2016 Drug Crimes Interpretation

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Title: Supreme People's Court Interpretation on Several Issues Concerning the Applicable Law in Trial of Drug Crime Cases
Promulgating Entities:Supreme People's Court
Reference number: Legal Interpretation No. 8 (2016)
Promulgation Date: 2016-4-6
Expiration date: 
Source of text: http://www.chinacourt.org/law/detail/2016/04/id/148674.shtml

 

Supreme People's Court Interpretation on Several Issues Concerning the Applicable Law in Trial of Drug Crime Cases
Legal Interpretation No. 8 (2016)

The "Supreme People's Court Interpretation on Several Issues Concerning the Applicable Law in Trial of Drug Crime Cases" was adopted at the 1676th meeting of the adjudication committee of the Supreme People's Court on January 25, 2016 and is hereby released to take effect on April 11, 2016.
Supreme People's Court
4/6/2016

Legal Interpretation No. 8 (2016)
Supreme People's Court Interpretation on Several Issues Concerning the Applicable Law in Trial of Drug Crime Cases
(Adopted at the 1676th meeting of the adjudication committee of the Supreme People's Court on January 25, 2016; to take effect on April 11, 2016.)

So as to lawfully punish drug crimes, the following interpretation on several issues regarding the applicable law in criminal cases for such crimes has been drafted and is hereby released on the basis of “The Criminal Law of the People's Republic of China":
Article 1: Smuggling, trafficking, transporting, manufacturing or unlawful possession of the following drugs shall be found to be 'large quantities of other drugs' as provided for in item one of paragraph 2 of Criminal Law article 347, and article 348:

(1) 50 grams or more of cocaine;
(2) 100 grams or more of 3,4-Methylenedioxymethamphetamine (MDMA) and other amphetamine-type drugs (except methamphetamine), or morphine;
(3) 125 grams or more of fentanyl;
(4) 200 grams or more of methcathinone;
(5) ten milligrams or more of dihydroetorphine ;
(6) 250 grams or more of meperidine (dolanting);
(7) 500 grams or more of ketamine;
(8) 1 kilogram or more of methadone;
(9) Two kilograms or more of tramadol or gamma-hydroxybutyric acid;
(10) 5 kilograms or more of hemp oil, 10 kilograms or more of cannabis resin, 150 kilograms or more of marijuana leaves or cigarettes;
(11) 5 kilograms or more of codeine or buprenorphine;
(12) 50 kilograms or more of triazolam or methaqualone;
(13) 100 kilograms or more of alprazolam or khat;
(14) 200 kilograms or more of caffeine or poppy shells;
(15) 250 kilograms or more of sodium barbital, phenobarbital,caffeine sodium benzoate, or Nimetazepam ;
(16) 500 kilograms or more of chlordiazepoxide, estazolam, diazepam, or bromazepam;
(17) large quantities of drugs other than those listed above.

Where narcotics or psychoactive medications produced by designated sites in accordance with standards are used in drug crimes, the volume of drugs involved in the case is calculated based on the amount of drug within the medication.


Article 2: Smuggling, trafficking, transporting, manufacturing or unlawful possession of the following drugs shall be found to be 'relatively large quantities of other drugs' as provided for in paragraph 3 of Criminal Law article 347, and article 348:

(1) 10 grams or more but less than 50 grams of cocaine;
(2) 20 grams or more but less than 100 grams of 3,4-Methylenedioxymethamphetamine (MDMA) and other amphetamine-type drugs (except methamphetamine), or morphine;
(3) 25 grams or more but less than 126 grams of fentanyl;
(4) 40 grams or more but less than 200 grams of methcathinone;
(5) 2 milligrams or more but less than 10 milligrams of dihydroetorphine;
(6) 50g or more but less than 250g of meperidine (dolanting);
(7) 100g or more but less than 500g of ketamine;
(8) 200g or more but less than 1kg of methadone;
(9) 400g or more but less than 2 kg of tramadol or gamma-hydroxybutyric acid;
(10) 1 kg or more but less than 5 kg of hemp oil, 2 kg or more but less than 10 kg of cannabis resin, 30 kg or more but less than 150 kg of marijuana leaves or cigarettes;
(11) 1 kg or more but less than 5 kg of codeine or buprenorphine;
(12) 10 kg or more but less than 50 kg of triazolam or methaqualone;
(13) 20 kg or more but less than 100 kg of alprazolam or khat;
(14) 40 kg or more but less than 200 kg of caffeine or poppy shells;
(15) 50 kg or more but less than 250 kg of barbital, phenobarbital, caffeine sodium benzoate, or nimetazepam;
(16) 100 kg or more but less than 500 kg of chlordiazepoxide, estazolam, diazepam, or bromazepam;
(17) Relatively large quantities of drugs other than those listed above.

Article 3: During the course of committing crimes of smuggling, trafficking, transporting, or manufacturing drugs, whoever brings firearms, ammunition or explosives to use as cover, or shall be found to "smuggle, traffic, transport, or manufacture drugs covered by armes" as provided in item 3 of paragraph 2 of Criminal Law Article 347. The determination of the types of firearms, ammunition, and explosives shall proceed according the provisions of relevant judicial interpretations.

During the course of committing crimes of smuggling, trafficking, transporting, or manufacturing drugs, whoever violently resists inspection, detainment, or arrest, causing death or serious injuries to law enforcement personnel or light injuries to multiple persons thereof or having other serious circumstances, shall be found to "violently resist inspection, detainment, or arrest, where the circumstance is serious" as provided in item 4 of paragraph 2 of Criminal Law Article 347.

Article 4: In any of the following circumstances, smuggling, trafficking, transport or manufacturing of drugs shall be found to have 'serious circumstances' as used in paragraph 4 of Criminal Law article 347.

(1) Selling drugs to multiple people or smuggling, trafficking, transporting or manufacturing drugs several times;
(2) Trafficking drugs within a drug treatment venue or supervised facility;
(3) Selling drugs to enrolled students;
(4) organizing or exploitin persons with disabilities or serious illness, pregnant women or women who are breastfeeding their own child, smuggle, traffick, transport or manufacture drugs;
(5) where state employees smuggle, traffic, transport or manufacture drugs;
(6) Other situations where the circumstances are serious.

Article 5: In any of the following circumstances, where unlawful possession of drugs reaches the standards for a “larger amount“ as provided in Criminal Law article 348 or article 2 of this Interpretation, it shall be found to be "serious circumstances" as provided for in Criminal Law article 348:

(1) Illegally possessing drugs within a drug treatment venue or supervised facility;
(2) Using or instigating minors to illegally possess drugs;
(3) Where state employees illegally possess drugs;
(4) Other situations where the circumstances are serious.

Article 6: In any of the following circumstances, harbouring criminals who smuggle, traffic, transport or manufacture drugs shall be found to have 'serious circumstances' as used in the first paragraph of Criminal Law article 349:

(1) Where the harboured criminals shall be punished with 15 years or more imprisonment in accordance with law;
(2) Harboring several criminals engaged in smuggling, trafficking, transporting or manufacturing narcotic drugs or having harbored several times;
(3) Seriously obstructing judicial organs' prosecution of the drug crimes committed by the harbored criminals;
(4) Other situations where the circumstances are serious.

In any of the following circumstances, covering up, transferring or concealing drugs or assets acquired from drugs, on behalf of a criminal who is smuggling, trafficking, transporting or manufacturing drugs, shall be found to be 'serious circumstances' as used in the first clause Criminal Law article 349:

(1) Where the amount of drugs covered up, transferred or concealed on behalf of a criminal reaches the standard for a 'large volume' provided for in item 1 of paragraph 2 in Criminal Law article 347 or article 1 paragraph one of this Interpretation.
(2) Where the value of criminal proceeds covered up, transferred or concealed on behalf of a criminal is 50,000 RMB or more.
(三)为多人或者多次为他人窝藏、转移、隐瞒毒品或者毒品犯罪所得的财物的;
(4) Seriously obstructing the prosecution of the drug crimes committed by the criminals who are covered up by judicial organs;
(5) Other situations where the circumstances are serious.

包庇走私、贩卖、运输、制造毒品的近亲属,或者为其窝藏、转移、隐瞒毒品或者毒品犯罪所得的财物,不具有本条前两款规定的“情节严重”情形,归案后认罪、悔罪、积极退赃,且系初犯、偶犯,犯罪情节轻微不需要判处刑罚的,可以免予刑事处罚。

Article 7: Unlawful production, trade or transport of items for the production or smuggling of drugs in violation of national regulations that reaches the following volume standards shall be found to have 'more serious circumstances' as used in the first paragraph of Criminal Law article 350:

(一)麻黄碱(麻黄素)、伪麻黄碱(伪麻黄素)、消旋麻黄碱(消旋麻黄素)一千克以上不满五千克;
(二)1-苯基-2-丙酮、1-苯基-2-溴-1-丙酮、3,4-亚甲基二氧苯基-2-丙酮、羟亚胺二千克以上不满十千克;
(三)3-氧-2-苯基丁腈、邻氯苯基环戊酮、去甲麻黄碱(去甲麻黄素)、甲基麻黄碱(甲基麻黄素)四千克以上不满二十千克;
(4) Between 10 kilograms and 50 kilograms of acetic anhydride;
(五)麻黄浸膏、麻黄浸膏粉、胡椒醛、黄樟素、黄樟油、异黄樟素、麦角酸、麦角胺、麦角新碱、苯乙酸二十千克以上不满一百千克;
(六)N-乙酰邻氨基苯酸、邻氨基苯甲酸、三氯甲烷、乙醚、哌啶五十千克以上不满二百五十千克;
(七)甲苯、丙酮、甲基乙基酮、高锰酸钾、硫酸、盐酸一百千克以上不满五百千克;
(8) substantial quantities of other controlled drugs.

违反国家规定,非法生产、买卖、运输制毒物品、走私制毒物品,达到前款规定的数量标准最低值的百分之五十,且具有下列情形之一的,应当认定为刑法第三百五十条第一款规定的“情节较重”:

(一)曾因非法生产、买卖、运输制毒物品、走私制毒物品受过刑事处罚的;
(二)二年内曾因非法生产、买卖、运输制毒物品、走私制毒物品受过行政处罚的;
(三)一次组织五人以上或者多次非法生产、买卖、运输制毒物品、走私制毒物品,或者在多个地点非法生产制毒物品的;
(四)利用、教唆未成年人非法生产、买卖、运输制毒物品、走私制毒物品的;
(五)国家工作人员非法生产、买卖、运输制毒物品、走私制毒物品的;
(6) Seriously affecting the order of the public's ordinary production and lives.
(7) Other situations where the circumstances are more serious.

in any one of the following circumstances, the unlawful production, trade or transport of items for the production or smuggling of drugs in violation of national regulations that reaches 50% of the lowest end of the volume standards provided in the preceding paragraph, shall be found to have 'more serious circumstances' as used in the first paragraph of Criminal Law article 350.

Article 8: In any of the following circumstances, production, trade or transport of drugs in violation of national regulations shall be found to have 'serious circumstances' as used in the first clause of Criminal Law article 350:

(一)制毒物品数量在本解释第七条第一款规定的最高数量标准以上,不满最高数量标准五倍的;
(二)达到本解释第七条第一款规定的数量标准,且具有本解释第七条第二款第三项至第六项规定的情形之一的;
(3) Other situations where the circumstances are serious.

In any of the following circumstances, production, trade or transport of drugs in violation of national regulations shall be found to have 'especially serious circumstances' as used in the first clause of Criminal Law article 350.

(一)制毒物品数量在本解释第七条第一款规定的最高数量标准五倍以上的;
(二)达到前款第一项规定的数量标准,且具有本解释第七条第二款第三项至第六项规定的情形之一的;
(3) other situations where the circumstances are especially serious.

Article 9: In any of the following circumstances, cultivating plants from which drugs are derived shall be considered a “larger amount“ as provided in item 1 of the first paragraph of Criminal Law article 351:

(1) Illegal cultivation of between 5,000 and 30,000 marijuana plants;
(2) Illegal cultivation of between two hundred square meters and 1,200 square meters of opium poppies or between 2000 and 12,000 square meters of marijuana plants, where no sprouts have emerged.
(3) Illegally cultivating other relatively large quantities of plants from which drugs are derived.

Cultivating plants from which drugs are derived that reaches the highest standards of the preceding paragraph shall be considered a “large amount“ as provided in the second paragraph of Criminal Law article 351:

Article 10: In any of the following circumstances, trade, transport, carrying or possession of seeds or seedlings of plants from which drugs are derived and which have not been inactivated shall be considered a “relatively large amount“ as provided in Article 352 of the Criminal Law:

(1) 50 grams or more of opium poppy seeds or 5000 or more opium poppy seedlings;
(2) 50 kilograms or more of cannabis seeds or 50,000 or more cannabis seedlings;
(3) Other relatively large quantities of the seeds of seedlings of plants from which drugs are derived.

Article 11: In any of the following circumstances, enticing, instigating or tricking others into ingesting or injecting drugs, shall be found to have 'serious circumstances' as used in the first paragraph of Criminal Law article 353:

(1) Enticing, instigating, or tricking several people to use or inject drugs or enticing , instigating or tricking others to use or inject drugs several time;
(2) causing serious harm to the health of others;
(3) Causing others to perpetrate criminal acts such as intentional homicide, intentional infliction of harm, or traffic incidents.
(4) State personnel enticing, instigating or tricking others to use or inject drugs.
(5) Other situations where the circumstances are serious.

Article 12: In any of the following situations where one shelters others ingesting or injecting drugs, it shall be convicted and punished as the crime of sheltering others to take drugs pursuant to Article 354 of the Criminal Law:

(1) One instance of sheltering multiple persons to ingest to inject drugs;
(2) Sheltering others to ingest or inject drugs more than once during two years;
(3) Where [the offender] was subject to administrative penalties due to sheltering others to ingest or inject drugs within the preceding two years;
(4) Sheltering minors to ingest or inject drugs;
(5) Accommodating others to ingest or inject drugs for personal gains;
(6) Accommodating others to ingest or inject drugs, causing serious consequences;
(7) Other situations where criminal responsibility shall be pursued.

Where one shelters other to ingest or inject drugs after selling drugs to them, or sells drug to others while sheltering them to ingest or inject drugs, and where the requirements for a conviction of sheltering other to take drugs under the previous paragraph are met, he shall be convicted of and punished for both selling drugs and sheltering other to take drugs.

容留近亲属吸食、注射毒品,情节显著轻微危害不大的,不作为犯罪处理;需要追究刑事责任的,可以酌情从宽处罚。

Article 13: 依法从事生产、运输、管理、使用国家管制的麻醉药品、精神药品的人员,违反国家规定,向吸食、注射毒品的人提供国家规定管制的能够使人形成瘾癖的麻醉药品、精神药品,具有下列情形之一的,应当依照刑法第三百五十五条第一款的规定,以非法提供麻醉药品、精神药品罪定罪处罚:

(一)非法提供麻醉药品、精神药品达到刑法第三百四十七条第三款或者本解释第二条规定的“数量较大”标准最低值的百分之五十,不满“数量较大”标准的;
(二)二年内曾因非法提供麻醉药品、精神药品受过行政处罚的;
(三)向多人或者多次非法提供麻醉药品、精神药品的;
(四)向吸食、注射毒品的未成年人非法提供麻醉药品、精神药品的;
(五)非法提供麻醉药品、精神药品造成严重后果的;
(6) Other situations where criminal responsibility shall be pursued.

In any of the following circumstances, it shall be considered 'serious circumstances' as provided for in Criminal Law article 355.

(一)非法提供麻醉药品、精神药品达到刑法第三百四十七条第三款或者本解释第二条规定的“数量较大”标准的;
(二)非法提供麻醉药品、精神药品达到前款第一项规定的数量标准,且具有前款第三项至第五项规定的情形之一的;
(3) Other situations where the circumstances are serious.

Article 14: 利用信息网络,设立用于实施传授制造毒品、非法生产制毒物品的方法,贩卖毒品,非法买卖制毒物品或者组织他人吸食、注射毒品等违法犯罪活动的网站、通讯群组,或者发布实施前述违法犯罪活动的信息,情节严重的,应当依照刑法第二百八十七条之一的规定,以非法利用信息网络罪定罪处罚。
Where one commits the acts stipulated by Articles 287-1 and 287-2 of the Criminal Law, and the acts simultaneously constitute the crimes of selling drugs, of illegally selling and purchasing materials used in making drugs, and of teaching criminal methods, he shall be convicted of and punished for the crime for which the punishment is relatively harsher.

Article 15: This interpretation takes effect on April 11, 2016. The "Supreme People's Court Interpretation on Issues Related to Conviction and Sentencing Standards in Trial of Drug Cases" (Legal Interpretation 2000 No 13) is abolished at the same time; where previously released interpretations and normative documents do not accord with this interpretation, this interpretation is controlling.

 

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2 Comments

  1. Article 4 refers to paragraph 4 of Criminal Law article 347, not the “first clause” as translated here.

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