Guiding Opinions on Lawfully Punishing Illegal and Criminal Attacks on Police

Promulgation Date: 2020-1-10
Title: 最高人民法院、最高人民检察院、公安部关于依法惩治袭警违法犯罪行为的指导意见
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Promulgating Entities: Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security
Source of text: 中国警察网公众号

The people's police represent the state's exercise of law enforcement powers and undertake important duties such as combating violations and crimes, preserving social stability, maintaining judicial order, and enforcing effective judgments. In the course of lawful service, people's police sometimes encounter incidents of violent attacks or retaliation by violators and criminals, and some criminals act with insufferable arrogance and cruel methods, even planning attacks on police or assembling groups to carry them out, not only harming the physical safety of police, but even more seriously harming the authority of the nation's laws and undermining the normal order of state administration. These Opinions are drafted on the basis of relevant laws and regulations upon joint research and decision by the Supreme People's Court, Supreme People's Procuratorate, and Ministry of Public Security, in order to truly preserve the dignity of the nation's laws, to preserve the authority of police law enforcement, to safeguard the physical safety of police, and to lawfully punish illegal and criminal attacks on police.

I. Where the following actions are taken against police that performing official duties, it is 'violent attacks against people's police lawfully performing official duties' as provided for in article 277 of the Criminal Law:

1. Carrying out attacks against police's persons, such as by biting, kicking, wrestling, or throwing;

2. Carrying out attacks against police's persons by smashing, destroying, or forcible seizing police equipment such as police vehicles or police instruments while they are being used;

Where even though violent attacks were not carried out against police who are lawfully performing official duties, there was a threat of violence as provided for in the first paragraph of article 277 of the Criminal Law, it is to be convicted and punished as the crime of obstructing public officials.

Drunk persons that perpetrate criminal attacks on police shall bear criminal responsibility.

Instigating or inciting others to perpetrate criminal attacks on police or providing tools or assistance to others perpetrating criminal attacks on police, are to be addressed as joint crimes.

Slight attacks against police or insulting police that do not constitute a crime, but constitute a violation of the administration of public security shall be given heavier public security administrative sanctions in accordance with law.

II. In any of the following situations of carrying out violence against police, a heavier sentence is to be given on the foundation of article 1 in light of the circumstances:

1. Using weapons or dangerous items to attack police, or driving a motor vehicle to attack police;

2. Causing minor injuries to police or serious harm to police equipment;

3. Impeding police's lawful performance of official duties, causing injury to others or harm to public or private property, or causing serious consequences such as criminal suspects escaping or destroying evidence.

4. Causing vile social impact such as several people gathering to watch or blocking traffic;

5. Several people attacking police, or attacking 2 or more police;

6. Committing further attacks against police after having been punished for attacking police;

7. Carrying out other serious attacks against police.

Where perpetration of the conduct described above constitutes a crime, suspended sentences are generally not to be used.

III. Driving a car to ram, run over, drag, or graze police, or to squeeze out or crash into police vehicles that are currently performing official functions, endangering public safety or the safety of police in their lives and health, it is to be convicted as the crimes of endangering public safety through dangerous means, intentional homicide, or intentional harm, where the requirements of Criminal Law articles 114, 115, 232, or 234 are met, and a heavier sentence given in light of the circumstances.

Violently attacking the police causing serious injury or death to the police that meets the requirements of articles 234 or 232 of the Criminal Law, shall be convicted as the crimes of intentional harm or intentional homicide, with heavier punishments given in light of the circumstances.

IV. Robbery or theft of police guns that meets the requirements of the second paragraph of article 127 of the Criminal Law shall be tried convicted as the crimes of robbery or theft of guns.

V. People's police who performing duties outside of work times in accordance with the "P.R.C. Law on the People's Police" and other such laws, shall be viewed as performing official duties.

VI. Conduct such as violent attacks, obstruction, or intimidation of police officers at times when they are not carrying out official duties but because of their performance of official duties, shall be convicted as the crimes of intentional harm, intentional homicide, provocation and picking quarrels, and so forth, where the requirements of Criminal Law articles 234, 232, or 293 are met, and heavier punishment given on the basis of the specific circumstances of the attack on police.

All levels of people's court, people's procuratorate, and public security organs should strengthen coordination and cooperation, quickly handling cases of illegal and criminal attacks against police, correctly identifying them, and punishing them severely in accordance with law. First, investigations and dispositions, approval of arrest, indictment, and trial work should be lawfully and timely carried out. Police shall stop illegal and criminal attacks against police, and appropriately protect the site and control the criminal suspects. and based on the conditions at the scene, The police who are resonsible for investigating and handling cases of attacks on police shall fully gather and collect evidence, paying especially attention to gathering the police records of law enforcement at the site, A/V materials from surveillance equipment in the area, and witness testimony from people at the scene, and so forth, to acertain the facts of the case. An evaluation is to be conducted in accordance with law when injury is caused to police or others, or property is damaged. The people's police use of weapons and police instruments in accordance with laws and regulations, or their adoption of other necessary measures to stop attacks on police, are protected by law. In cases of attacks on police submitted by the public security organs for approval of arrest, or that are transferred for review for prosecution, the people's procuratorates shall strictly interpret situations such as arrest being unnecessary or the crime being minor and other situations calling for no arrest or no arrest; cautiously make decisions to not arrest or not prosecute, and shall approve arrest or indictment as quickly as possible where the requirements are met. Where attacks on police constitute a crime, the people's courts shall lawfully and timely hear them, strictly pursuing the criminal liability of the criminals in accordance with law. Second is lawfully applying heavier punishments. Violent attacks on police are one of the circumstances for heavier punishment provided for in article 277 of the Criminal Law. When people's courts, people's procuratorates, and public security organs handle this type of case, they should correctly understand the serious threat that attacks on police pose to the nation's laws, and cannot treat attacks on police as equivelant to ordinary intentional harm or treat causing physical harm to police as the sole standard for whether a crime is consituted, but should comprehensively consider the tactics and means by which police were attacked, as well as the degree of impact on the performance of official duties and other such factors, to corectly determine the nature of the crime and strictly pursue criminal responsiblity. Criminal settlement or public security mediation is not to be applied for attacks on police. Where a crime is constituted but there are circumstances such as being a first offender, casual offender, or giving civil compensation and obtaining the victims' forgiveness, the extent of leniency should be strictly understood when giving discretionary leniency. In cases where the nature and harmful consequences of the crime are especially serious, the criminal methods are especially cruel, the social impact especially vile, where even though the criminals have the mitigating circumstances described above, they are insufficient for mitigation, lenient punishment is not to be given in accordance with law. Third, is strengthening the regulation of law enforcement and publicity and education on the rule of law. People's police should strictly follow the procedures and standards provided by law to correctly perform their duties, especially regulating on-site law enforcement, having the law as a basis and using reason to persuade, to appropriately resolve comments and cautiously use compulsory measures, weapons, and police instruments. When people's courts, people's procuratorates, public security organs lawfully handle cases, they should increase the force of publicity and education on the legal system, and in major cases where the social impact is larger and the public is concerned, use multiple means such as news media, wechat, and weibo to report to the public on case progress, to clarify facts, and summarize facts to explain the law and reasoning and explain the harfullness of attacks on police. Disclose and reveal a batch of example cases at an appropriate time, revealing to the public the illegality and serious harm of attacks on police, and educating the masses on following the law; establishing a positive rule of law environment throughout society in which 'the law is revered and law enforcement is respected."

Each region and each relevant department is asked to report problems they encounter in enforcement to the organs above.