Preamble

1. Reconciling Between Hard and Soft – Application and Implications of aPolicy of “Combining Punishment and Leniency” GUO Jian-an, Director, Department of Judicial Assistance and Foreign Affairs., Ministry of Justice, PRC

2. Preamble • The announcement of the “Amendment 8 to the Criminal Law of PRC” has symbolized the legalization of “combining punishment with leniency” in the criminal policy of China. • Its implementation on May 1, 2011 signifies the full implementation of such policy, which will bring about wide and deep impacts. 。

3. Summary • 1. Content of “Combining Punishment with Leniency” in Criminal Policy • 2. Historical Background of “Combining Punishment and Leniency” in Criminal Law Policy • 3. Impacts of “Combining leniency with punishment” in criminal policy

4. 1.Content of “Combining Punishment with Leniency” in Criminal Policy • “Combining punishment with leniency” has been a long-standing criminal law concept in Chinese traditional culture; it was emphasized as a basic concept of national regime and policy in most dynasties under the legal system of “all laws in one with criminal law being the priority”. • There was a saying, long ago over the Yao-shun era, which goes “be prudent with penalty.” • In the Xia dynasty, government established the concept of “rather letting some criminals go free than killing the innocents”

5. Shang dynasty embraced severe penalty • The concept of “understanding virtues and be prudent with penalty” was proposed in West Zhou dynasty, the government requested “rationale behind both lenient and severe penalty”, and “penalty could both be lenient and severe at the right times”. • During the period of Spring and Autumn Warring States, the Confucius and the Legalist presented conflicting ideologies: The Legalist favored severe penalties to serve deterrence purpose; while the Confucius favored complementing penalties with virtues, being prudence with death penalty, and combining leniency with severe penalty to achieve success in ruling a nation.

6. The first dynasty to comprehensively implement severe and cruel penalties is Qing dynasty, where various penalties in extreme cruelty did not work out well. • Han dynasty embraced no other ideologies but only that of Confucius, and thus complementing penalty with virtues were popularized again, where penalties on criminals were reduced as far as possible. • In the first half of the Sui Dynasty, the philosophy of the criminal law system was similar to that in Han Dynasty, but in the second half of it, the early legal system established was completely destroyed, with severe penalties resurrecting. • In Tang dynasty, the ideas of and regulations on “weaving penalties on the elderly, the young and the handicapped”, “weaving penalties on those who confess”, “differential penalties on the principal and accomplice criminals”, etc first appeared.

7. Government of the Song dynasty also promoted prudence in sentencing with severe penalties as the basis complemented by leniency. • In Ming dynasty, stern law was used to rule the state in chaos, but differential penalties on major and minor offenses were practiced. • Qing dynasty, Chinese tradition was even better preserved. In terms of criminal law, “virtues instead of stern penalties” and “leniency and severity at right times” were stressed on.

8. After the establishment of the new People’s Republic of China, the philosophy of criminal policy, since the Communist Party was in their base point, has always been “combining penalty and leniency”. • “Leniency” in “combining punishment and leniency” means being “lenient and gentle”, and is best manifested in non-incrimination, non-judicial mediation and lightening of punishment.

9. Non-incrimination is to refrain from regarding as crimes some acts that were previously defined as punishable crimes, and thus to stop imposing penalties on people who commit these acts. Non-incrimination can be realized through legislation and judicial means. • Non-judicial mediation means to resolve conflicts, as far as possible, through non-judicial means, such as mediation for some minor criminal offenses. • Lightening of penalty is to lighten criminal penalties on offenders. It could be put into practice through passing law on reducing punishment and restriction against certain offences, and weaving severe penalties.

10. “Punishment” in “combining punishment with leniency” refers to being strict with severe penalty. Being strict is to respond timely and appropriately to crimes. Being severe with penalty means to stipulate and impose heavier penalties on certain categories of crimes, including passing laws on heavier penalties, sentencing offenders to heavier penalties during trials, restriction of use of penalty reduction and parole during execution, etc. Such measures are adopted against offenders who possess malicious ideologies causing grave personal dangers to people around them; and who have committed serious crimes that impose tremendous or great danger to society, or crimes that are stipulated by law to be heavily punished.

11. Through practicing both leniency and severe penalties against different levels of crimes while striking a balance between them, the two would complement each other with positive interactions to achieve consistency in legal and social effects.

12. 2. Historical Background of “Combining Punishment and Leniency” in Criminal Law Policy • (a) Impacts of International Trend of Development. • After the World War II, especially in the 70s, it became an international trend to abolish death penalty, and, as a result, more and more nations stopped practicing death penalty. • The international society has done great endeavor in promoting the application of non-imprisonment penalties. The United Nation passed the • “Standard Minimum Rules for the Treatment of Prisoners” in 1955

13. “Standard Minimum Rules for Juvenile Justice” in 1985, • “Standard Minimum Rules for Non-Custodial Measures”, “Guidelines for the Prevention of Juvenile Delinquency” and “Rules for the Prevention of Juveniles Deprived of their Liberty” in 1990. • The United Nation’s “International Convention on Civil and Political Rights” passed in 1976 explicitly promoted the abolition of death penalty • In 2000 and 2003, the United Nation passed “Convention against Transnational Organized Crimes” and “Convention against Corruption”

14. （b）Continuous Call from Academic Field. • “Penalty could both be lenient and severe at the right times” – this is the usual strategy of ruling the nation in Chinese history, as well as an important component of Chinese traditional culture. Having integrated the traditional Chinese concept of “having both lenient and severe penalty at right times”, a great number of scholars have made constructive suggestions on charge setting, penalty system, criminal proceedings, sentencing system, execution of punishment and restorative justice. They call for reform and perfection of the criminal legislation and judiciary system. To a certain extent, it is the continuous calls from the academic field that has brought about the concept of “combining punishment and leniency” in criminal law policy.

15. （C）Review on the ideology and practice of severe penalty in mainland China. • The ideology of “severe penalty” has long been rooted deeply in the traditional senses of legality of laymen over Chinese history, with great impacts on legislation, policymaking and law enforcement. Since 1980s, general and specific “strict combat” on crimes has never stopped. “Strict combat” has its effectiveness in improving social order and security, in particular the in the significant reduction of crime rate over a short period of time, which results in raised public satisfaction in social security. However, the overall and persistent social effectiveness of “strict combat” is very limited, and sometimes it might even bring about adverse influence.

16. “Strict combat” does not quench serious criminal crimes, • nor is its positive effect long lasting. • So as to meet the requirements of “quick and heavy sentencing”, it is inevitable that the standard of inspection on facts and evidence is lowered, and thus so as the quality of inspection. • In order to meet the standard of “strict combat”, more people would be arrested and sentenced heavily, which leads to injustices and harms civil rights to different extents.

17. Under such circumstances, more and more criminal law makers and enforcers realize mere “strict combat” cannot effectively deal with crimes since its marginal effectiveness descents with its continuous application. Therefore, it is necessary to adjust the criminal policy into one that embraces differential treatments on offenders in compliance to appropriate laws. Penalty should be both lenient and strict under different situations to realize consistency in its legal and social effectiveness.

18. （D）The political need to construct a harmonious society. • It is no coincidence that the “combination of leniency and punishment” in criminal policy became officially launched in the “Decision by the Central Committee of the CPC on some Major Issues in Building a Harmonious Socialist Society”. • China has entered a period of transformation into a profit-diversified and conflicts-prominent society with high crime rates, which makes social management a complicated issue. In an era as such, we should, to the largest extent, enhance positive factors that lead to social harmony while eliminate negative factors that harm social harmony. • Crimes are the intensified manifestation of disagreements and conflicts. If they were combated without comprehensive planning, it would only polarize the conflicting parties in society and thus enhance the negative factors that harm social harmony. “Combination of leniency and punishment” in criminal policy therefore acts to fulfill the political need of constructing a harmonious socialist society.

19. 3. Impacts of “Combining leniency with punishment” in criminal policy • （A）Execution of death penalty will be greatly reduced. • The “Amendment on the Criminal Law of PRC (8)”, as a concrete manifestation of “combination of leniency and punishment” in criminal policy,1. has greatly reduced the offences applicable of death penalty to further put in action the new policy. A total of 13 non-violent economic crimes have been removed from the death-penalty punishable offenses, accounting for 19.1% of all the offenses previously applicable of death penalty.2. it has clearly defined that criminals over the age of 75 would not be sentenced to death penalty, except for those who killed people in extremely cruel ways.

20. Apart from that, judiciary department has taken lots of procedural measures even before the launch of “Amendment on the Criminal Law of PRC (8)”： • 1. cases involving death penalty must be processed in court • 2. the right to review death penalty is taken back. In 2006, the Supreme People’s Court took back the right to review death penalty from various high courts for its united execution. • 3. the regulation on collection of evidences for death-penalty cases is clearly specified.

21. (B) Applicability of Non-imprisonment Penalty would be largely heightened. • Firstly, the conditions under which probation is applicable are better defined. • Secondly, it is now clearly specified that probation should apply on juveniles, pregnant women and elderly over the age of 75 if they meet the prescribed conditions. • Thirdly, more regulations are imposed on judges in terms of exercising prohibitory injunction on offenders under control and probation, in hope of meeting the practical requirements of crime prevention.

22. Fourthly, same regulations are also imposed on the applicable conditions of parole as of probation. • Fifthly, the application and execution of property penalty is to be enhanced.

23. (C) The total period of imprisonment sentenced would be kept, as far as possible, constant but the actual period of service for offenders of serious crimes would greatly increase, which makes it harder for prisons to execute punishments on such offenders. • The increase in application of non-imprisonment punishments would inevitably reduce the total period of imprisonment sentenced. However, since offenders of serious crimes now need to serve tremendously lengthened periods at prison (offenders sentenced to death penalty under probation now have to serve a minimum of 22 years, while those sentenced to life imprisonment at least 13 years), they may feel hopeless towards their future. There are not many adaptive measures the prisons could take, which makes execution of penalty much more difficult than before.

24. (D) Social correctional system will be on a fast track of development. • Since 2003, social correctional pilot program had been implemented in some districts in China, and the program turned national in 2009. Social correctional system is well received by all social sectors as it effectively satisfies the political needs of constructing a harmonious society through allowing offenders of minor crimes to rehabilitate in the community environment they previously lived under, and thus the scheme is experiencing fast development over the recent years.

25. The “Amendment 8 to the Criminal Law”, having incorporated the social correctional program into the Criminal Law of PRC, provides legal basis for the program through clearly defining regulations on the correctional progress of offenders under control, probation and parole. • At the same time, the “Amendment” has stipulated the legality of issuing injunction on offenders under control or probation to prohibit them from getting involved in certain activities, entering certain areas and venues, and contacting certain people. These regulations further enhance the applicability of the social correctional program, enrich its content, and as a result increase its effectiveness. • The implementation of “Amendment 8”, in particular the relevant regulations stated above, will undoubtedly lead to fast development of the social correctional system.

26. (E) The function of Criminal Law on protecting the vulnerable and guarding social justice will be further highlighted. • the National People’s Congress, under the influence of “combination of leniency and punishment” in criminal law policy and in the hope of adapting to new public expectation and aspiration arisen from socio-economic developments, passed three Amendments on the Criminal Law of PRC. • The “Amendment 6 to the Criminal Law” passed in 2006 includes, in additional, soliciting disabled and child begging in the list of criminal offenses to legally combat the crime of inveigling, abducting, mutilating, abetting, threatening and controlling of the underage. • The “Amendment 7” passed in 2009 stipulates “leading pyramid schemes by illegal organizations” as criminal offense.

27. To protect the lawful rights of labor and tackle the problem of outstanding workers’ compensation, the “Amendment 8” includes “outstanding workers’ compensation” as a criminal offense. • The production and sale of fake medications is now in itself a criminal offense, with the previous requirement of “causing harm to human health” now removed, as a means to better protect public health. • The threshold of conviction of the crime of “serious environmental pollution accident” is lowered by now changing it into “crime of environmental pollution”, where it already constitutes a criminal offense even before any actual destructive consequences are seen, to control and prevent harm to the natural environment.

28. (F) Restorative justice pilot schemes, being proved beneficial, will continue. • It is an important mission for the practice of “combination of leniency and punishment” in criminal law system to meet the political need of building a harmonious society. Restorative justice aims at encouraging offenders to rehabilitate while at the same time guarding the rights of the victims and eventually leading to settlement between both parties to restore the original links destroyed by the offenses. The restorative justice, as a crucial measure in the criminal policy of “combining leniency and punishment”, serves better than traditional judiciary means in terms of promoting social harmony, and thus it will get more vibrant when time goes by.

29. Thank you!