China’s Legal System. Editor: Pan Guoping and Ma Limin. The Sinopedia Series Singapore: Cengage Learning, 2011.

History of Criminal Law in China

In the late 1970s, China restructured her legal system. In 1979, seven laws were enacted (including Criminal Law and Criminal Procedural Law). The Criminal Law was based on draft number 33 of a legislation that bore the same name proposed in the 1960s. For more than 30 years, China has continued to develop and refine her criminal law.

Amidst a period of great social development, the Chinese people increased their awareness of the concepts of justice and the rule of law. In 1996, China made an amendment to the Criminal Procedural Law, with one of the most important parts being the introduction of the basic principle of “presumption of innocence.” In accordance with Article 12 of the new Criminal Procedural Law, “A person shall be considered innocent until being found guilty in a People’s Court,” which the original law did not provide for. This amendment made up for something that was severely lacking in the Criminal Procedural Law, further improving the criminal justice system, and taking large strides toward a better safeguarding of the rights and interests of defendants.

In 1998, She Xianglin was sentenced to 15 years in prison for allegedly murdering his wife. On March 28, 2005, his wife who was supposedly “murdered” 11 years ago re-appeared and proved that her long-suffering husband was innocent. Soon after this, She Xianglin was declared innocent and released after a retrial. She Xianglin and his family sued the state for compensation and received more than RMB 700,000. Such cases serve as a stern warning that the principle of presumption of innocence needs to be further enhanced in the Criminal Procedural Law and this principle must be acknowledged and followed in the judicial system.

In China, social norms and values are always dominant, due to the heavy influence of tradition and the restriction of social structure. Broadly speaking, the Criminal Law has the twin functions of protecting society and protecting the rights of individuals. The basic principle of the Criminal Law is to first prioritize the protection of society, which may sometimes come at the expense of protecting individual rights. This aspect of the Criminal Law, which establishes the analogy system¹ and showed characteristics of fuzziness in the legal terminology, which seemed to assign more rights to judicial authorities. While China was in the midst of emerging from social disorder, her people hoped that the country would develop in the right direction and that social stability would be maintained with criminal law firmly in place.

The prominent characteristics of the revised Criminal Law are the abolishment of the analogy system and the definition of three basic principles, namely,

• Conviction and penalty according to law,
• Equality of everyone before the law, and
• Punishment being commensurate with the crime.

For Your Information: Analogy System of Criminal Law

China promulgated Article 79 of the Criminal Law in 1979. It states: “Any crimes not expressly provided for in sub-rules of this law can be convicted and sentenced according to the most similar provisions to the sub-rules of this Law, but it should be submitted to the Supreme People’s Court.” This is commonly referred to as the analogy system of criminal law (Analogia n malam partem). The theoretical basis of its criminal law is: crime is a very complex social phenomenon; it is simply not possible to expect one law to include all the crimes occurring and also those that may occur in the future. In 1997, China amended the Criminal Law, highlighting the protection of personal rights and abolishing the analogy system. The abolition of the system raised a controversy in jurisprudence circles.

These were important steps taken toward the democratization of the Criminal Law.

According to Article 3 of the Criminal Law, “For acts that are explicitly defined as criminal acts by the law, the off enders shall be convicted and punished in accordance with the law; otherwise, they shall not be convicted or punished.” This is the principle of conviction and penalty according to law.

According to Article 4, “The law shall be equally applied to anyone who commits a crime. No one shall have the privilege of transcending the law.” This is the principle of equality of everyone before the law. It also embodies judicial fairness and protects the rights of the accused.

According to Article 5, “The degree of punishment shall be commensurate with the crime committed and the criminal responsibility borne by the off ender.” This is the principle of punishments being commensurate with the crime, and is closely connected with the protection of human rights.

The intention of these three basic principles is to establish the rule of law, but at the same time, set limits on legislative and judicial power. Thus, it can be seen that China’s system of criminal law has been transformed from the protection of social rights to the protection of human rights.

In the early 1980s, China launched a “strike-hard operation,” a campaign to aggressively crack down on criminal activities. During the campaign, the Supreme People’s Court decentralized their power in making decisions concerning the death penalty, allowing higher people’s courts in provinces, autonomous regions, and municipalities to pass the death penalty. By 2004, China had begun to carry out a different criminal policy of “tempering justice with mercy.” In 2007, the power of the death penalty review was once again centralized back to the jurisdiction of the Supreme People’s Court, and all death penalty appeal cases came forward for trial. This measure embodies the protection of the right to life and other rights of the citizen.

The famous French Enlightenment thinker Montesquieu effectively illustrated the importance of clear and specific laws for the protection of individual freedoms in his famous work, Spirit of the Laws (De l’esprit des lois) by using ancient Chinese legal statutes as an example. According to an ancient Chinese law, anybody who showed disrespect for the emperor would be punished with death. However, the law contained no explicit definition of “disrespect,” and thus anything could be used as a pretext for the deprivation of life or the extermination of any family. The explicitness of the Criminal Law illustrates the significance of the principle of “conviction and penalty according to the law,” which is designed to prevent the abuse of judicial power. China has regarded individual rights as secondary to the rights of the country and the collective for a long time. Because of this influence, the principle of conviction and penalty according to law was not added to the Criminal Law until later, and its introduction was a cause for much heated debate.

In contrast, the Chinese people quickly reached a consensus on the principle of “punishment being commensurate with the crime,” which is an issue between the legislature and judicial system. After solving the problem of fair convictions, people began to pay more attention to the issue of punishment. Because every case has a mix of unique subjective and objective factors, some deviation in punishments is commonly found in judicial systems around the world, including China’s. As China continued to develop her legal system, people from legal circles and the public were all pushing for reform in the judicial and punishment systems. The Xu Ting Case in 2006 created public awareness of the urgent need to apply the principle of “punishment being commensurate with the crime.”

For Your Information: Xu Ting Theft Case

On April 21, 2006, the defendant Xu Ting found that a bank’s automated teller machine had malfunctioned; although he withdrew RMB 1,000, only RMB 1 was deducted from his bank account. He then illegally withdrew RMB 175,000 and spent it during his run from the law. In December 2007, the Guangzhou City Intermediate People’s Court sentenced Xu Ting to life imprisonment for theft. The case sparked widespread concern and many people engaged in heated discussions on the specific application of the law on the defendant’s act. The Guangdong Provincial Higher People’s Court revoked the first judgment and remanded the case. On March 31, 2008, the Guangzhou City Intermediate People’s Court sentenced Xu Ting to a five-year limited term of imprisonment and a fine of RMB 20,000 for theft. Xu Ting filed an appeal but the Guangdong Provincial Higher People’s Court upheld the sentence. The gravity of the punishments between the two judgments was so wide that it caused the public to question the criminal law system.

China’s criminal law has gradually improved and matured after many such challenges and the ensuing debates. Since 1999, China has issued seven amendments to the Criminal Law in order to improve and fine-tune the legislation. The latest amendment was issued in 2009. In recent years, China has made much progress in the lawyer system, the legal aid system, the judicial system, and the punishment system.

Highlighting the Function of Justice

A legal system is necessary for safeguarding the rights of citizens and the Criminal Law is a key component for the protection of the rights of China’s citizens. The current Criminal Law conforms to global human rights standards and further enhances the protection of the rights and civil liberties of citizens. The implementation of the principle of “presumption of innocence” as well as the three basic principles of “conviction and penalty according to law,” “equality of everyone before the law,” and “punishment being commensurate with the crime” are now respected characteristics of the Chinese criminal law code.

The Chinese criminal law code assigns first priority to the protection of civil liberties. The Constitution of the People’s Republic of China, the Criminal Law, the General Principles of the Civil Law, and other laws have set aside basic provisions for the protection of the civil liberties of citizens. The Law on Workplace Safety and the Law on the Prevention and Treatment of Occupational Diseases have also made provisions for the safety and physical health of employees in the workplace. Although China retains the death penalty, its practical use is severely restricted, as she insists on a policy of “using the death penalty less and cautiously avoiding judgment errors.” The existing Criminal Law better embodies this stated policy and stringently restricts the application of the death penalty only for criminals who have committed extremely serious crimes. It has also reduced the number of accused people facing the death penalty, defined a two-year reprieve system, and relaxed the criteria for commutation of a death sentence to life imprisonment. It also provides that the death penalty shall not be imposed on persons who are under the age of 18 at the time the crime was committed, or on women who are pregnant at the time of trial.

The Legal Practice Law has expanded the rights of lawyers. For example, according to Article 33, “After a suspect accused of a criminal act is interrogated by an investigation unit for the first time or from the day on which compulsory measures are enforced against him, the appointed lawyer, on the strength of the lawyer’s practicing license, certificate of law firm, and official correspondence from his legal aid institute, may meet the accused in custody to enquire about the case without obtaining any special permission. Meetings between the lawyer and the accused shall not be monitored.” Provisions such as this have had positive effects on providing a much fairer criminal defense and for better protection of the rights of the accused parties.

According to Article 36, Paragraph 2 of the current Criminal Law, “If a criminal who is liable for civil compensation is sentenced to a fine at the same time, and if his property is not sufficient to pay both the compensation and the fine, or if he is sentenced to the confiscation of property at the same time, he shall, first of all, bear his liability for civil compensation to the victim,” which means national interest is sacrificed for personal interest when national and individual interests are in conflict. This is comforting evidence of a change in the concepts guiding Chinese criminal law.

The current Criminal Law also shows the spirit of humanitarianism in its penalties. The law consistently opposes torture, forbids the extraction of confessions through torture, and protects human rights, and also respects the policies of “using the death penalty less and cautiously avoiding judgment errors” and “protecting the civil liberties of citizens.” It has also defined a series of crimes related to torture, such as extracting confession through torture, obtaining evidence using violence, illegal detention, and abuse and mistreatment by management personnel. These new criminal acts are directly related to legal administrators and are in line with the ideology of the Chinese government and her legal system.

In the enforcement of penalties, China has increasingly avoided using imprisonment as a penalty and has begun to lean toward a social system of correction. This highlights the “people-oriented” principle of China’s legal system. China respects and emphasizes the importance of a humanistic penalty. One example is “public surveillance.” Public surveillance is a form of punishment carried out by a public security organ. Under public surveillance, the offender is not incarcerated but instead, some of his freedoms are restrained by the public security organ. It is an open penalty where the offender is not alienated from society; he or she can enjoy the right to equal pay for equal work. Recently, China has started promoting a pilot penal enforcement system based on corrective work in communities. Certain eligible offenders return to their communities to receive assistance in correcting their criminal mentalities and behaviors. The community-based corrections program are only available to offenders sentenced to public surveillance, probation, parole, or serving temporary out-of-prison sentences, and also those that have been released but have been stripped of their political rights. As of now, almost all the districts and municipalities in the provinces have adopted this program.

The Chinese criminal law code has also enhanced and focused more attention to the protection of the human rights of certain groups. First, it effectively protects the legitimate rights and interests of minors. According to the Criminal Law, “Any person who has reached the age of 14 but not the age of 16, who commits homicide, inflicts serious bodily injury, robbery, arson, repeated thefts, or any other crime seriously undermining social order, shall bear criminal responsibility.” In this article, “any other crime seriously undermining social order” is unclear in meaning and disadvantageous to the legal rights and interests of minors. After an amendment, this article has been revised to “Any person who has reached the age of 14 but not the age of 16, who commits the following criminal acts: intentional homicide, intentionally hurts another person so as to cause serious injury or death of the person, rape, robbery, drug-trafficking, arson, explosion, or poisoning, shall bear criminal responsibility.” In addition, the existing criminal law has also further strengthened the criminal penalty on crimes of aggression against minors.

The current criminal law code gives special protection to mentally disabled patients, the blind, and deaf and mute persons. Special protection to women is granted through the following two channels: first, the death penalty shall not be imposed on women who are pregnant at the time of trial; second, other provisions that strengthen the protection of special legitimate rights and interests of women. The current criminal law code has also further increased the protection of the rights of ethnic minorities, such as improving the protection of the freedom of citizens’ religious beliefs and legislating as a crime any infringement on the customs and habits of an ethnic minority group.