The Chinese Penal Code and Criminal Procedure (Fr)
The new Chinese Criminal Code which entered into force on October 1, 1997 was revised on February 28, 2009 by amendment VII, and the Chinese Criminal Procedure Code promulgated on March 17, 1996 entered into force on January 1, 1997. The general provisions of these Codes state that the aim is to ensure accuracy in establishing the facts complained of, the correct application of the law, the punishment of criminals and the protection of innocent persons in order to safeguard the socialist legal system and to guarantee to citizens protecting human rights, property rights, democratic rights and other rights, and ensuring public economic and social security and the development of the socialist cause.
Chinese criminal law applies to offenses committed on the national territory and to certain offenses committed abroad. The extent of extraterritorial jurisdiction is determined by the nationality of the offender and the nature of the offense.
In matters of counterfeiting and falsification of money or negotiable securities, corruption, violation of state secrets, use of the false status of civil servant, nationals are always punishable when the acts are committed abroad.
Apart from these cases, nationals can also be prosecuted for acts perpetrated abroad, however they could benefit from an exemption when the maximum penalty provided by Chinese law is less than a sentence of three years of imprisonment.
The Chinese Penal Code only applies to offenses committed by foreigners outside Chinese territory when the alleged acts have harmed the Republic or Chinese nationals, that they are punished by the law of the place of commission, and that the minimum sentence under Chinese law is three years' imprisonment.
When criminal law has extraterritorial application, national courts have jurisdiction even when the facts have been tried by a foreign court. But if the sentence imposed was carried out abroad, the Chinese courts have the power either to reduce the sentence incurred or to grant an exemption from sentence.
With regard to the application of criminal law over time, art. 12 of the Criminal Code enshrines the principle of non-retroactivity of the new law by requiring that the alleged acts be punished only if they are criminalized by the law applicable at the time of the facts. This principle is attenuated, as in most modern legal systems, by retroactivity in mitius which allows any accused to benefit as of right from the application of the provisions of the softer new law.
The constituent elements of the offense in Chinese Law are the same as in French Law. We find the requirement of a legal element, a material element and an intentional element.
The intentional element is of great importance in Chinese criminal law because it determines the classification of offenses. Instead of the tripartite classification of French law, only two categories of offenses are known in Chinese law; on the one hand, intentional offenses and on the other hand, unintentional offenses.
Minor offenses equivalent to contraventions according to the French classification, are qualified as “administrative” offenses and do not fall under the jurisdiction of the Courts.
This summary presentation of the Chinese system will be limited to the description of the main characteristics of Criminal Law and the important elements of the applicable procedure.
I. - The main characteristics of Chinese criminal law
Chinese Criminal Law is based on a particular conception of the concept of public order and on a classic system of responsibility.
A. - The concept of public order
1. - In general criminal law
In China the concept of public order covers both public order as it is conceived by most Western countries, and the protection of socialist ideology.
Public order in the traditional sense of the term is protected in China by several categories of offenses including offenses against the personal and democratic rights of citizens, offenses against public security, crimes against property, offenses against public order . Certain acts of civil liability in France are penalized because of the importance accorded to them in Chinese tradition.
This is the case, for example, of cohabitation with the wife of a military member on duty or even the failure to assist needy or sick parents.
There is no provision in the Code that penalizes political crimes or crimes of opinion.
But the protection of the socialist ideology is ensured by the criminalization of acts which threaten the security of the State.
As such, all actions aimed at overthrowing the socialist regime and those which undermine the sovereignty, territorial integrity and security of the People's Republic of China are punished. Articles 102 to 113 of the Penal Code list these acts in a nonlimiting manner, among which are: incitement to desertion, espionage and incitement of the masses to revolt.
2. - In criminal business law
The Chinese Penal Code sanctions various acts for the protection of the socialist economic order. Among these acts, we find financial fraud, tax and customs fraud, smuggling and violation of intellectual and industrial property rights.
Certain perfectly legal economic activities in most modern legal systems can be seen as undermining the socialist economic order.
In 1988, a television import contract, concluded between a French company and a subsidiary of the Chinese ministry of aeronautics apparently competent in the matter, was regarded as a vast fraud damaging the economy of the country.
The commercial agent employed by the French company, who had received a commission and received a large security deposit on behalf of his employer, was imprisoned for smuggling and embezzlement.
He was facing capital punishment because, being of Chinese nationality, he could not benefit from the preferential treatment reserved for expatriates. The Chinese authorities who participated in the signing of the contract were dismissed from their posts and also imprisoned for smuggling. The French company was not worried, and the commercial transaction was not called into question towards him.
B. - The repressive system
Criminal responsibility and the sanctions imposed depend on the personality of the offender and the gravity of the facts.
1. - Criminal responsibility
In China, the criminal majority is fixed at 16 years.
However, minors under the age of 14 are punishable for certain offenses considered as seriously undermining public order, such as intentional homicide, serious injury, rape and drug trafficking, etc.
The penalties incurred are then lower than those provided by law. The deaf-mute and blind also benefit from this reduction.
As in most legal systems, the mentally ill who have not been aware of the scope of their actions are criminally irresponsible.
Likewise, force majeure and self-defense are exempt from liability.
In any event, art. 3 of the Penal Code provides that unintentional offenses are punishable only in cases provided for by law.
Most unintentional offenses are punished, but the penalties are much less.
For example, in the case of intentional homicide, the penalty incurred is death, life imprisonment or imprisonment which cannot be less than 10 years. If extenuating circumstances are accepted, the penalty ranges from 10 years' imprisonment to 3 years (article 232 of the penal code). On the other hand when the homicide is involuntary the penalty goes from 3 to 7 years of imprisonment. If extenuating circumstances are
retained, the penalty ranges from 3 years to 6 months of imprisonment (article 233 and 45 of the Penal Code) For any offense, the accused can benefit from extenuating circumstances, the main cause of attenuation or even exemption from punishment in case minor offense being voluntary surrender.
2 - Criminal sanctions
The Chinese Penal Code provides for five main and three accessory penalties.
The main penalties are as follows:
(i) being placed under surveillance for three months to two years, a non-custodial sentence which obliges the convicted person to submit reports on his activities and
obtain authorization for all travel;
(ii) detention from one month to 6 months, which takes place in a detention house where the convicted person is gainfully employed;
(iii) imprisonment from 6 months to 15 years;
(iv) life imprisonment;
(v) the death penalty which has been incurred since 1982 for economic offenses.
It can be suspended for two years, during which time the offender benefits from “reformation through work” and can, if he commits no other voluntary crime, obtain that his sentence be commuted to one life sentence or term of 15 to 20 years.
The People's Courts may, on an ancillary basis, pronounce either a fine or the deprivation of political rights for a period of one to five years, or even the total or partial confiscation of property.
II. - Criminal proceedings
The judicial power is distributed by art. 3 of the Code of Criminal Procedure between the public security bodies responsible for the preparatory investigation and preventive detention, the public prosecutor's offices which approve the arrest, control its legality and implement public action, and the Courts. We will deal only with the arrest and detention provisions and the guidelines for the trial.
A. - Arrangements for arrest and detention.
The public security organ wishing to make an arrest must obtain authorization from the Court or the Prosecutor's Office.
In case of refusal, he can request a review.
It is also the only power it has when the prosecution refuses to initiate criminal proceedings following a preliminary investigation.
In an emergency, the public security organ can detain people caught in the act or suspected of serious crimes, without having been authorized to do so.
In this case, he must inform the prosecution within three days and if the latter does not authorize the arrest, within three days, the detained person must be immediately released.
Detention during the preliminary inquiry cannot exceed two months. If the investigation cannot be closed at the end of this period, the Public Prosecutor's Office may grant an additional period of one month.
This was the case in the above-mentioned import contract case.
The commercial agent was detained for 12 months without any charges being brought by the People's Court. A first indictment for embezzlement was transmitted to the Court after 4 months of detention. After the Tribunal dismissed it for insufficient evidence, a new charge was brought 3 months later.
Despite the dismissal of this second charge, only a release "under medical care guarantee" was obtained 5 months later. This release was made possible due to the acquisition of French nationality by the detainee in his capacity as spouse of a French national.
B - The guiding principles of the trial.
All accused must be notified of the indictment no later than ten days before the date of the hearing.
The right to defense is affirmed by the Code of Criminal Procedure, moreover the law of 2001 and 2008 concerning the exercise of the legal profession reaffirmed and strengthened the rights of lawyers in criminal procedure to ensure the criminal defense of their customer.
The criminal proceedings are adversarial, the debate taking place between the accused, the prosecutor and possibly the civil party. The usual modes of evidence are recognized and the accused's admission alone does not have probative value. Magnetic recordings, which are very common in China, have probative force even when they were made without the knowledge of the interlocutor.
The presumption of innocence is not recognized by the Code of Criminal Procedure. The defender of the accused has the power to provide evidence in order to have his innocence recognized. In practice, counsel for the accused are often appointed by the Tribunal. Their mission is to encourage their "client" to recognize the facts in order to facilitate the manifestation of the truth and to benefit from the indulgence of judges.
In any event, when the judges deliberate at a sitting, they have the obligation to communicate the judgment to the parties within five days. However, when the decision is postponed to a later hearing, copies of the judgment must be delivered to the parties at the meeting. The time limit for appeal starts only from the reception of the judgment.
Notwithstanding the relative independence of judges vis-à-vis the Prosecutor's Office, experience has shown that in matters of economic crimes, it is difficult for the accused to establish their good faith.
It is therefore strongly recommended that Western companies handling cases involving considerable sums of money ensure the legality of the transactions envisaged, especially when they use national intermediaries.
Legal consultation from one of the major Chinese business firms in the market is therefore an imperative requirement, prior to the conclusion of any agreement.
For the past ten years we have witnessed an important debate on offenses relating to state security, criminal business law, capital punishment and the rights of the accused in criminal proceedings, all these debates have had certain positive consequences for criminal law legislation.
It is therefore important to note that Chinese criminal law has evolved considerably and has seen a lot of progress, one can only hope that it will meet both the requirements of China's social development and those of international trade.