China Law Update

• Pages: 21-48

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2012 CHINA LAW UPDATE 21

CHINA LAW UPDATE

I. LAWS AND REGULATIONS

A. Amendment to the Criminal Law (VIII) (promulgated by the

Standing Comm., Nat’l People’s Cong., Feb. 25, 2011, effective May

1, 2011)

The Eighth Amendment to the Criminal Law of the People’s

Republic of China (hereinafter referred to as the Eighth Amendment)

has caused significant changes to both the general provisions and

particular criminal provisions of the statute.

1. General Provisions

First, special punitive consideration is given to individuals who

attain the age of 75. In accordance with the newly-added Article

17A, where an offender of an intentional crime attains the age of 75,

he may be given a lighter or mitigated penalty; also, where an

offender of crime of negligence attains the age of 75, he should be

given a lighter or mitigated penalty.1 The same mitigation principle

is also found in the newly-added Paragraph 2 of Article 49 of the

Criminal Law, which rules out the application of death penalty to

persons attaining the age of 75 at the time of trial, unless such person

has caused the death of another person by extremely cruel

means. Furthermore, wrongdoers who attain the age of 75 — as

well as those under 18 years old and pregnant individuals — should

be put on probation, instead of being jailed. In fact, special

consideration for elderly wrongdoers is not new to the Chinese legal

system, as it is coincides with the traditional Chinese virtue of

respect for the elders. Examples of such provisions can be traced

back to “Zhouli” (周礼), “Lijing” (礼经), “Fajing” (法经) and other

Confucian classics. 2 Apart from the historical and cultural

backgrounds, these modifications are also supported by the relatively

weak psychological status of the elderly — aging might affect their

ability of recognition and self-control.3

1 Xing Fa Xiuzhengan (Ba) (刑法修正案(八)) [Amendment to the Criminal Law (VIII)]

(promulgated by the Standing Comm., Nat ’l People’s Cong. Feb. 25, 2011, effective May 1, 2011) 2011

STANDING COMM., NAT’L PEOPLE’S CONG. GAZ. 128 (China) [hereinafter Amendment to the Criminal

Law (VIII)].

2 Li Fangxiao (李芳晓), Laonianren Fanzui Congkuan Chufa de Helixing Tanxi (老年人犯罪从宽

处罚的合理性探析) [Discussion on the Rationality of Soft Terms in Criminal Law for the Elderly],

Zhengfa Luntan (政法论坛) [Tribune of Political Science & Law], Sept., 2011, at 143-44 (China).

3 Id.

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Second, it amends the method of calculation of the combined

punishment for more than one crime in Article 69.4 In the original

version of Article 69 of the Criminal Law, the utmost fixed-term

imprisonment was 20 years.5

Third, the amendment has actually restrained the application of

probation, reduction of sentence and parole.

It is more reasonable to have two

ranges in deciding the final term of imprisonment of a criminal as in

the amended Article 69 – if respective terms of imprisonment add up

to less than 35 years, the final term of imprisonment cannot exceed

20 years; if the total amount exceeds 35 years, the final term will be

no more than 25 years. This modification has ben seen as a

reflection of the complying with the long-standing principle of

matching the severity of the criminal penalty with the crime.

6

Finally, a new sentence, “Community Correction” (社会矫正), is

introduced into Article 85 of the Criminal Law, which is applicable

to those convicts released on parole. It was first brought into the

public insight via a judicial interpretation of 2003

However, it gives a

wider definition and heavier punishment to recidivists.

7 and was further

developed through a judicial interpretation of 2009.8 Under the new

regime, special organs of the state, by placing wrongdoers in the

community, strive not only to correct the worngdoers’ behaviours,

but also to help them resettle into the society.9

4 Xing Fa (刑法) [

As regards the

implementation of the new sentence, pursuant to the revised

provision, the police force is no longer in charge of the community

correction. Meanwhile, no other public organ has obtained the

discretion under the new provision to administer the community

correction. Therefore, certain problems in the implementation of

Criminal Law] (promulgated by the Nat’l Peop le’s Cong., Mar. 14, 1997,

effective Oct. 1, 1997) 1997 STANDING COMM., NAT’L PEOPLE’S CONG. GAZ. 138 (the 1997 version)

(China).

5 Id. art. 69.

6 See Amendment to the Criminal Law (VIII), supra note 1, arts. 72, 74, 78, 81.

7 Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan, Gong’a n Bu, Sifa Bu Guanyu Kaizhan

Shequ Jiaozheng Shidian Gongzuo de Tongzhi (最高人民法院、最高人民检察院、公安部、司法部

关于开展社区矫正试点工作的通知) [Notice of the Supreme People’s C ourt, the Supreme People ’s

Procuratorate, the Ministry of Public Security and the Ministry of Justice on the Trial Implementation

of Community Corrections] (promulgated by the Sup. People’s Ct., Sup. People’s Pr ocuratorate,

Ministry of Pub. Sec’y & Ministry of Justice, July 10, 2003, effective July 10, 2003) SUP. PEOPLE’S

PROC. COMMUNIQUE, June, 2003, at 18-20 (China).

8 Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan, Gong’an Bu, Sifa Bu Guanyu Zai Quanguo

Shixing Shequ Jiaozheng Gongzuo de Yijian (最高人民法院、最高人民检察院、公安部、司法部关

于在全国试行社区矫正工作的意见) [Opinions of the Sup. People’s Ct., the Sup. People’s

Procuratorate, the Ministry of Public Sec’y and the Ministr y of Justice on the Trial Implementati on of

Community Corrections in the Whole Country] (promulgated by Sup. People’s Ct, Sup. People’s

Procuratorate, Ministry of Pub. Sec’y & Ministry of Justice, Sept. 4, 2009, effective Sept. 4, 2009)

(Chinalawinfo).

9 Id.