Comparative Criminal Law and Enforcement: China

Classification of crime. China enacted its Criminal Law (CL) in 1979 and substantially amended it in 1997. The law defines crime as any act that endangers society and is subject to punishment. An act that endangers society is not deemed a crime, however, where "the circumstances are obviously minor and the harm done is not serious" (CL, Art. 13). An act that endangers society but with minor circumstances or consequences is referred to as an unlawful act. PRC criminal law draws a clear distinction between a criminal and an unlawful act. A criminal act is defined by the Criminal Law, investigated and prosecuted according to the procedures set out in the PRC Criminal Procedure Law (CPL) and subject to criminal penalties. An unlawful act is defined by administrative laws and regulations, punished by administrative organs according to administrative procedures, and subject to administrative penalties.

The PRC's legislature, the National People's Congress (NPC), or its Standing Committee determines the threshold separating a criminal act from an unlawful act by specifying the extent of seriousness of the consequences and circumstances to which an act warrants a criminal penalty. The legislature may define the seriousness of the consequences by setting a fixed amount enumerated in Chinese currency, renminbi, or use other criteria to determine the consequences of the offense, which will trigger application of the Criminal Law. For example, accepting a bribe will only be considered an offense if the amount of the bribe exceeds 5,000 yuan (CL, Art. 383). The Criminal Law applies if the amount reaches the specified minimum. Otherwise, such acts are considered "unlawful" and thus subject only to administrative penalties. The triggering amount, while a key determinant for criminal liability, is not conclusive. A crime may still be declared, even if the minimum amount has not been reached, where aggravating circumstances exist.

Increasingly, the legislature has defined the parameters of criminal acts more clearly by specifying a trigger amount. Yet, the Criminal Law largely continues to set only general standards, applying ambiguous terms such as light, serious, or very serious in relation to various circumstances and large, huge, and especially huge in relation to their consequences. The Criminal Law leaves detailed criteria to be determined by the Chinese courts and other institutions in the application and enforcement of the Criminal Law. The Supreme People's Court (SPC) and the Supreme People's Procuracy (SPP), severally, jointly, or in conjunction with other executive institutions, are principally responsible for filling the lacunae left by the legislature. The ministries under the State Council, the Ministry of Public Security (MPS) in particular, have played an active role in constructing China's criminal law regime, though this role seems to have declined in recent years.

Politicization of crime. The ideological foundation of this duality is the doctrinal classification of social conflict as among the people or between the people and their enemy. The former is antagonistic, the latter is nonantagonistic. This doctrine was formed in 1957 by the CCP and still applies to a large degree. China continues to be a state under the people's democratic dictatorship, which has been interpreted as democracy for the people and dictatorship against the enemy. The criminal justice system occupies a unique position in the Communist theory of the state, and is instrumental in this dictatorship/democracy dichotomy. Criminal Law in general is identified with dictatorship against the enemy, and the criminal justice system stands in the front line of this struggle.

Enemy is a key but fluid concept. In the early years of the Communist rule, the enemy included spies, saboteurs, career criminals, landlords, and capitalists who were hostile to the new government. Once they were eliminated, their positions were replaced by counter-revolutionaries, bad elements, and rightists. During the economic reform of the 1980s, new enemies, including serious criminal offenders, political dissidents, separatists, and religious cults have become targets of the CCP dictatorship. Whoever challenges the CCP leadership and undermines the socialist system can be treated as an enemy of the state.

As the two contradictions are fundamentally different, the methods for solving them also differ. The CCP's ideology provides a bifurcated system. Criminal law is reserved to suppress the enemy. A crime is not simply a violation of criminal law but a challenge to the established political order. A guilty verdict means more than a mere conviction; it transforms the convicted person into an enemy of the state. Consequently the police, the procuracy and the court are not merely places to enforce the law, they are also places of dictatorship. Criminalization principally means repression.

But the repressive approach does not apply to the people. Conflicts among the people were to be dealt with by the methods of democracy, that is, didactic, informal, and rehabilitative methods, which would be accomplished through criticism, persuasion, and mediation, backed by administrative penalties.

Crime and punishment. There are five types of principal punishment in China's criminal law:

1. Public surveillance
2. Criminal detention
3. Fixed term imprisonment
4. Life imprisonment
5. Death penalty of immediate execution and death penalty with a two-year stay.

The figures for criminal convictions have gradually increased since the early 1980s. In 1987, Chinese courts tried approximately 300,000 criminal cases, and convicted more than 300,000 persons. In 2000, courts tried more than half a million criminal cases and convicted more than 600,000 persons. It has been a general practice for Chinese courts to sentence approximately 40 percent of the offenders to five or more years' imprisonment, life imprisonment, or death.

The death sentence has been most controversial. The number of capital offenses in China has grown since 1979. There were twenty-eight capital offenses in the 1979 Criminal Law. By 1983, there were forty-two capital offenses, and the figure grew to nearly seventy by 1993. There were three new death penalty offenses added to the statute book each year on average from 1981 to 1993. The 1997 amendment to the criminal law limited the use of the death penalty for a number of offenses, such as theft and robbery, to more serious circumstances, but the number of capital offenses remained the same.

Since death penalty statistics are classified as a top state secret by the Supreme People's Court, the number of offenders executed each year is unknown. Informed estimates vary from four thousand to forty thousand per year. The vast majority of the death penalties were imposed for five types of offenses: murder, robbery, rape, serious assault, and serious theft. In the latter half of the 1990s, capital drug offenses have been on the rise due to the seriousness of the problem in China and the tough stance the government is taking.

Minor offenses and administrative penalties. The police punish minor offenses that are not regarded as having breached the criminal law. Those punishments are referred to as administrative because the police make the decisions. There is no public hearing and no defense is available. There are a variety of legislative and administrative regulations that authorize different types of administrative penalties. The police have great discretion in imposing such sanctions. A court can only subsequently review administrative penalties.

There are two main types of administrative penalties. One is the public order punishment, authorized by the Regulations on Penalties for Public Security 1957 (the Regulations). The Regulations are administrative in nature, punishing petty theft and other activities disrupting public order. Punishment is administered by the police and may include a warning, a fine, or administrative detention of not more than fifteen days. Over three million public-order offenses are handled by the police each year.

The other type of administrative punishment is Reeducation Through Labor (RTL), an administrative penalty with no clear legislative authority. The police control the intake process and also administer the RTL institutions. The government created the RTL in 1957 "to reform into self-supporting new persons those persons with the capacity to labor who loaf, who violate law and discipline, or who do not engage in proper employment" (The State Council Decision on the Problem of Re-education through Labor). It has been gradually expanded to include minor offenses, where the circumstances or consequences are not serious. As a result, a great variety of offenders, ranging from thieves to prostitutes, drug addicts, and political dissidents, have received RTL penalties. Approximately 150,000 offenders are incarcerated under the RTL regime each year.

The term of incarceration was indefinite until 1979 when the government set a limit of three years' incarceration, with a possible extension of one year. The target population of RTL is restricted to residents of large and medium-sized cities.