Amendment (VIII) to the Criminal Law of China

 2018-05-15  35


Amendment (VIII) to the Criminal Law of China 


· Document Number:Order No.41 of the President of the People’s Republic of China

· Area of Law: Criminal Law

· Level of Authority: Laws

· Date issued:02-25-2011

· Effective Date:05-01-2011

· Status: Effective

· Issuing Authority: Standing Committee of the National People's Congress

 

Order of the President of the People's Republic of China
(No.41)
The Amendment (VIII) to the Criminal Law of the People's Republic of China, as adopted at the 19th meeting of the Standing Committee of the Eleventh National People's Congress of the People's Republic of China on February 25, 2011, is hereby promulgated, and shall come into force on May 1, 2011.
President of the People's Republic of China: Hu Jintao
February 25, 2011



Amendment (VIII) to the Criminal Law of China
(Adopted at the 19th Meeting of the Standing Committee of the Eleventh National People's Congress of the People's Republic of China on February 25, 2011)
1. One Article is added after Article 17 as Article 17A: “A person attaining the age of 75 may be given a lighter or mitigated penalty if he commits an intentional crime; or shall be given a lighter or mitigated penalty if he commits a negligent crime.”
2. One paragraph is added to Article 38 as paragraph 2: “In light of the crime committed, a convict sentenced to control may also be prohibited from engaging in certain activities, entering certain areas or places or contacting certain persons during the term of execution.”
The original paragraph 2 is changed into paragraph 3 and amended as: “Criminals sentenced to control shall be subject to community correction.”
One paragraph is added as paragraph 4: “Whoever violates a restraining order as provided for in paragraph 2 shall be punished in accordance with the Public Security Administrative Punishments Law of the People's Republic of China .”
3. One paragraph is added to Article 49 as paragraph 2: “Death penalty shall not be given to a person attaining the age of 75 at the time of trial, unless he has caused the death of another person by especially cruel means.”
4. Article 50 is amended as: “Where a convict is sentenced to death with a reprieve, if he does not commit any intentional crime during the period of reprieve, the sentence shall be commuted to life imprisonment upon expiration of the two-year period; if he has any major meritorious performance, the sentence shall be commuted to imprisonment of 25 years upon expiration of the two-year period; or if it is verified that he has committed any intentional crime, the death penalty shall be executed with the approval of the Supreme People's Court.
For a recidivist or a convict of murder, rape, robbery, abduction, arson, explosion, dissemination of hazardous substances or organized violence who is sentenced to death with a reprieve, the people's court may, in sentencing, decide to put restrictions on commutation of his sentence in light of the circumstances of the crime committed.”
5. Paragraph 1 of Article 63 is amended as: “Where there is any circumstance of mitigation of penalty, a convict shall be given a penalty below the statutory penalty; and if there are two or more ranges of sentencing under this Law, the penalty shall be given within the range next lower to the statutory range.”
6. Paragraph 1 of Article 65 is amended as: “Where a convict sentenced to fixed-term imprisonment or a heavier penalty commits again a crime for which a fixed-term imprisonment or a heavier penalty shall be given within five years after finishing serving his sentence or being pardoned, he shall be a recidivist and be given a heavier penalty, unless it is a negligent crime or he commits the crime under the age of 18.”
7. Article 66 is amended as: “A convict of jeopardizing the national security, terrorist activities or organized crime of a gangland nature shall be punished as a recidivist for any of such crimes committed again by him at any time after he finishes serving his sentence or is pardoned.”
8. One paragraph is added to Article 67 as paragraph 3: “A criminal suspect who truthfully confesses to his crime may be given a lighter penalty although there is no voluntary surrender as mentioned in the preceding two paragraphs; and may be given a mitigated penalty if any especially serious consequence is avoided for his truthful confession.”
9. Paragraph 2 of Article 68 is deleted.
10. Article 69 is amended as: “Where a person is convicted of more than one crime before a sentence is pronounced, except for death penalty or life imprisonment, the term of criminal penalty to be executed shall be decided in light of the actual circumstances below the sum of terms but above the highest term of the imposed criminal penalties; however, the decided term of control shall not exceed three years, the decided term of criminal detention shall not exceed one year, and the decided fixed-term imprisonment shall not exceed 20 years if the sum of terms of fixed-term imprisonment is less than 35 years or shall not exceed 25 years if the sum of terms is 35 years or more.
If there are accessory penalties imposed for the crimes, the accessory penalties must still be executed. Accessory penalties of the same kind shall be executed on a consolidated basis, while those of different kinds shall be executed separately.”
11. Article 72 is amended as: “Where a convict sentenced to criminal detention or imprisonment of not more than 3 years meets the following conditions, a probation may be announced, and a probation shall be announced if he is under the age of 18, is pregnant or attains the age of 75:
(1) The circumstances of the crime are minor;
(2) He shows repentance;
(3) He is not likely to commit any offense again; and
(4) Announcing the probation will not have any major adverse impact on the community where he lives.
When probation is announced, in light of the crime committed, the convict may also be prohibited from engaging in certain activities, entering certain areas or places or contacting certain persons during probation.
If there is any accessory penalty imposed on a convict on probation, the accessory penalty must still be executed.”
12. Article 74 is amended as: “Probation shall not apply to recidivists and ringleaders of criminal gangs.”
13. Article 76 is amended as: “A convict on probation shall be subject to community correction during probation, and if none of the circumstances as set out in Article 77 of this Law occurs, the original sentence shall no longer be executed upon expiration of probation, which shall be announced to the public.”
14. Paragraph 2 of Article 77 is amended as: “Where a convict on probation violates any provision of laws, administrative regulations or the relevant department of the State Council on probation supervision and management or violates any restraining order in the judgment of the people's court during probation, if the circumstances are serious, the probation shall be revoked and the original sentence shall be executed.”
15. Paragraph 2 of Article 78 is amended as: “After commutation, the actually executed term of criminal penalty shall not be:
“(1) less than 1/2 of the original term of criminal penalty, if control, criminal detention or fixed-term imprisonment is imposed;
“(2) less than 13 years, if life imprisonment is imposed; or
“(3) less than 25 years if the death penalty with a reprieve imposed on a convict is legally commuted to life imprisonment upon expiration of the reprieve period, or less than 20 years if it is commuted to imprisonment of 25 years upon expiration of the reprieve period, where the people's court has put restrictions on commutation of the death penalty with a reprieve according to paragraph 2, Article 50 of this Law.”
16. Article 81 is amended as: “Where a convict sentenced to fixed-term imprisonment has served not less than half of the term of his original sentence, or a convict sentenced to life imprisonment has actually served not less than 13 years of imprisonment, he may be paroled if he earnestly observes the prison rules, accepts reform through education and shows true repentance and is not likely to commit any crime again. Under special circumstances, with the approval of the Supreme People's Court, a parole may be granted without regard to the above restrictions on the term served.
No parole shall be granted to a recidivist or a convict sentenced to imprisonment of not less than 10 years or life imprisonment for murder, rape, robbery, abduction, arson, explosion, dissemination of hazardous substances or organized violent crime.
When a parole decision is made on a convict, the impact of his release on parole on the community where he lives shall be considered.”
17. Article 85 is amended as: “A convict released on parole shall be subject to community correction during parole according to law, and if none of the circumstances as set out in Article 86 of this Law occurs, the original sentence shall be deemed to have been fully served upon expiration of parole, which shall be announced to the public.”
18. Paragraph 3 of Article 86 is amended as: “Where a convict released on parole violates any provision of laws, administrative regulations or the relevant department of the State Council on parole supervision and management during parole, if it does not constitute a new crime, his parole shall be revoked under statutory procedures, and he shall be taken into custody to serve his remaining term of sentence.”
19. One paragraph is added to Article 100 as paragraph 2: “Whoever is given a penalty lighter than imprisonment of 5 years for a crime committed under the age of 18 shall be exempted from the reporting obligation as mentioned in the preceding paragraph.”
20. Article 107 is amended as: “Where any domestic or overseas institution, organization or individual provides financial support for the commission of a crime as provided for in Article 102, 103, 104 or 105 of this Chapter, the directly liable person shall be sentenced to imprisonment of not more than 5 years, criminal detention, control or deprivation of political rights; or if the circumstances are serious, be sentenced to imprisonment of not less than 5 years.”
21. Article 109 is amended as: “A state functionary who, in the course of performing his official duties, leaves his post without permission and flees this country or flees when he is already outside this country shall be sentenced to imprisonment of not more than 5 years, criminal detention, control or deprivation of political rights; or if the circumstances are serious, be sentenced to imprisonment of not less than 5 years but not more than 10 years.
A state functionary knowing any national secret, who flees this country or flees when he is already outside this country, shall be given a heavier penalty according to the provision of the preceding paragraph.”
22. One article is added after Article 133 as Article 133A: “Whoever races a motor vehicle on a road with execrable circumstances or drives a motor vehicle on a road while intoxicated shall be sentenced to criminal detention and a fine.
Whoever commits any other crime while committing a crime as mentioned in the preceding paragraph shall be convicted and punished according to the provisions on the crime with the heavier penalty.”
23. Paragraph 1 of Article 141 is amended as: “Whoever produces or sells bogus drugs shall be sentenced to imprisonment of not more than 3 years or criminal detention and a fine; if any serious damage is caused to the people's health or there is any other serious circumstance, shall be sentenced to imprisonment of not less than 3 years but not more than 10 years and a fine; or if any human death is caused or there is any other especially serious circumstance, shall be sentenced to imprisonment of not less than 10 years, life imprisonment or death penalty and a fine or forfeiture of property.”
24. Article 143 is amended as: “Whoever produces or sells food not up to the food safety standards which may cause any serious food poisoning accident or any other serious food-borne disease shall be sentenced to imprisonment of not more than 3 years or criminal detention and a fine; if any serious damage is caused to the people's health or there is any other serious circumstance, shall be sentenced to imprisonment of not less than 3 years but not more than 7 years and a fine; or if there are especially serious consequences, shall be sentenced to imprisonment of not less than 7 years or life imprisonment and a fine or forfeiture of property.”
25. Article 144 is amended as: “Whoever mixes poisonous or harmful non-food raw materials into food produced or sold or knowingly sells food mixed with poisonous or harmful non-food raw materials shall be sentenced to imprisonment of not more than 5 years and a fine; if any serious damage is caused to the people's health or there is any other serious circumstance, shall be sentenced to imprisonment of not less than 5 years but not more than 10 years and a fine; or if any human death is caused or there is any other especially serious circumstance, shall be punished according to the provisions of Article 141 of this Law.”
26. Article 151 is amended as: “Whoever smuggles weapons, ammunitions, nuclear materials or counterfeit currencies shall be sentenced to imprisonment of not less than 7 years and a fine or forfeiture of property; if the circumstances are especially serious, shall be sentenced to life imprisonment or death penalty and a forfeiture of property; or if the circumstances are minor, shall be sentenced to imprisonment of not less than 3 years but not more than 7 years and a fine.
Whoever smuggles cultural relics, gold, silver or any other noble metal whose export is prohibited by the state or smuggles rare animals whose import and export are prohibited by the state or products made thereof shall be sentenced to imprisonment of not less than 5 years but not more than 10 years and a fine; if the circumstances are especially serious, shall be sentenced to imprisonment of not less than 10 years or life imprisonment and a forfeiture of property; or if the circumstances are minor, shall be sentenced to imprisonment of not more than 5 years and a fine.
Whoever smuggles rare plants or products made thereof or other goods or articles whose import and export are prohibited by the state shall be sentenced to imprisonment of not more than 5 years or criminal detention and a fine or be sentenced to a fine only; or if the circumstances are serious, shall be sentenced to imprisonment of not less than 5 years and a fine.
Where an entity commits a crime as provided for in this Article, the entity shall be sentenced to a fine, and its directly responsible person and other directly liable persons shall be punished according to the provisions of this Article.”
27. Paragraph 1 of Article 153 is amended as: “Whoever smuggles goods or articles other than those as mentioned in Articles 151, 152 and 347 shall be punished in light of the graveness of the crime according to the following provisions:
(1) Whoever smuggles goods or articles to evade a relatively large amount of tax payable, or smuggles again after having been given administrative punishment twice for smuggling within a year, shall be sentenced to imprisonment of not more than 3 years or criminal detention and a fine of not less than the evaded amount of tax payable but not more than five times the evaded amount of tax payable.
(2) Whoever smuggles goods or articles to evade a huge amount of tax payable or with any other serious circumstance shall be sentenced to imprisonment of not less than 3 years but not more than 10 years and a fine of not less than the evaded amount of tax payable but not more than five times the evaded amount of tax payable.
(3) Whoever smuggles goods or articles to evade an especially huge amount of tax payable or with any other especially serious circumstance shall be sentenced to imprisonment of not less than 10 years or life imprisonment and a fine of not less than the evaded amount of tax payable but not more than five times the evaded amount of tax payable or a forfeiture of property.”
28. Paragraph 1 of Article 157 is amended as: “Whoever provides armed escort for smuggling shall be given a heavier penalty according to paragraph 1, Article 151 of this law.”
29. Article 164 is amended as: “Whoever gives any property to a staff member of a company, an enterprise or any other entity for any improper benefit shall be sentenced to imprisonment of not more than 3 years or criminal detention if the amount of property is relatively large; or be sentenced to imprisonment of not less than 3 years but not more than 10 years and a fine if the amount of property is huge.
Whoever gives any property to a functionary of a foreign country or an official of an international public organization for any improper commercial benefit shall be punished according to the provision of the preceding paragraph.
Where an entity commits a crime as provided for in the preceding two paragraphs, a fine shall be imposed on it, and its directly responsible person and other directly liable persons shall be punished according to the provision of paragraph 1 of this Article.
A briber who voluntarily confesses to his bribery before a criminal investigation on him is opened may be given a mitigated penalty or be exempted from penalty.”
30 Article 199 is amended as: “Whoever commits a crime as provided for in Article 192 shall be sentenced to life imprisonment or death and a forfeiture of property if the amount involved is especially huge and especially material losses are caused to the interests of the state or public.”
31. Article 200 is amended as: “Where an entity commits a crime as provided for in Article 192, 194 or 195 of this Section, a fine shall be imposed on it, and the directly responsible person and other directly liable persons shall be sentenced to imprisonment of not more than 5 years or criminal detention and may be sentenced to a fine in addition; if the amount involved is huge or there is any other serious circumstance, shall be sentenced to imprisonment of not less than 5 years but not more than 10 years and a fine; or if the amount involved is especially huge or there is any other especially serious circumstance, shall be sentenced to imprisonment of not less than 10 years or life imprisonment and a fine.”
32. Paragraph 2 of Article 205 is deleted.
33. One article is added after Article 205 as Article 205A: “Whoever falsely issues any invoice other than those as mentioned in Article 205 of this Law shall be sentenced to imprisonment of not more than 2 years, criminal detention or control and a fine if the circumstances are serious; or be sentenced to imprisonment of not less than 2 years but not more than 7 years and a fine if the circumstances are especially serious.
Where an entity commits the crime as provided for in the preceding paragraph, a fine shall be imposed on it, and its directly responsible person and other directly liable persons shall be punished according to the provision of the preceding paragraph.”
34. Paragraph 2 of Article 206 is deleted.
35. One article is added after Article 210 as Article 210A: “Whoever knowingly holds counterfeit invoices shall be sentenced to imprisonment of not more than 2 years, criminal detention or control and a fine if the quantity is relatively large; or be sentenced to imprisonment of not less than 2 years but not more than 7 years and a fine if the quantity is huge.
Where an entity commits the crime as provided for in the preceding paragraph, a fine shall be imposed on it, and its directly responsible person and other directly liable persons shall be punished according to the provision of the preceding paragraph.”
36. Article 226 is amended as: “Whoever commits any of the following acts by violence or threat shall be sentenced to imprisonment of not more than 3 years or criminal detention and/or a fine if the circumstances are serious; or be sentenced to imprisonment of not less than 3 years but not more than 7 years and a fine if the circumstances are especially serious:
(1) Forcing any other person to purchase or sell commodities;
(2) Forcing any other person to provide or accept services;
(3) Forcing any other person to participate in or withdraw from a bidding or audition;
(4) Forcing any other person to transfer or acquire stocks or bonds of a corporation or enterprise or any other asset; or
(5) Forcing any other person to participate in or withdraw from a certain business operation.”
37. One article is added after Article 234 as Article 234A: “Whoever organizes others to sell human organs shall be sentenced to imprisonment of not more than 5 years and a fine; or if the circumstances are serious, be sentenced to imprisonment of not less than 5 years and a fine or forfeiture of property.
Whoever removes any other person's organ without such other person's consent, removes any organ of a person under the age of 18 or forces or deceives any other person into donating any organ shall be convicted and punished according to the provisions of Articles 234 and 232 of this Law.
Whoever removes a dead person's organ against the person's will before his death or removes a dead person's organ against the will of the person's near relatives in violation of the provisions of the state provided that there is no consent from the person before his death shall be convicted and punished according to the provision of Article 302 of this Law.”
38. Article 244 is amended as: “Whoever forces any other person to work by violence, threat or restriction of personal freedom shall be sentenced to imprisonment of not more than 3 years or criminal detention and a fine; or if the circumstances are serious, be sentenced to imprisonment of not less than 3 years but not more than 10 years and a fine.
Whoever knowingly recruits or transports a workforce for any other person to commit the act as mentioned in the preceding paragraph or otherwise assists in forcing any other person to work shall be punished according to the provision of the preceding paragraph.
Where an entity commits a crime as provided for in the preceding two paragraphs, a fine shall be imposed on it, and its directly responsible person and other directly liable persons shall be punished according to the provision of paragraph 1 of this Article.”
39 Article 264 is amended as: “Whoever steals a relatively large amount of public or private property, commits thefts many times, commits a burglary or carries a lethal weapon to steal or pick pockets shall be sentenced to imprisonment of not more than 3 years, criminal detention or control and/or a fine; if the amount involved is huge or there is any other serious circumstance, shall be sentenced to imprisonment of not less than 3 years but not more than 10 years and a fine; or if the amount involved is especially huge or there is any other especially serious circumstance, shall be sentenced to imprisonment of not less than 10 years or life imprisonment and a fine or forfeiture of property.”
40. Article 274 is amended as: “Whoever extorts a relatively large amount of public or private property or extorts public or private property many times shall be sentenced to imprisonment of not more than 3 years, criminal detention or control and/or a fine; if the amount involved is huge or there is any other serious circumstance, shall be sentenced to imprisonment of not less than 3 years but not more than 10 year and a fine; or if the amount involved is especially huge or there is any other especially serious circumstance, shall be sentenced to imprisonment of not less than 10 years and a fine.”
41. One article is added after Article 276 as Article 276A: “Whoever evades payment of a relatively large amount of labor remunerations by transferring property or escaping and hiding or refuses to pay a relatively large amount of labor remunerations though capable, and still refuses to pay even after being ordered by the relevant government department to pay, shall be sentenced to imprisonment of not more than 3 years or criminal detention and/or a fine; and if there are serious consequences, shall be sentenced to imprisonment of not less than 3 years but not more than 7 years and a fine.
Where an entity commits the crime as provided for in the preceding paragraph, a fine shall be imposed on it, and its directly responsible person and other directly liable persons shall be punished according to the provision of the preceding paragraph.
Whoever commits an act as mentioned in the preceding two paragraphs without serious consequences but pays labor remunerations before a public prosecution is instituted and assumes the corresponding compensatory liability according to law may be given a mitigated penalty or exempted from penalty.”
42. Article 293 is amended as: “Whoever disrupts the social order by committing any of the following provocative and disturbing acts shall be sentenced to imprisonment of not more than 5 years, criminal detention or control:
(1) Assaulting any other person at will, with execrable circumstances;
(2) Chasing, intercepting, reviling or intimidating any other person, with execrable circumstances;
(3) Taking or demanding forcibly or vandalizing or occupying at will public or private property, with serious circumstances; or
(4) Making trouble in a public place, which causes a serious disorder of the public place.
Whoever assembles other people to commit the acts as mentioned in the preceding paragraph many times, which seriously disrupt the social order, shall be sentenced to imprisonment of not less than 5 years but not more than 10 years and may be fined in addition.”
43. Article 294 is amended as: “Whoever organizes or leads an organization of a gangland nature shall be sentenced to imprisonment of not less than 7 years and a forfeiture of property; whoever actively participates in an organization of a gangland nature shall be sentenced to imprisonment of not less than 3 years but not more than 7 years and may be sentenced to a fine or forfeiture of property in addition; whoever otherwise gets involved in an organization of a gangland nature shall be sentenced to imprisonment of not more than 3 years, criminal detention, control or deprivation of political rights and may be fined in addition.
A member of an overseas gangland organization who recruits members of the organization within the territory of the People's Republic of China shall be sentenced to imprisonment of not less than 3 years but not more than 10 years.
Any state functionary who harbors an organization of a gangland nature or connives at such an organization's illegal or criminal activities shall be sentenced to imprisonment of not more than 5 years; or if the circumstances are serious, be sentenced to imprisonment of not less than 5 years.
Whoever also commits any other crime while committing a crime as mentioned in the preceding three paragraphs shall be punished according to the provisions on the joinder of penalties for plural crimes.
An organization of a gangland nature shall have all of the following characteristics:
(1) A relatively stable criminal organization is formed with a relatively large number of members, and there are specific organizers or leaders and basically fixed core members.
(2) Economic interests are gained by organized illegal or criminal activities or other means, and it has certain financial strength to support its activities.
(3) By violence, threat or other means, it commits organized illegal or criminal activities many times to do evil, bully and cruelly injure or kill people.
(4) It dominates a certain area by committing illegal or criminal activities or taking advantage of the harboring or connivance by the state functionaries, forming an illegal control or significant influence in a certain area or sector, which seriously disrupts the economic and social order.”
44. Article 295 is amended as: “Whoever teaches methods for committing a crime shall be sentenced to imprisonment of not more than 5 years, criminal detention or control; if the circumstances are serious, be sentenced to imprisonment of not less than 5 years but not more than 10 years; or if the circumstances are especially serious, be sentenced to imprisonment of not less than 10 years or life imprisonment.”
45. Paragraph 1 of Article 328 is amended as: “Whoever robs any site of ancient culture or ancient tomb of a historical, artistic or scientific value shall be sentenced to imprisonment of not less than 3 years but not more than 10 years and a fine; if the circumstances are minor, be sentenced to imprisonment of not more than 3 years, criminal detention or control and a fine; or under any of the following circumstances, be sentenced to imprisonment of not less than 10 years or life imprisonment and a fine or forfeiture of property:
(1) Robbing any site of ancient culture or ancient tomb which has been determined as a key cultural relic under the protection of the state or a cultural relic under the protection of a province;
(2) Being a ringleader of a group of robbers of sites of ancient culture and ancient tombs;
(3) Having robbed sites of ancient culture and ancient tombs many times; or
(4) Robbing a site of ancient culture or ancient tomb of valuable cultural relics or causing severe damage to valuable cultural relics.”
46. Article 338 is amended as: “Whoever, in violation of the state provisions, discharges, dumps or disposes of any radioactive waste, any waste containing pathogens of any infectious disease, any poisonous substance or any other hazardous substance, which has caused serious environmental pollution, shall be sentenced to imprisonment of not more than 3 years or criminal detention and/or a fine; or if there are especially serious consequences, be sentenced to imprisonment of not less than 3 years but not more than 7 years and a fine.”
47. Paragraph 1 of Article 343 is amended as: “Whoever, in violation of the Mineral Resources Law, engages in mining without a mining permit, enters a mining area under state planning, a mining area of great value to the national economy or a mining area of any other person to engage in mining without approval, or engages in mining of a special mineral which is subject to protective excavation according to the state provisions without approval shall be sentenced to imprisonment of not more than 3 years, criminal detention or control and/or a fine if the circumstances are serious; or if the circumstances are especially serious, be sentenced to imprisonment of not less than 3 years but not more than 7 years and a fine.”
48. Paragraph 3 of Article 358 is amended as: “Whoever recruits or transports persons for an organizer of prostitution or otherwise assists in organizing prostitution shall be sentenced to imprisonment of not more than 5 years and a fine; or if the circumstances are serious, be sentenced to imprisonment of not less than 5 years but not more than 10 years and a fine.”
49. One Article is added after Article 408 as Article 408A: “Where a state functionary with food safety supervision and management functions abuses his powers or neglects his duties, if any serious food safety accident or other serious consequence is caused, he shall be sentenced to imprisonment of not more than 5 years or criminal detention; or if any especially serious consequence is caused, be sentenced to imprisonment of not less than 5 years but not more than 10 years.
Where the crime as provided for in the preceding paragraph is committed by the state functionary by making falsehood for personal gains, a heavier penalty shall be imposed on him.”
50. This Amendment shall come into force on May 1, 2011.