SPC Guiding Opinion on Sentencing of Common Crimes 2014

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来源: http://court.gov.cn/spyw/xssp/201407/t20140730_197026.htm 

The following Guiding Opinions are drafted on the basis of relevant provisions of the Criminal Law, Judicial Interpretations of the Criminal Law, and other legislation along with trial practice, so as to further standardize penalty discretion and implement the policy of combining criminal punishment with leniency 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 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 should be based on qualitative analysis combined with quantitative analysis in order to determine the starting point, baseline, and declared sentence.

      1. Sentencing Steps

      (1)The starting sentence is determined within the relevant statutory penalty range on the basis of the facts constituting the crime;

      (2)The base sentence is determined by increasing the starting sentence in light of 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 considering all factors of the case as a whole.

        1. 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 by 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 offence; 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.

          1. Determining the Declared Sentence

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

          (2) Where the result of adjusting the base sentence by the sentencing circumstances is below the statutory minimum punishment, there are statutory circumstance 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 statutory 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 statutory minimum may also be given.

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

          (4) Comprehensively considering all case circumstances, a sole judge or collegial panel may make adjustments within a range of 20% to the adjusted result, to determine the declared sentence. Where after adjustment the result still doesn't meet the requirements of the making the punishment consistent with the crime, it should 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, controlled release, independent use of a supplementary punishment, a suspended sentence or waiver of punishment shall be given, it shall be applied in accordance with law.

          III. Application of Commonly Seen Sentencing Circumstances

          When sentencing, all statutory and discretionary sentencing circumstances should be considered, and the application and adjustment ratio for each sentencing circumstance lawfully determined on the basis the different situations of all facts of the case together with sentencing circumstances. When determining the extent of leniency for criminal offences that bring serious harm to public order, such as seriously violent crimes and drug crimes, punishment shall be strict. When the criminal circumstances are relatively minor, the punishment shall fully embody of 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, the juveniles's 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 shall be comprehensively considered, and a lenient punishment given.

          (1) crimes committed by minors who have reached the age of 14-16 years of age; reduce the base sentence by 30%~60%;

          (2) crimes committed by minors who have reached the age of 16 but are under the age of 18 years of age; reduce the base sentence by 10%~50%.

          1. 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.
          2. For accessories, their position and role in the joint offense shall be comprehensively considered along with whether or not they carried out the offense and other such circumstance, to give a lenient punishment, reducing the base sentence by 20-50%. Where the offense is light, reduce the base sentence by 50% or more, or wave the punishment in accordance with law.
          3. 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 repentence; 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 punishment 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.
          4. For meritorious services, comprehensively consider the size, number, content, source and effect of the meritorious services and the weight of the offense to determine the range of leniency.

          (1) where there is an ordinary meritorious service, the base sentence may be reduced by up to 20%;

          (2)where there is a 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.

          1. For confessions, comprehensively consider circumstances such the phase when they truthfully recounted the criminal conduct, the extent, the weight of the crime and the degree to which they express repentance, to determine the scope of leniency.

          (1)Where one honestly 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%.

          1. 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 surrender or confessions,
          2. For return of unlawful gains or restitution, the base sentence may be reduced by up to 30% on comprehensive consideration of the nature of the crime, the degree to which the return or restitution can offset the harm, the amount of return or restitution and the extent to which the it was done actively. Crimes of robbery and other crimes that seriously harm social order should be handled sternly.
          3. 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 the degree to which the crime is admitted and repented. Where there is active compensation but forgiveness is not obtained, the base sentence may be reduced by up to 30%. Where forgiveness is obtained even though there was no compensation, the base sentence may be reduced by up to 20%. Crimes that seriously threaten public security such as robbery and rape,should be handled sternly.
          4. Where parties reach a criminal settlement in accordance with article 277 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.
          5. 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.
          6. For those with criminal records, comprehensively consider circumstances such 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.
          7. 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%
          8. For 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 may 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 may 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 may be determined within the range of 3 to 5 years imprisonment.

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

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

          (2) Intentional Harm

          1. Where the crime of intentional harm is established, a starting sentence within the corresponding range may 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 may 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 may be determined within the range of three years to five imprisonment.

          (3) Where intentional harm using especially cruel means causes serious injury to one person, causing a level-six disability, the starting sentence may 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.

          1. On the foundation of the starting sentence, the penalty may 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) Rape

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

          (1) Where one women is raped, the starting sentence may be determined within the range of 3-5 years imprisonment.

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

          (2) In any of the following circumstances the starting sentence may be determined within the range of 10 to 13 years in prison: the rape of a woman or illicit relations with an underage girl were heinous; three victims of rape or illicit relations with underage girls; raped women in a public places in front of others; two or more people gang-raped women, 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.

          1. On the foundation of the starting sentence, the penalty may 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 women 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 fact for increasing the penalty and the number of rapes is a circumstance for adjusting the base sentence.

          (4) Unlawful Imprisonment

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

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

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

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

          1. On the foundation of the starting sentence the penalty may be increased to determine the base sentence in light of facts which 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 imprisoned several times, the number of persons imprisoned is a fact for increasing the punishment, and the number of incidents of imprisonment is a circumstance for adjusting the base sentence.

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

          (1) where there was beating or insult (except those resulting in serious injury or death);

          (2) Where State personnel abuse their authority to take someone into custody or detain them.

          (5) Robbery

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

          (1) Where there is a single robbery, the starting sentence may 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 office 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.

          1. On the foundation of the starting sentence, the punishment may be increased to determine the base sentence in light of facts impacting the establishment of the crime such as the seriousness of the robbery, the number of robberies and amounts involved and injuries caused

          (6) 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 distinct situations below:

          (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 may 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 may be determined within a range of 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 may be set within the range of 10-12 years imprisonment. Those that shall be given indefinite imprisonment are excluded.

          1. On the foundation of the starting sentence, the punishment may be increased to determine the base sentence in light of 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.

          (7) 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 distinct situations below:

          (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 may be determined within a range of 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 may be set within the range of 10-12 years imprisonment. Those that shall be given indefinite imprisonment are excluded.

          1. On the foundation of the starting sentence, the sentence may be increased to determine the base sentence in light of facts which establish the crime such as the amount defrauded.

          (8) Seizing

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

          (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 may be determined within a range of 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 may be set within the range of 10-12 years imprisonment. Those that shall be given indefinite imprisonment are excluded.

          1. On the foundation of the starting sentence, the punishment may be increased to determine the base sentence in light of facts that establish the crime such as the amount taken in robberies.

          (9) encroachment in public office

          1. Where the crime of encroachment in public office is established, a starting sentence within the corresponding range may be determined on the basis of the following distinct situations below:

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

          (2) Where the starting point for 'huge amounts' is reached, the starting sentence may be determined within the range of 5-6 years imprisonment.

          1. On the foundation of the starting sentence, the penalty may be increased to determine the base sentence in light of facts establishing the crime such as the amount taken.

          (10) Blackmail or extortion

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

          (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 may 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 may be determined within the rang 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 may be set within the range of 10-12 years imprisonment.

          1. On the foundation of the starting sentence, the penalty may be increased to determine the base sentence in light of fact 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.

          (11) Obstructing public functions

          1. Where the crime of obstructing public functions is established, the starting sentence may 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 in light of factors such as the harm resulting from the obstruction of public order and the seriousness of the circumstances.

          (12) Gathering crowds to fight.

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

          (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

          1. On the foundation of the starting sentence, the punishment may be increased to determine the base sentence in light of criminal facts 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.

          (13) Provocation and causing a disturbance (Picking Quarrels)

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

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

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

          1. On the foundation of the starting sentence, the punishment may be increased to determine the base sentence in light of criminal facts that influence the establishment of the crime a, 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.

          (14) Covering-up or concealing criminal proceeds, receiving benefit of criminal proceeds

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

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

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

          1. On the foundation of the starting sentence, the penalty may be increased to determine the base sentence in light of fact that impact the establishment of the crime such as the amount involved.

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

          1. On the foundation of the sentencing starting point, the penalty may 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.
          2. In any of the following circumstances, the base sentence may be increased by 10-30%

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

          (2) selling drugs to minors;

          (3) Drug Recidivism.

          1. 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.

          V. Supplementary Provisions

          1. This guiding opinion only regulates cases of the 15 crimes listed above to be punished by short-term imprisonment or a term of years.
          2. Each High People's Court shall make specific implementation rules from for their local conditions.
          3. Relevant Criminal Law Provisions:

           

           

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