Punishments imposed under the Criminal Law

Within the Criminal Law (1997), punishments are described in Chapter III, Articles 32 to 60, and are divided into "Principal Punishments" (zhuxing, Article 33) and "Supplementary Punishments" (fujia xing, Article 34). There are five Principal Punishments: control, criminal detention, fixed-term imprisonment, life imprisonment and the death sentence. Control is described in Articles 38 to 41 and may only be applied for a period of between three months and two years (Article 38). According to Article 39:

A criminal element who is sentenced to control must abide by the following rules during the term in which his control is being carried out:

(1) abide by laws and administrative regulations, submit himself to supervision;

(2) shall not exercise the rights to freedom of speech, of the press, of assembly, of association, of procession, and of demonstration without the approval of the organ executing the control;

(3) report on his own activities pursuant to the rules of the organ executing the control;

(4) abide by the rules of the organ executing the control for meeting visitors;

(5) report and obtain approval from the organ executing the control for a change in residence or departure from the city or county.

A criminal element who is sentenced to control shall, while engaged in labor, receive equal pay for equal work.

Criminal detention is described in Articles 42 to 44 and may only be applied for periods of between one and six months. According to Article 43, the person subject to criminal detention may be permitted to "go home for one or two days each month" and "consideration may be given according to the circumstances to granting compensation to those who participate in labour."

Fixed-term imprisonment and life imprisonment are described in Articles 45 to 47. Article 45 states that "anyone [sentenced to fixed term or life imprisonment] with the ability to labour shall take part in labour, receive education and take part in reform." According to Chen, fixed term imprisonment "usually means reform through labour (laodong gaizao)" (1992, 189).

The death penalty provisions are contained in Articles 48 to 51. Article 48 states that the death penalty is only to be applied to "criminal elements who commit the most heinous crimes. In the case of a criminal element who should be sentenced to death, if immediate execution is not essential, a two-year suspension of execution may be announced at the same time the sentence of death is imposed." Article 48 further states that all death sentences require the approval of the Supreme People's Court. Article 50 provides for leniency in certain cases where a suspension of sentence has been granted:

If a person sentenced to death with a suspension of execution does not intentionally commit a crime during the period of suspension, he is to be given a reduction of sentence to life imprisonment upon the expiration of the two-year period; if he demonstrates meritorious service, he is to be given a reduction of sentence to not less than fifteen years and not more than twenty years of fixed-term imprisonment upon the expiration of the two-year period; if there is verified evidence that he has intentionally committed a crime, the death penalty is be executed upon the approval of the Supreme People's Court.

There are three Supplementary Punishments that may be applied in conjunction with Principal Punishments or independently: fines, deprivation of political rights and confiscation of property (Article 34). With respect to fines, Article 52 states that "In imposing a fine, the amount of the fine shall be determined according to the circumstances of the crime." However, Article 53 provides for leniency "If a person truly has difficulties in paying because he has suffered irresistible calamity."

According to Article 54:

Deprivation of political rights is deprivation of the following rights:

(1) The right to elect and the right to be elected;

(2) the right to freedom of speech, of the press, of assembly, of association, of procession, and of demonstration;

(3) the right to hold a position in state organs; and

(4) the right to hold a leading position in a state-owned company, enterprise, or institution or people's organization.

Deprivation of political rights may be imposed for a period of between one and five years except in the case of persons sentenced to death or life imprisonment (Article 55). The same Article also states that where deprivation of political rights is imposed as a supplementary punishment to control, the duration of the deprivation of political rights shall be the same as the duration of control with the punishments imposed concurrently.

Confiscation of property is described in Articles 59 and 60 and is explicitly limited to the property of the individual and may not extend to that person's family (Article 59).

Other provisions provide that deportation may be imposed on foreigners who commit crimes in China (Article 35); that criminals who have caused economic loss may be required to compensate victims financially (Article 36) and that criminal sanctions may be exempted in certain minor cases (Article 37). Article 37 states that:

Where the circumstances of a person's crime are minor and do not require sentencing for punishment, an exemption from criminal sanctions may be granted him, but he may, according to the different circumstances of each case, be reprimanded or ordered to make a statement of repentance or formal apology or make compensation for losses, or be subjected to administrative sanctions by the competent department.

Punishments imposed under the Security Administration Punishment Regulations

Administrative punishments are different in kind from those imposed under the Criminal Law, which are judicially imposed. By contrast, administrative punishments are imposed by both administrative and security organizations, which in a rural area could even mean the town or village governing body (Introduction to Chinese Law 1997, 110). The Administrative Punishment Law (1997) provides general information regarding the regime of administrative sanctions, however, specific punishments and their limits are included in the various laws and decisions authorizing them such as the Security Administration Punishment Regulations (1986) (China Rights Forum Fall 1996, 8).

Article 8 of the Administrative Punishment Law provides that the types of administrative punishment shall include: warning; penalty, confiscation of illegally obtained funds or property, temporary detention or rescission of permit or temporary detention or rescission of license, administrative detention and others "as prescribed by laws and administrative rules and regulations." Article 9 creates the possibility that "different types of administrative punishment may be created by laws."

One form of administrative punishment that has been sharply criticized in terms of its application by Chinese security forces is the practice of "shelter and investigation" or "shelter for examination" (shourong shencha), in which persons under investigation can be detained solely under the authority of the security organs (ibid., 9; Human Rights in China 1993).

The Security Administration Punishment Regulations provide the basis for the most severe administrative punishments that, on their face, are indistinguishable from fixed term imprisonment under the Criminal Law (Chen 1992, 167). Article 2 of the Regulations states:

Whoever disturbs social order, endangers public safety, infringes upon citizens' rights of the person or encroaches upon public or private property, if such an act constitutes a crime according to the Criminal Law of the People's Republic of China, shall be investigated for criminal responsibility; if such an act is not serious enough for criminal punishment but should be given administrative penalties for public security, penalties shall be given according to these regulations. (as reproduced in Introduction to Chinese Law 1997, 110).

Penalties available under the Regulations include deprivation of political rights, fines, imprisonment, "shelter for investigation" and "re-education through labour" (laodong jiaoyang) (ibid.). In deciding whether a given offence should be punished judicially, under the Criminal Law, or administratively, under the Security Administration Punishment Regulations, the punishment to be imposed is often the relevant factor (ibid.).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.

References

Chen, Albert H.Y.. 1992. An Introduction to the Legal System of the People's Republic of China. Singapore: Butterworths Asia.

China. Administrative Punishment Law of the People's Republic of China. 17 March 1996. Translation by the Legislative Affairs Commission of the Standing Committee of the National People's Congress. Reprinted in Ronald C. Brown. 1997. Understanding Chinese Courts and Legal Process: Law with Chinese Characteristics. Boston: Kluwer Law International.

China. Criminal Law of the People's Republic of China. 1 January 1997. Translation in Charles D. Paglee, Chinalaw Web - PRC Criminal Law (last modified April 7, 1998) http://www.qis.net/chinalaw/prclaw60.htm [Accessed 28 July 1999]

China Rights Forum. Fall 1996. Donald C. Clarke. "One Step Back Permits Two Steps Forward."

Human Rights in China. 1993. Detained at Official Pleasure: Arbitrary Detention in the People's Republic of China. New York: Human Rights in China.

Introduction to Chinese Law. 1997. Edited by Wang Chenguang and Zhang Xianchu. Hong Kong: Sweet & Maxwell Asia.

No references to the Zhujiang chapter of the Society for the Promotion of Democracy in China (Zhongguo Minzhu Cujin Hui - Zhujiang Xiaozu) could be found among the sources consulted by the Research Directorate. In a telephone interview with the Research Directorate representatives of Human Rights in China -an organization that is regularly in contact with pro-democracy groups - stated that they were unaware of any group by this name in Zhujiang or elsewhere in China.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

Reference

Human Rights in China, New York. 13 July 1999. Telephone interview with representatives.

Additional Sources Consulted

Amnesty International. 1995.

Annual Report.

Asia Watch. February 1994

. Detained in China and Tibet: A Directory of Political and Religious Prisoners.

China Rights Forum [New York]. 1993-1995

Resource Centre Country File on China, 1995.

Electronic sources: IRB databases, Internet, NEXIS/LEXIS, China News Digest (CND), WNC.