Promulgation Date: 2019-4-9 Title: Opinions on Several Issues Related to Handling Cases of Crimes by Malign Forces 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_1210103401.htm
The following Opinions on several issues of handling criminal cases by malign forces are based on the Criminal Law, Criminal Procedure Law, and other relevant judicial interpretation and normative documents and submitted so as to earnestly implement the deployment requirements 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":
I. Overall requirements for handling criminal cases by malign forces
1. The people's courts, people's procuratorates, public security organs, and judicial-administrative organs should deeply recognize the serious harm to society from violations and crimes by malign forces, unwaveringly upholding the directive for strict punishment in accordance with law, and using multiple legal tactics in every stage, from the investigation, indictment, trial and enforcement stages to comprehensively manifest the strict punishment idea, to deter violators and criminals in malign forces and effectively combat and prevent crimes and violations by malign forces.
The people's courts, people's procuratorates, public security organs and judicial-administrative organs should strictly persist in handling cases in accordance with law, and, on a foundation of the case facts being clear and the evidence credible and sufficient, correctly designate malign forces and malign force criminal gangs, and resolutely prevent people from raising or lowering the standards for designations. They should persist in implementing the criminal policy of blending leniency with severity, truly making it so that leniency and severity have a basis and that punishments suit the crime, on the basis of the criminal suspect or defendants' subjective malice, personal dangerousness, position and role in the malign force or malign force group, as well as liability for specific crimes; so as to realize unified political, legal, and social efficacy.
3. The people's courts, people's procuratorates, public security organs, and judicial-administrative organs should give fully play to their own functions, divide work and responsibility, provide mutual support and mutual restraints, adhere to the requirements of the trial-centered criminal procedure reform, strictly implement the 'three rules' [see comments], to continuously strengthen awareness of procedures and evidence, effectively strengthen legal oversight, ensure strict enforcement of laws and judicial fairness, and fully ensuring all procedural rights of parties and litigation participants.
II. Standards for designation of malign forces and malign force crime groups
4. 'Malign forces' refers to illegal or criminal organizations that have not yet become an underworld criminal organization, but regularly gather together and use violence, threats, or other tactics to carry out multiple illegal or criminal activities in a certain region or industry, doing wrong, reppressing the people, disrupting the order of the economy and society, and causing relatively heinous social impact.
5. Illegal or criminal activities such as 'pornography, drugs, stealing, robbery, or fraud' carried out purely to obtain illegal economic interests, and not having the special characteristic of doing harm to or oppressing the common people; or illegal or criminal activities arising from matters such as marital or romantic disputes, family disputes, neighborhood disputes, labor disputes, or disputes over lawful debts; should not be dealt with as malign forces cases.
6. Malign forces usually have 3 or more people, with relatively fixed orchestrators. Orchestrators refers to the violators or criminals who serve functions such as organizing, planning, or directing in the malign forces' carrying out of illegal and criminal activities. Where membership is quite fixed and other requirements for designating malign forces are met, but different members organized, planned, or directed several illegal or criminal activities that were carried out, it may also be designated as a malign force, and the members exhibiting the conduct above may be designated as orchestrators.
Other members of malign forces refers to violators or criminals who knew or should have known that they were frequently gathering together with others in order to jointly break the law or commit crimes, but still continues to participate in illegal or criminal activities according to orchestrators' organization, planning, or direction, such as persons against whom there is already sufficient evidence but who have not yet been brought in, as well as persons whose legal responsibility is not pursued to legally prescribed circumstances or persons who have already received administrative or criminal punishments for participation and carrying out of malign forces illegal and criminal activities. Those deceived into participating in a small number of illegal or criminal activities by malign forces due only to temporary employment or being hired, use or being used, are generally not to be designated as members of malign forces.
7. 'Regularly coming together to carry out illegal or criminal activities repeatedly in a certain region or industry through tactics such as violence or threats' refers to criminal suspects or defendants carrying out illegal or criminal activities repeatedly in a certain region or industry through tactics such as violence or threats within two years, with at least 2 members, including orchestrators, participating in and carrying out multiple illegal or criminal activities. Where the period of 'coming together' is noticeably short, the standard of 'multiple times' is only just met, and a heinous impact has not been created, a malign force should not ordinarily be designated.
8. The illegal and criminal activities of malign forces are primarily forced transactions, intentional harm, unlawful confinement, extortion or blackmail, intentional destruction of property, gathering to brawl, and provocation and picking quarrels, but also include other illegal and criminal activities that have the characteristics of menacing or oppressing the common people, that are carried out primarily through violence or threats.
Malign forces might also carry out further criminal activities such as establishing casinos, organizing prostitution, compelling prostitution, traficking in drugs, smuggling drugs, producing drugs, robbing, stealing, assembling to disrupt social order, assembling to disrupt order of public venues or transportation, or assembling to loot and riot, but where only these further illegal and criminal activities are perpetrated and cannot determined to have the characteristics of doing wrong or repressing the people, they generally should not be found to be malign forces.
9. In cases handled as crimes by malign forces, 'repeatedly carried out illegal or criminal activities' should include at least one criminal activity. For repeated perpetration of illegal conduct in a routine fashion, such as compelled transactions, unlawful confinement, blackmail and extortion, or provocation and picking quarrels, and the circumstances or amounts in individual instances does not constitute a crime, but the Criminal Law or relevant judicial interpretations and normative documents provide that they should be addressed as a crime after aggregation, then when determining whether it is 'repeated commission of illegal or criminal activities" those that have already been aggregated may be counted as one incident of a criminal activity, and other illegal conduct can be individually counted as instances of illegal activities.
Those that have already been addressed or have already been investigated and handled as civil disputes that are then discovered to truly be illegal or criminal activities by malign forces may all be the factual basis for designations of malign forces, but legal responsibility must not be newly pursued unless the legally-prescribed circumstances are met.
Determinations of ‘disrupting the economy, society, or livelihoods, causing a more heinous social impact' shall combine and comprehensively consider factors such as the victims and their number, the number of violations or crimes, the methods and scale, the physical harm resulting, the amount of economic damages, the amount of unlawful gains, the extent of disruption to the social order, as well as extent of impact on people's feeling of safety.
11. Malign forces crime groups refers to criminal organizations that meet all the requirements for designation as malign forces and concurrently meet the requirements for designation as a crime group.
The ringleaders of malign forces crime groups refers to criminals in malign forces crime groups that have organizational, planning, or directing roles. Other members of malign forces crime groups refers to criminals who know or should know that a relatively stable criminal organization was set up to perpetrate crimes, but continue to accept the leadership, management, or direction of the ringleader and participate in an organization's criminal activities.
Malign forces crime groups shall have organized commission of multiple criminal activities, and might have accompanying illegal activities. Refer to article 10, paragraph 2, of the Guiding Opinions to determine the illegal and criminal activities perpetrated by malign forces crime groups.
12.Where all members, or the ringleaders, orchestrators, or other important members are minors, seniors, or persons with disabilities. designation as a malign force or malign force criminal organization shall be especially cautious.
III. Correctly use the relevant requirements of the criminal policy of blending leniency and severity
13.The law should be used to correctly increase the force of punishment for the orchestrators of malign forces, the ringleaders and important members of malign forces crime groups, as well as the primary offenders in serious joint crimes by malign forces or malign forces crime groups; resolutely giving heavy penalties and death sentences where the law so provides. At the same time, strictly control the use and application of release on guarantee, non-prosecution, suspended sentences, commutation or parole, release on medical parole, and fully utilize qualification punishments, punishment against property, and other legal tactics to give strict punishment from all sides. Where the requirements of Criminal Law article 37-1 are met, they may be lawfully prevented from engaging in the relevant professions.
For other members of malign forces and malign forces crime groups, where their responsibility for a joint crime was relatively small, and their physical dangerousness and subjective malice isn't very large, and they have legally-prescribed or discretionary factors for lenient punishment such as turning themselves in, meritorious contribution, confessing, or it being a first offense; they may lawfully be given a mitigated or commuted sentence, or have punishment waived. Suspended sentences may be used where they admit guilt and accept punishment, or only participated in a small number of criminal activities and only played a minor or support role, and meet requirements for suspended sentences.
14.Where ringleaders of malign forces crime groups report or reveal other criminal leads related to the crime group and its illegal or criminal activities, if there is disagreement on the facts, evidence, or application of law on the issue of whether to find meritorious contribution, it shall be strictly controlled. Where lawfully finding meritorious contribution or major meritorious contribution, the principle of proportionality between the crime and punishment shall be the basis for strict determination of whether to give a lenient punishment and how lenient it should be. Where it might cause punishments throughout the entire case to become imbalanced, lenient punishment is not to be given.
If other members of malign forces crime groups can cooperate with judicial organs in investigating cases, and provide leads, assist in collecting evidence, or give other help; and play a major role in breaking a malign forces crime group case or in discovering a 'protective umbrella' and so forth; even if it cannot be found to be meritorious contribution in accordance with law, a lenient punishment should usually be given in light of the circumstances.
15.Where criminal suspects or defendants simultaneously have legally-prescribed or discretionary factors calling for severity and for leniency, at sentencing comprehensively consider factors such as the seriousness of their specific criminal conduct, their position and role in the malign force or malign force crime group, their subjective malice, and physical dangerousness. For the orchestrators of malign forces or the ringleaders and important members of malign forces crime groups, severity is generally to be reflected when sentencing. For other members whose liability for joint crimes is relatively small, and whose physical dangerousness and subjective malice isn't large, and who honestly admit their crimes and repent, leniency is generally to be reflected when sentencing.
16. In criminal cases by malign forces, where criminal suspects or defendants voluntarily and truthfully confess their own criminal conduct, admit the facts of the crime as charged, and are willing to accept punishment, they may be given a lenient disposition in accordance with law, and apply the system of leniency for those who confess and accept punishment. Do not use that system even where the crime was heinous, the criminal methods were cruel, or the harm to society was serious, even if the criminal suspect or defendant admits guilt and accepts punishment but not enough to receive a lighter punishment;
IV. Other issues regarding the handling of criminal cases by malign forces
17.Where, upon review, people's courts. people's procuratorates, and public security organs find that cases meet the standard for malign forces designation, they shall clearly state this in the written opinion in support of indictment, indictment, judgment, ruling, or other legal documents' section on case facts, listing the orchestrators and other members of the malign forces, the facts of the violations or crime and evidence on which the designation is based; where the standard is met for designation as a malign force crime group, it shall be clearly identified in the legal documents listed above, listing the ringleader and other members, the facts on violations and crimes, and the evidence on which the designation is based, and cite the relevant provisions of the General Provisions of the Criminal Law regarding crime groups. Where defendants or their defenders raise defenses or defense opinions to the designation as a malign force, the people's courts may give an analysis and response in the judgment documents.
The written opinion in support of indictment, indictment, judgment, ruling, or other legal documents in cases of crimes by malign forces may include an overview of the facts on the malign force or malign force crime gang in the portion on the facts of the case, and reiterate the specific facts of the violations or crimes by the malign forces.
18.Where the public security organs did not make a clear designation in the written opinion in support of indictment, and during the period of review for prosecution the people's procuratorate discovers that there is a malign force or malign force crime group, and the relevant facts of violations or crimes are already clear and the evidence is credible and sufficient, so that criminal responsibility should be pursued in accordance with law, they shall make a decision to prosecute, and submit an indictment to the people's court on the basis of the facts ascertained and indicate the malign force or malign force crime gang in the indictment. Where people's procuratorates find that the facts on violations or crimes by malign forces are not clear, or that the evidence is insufficient, or that there are omissions in the facts of the malign forces' violations and crimes, omissions on criminal suspects in the same case, or other situations that require supplementary investigation, they shall submit specific written opinions, to be sent back to the public security organs along with the case file materials for supplementary investigation; and the people's procuratorate may also conduct investigation themselves, and when necessary request that the public security organs provide assistance.
Where the people's procuratorate did not make a clear designation in the indictment, and the people's courts discover during the trial period that a malign force or malign force crime group is constituted, it may suggest that the people's procuratorate supplement or change the indictment; where the people's procuratorate does not agree or does not respond within 7 days, the people's court should not take the initiative to make a designation and may only make a judgment or ruling on the facts of the crime alleged in the indictment in accordance with relevant provisions.
When hearing appeals by the defendants, or the defendants legally-designated representative, defender, or close relatives; where the first-instance trial judgment finding of an underworld criminal organization was in error, the second-instance trial court shall correct it, and where the standards for designating malign forces or malign forces crime groups are met shall make the relevant designation; and where the first-instance trial judgment designation of malign forces or malign forces crime groups were in error, they shall correct it but must not make an upward designation; and where the first-instance trial judgment did not make a designation of a malign force or malign force crime group, designations must not be added.
19.Public security organs, people's procuratorates, and people's courts shall use the malign forces and malign force crime groups designated in Opinions in Support of Indictment, Indictments, and Judgments, as the separate basis for statistics on the relevant data.
20. This opinion goes into effect from April 9, 2019.
The 3 rules 三个规程 refers to rules for holding
1. pretrial conferences
2. exclusion of evidence
3. courtroom investigation