Promulgation Date: 2021-8-9 Title: The Supreme People's Court and Supreme People's Procuratorate Interpretation on Several Issues Regarding the Applicable Law for Handling Criminal Cases of Harbouring and Abetting Criminals Document Number:法释〔2021〕16号 Expiration date: Promulgating Entities:The Supreme People's Court, The Supreme People's Procuratorate Source of text: http://www.court.gov.cn/fabu-xiangqing-317081.html
Supreme People's Court 最高人民检察院关于办理窝藏、包庇刑事案件适用法律若干问题的解释
The following interpretation on several issues regarding the applicable law in criminal cases of harbouring and abetting criminals is made on the basis of the PRC Criminal Law and the PRC Criminal Procedure Law and in consideration of the actual conditions of judicial work, so as to punish crimes of harboring and abetting in accordance with law.
Article 1: Where any of the following conduct is carried out in order to help someone one knows is a criminal escape, they are to be convicted and punished for the crime of harboring criminals in accordance with the first paragraph of Criminal Law article 310.
(1) Where housing or other hiding places are provided to criminals;
(2) Where transportation such as cars, boats, aircraft, or means communications such as cell phones are provided to criminals;
(3) Where funds are provided to criminals;
(4) Other situations where hiding places or assets are provided to persons who committed crimes to help them escape.
Where during the period of a criminals release on guarantee the guarantor assists them in escaping, or knows where they are hiding or their contact methods but refuses to provide them to the judicial organs, the guarantor shall be convicted and punished for the crime of harboring in accordance with the first paragraph of Criminal Law article 310.
Where hiding places or assets were provided to criminals but it was not for the purpose of helping the criminal escape, it is not to be convicted and punished as the crime of harboring; but actors who failed to perform legally-prescribed obligations are to be transferred to be given administrative punishments by the competent organs.
Article 2: Where any of the following conduct is carried out in order to help someone one knows is the perpetrator of a crime avoid criminal prosecution or receive a lenient punishment, they are to be convicted and punished for the crime of abetting criminals in accordance with the first paragraph of Criminal Law article 310.
(1) Intentionally taking the place of the criminal to deceive judicial organs;
(2) Intentionally making false statements or providing false evidence to the judicial organs showing that the criminal did not commit a crime or that the criminal's conduct did not constitute a crime;
(3) Intentionally providing false evidence to the judicial organs showing that the criminal had legally-prescribed circumstances calling for punishment to be mitigated, commuted, or waved.
(4) Other conduct abetting through false proofs.
Article 3: Where one knows that others have exhibited criminal conduct of espionage, terrorism or extremism but refuses to provide relevant evidence one has collected when so requested by judicial organs investigating the matter, and the circumstances are serious, they are to be convicted and punished for the crime of refusing to provide evidence on crimes of espionage, terrorism, or extremism; where they abet through false proofs, a heavier punishment is to be given for the crime of abetting in accordance with article 310 of the criminal law.
Article 4: Harboring or abetting criminals shall be considered to have 'serious circumstances' as provided for in Criminal Law article 355 in any one of the following circumstances:
(1) The person harbored or abetted may be sentenced to a penalty of life imprisonment or higher;
(2) The person harbored or abetted committed a crime endangering national security, a crime of terrorism or extremism, or is the organizer or leader of an underworld criminal organization crime, and might be sentenced to a penalty of 10 years imprisonment or higher;
(3) The person harbored or abetted is the principal offender in a criminal group, and might be sentenced to a penalty of 10 years imprisonment or higher;
(4) The person harbored or abetted committed another intentional crime while harbored or abetted and might be sentenced to 5 years imprisonment or higher for the new crime;
(5) They harbored or abetted criminals multiple times, or harbored and abetted multiple criminals;
(6) Other situations where the circumstances are serious.
"Might be sentenced" as used in the preceding paragraph refers to the punishment that shall be given in accordance with law on the basis of the criminal acts of the person harbored or abetted without considering circumstances calling for lenient punishment such as voluntary surrender, meritorious contribution, or admitting guilt and accepting punishment.
Article 5: Determinations of 'knowing' as provided for in the first paragraph of Criminal Law article 310 shall be made based on the objective facts of the case in consideration of the offender's cognitive capacity, the circumstances under which they encountered the criminal being harbored or abetted, the statements of the offender and the criminal, and other subjective and objective factors.
Where the offender mistakenly thought the criminal's crime was another crime, it does not impact the finding of 'knowing' as provided for in the first paragraph of Criminal Law article 310.
Where although the offender provided hiding places or assets and so forth, the existing evidence cannot prove that the offender knew that the criminal had committed criminal conduct, they may not be found to have been "knowing" as provided for in the first paragraph of Criminal Law article 310.
Article 6: A finding that the person harbored or abetted's conduct constituted a crime is a prerequisite for finding the crime of harboring or abetting.
Where the facts of the crime committed by the person being harbored or abetted are clear, and the evidence is credible and sufficient, but they have not been brought in, have not been judged in accordance with law, or have not been pursued for criminal responsibility because they do not possess the capacity for criminal responsibility, it does not impact the determination of the crimes of harboring or abetting. However, where the person being harbored or abetted is found not guilty after being brought into the case, the person who harbored or abetted them shall be declared not guilty in accordance with law in accordance with the legally-prescribed procedures.
Article 7: Where acts of harboring or abetting, money laundering, hiding or concealment of criminal gains and their proceeds, assistance in the destruction of evidence, or perjury were carried out to assist the same criminal escape criminal punishment, they are to be convicted for the crime with the heavier penalty and given a heavier penalty, and combined punishment for multiple crimes is not be implemented.
Article 8: Where acts of harboring or abetting are carried out between joint offenders, they are not to be convicted and punished for harboring and abetting, but acts of harboring or abetting are carried out for criminals outside the joint crime, the punishment is to be for the joint crime and the harboring and abetting.
Article 9: This interpretation is to take effect on August 11, 2021.