as the number of persons induced, enabled, or served as an intermediary for and the number of instances.

3. Where the principal responsible person for units in industries such as hotels, food and beverage, culture, and entertainment use the capacity of the corresponding unit to induce, enable, or act as an intermediary for prostitution, the base sentence may be increased by 10% to 20%.

4. Where crimes of inducing, enabling, or acting as an intermediary for prostitution are established, the amount of fines is to be determined on the basis of the number of persons, the number of instances, the amount of unlawful gains, the harmful consequences and other circumstances of the crime, and in comprehensive consideration of the defendant's ability to pay the fine.

5 Where crimes of inducing, enabling, or acting as an intermediary for prostitution are established, the use of a suspended sentence is to be determined based on comprehensive consideration of facts of the crime and sentencing circumstances such as the number of persons, the number of instances, and the harmful outcomes, as well as factors such as the defendant's subjective malice, personal dangerousness, and admissions of guilt and expressions of remorse.

V. Supplementary Provisions

(1) This Guiding Opinion regulates cases of the 23 crimes listed above to be punished by a prison term. Other cases giving a sentence of imprisonment may refer to the principles, basic methods, and use of common sentencing circumstances to standardize sentencing.

(2) The high people's courts and people's procuratorates of each province, autonomous region, and directly governed municipality shall consider actual local conditions to jointly draft detailed implementation rules.

(3) These Guiding Opinions are to take effect on July 1, 2021. The Supreme People's Court's "Regarding Implementation of the Amended (Legal Release [2017] No. 7)" released on March 9, 2017, is simultaneously repealed.

 

About China Law Translate 1146 Articles
CLT is a crowdsourced, crowdfunded legal translation project that enables English speaking people to better understand Chinese law.

Be the first to comment

Leave a Reply

Your email address will not be published.


*