Promulgation Date: 2019-4-9 Title: Opinions on Several Issues Relating to the Handling of Criminal Cases of Perpetrating “Soft Violence” Document Number: Expiration date: Promulgating Entities: Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security et al. Source of text: http://www.xinhuanet.com/legal/2019-04/09/c_1210103389.htm
The following Opinions based on the Criminal Law, Criminal Procedure Law, and other relevant judicial interpretation and normative documents are hereby submitted so as to thoroughly implement the decisions and deployments of the CPC Central Committee on carrying out the Special Crackdown on Clearing Away Organized Crime and Eliminating Vice; and to correctly understand and apply the "Guiding Opinions on Several Issues in Handling Cases of Underworld Forces Crimes" (Fafa (2018) No.1) released by the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, and Ministry of Justice, hereinafter simply the "Guiding Opinions", provisions relevant to lawfully punishing use of 'soft violence' to perpetrate crimes, and handle related criminal cases in accordance with law:
I. "Soft Violence" refers to illegal and criminal tactics in which perpetrators disturb or entangle others, make a racket, or assemble to demonstrate towards other persons or related places so as to obtain illegal benefits or create an illegal impact, and that are sufficient to cause terror or panic in others that creates a form of psychological compulsion, or are sufficient to impact or limit physical liberty or endanger security in persons and property, and impact normal life, work, production, or business.
II. The forms in which violations and crimes of 'soft violence' regularly manifest are:
(1) Methods of violating rights in one's person, democratic rights, or property rights, including but not limited to stalking, threatening to spread disease, disclosing private information, maliciously reporting, falsely accusing or framing, destroying or occupying property;
(2) Methods of disrupting the normal order of lives, work, production, or business, including but not limited to trespassing in others residences, destroying living facilities, setting up obstacles to livelihood, posting signs, hanging banners, lighting firecrackers, playing dirges, placing wreaths, splashing waste, cutting off water or electricity, blocking doors and workers, as well as directly taking control of factories, offices, or business places through methods such as driving off practitioners or stationed personnel;
(3) Methods that disrupt social order, including but not limited to setting up protests, gathering to cause disturbances and stir up trouble, and blocking roads to cause a commotion;
(4) Other 'soft violence' methods that meet the requirements of Article 1 of these Opinions.
Illegal and criminal methods fitting the provisions of article 1 of these Opinions that are carried out through the information networks or communications tools, shall be designated as 'soft violence'.
III. Where perpetrators with any of the following circumstances carry out 'soft violence', it may be found sufficient to cause terror or panic in others that creates a form of psychological compulsion, or are sufficient to impact or limit physical liberty or endanger security in persons and property, and impact normal life, work, production, or business:
(1) Carried out by underworld forces;
(2) Carried out in the name of underworld forces;
(3) Are perpetrating again after having previously received criminal punishment for organizing, leading, or participating in an underworld criminal organization, malign forces crime group, or malign force, as well as for crimes such as compelling transactions, unlawful confinement, extortion and blackmail, assembling to brawl, provocation and causing disturbances;
(4) Perpetrating while in possession of weapons;
(5) Carried out in an organized fashion, or sufficient to make others feel that violence and threats were imminently likely;
(6) Other circumstances sufficient to cause terror or panic in others that creates a form of psychological compulsion, or are sufficient to impact or limit physical liberty or endanger security in persons and property, and impact normal life, work, production, or business:
Where express or implied methods are employed sufficient to make other believe that relevant conduct is organized, such as it being carried out by multiple people, making up or telling violent illegal and criminal experiences as intimidation, or saying oneself that it is organized, doing it in the name of a leader, wearing uniform clothing, showing tattoos or special symbols, and so forth, it shall be found to be "carried out in the name of underworld forces".
Where carried out by multiple persons, as long as any portion of perpetrators have the circumstances provided for in items (1)-(4), this item is established.
Even where specific perpetrators of 'soft violence' do not have the circumstances provided for in items (1) or (3) of this article, but employers, directors, or orchestrators do, this item is established.
IV. 'Soft violence' methods are a 'characteristic conduct of underworld criminal organizations' as provided for in article 294 paragraph 5 item (3) of the Criminal Law as well as in "other methods" in the concept of "malign forces" as provided for in article 14 of the Guiding Opinion.
V. Where employing "soft violence" methods causes terror or psychological compulsion in others, it is respectively "threats" as provided for in Criminal Law article 226, or "intimidation" as provided for in Criminal Law article 293 paragraph 1(2), and where the elements for constituting other crimes are simultaneously met, it shall be convicted and punished as the crimes of compelling transactions and provocation and causing disturbances.
"Several times" in articles 2-4 of the "Interpretation on Several Issues on the Application of Law in Criminal Cases and Provocation and Causing Disturbances" shall usually be understood to mean committing acts of provocation and causing disturbances three or more times within 2 years. Three or more acts of provocation and causing disturbances includes both acts of the same type and of different types, and includes both acts that have not received administrative punishments and that have already received administrative punishments.
VI. Where others are unlawfully detained several times for short periods of time in an organized fashion, it shall be found to be "illegally deprivation of others' physical liberty through other means" as provided for in Criminal Law article 238. Where others are unlawfully detained three or more times with the length of each instance continuing for for or more hours, or where the cumulative length of unlawful detention is 12 hours or more, it shall be convicted and punished as the crime of unlawful detention.
VII. Where "soft violence" methods are used to enter or remain in others' residences, it shall be found to be "illegal trespass on others' residences" as provided for in article 245 of the "Criminal Law", and where it simultaneously meets the elements for other crimes, conviction and punishment should be in accordance with illegal trespass on residences.
VIII. Use of 'soft violence' methods to forcibly solicit public or private property for the purpose of illegal occupation that concurrently meets the elements for constituting a crime under Criminal Law article 274, shall be convicted and punished as the crime of extortion or blackmail.
The "carry out blackmail or extortion three or more times within two years" in article 3 of the "Interpretation of Several Issues on the Application of Law in Handling Criminal Cases of Blackmail and Extortion", includes conduct that has already received administrative punishment.
IX. Where the use of 'soft violence' methods simultaneously constitutes two or more types of crime, conviction and punishment is to lawfully be in accordance with the heavier crime, except where laws provide otherwise.
X. Where criminal responsibility is pursued for conduct that has already received an administrative punishment based on the provisions of article 5 and article 8 of these Opinions, the punishment shall be reduced by time previously spent in administrative detention, and fines shall be reduce by past fines.
XI. Where employing or directing others to use soft violence tactics to compel transactions or extort constitutes the crime of compelling transactions or extortion, the employer or director shall usually be dealt with as the key offender in the joint crime.
Where persons are hired or directed to use 'soft violence methods to deprive others' of their physical liberty, constituting criminal unlawful confinement, or trespass on residences, or provocation and causing disturbance constituting a crime, so as to forcibly collect debts or for other illegal goals, the hiring or directing party shall generally be treated as the primary offender in a joint crime; but where the hiring or direction was to pursue a lawful debt owed to them or a close relative, or because of a marital, familial, neigourhood, or other civil dispute, and no serious consequences were caused, it is generally not to be handled as a crime, except where it continues following criticism and control by the relevant departments or punishment.
XII. These Opinions shall come into force on April 9, 2019.