Solving the Puzzle of Overcriminalization? The ...

犯罪與刑事司法研究第 21 期，2013 年 9 月，頁 47-98

Solving the Puzzle of Overcriminalization? The Experience of Decriminalization in China ** Moulin Xiong Assistant Professor, Law School, Southwestern University of Finance and Economics, China

Bin Liang Associate Professor, Department of Sociology, Oklahoma State University-Tulsa, USA *

Abstract **

Western countries have witnessed the expansion of criminal law over the last several decades, leading their criminal justice system to be overloaded

*

with

minor

offenses.

To

address

the

problem

of

Received for publication August 11, 2013; final revision received October 14, 2013; accepted October 22 2013. ** This article is part of the project “Crime Definition in Cross-National Perspectives”（全球視野下的犯罪概念比較） which was sponsored by the Southwestern University of Finance and Economics (P. R. China). We’d like to thank the Department of Sociology, at University of California Irvine for the generous invitation of interdisciplinary research. This paper would not be completed without Xin He and Yang Su’s valuable comments in early drafts. We are grateful to Professor Feng Yadong for his research on the theory of decriminalization in China. Special acknowledgement is also extended to the assistance of our colleague, Chen Shujiao, Cheng Yifeng, Luo Jing, for their great and diligent data gathering in the last two years.

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犯罪與刑事司法研究第 21 期

overcriminalization （過度犯罪化） criminologists around the world advocate for decriminalization（去罪化） . In China, the government attempts to control crime by criminalizing only serious offences while decriminalizing regulatory offences and civil infractions. The Penal Code clearly defines crimes as serious offences, and declares that other minor offences that fail to meet stringent criteria of crimes be decriminalized

and

disposed

in

accordance

with

administrative

procedure rather than criminal procedure. Minor offences can be further classified into public security offence, administrative law violation, or inner administrative offence. Comparing different types of crime definitions in cross-national perspectives, this article explores the profound implication of decriminalization in China’s criminal justice system, and provides empirical evidence of such a practice based on judicial documents collected from three courts in China.

Keywords: China, crime, criminal law, decriminalization, minor offence

熊謀林、梁斌 Solving the Puzzle of Overcriminalization? The Experience of Decriminalization in China

49

In recent times there has been a tremendous expansion of the area of human conduct regulated by the criminal law (Pekins & Boyce, 1982).

Introduction To fulfill the promise of a stable and safe society, many Western countries have actively engaged in overcriminalization over the last decades. Crime has been broadly codified through penal codes, nonpenal statutes, and administrative regulations, ordinances and rules (Ashworth, 2000; Brown, 2010; Fisse, 1967; Schwenk, 1943; Seago, 1985;

Tollefson,

1991).

The

term

“overcriminalization”

thus

encompasses both serious offences and minor offences disposed of by the criminal justice system (Coffee, 1988; Husak, 2004, 2008, 2011; Kadish, 1969; Larkin, 2011; Moohr, 2005; Rosenzweig, 2004; Tadros, 2009; Yankah, 2011). Due to the problem of overcrowded jails/prisons throughout the 2nd half of the 20th century, criticisms against overcriminalization (Coffee, 1988; Kadish, 1967) 1 have become the mainstream in legislative theories of criminal law (Moohr, 2005). Decriminalizing regulatory offences, such as minor drug and traffic offences (Baker, 2005; Bullington, 1995; Hughes & Stevens, 2010; Pacula, Chriqui, & King, 2003; Ross, 1960), has become a popular way to reconsider the 1

The term of “overcriminalization” was invented in 1957, when the recommendation of decriminalization of prostitution, homosexuality, and similar moral offenses was given by Wolfenden Report. Ten years later, the debate over whether criminal law should be excessive as it was attracted law professors’ attention after Prof. Kadish’s influential papers were published during 1967-1969.

50


boundaries of criminalization. 2 Does the crisis of overcriminalization arise in every country? The answer to this question not only opens the window to test the reason why criminal law in Western countries cannot avoid overcriminalizing both criminal codes and administrative regulations, but also provides good solutions to potential decriminalization if one or more countries stop extending

criminal

offence

boundary.

This

article

discusses

the

experience of decriminalization in China, a country with a somewhat different legislative structure compared to Western democracies. China promulgated its Penal Code in 1979 after experiencing 30 years without criminal law (Chen, 2008). However, with only 192 articles regulating 97 crimes, the Code itself was inadequate in addressing crimes and sentences. Facing the challenge of crime control, the Standing Committee of National People’s Congress（全國人大常委， SCNPC ） had promulgated 23 collateral decisions to enact new criminal offences since 1981. To reform China’s legal system during rapid economic development, the current Penal Code was adopted in 1997, which contained 452 articles and 412 crimes and also abolished 15 decisions made by the SCNPC before 1997. 3 Differing from Western countries that criminalize both minor and serious offences, China has decriminalized minor offences since the promulgation of the first Penal Code in 1979. The 1997 Code further 2

3

In 2004 and 2010, American University’s Washington College of Law and George Manson University’s Law School held respectively a special conference on the issue of overcriminalization, and then published the conference papers in a whole volume. Besides, Prof. Husak Published his work ‘Overcriminalization: the Limits of Criminal Law’ in 2008 which is widely discussed. See the Penal Code of the People’s Republic of China (hereinafter the Penal Code of China), No.83, §§ Art.452 (1997).


51

decriminalizes such offenses as hooliganism, prostitution, and illegal profiteering among private enterprises（投機倒把） (Hertz, 2001; Jin & Luo, 2002; Steinmüller, 2011; Wang, 2009). Moreover, the threshold of crime

has

been

decriminalized.

raised

For

to

allow

example,

more

stealing

minor

RMB

offences

(Renminbi,

to

be

Chinese

currency) 300 ($45) would be a crime in the 1997 Penal Code, but the standard for theft was increased to RMB 500 ($70) as a mandatory minimum for conviction in 1998, and the threshold was again raised to RMB 1,000 in 2004. 4 Without a history of a Western legal tradition, and given that China failed to learn legal reforms from the former Soviet Union, China attempts to reform its legal system by turning to both the Continental Law System and the Anglo-American Law System. Under the global influence, the criminal law of China faces many challenges (e.g., rising crime

rates).

Nevertheless,

China’s

methods

of

dealing

with

decriminalization and crime control can still shed light on similar issues encountered by other nations. Discussion on decriminalization of minor offences has been popular in China in recent years (Lirong, 2008; Mingkai, 2008; Qijun & Yibo, 2010). Some scholars noticed that, while crime in Western countries consists of both felonies and misdemeanors, minor offences in China are not necessarily defined as crime (Huaizhi & Yongle, 2000; Shoufen & Yongchu,

2004;

Yadong,

2006).

Researchers

noticed

that

the

decriminalization of public security offences （治安違法行為） and administrative 4

offences

in

China

contributes

to

different

crime

See Supreme Court of China (hereinafter Supreme Court) & Supreme Procuratorate, Interpretation about Theft, §§ Art.2-1(1992), §§ Art.1 (2013); Supreme Court, Interpretation about Theft, No.4, §§ Art.3-1 (1998); Supreme Court, Sentencing Guideline (Temp.), §§ Art.115 (2004).

52


classifications and definitions(He & Marshall, 1997; Liang & Lu, 2006; Yang, 1994). Criminologists cautioned that because of the issues of crime definition, victims’ attitudes, crime dark-numbers, and cultural influence on administrative control, China’s crime rates are far lower than these of Western countries (He & Marshall, 1997). Thus, researchers indicated that it is very risky to estimate the crime trend in China based on official crime reports and statistics (Dutton & Tianfu, 1993; He & Marshall, 1997). Although China is rarely viewed as a good example of a ‘rule of law’ country, it has made an effort to clarify the boundary of criminal offences by declaring its Penal Code the sole source of criminal sanction. That is, offenders must be convicted and punished for crimes specifically codified in the Penal Code. The principle ‘nullum crimen, and nulla poena sine lege’ helps lawmakers restrict crime to offences that are prescribed in the Penal Code (Chen, 2008). The amendments of the Penal Code deal with the emergence of new types of crime in a transitional society (Shuliang, 2001). The following discussion is divided into four sections. The first section discusses the definition of crime in penal codes and the differences between the criminal justice system in China and Western countries. The second section focuses on the decriminalization of minor offenses in China’s Penal Code and the standards of decriminalization in China. The third section touches on the patterns of decriminalized offences and punishment of minor offences in China. Based on data from three county courts, the last section describes the hierarchy of China’s criminal justice.


53

Crime Definition in Cross-National Perspectives Overcriminalization in the Anglo-American legal system transfers many conducts of daily life into criminal justice issues through numerous legislations or regulative acts (Seago, 1985). Some European countries regulate minor offences through administrative procedures (e.g., Netherland and Germany) or police measures directly (e.g., Poland and the Czech Republic) (Haberfeld, 2004). Germany and Netherland designate regulatory offences (which cover part of minor offences such as traffic offence) to be administrative offences (Widdershoven, 2002). The French Penal Code classifies offences into felony, misdemeanor, and petty offence, but petty offences in France are distinguished from true crime codified by the Penal Code itself (Ashworth & Steiner, 1990; Hodgson, 2002; Mckillop, 1998; Patey, 1960). In comparison, the Penal Code of China does not consider less serious offenses (e.g., minor fraud and minor drug possession) as crime and it also excludes diverse regulatory offences (e.g., minor traffic violation and minor tax evasion). As shown in Table 1, we categorize legislative definitions of crimes into three types based on the practice of more than twenty countries. Although crime definition does not affect specific crime control measures and the concept of justice, classifying various types of definitions

is

helpful

to

design

an

appropriate

stratification

of

decriminalization and overcriminalization (Henry & Lanier, 2001). The first type occurs when crime definition exists in both the theory and the practice of criminal justice but without specific legislative description. The second is the case when a general description is stipulated in a penal code (e.g., crime is a consequence of violating criminal law), but without further specific limitations. The third kind clearly defines

54


crimes in the penal code as criminal law violations with further particular requirements for each crime. Table 1 Types and Countries of International Crime Definition Type Country I No Crime Definition in Japan Penal Code Canada: England and Wales: Criminal Law Act. Eng &Wls. Turkey: Turkish Penal Code Finland: Penal Code. Finland Albania: Criminal Code. The Republic Albania Norway: The General Civil Penal Code II Definition in Penal Unite States: Model PC, Washington Criminal Code, but without Code, Alaska PC, Alabama CC, Arizona PC, Quantitative Restriction Colorado PC, Delaware CC, California PC. France: French Penal Code; Sweden: Sweden Penal Code; Slovenia: Penal Code. Republic of Slovenia; Hungary: Penal Code. Hungary. III Defining Crime with Poland & Netherland: Jehle, 2006; Quantitative Standards BJU&WODC, 2003; Widdershoven, 2002; in Penal Code Germany: Criminal Code Germany; P. R. China: Criminal Law. P.R. China.

No Crime Definition In Canada, Japan and England and Wales, there is no clear legal definition on what offences will be crime in the general part of the Penal Code. 5 Although these societies codify criminal offences by specific articles, and classify crimes into summary offences and indictable 5

See Criminal Code, R.S.C., 1985, c. C-46 §§ Art.2; Penal Code Act, No.45, Part 1 (1907).


55

offences, the overall and principal requirements of criminal offenses are extremely unclear (Wade, 2006). 6 As a result, scholars develop legal boundaries and fill in various contents to explain criminal offences on the condition that there is no legislation to describe the general definition of an offence, though some basic considerations such as age, intention, act, and responsibility are stipulated in specific crimes (Henry & Lanier, 2001). Besides these three countries, penal codes of Finland, Albania, Turkey and Norway also fall into this category. 7 Generally definitional terms created by scholars in these countries are indeed numerous but unsatisfactory without specific requirements from the legislation, generating problems for the operation of criminal justice. In England and Wales, for instance, uncountable criminal cases overloaded the system, when hundreds of law and regulations were applied to manage social order (Lewis, 2006). Similarly, efforts in explaining that ‘crime is an act punishable by law’ caused many issues unsettled and much confusion (Garner, 2004). For instance, ambiguous legal terms and principles in the Penal Code of Japan have to be continuously interpreted by scholars and people so that applicable and clear rules can be created without misunderstanding (Kawashima, 1979). Given the lack of an overall definition of crime in the general part of the penal code, law makers can do little but to resort to specific articles. Certainly, judges and the academia would avoid excessive 6

7

It is accepted that numerous rules can enact criminal offences in these countries above, since the law itself does not generate what offence is crime and what law can define crime. See Turkish Penal Code, L. No.5237 (2004); Penal Code of Finland, No.650 (2003); Criminal Code of the Republic of Albania, L. No.7895 (1995); The General Civil Penal Code, No.131 (2005) (the Penal Code of Norway classifies criminal offenses into felony and misdemeanor, but does not define crime).

56


ambiguity and law always tries its best to describe as clear as possible specific details for crime and its punishment. The legal culture and social recognition in these countries help indeed to balance the legal ambiguity with professional applications. In any event, criminal law without a general and clear definition of crime enables numerous regulations to overcriminalize offences beyond the scope of criminal codes.

Definition without Further Restriction The second type contains a crime definition in the penal code but there is no quantitative restriction. For instance, the US Model Penal Code (MPC) defines crime by codifying crime and classifies crime into felony, misdemeanor and petty offence. 8 The MPC states that less serious violations punished by a fine or a warning would not be regarded as a crime (The American Law Institute, 1985), which differentiates crimes from noncriminal violations, and excludes behavior that violates county regulations or agency rules. The MPC itself does not set further specific criteria to limit crimes (i.e., what offences would be deemed crimes), although the MPC recommends state legislators to control civil infractions. 9 Similarly, penal codes in some U.S. states share the same 8 9

See the Model Penal Code, §§ Art.1.04 (1985). The MPC constructs a dividing line to decriminalize civil infractions, and endeavors to differentiate felony from misdemeanor within the classification of criminal offences. However, it does not plan to decriminalize traditional minor offences, although it tries to set a 50 dollar threshold for misdemeanor and petty misdemeanor. See the Model Penal Code §§ 1.04, §223.1 (1985). On the issue of larceny, some research state that the classification of felony and misdemeanor is not for decriminalization, but for criminal penalty. See Criminal Law (3th ed.), Rollin Morris Pekins, Ronald N. Boyce, at 335


57

features as the MPC. 10 For instance, the Criminal Code of Washington, Alaska, Arizona, Alabama, Colorado, Delaware, and California all criminalize petty theft without specifying the threshold monetary amount for theft. 11 That is, the amount doesn’t matter with regard to conviction, but does matter with regard to criminal penalty and procedures applied. Discarding monetary amount involved allows certain conducts (either petty offences or felonies) to be criminalized in the criminal code,

statutes

and

regulations.

Consequently,

criminal

policies

commonly extend criminal law to other legislations, therefore leading to overcriminalization (Parker, 2011; Terwilliger III, 2007; Thornburgh, 2007). In a global view, the MPC represents the model of most countries which define crime via a special provision of the penal code. Without further specific restrictions, minor offences are deemed crimes in such

10

11

(1982). See Washington Criminal Code, RCW §§9A.04.040; Arizona Criminal Code, §§13-105.7, §13-105.7.18, §13-105.7.25, §13-601; California Penal Code, §§15-16; Alaska Criminal Law, §§AS 11.81.250, § AS 11.81.900; Alabama Criminal Code, §§13A-1-2-(4), §13A-1-2-(8), §13A-1-2-(9); Colorado Penal Code, §§18-1-104, §18-1.3-501, §18-1.3-503; Connecticut Penal Code, Chapter 952 §§ Art.53a-24 to 26; Delaware Criminal Code, §§ 202, § 203, § 4201 to 4203. See Arizona Criminal Code, §§13-1802-6 (theft with a value less than $1000 is class 1 misdemeanor); Arkansas Criminal Code §§ 5-36-103 (theft with a value of $500 or less is class A misdemeanor); Alabama Criminal Code, §§13A-8-5-, §13A-8-9 (theft with a value not more than $500 is class A misdemeanor); Colorado Penal Code, §§18-4-401 (theft with a value under $500 is class 2 misdemeanor); Washington Criminal Code, RCW §§9A.56.050 (theft with a value less than $750 or ten pallets is gross misdemeanor); Delaware Criminal Code, §§ 840 (shoplifting less than $1500 is class A misdemeanor).

58


countries as France, Sweden, Slovenia, Russia, and Hungary. 12

Defining Crime with Quantitative Standards We categorize the third type of crime definition as definition by the penal code with quantitative criteria. Due to these quantitative criteria, crimes and criminal laws are conceptually constructed to exclude petty offences. As mentioned above, Poland, Netherland, and Germany have decriminalized minor traffic offences and minor mischief in recent decades. For instance, after decriminalizing petty infractions in 1953, Germany has already eliminated most petty misdemeanors in the 1975 Penal Code (Darby, 1976; Schroder, 1965).The current Penal Code of Germany codified some serious traffic offenses involving public welfare. 13 At present, most petty offences such as minor traffic offences and public order violations are dealt with by administrative procedures

12

See France Penal Code, §§Art.111-1 to 3 (2005) (classifying offence into felony, misdemeanor, petty offence); Sweden Penal Code, Chapter1 §§Art.1 (1999) (crime is offence defined by the penal code or statute law), Chapter 8 §§ Art.2 (petty theft will be sanctioned for less than six months or a fine); Penal Code of the Republic of Slovenia, §§ Art.7 (defining criminal offence as an unlawful act for statute law and sentence being authorized), § 211(2007) (trivial theft will be sentenced to fine or less than one year imprisonment.); the Penal Code of Russian Federation, §§Art.14-15 (1996) (crime is a dangerous act committed by an offender under the prohibition of code, and it is divided into crimes of little gravity, crimes of average gravity, grave crimes, and especially grave crimes); On the Penal Code of Hungary, §§ Art.10, §11 ( defining crime as a socially dangerous act for infraction and punishment, and dividing it into felony and misdemeanor), §316 (1978) (minor theft with low monetary value will be subject to imprisonment not more than 2 years). 13 See Criminal Code of Germany, §§ Art.142, §222, §230, §315b, §315c, §316, §323 (1998).


59

and punished by regulatory fines (Frase & Weigend, 1995; Herrmann, 1974; Jehle & Wade, 2006) .However, the Penal Code of Germany does not remove petty theft through a quantitative (minimum monetary) requirement in order to serve the purpose of deterrence (Baumann, 1972; Dubber, 1997). In Netherland, although there is no concept of statutory offence in the Penal Code, with the passage of the Administrative Enforcement Traffic Violations Act, Netherland shifted traffic offences to regulatory law (except drunk-driving and hit-run cases) (Tak, 2003; Widdershoven, 2002). 14 Poland has widely decriminalized petty offences. The current criminal law not only removes numerous regulatory offences such as traffic offences, but also precludes petty theft (with a value of less than 60 euros without police record)(Aebi, Aubsson de Cavarlay, Barclay, Gruszczyńska, Harrendorf, Heiskanen, Vasilika, Jaquier, Jehle, Killias, Shostko, Smit, & Þórisdóttir, 2010; Bienkowska, 1991; Bulenda, Gruszczyfiska, Kremplewski, & Sobota, 2006). 15 The third type is how the current Penal Code of China defines crime. Overall, crimes are defined as serious offences that violate law, endangering social benefit, public safety, and citizens’ life and property. Minor traffic offences and some other offences are regulated through administrative laws and enforced by the police and other government officials. 16 Accordingly, minor offences, such as petty theft, petty fraud, 14

15

16

The Dutch Penal Code divided criminal offence into crime and infraction without clear boundary. By the year of 1989 when the Administration of Road Traffic Offences Act was enforced, minor traffic offences were classified as administrative offences instead of criminal offences.) stating that police are authorized considerably wide discretion to file directly a petty case as a deputy of public attorney in a Magistrate Court or fine a ticket under 125 euros). See Administrative Punishment Law of P. R. China, §§ Art.8 to 13, §58, §60 to 62 (1996); The Road Traffic and Safety Law of P. R. China, §§ Art.87 to

60


violent offense with minor injury （輕微傷） , and simple drug possession, are not considered crime. 17 Unlike England and Japan where the definition of crime was originated from theoretical research and case review, the Penal Code of China prescribes that state law is the unique and absolutely source for crime reference. It makes an effort to control crime by setting up further requirements and transferring minor offences into noncriminal laws. By contrast, France, Germany and Netherland decriminalize minor offences through complicated

classifications of offence, and use dubious

standards to decide whether offenders have already committed crimes.

Crime and Criminal Law in China After suffering fifty years of lawlessness, theorists and legalists in China have engaged in constant debates about what offences should be defined as crimes and the corresponding consequences of punishment. The legal definition of crime not only settles what offences will be crimes, abridging cultural differences between traditional morality and modern rationality, but also unifies criminal justice practices through consistent standards of conviction and sentencing. The crime definition in China can be read as follows: All acts will be crime and subject to punishment, according to law, if they endanger the sovereignty， territory, and security, dismember the

17

110 (2011). Under the quantitative limitation for crime, minor offences will be punished with administrative penalty. See Law of Public Security Administration Punishment of P. R. China (hereinafter Law of Public Security Administration Punishment), No. 38 (2005); Law of P. R. China Concerning the Administration of Tax Collection (2001), No. 49, §§Art.60-84; Law of the P. R. China on Narcotics Control (2007), No. 79, §§ Art.59 to 69.


61

nation, subvert the state power of the people’s democratic dictatorship, overthrow the socialist system, undermine public and economic order, violate state-owned property, collectively owned by the working people, or privately owned by citizens, or infringe on the citizens’ rights of the person, democratic or other rights. However an act shall not be considered a crime if the circumstances are obviously minor and the harm done is not serious. 18

Qualitative Criteria The Penal Code denotes the principle of legality, that is, any act will be a crime if it violates criminal law and punishable by the Penal Code. The principle plays a key role in differentiating crimes from noncriminal offences. 19 A violation with moral evil could be a crime if the moral protections are incorporated into the Penal Code. A violation involving public good is probably either an administrative offence or a criminal offence, while infringement against private interests will be a civil offence and not a crime (Lin, Jun, Wang, Wu, Zhang, & Zou, 2008). 20 The legal principle distinguishes public good from private 18 19

20

See the Penal Code of China, No. 83 §§ Art.13 (1997). The current criminal law tries to keep the boundary clear, though the criminal law codifies malum prohibitum or other quasi criminal offences through the requirement of serious harm. A potential exception is the Amendment 8th which criminalizes drunk driving with minimum imprisonment (up to six months), and a supplementary fine (≥￥ 1000). See Amendments 8 th of the Penal Code of China, No. 41, §§ 22 (2011); the Penal Code of China, No. 83, §§ Art.133 (2011). Minor offences that infringe contractors’ interests or property rights in China can be treated as civil offences by mediation, which means that the violators will not be deemed a criminal if he or she compensates the victim. Mediations between violators and victims in China decriminalized 50,000 civil disputes in 2005.

62


interests (Huaizhi & Yongle, 2000; Weihong, 2008; Yadong, 2006). 21 The theoretical differences between criminal law and administrative law are the seriousness of violations and the purpose of social control. That is, a serious violation is a crime, while a less serious one is an administrative violation. The purpose of administrative punishment is to maintain social order and educate offenders a lesson through warning or educational measures, whereas criminal punishment applied to offenders is to deter criminals by means of imprisonment. Although this legal principle is adopted by many countries, the superficial boundary on what act would be a crime in the law is not transparent enough to construct a general theory for crime control (Coffee, 1991; Green, 1997; Klein, 1998; Logan, 2005; Mannt, 1992). 22 The modern criminal law is on its way to extend its original territory into

excessive

fields,

when

administrative

violations

lose

their

jurisdiction and regulatory offences are re-codified into the penal code (Husak, 2008; King, 1995; Lafave, 2003; Miethe & Lu, 2005; Robinson, 1995). 23 For regulatory offences, the more mala prohibita are deemed to be crimes, the wider the criminal justice are applied to conducts without moral and social evil. Individuals who committed minor civil violations are of risk to be jailed. In China, given the traditional notion that crime 21

22

23

The compensation for civil infringement exists in both civil and criminal laws. However, civil infringe does not incur social harm for public good but only personal loss. On the contrary, criminal offences lead to more damage for public harm. With the expansion of criminal law, and alternating regulatory punishment into a criminal style, the line between private and public law and the consequence of violation are less distinct in contemporary states as a result of the conjuncture of both true crime and quasi-criminal offences. To protect social order, more and more regulatory offences, ordinance violations, contraventions are converged into criminal justice system.


63

is a serious and severe offence, the boundary of criminalization gets narrow and clear. Generally criminal offences cannot overlap with administrative offences or civil violations. Thus, some offences such as individual prostitution and traffic offences are codified in administrative law but not criminal law within the jurisprudence of China’s legislation. The punishment for administrative offences has little impact the offender’s personal records (e.g., recidivism), and the procedure for punishment is administrative procedures. In such a case, administrative offences are handled primarily by the police, and only few cases are filed at county courts according to administrative law. 24 Overall, both the Penal Code in 1979 and its revision in 1997 declared that an offence will be a crime once the offence is criminalized in the penal code and punishable under the qualitative legal principle. Experiencing new crime waves after opening its door for reforms, China faces a complicated situation of crime prevention and crime control.

Quantitative Standards Chinese people think that serious offences must be punished by imprisonment under the traditional concept of social control (Yadong, 1998). Realizing the necessity of crime control and the potential harm of over-criminalization, the Chinese legislation set up technical restraints in the Penal Code to decriminalize minor offences. The judicial organs promulgated a large number of interpretations and issued directives to

24

Unlike traffic offences and prostitution in most states of the US and the UK, where offenders may be tried in court and possibly sentence to imprisonment, the offender in administrative procedure of China are simply fined by the police, and never convicted and sentenced to jail. See Administrative Procedure Law of P. R. China, No. 16, §§ Art.11 (1989); Administrative Punishment Law of P. R. China, No. 63, §§ Art.39 (1996).

64


guide judges, prosecutors, and police officers in their practice. 25 It is commonly accepted that petty offences and less serious regulatory offences are not worthy of being criminalized since the penalty and the labeling would impact the deviant throughout his/her life. In China, quantitative criteria are called Fanzui Dingliang （犯罪定量） , meaning that offences will not be crime if they do not meet a set of criteria. Such criteria include the severity of the offense (e.g., crimes involve fatality), damage (e.g., offences cause huge property loss), and consequence (e.g., people died or severely injured). Article 13 of the Penal Code stipulates that, “act with minor violations and little harm shall not be regarded as crimes.” The quantitative criteria for criminal law have been rather effective to reduce the burden of the criminal justice system (see our analysis of empirical data below in section IV). Although criminalization involves sophisticated types, the Penal Code excludes minor offences through several considerations.

1. Serious Circumstance The Penal Code of China describes particular criminal offences as displaying ‘serious circumstance’（情節嚴重） , which may be decided

25

Legal documents are applied to criminal cases in order to decriminalize minor offence. See Penal Code of China, No. 5, §§ Art.10 (1979); Penal Code of China, No. 83, §§ Art.13 (1997); Supreme Procuratorate, Case Registration Norms, No. 10 (1999); Supreme Procuratorate & Minister of Public Security, Case Registration Norms for Economic Crime, No. 11 (2001); Supreme Procuratorate & Minister of Public Security, Case Registration Supplementary Norms for Economic Crime, No. 2 (2008); Supreme Procuratorate & Minister of Public Security, Case Registration Norms (1st), No. 36 (2008); Supreme Procuratorate & Minister of Public Security, Case Registration Norms (2nd), No. 22 (2010); Supreme Procuratorate, Case Registration Norms for Bribery (2000); Supreme Procuratorate, Case Registration Norms for Abuse Authority, No. 49 (2005).


65

by such factors as a defendant’s principal role in a criminal group, the number of violation, recidivism, a high value of property loss, casualty or injury, serious damage, and evil means for committing the crime. For an act to be qualified as a crime, at least one of these serious circumstances has to be in place. In the Penal Code, 79 out of 350 articles prescribe that an offence is not to be charged unless it satisfies the standard of serious circumstance. 26 Serious circumstance, the key ingredient for conviction, is literally confusing and could be easily abused by judges since it is very hard to provide a precise description in the Code. It would be almost impossible to outline all the criteria to decide what is serious or not, though a number of official documents aimed to do so. As a result, judges or public officials still have significant discretion to make a decision for the purpose of prosecution and conviction. A judge would convict an offender for infringing on a registered trademark, for example, only if the offence meets the serious circumstance requirement. 27 To provide further guidelines, the Supreme 26

27

Lawmakers in China prefer to play the word game on the descriptions of serious circumstance. See Penal Code of China, No. 83, §§ Art.130, §139, §162, §180 to 182, §185, §188, §190, §205, §213, §215, §216, §222, §223, §225 to 230, §243, §246, §248, §249, §251 to 253, §256, §273, §281, §285, §290, §291, §293, §307, §311, §313 to 315, §322, §324, §326, §329, §336, §337, §340, §341, §343, §345, §362, §364, §371, §373 to 376, §379 to 381, §387, §392, §393, §398, §399, §402, §407, §409 to 411, §414, §418, §432, §435, §436, §442 (2011). Also several articles express serious circumstance by another terms ‘Severe Circumstance’ (情節惡劣 ). See Penal Code of China, §§ Art.255, §260, §261, §293, §443, §444, §448 (2011). See Id, at §§ Art.213. It reads: Using an identical trademark on the same merchandise without permission of its registered owner shall, if the case is of serious circumstance, be punished

66


Court and the Supreme Procuratorate have listed detailed standards to decide whether the offence is serious offence or not, including (a) the offender illegally makes a sale over￥ RMB50,000 or makes profit over RMB30,000; or (b) the offender illegally makes a sale over RMB30,000, or makes profit over RMB20,000, when the offender infringe on two kinds of trademarks. 28 For another example, an offence that illegally issues a bill and proof of property will be a crime if: (a) it costs damage over RMB500,000; (b) the profit is over RMB100,000; (c) the number of faked documents is over 1,000,000; (d) the offender has received two prior administrative punishments within the last two years; or (e) the offender accepts or asks someone to offer money or goods. Similarly, embezzlement for a special purpose with an amount over RMB5,000 will be a crime, but embezzlement of any amount under RMB5,000 is a minor offence subject to disciplinary and civil servant laws. 29 Extortion committed by judicial workers will be a crime only if: (a) the victim committed suicide, (b) the judicial worker extorted the criminal at least three times, (c) the judicial worker used coercive or violent methods to obtain confession, or (d) it led to wrongful conviction. 30

2. A Large Monetary Amount Another factor that has been considered in deciding whether an act is a crime is the degree of harm reaching a ‘large amount’（數額較

28

29 30

with imprisonment or criminal detention of less than three years, with a fine, or a separately imposed fine; for cases of a more serious circumstance, with imprisonment of over three years but less than seven years, and with a fine. See Supreme Court & Supreme Procuratorate, Interpretations of Infringing Intellectual Property Right, No. 19, §§Art.1 (2004). See supra The Norms for Case Registration, at §§ Art.84 (2010). See Supreme Procuratorate, The Norms for Case Register, No. 10, §§Art.3-3 (1999).


67

大） . Thus, a large amount is the threshold in these crimes, which means that an offence will be crime only if the offender makes money or causes damage beyond the threshold amount specified in the Penal Code (Guozhen, Fenlu, & Lihua, 1980; Mingkai, Hong, & Guangquan, 2003; Xiao, 1994; Xiaoliang, 2009). More than ten percent of crimes (34 out of 350 articles) in the Code construct criteria to distinguish crime from noncriminal offences by setting up the threshold amount. 31 A large amount criteria is commonly used for property crimes and economic crimes. Offences are not deemed as crime if the amount is too small to satisfy the requirements. For example, there is no uniform “large amount” standard nationwide for theft in China, varying from RMB500 to RMB2,000 in different provinces. The amount reflects local social and economy level and becomes a key for convictions in different provinces. 32 Judges convict the offender for common theft only if the offender stole more than the minimum amount in a particular province 31

See Penal Code of China, No. 83, §§ Art.163, §164, §171 to 173, §175, §178, §192 to 194, §196 to 198, §201, §204, §205, §214, §217, §227, §264, §266 to 268, §270 to 272, §274 to 276, §284, §288, §289, §294, §296 (2011). 32 The norms for theft are different in provinces in line with their economy development. See Supreme Court, Sentencing Guideline (Temp.), §§ Art.115 (2004) (the Supreme Court promulgated temporary criteria for theft in 2004 to set the threshold as￥ 1000); Shanghai Higher Court, No. 197 (2007) (Shanghai, the most advanced and prosperous province of China, set the threshold as ￥ 2000); Zhejiang Higher Court, No. 30 (2006) (Zhejiang Province constructed the same criteria with Shanghai); Higher Court of Henan, No. 5 (2010) (Henan, with a middle economic level, set the threshold as ￥ 1000. Heilongjiang set it as ￥ 500); Sichuan Higher Court, No. 5 (1998) (Sichuan created different standards for rural area (￥ 700) and cities ( ￥ 1000)); Higher Court of Guang Dong, No. 11 (1998) (Guangdong produced multiple standards based on three classifications of cities, ranging from ￥ 1,000 to ￥ 2,000).

68


(Xinhua Net, 2011). 33

3. Serious Consequence Besides circumstances and the amount, the Penal Code of China contains the term ‘serious consequence’ （嚴重後果） to stipulate offences that are impossible to calculate and arbitrate their severity by specific monetary amounts. The current Penal Code excludes some offences if the truly social evil and harmfulness never happened or the offender was not intended to cause such harm (Caixia, 2000). If the offence does not cause serious consequences, it will not be punished by criminal imprisonment. 34 In contrast, offences with high levels of danger caused by intentional violations will be convicted. For instance, for such offences as arson and bombing with extreme evil, serious consequence is a requirement for severe punishment (sentencing), but not for conviction. About ten percent of crimes (30 out of the 350 articles) in specific 33

34

Jie Zhang was acquitted for stealing ￥ 825, and Hairui Liu was acquitted for stealing ￥ 882 since the amount of theft was less than the required threshold amount, after Henan Higher Court increased its standard from￥ 800 to ￥ 1,000 in June 2010. See Supreme Court & Supreme Procuratorate & Minister of Pubic Security, The Norm of Amount for Theft, No. 5 §§1 (2010); Xinhua Net, Henan Increase the Start-line of Theft from￥ 800 to￥ 1000, Nov. 26th (2011) . Considering negligent crimes, the requirement of serious consequence decriminalizes actions with trivial harm. For instance, conditions to convict traffic crimes are the following: the offender (a) does illegal driving without paying enough attention to the road and the pedestrian; (b) incurs serious accidents, with personal death or serious injury. Accordingly, the offenses would not be crime if the driving causes less serious injury. See Penal Code of China, No. 83, Art.133 (1997); Supreme Court, Interpretation for Traffic Accident Crime, No. 33, §§Art.2 (2000).


69

provisions of the Code state that offence is deemed to be a crime only if the offence causes serious consequence. 35 By classifying crimes into intentional, reckless and negligent, serious consequence in the Penal Code of China is mainly related to negligent crimes (Wan & Lu, 1997; Yanhong, 2003). 36 In addition, limiting the application of punishment will be appropriate if the perpetrator herself or himself shows remorse for his/her liability (Carfielf, 1998; Hurd, 1996; Karaba, 1950) .

4. Implicit Criteria Aside from the three criteria above, the criminal law system in China set some additional criteria in a few offences (Huaizhi & Yonghong, 2002). 37 Under the influence of implicit criteria, the judicial organs have promulgated interpretations to provide more specific standards for criminal offences. 38 Offences that do not meet implicit 35

36

37

38

See, Penal Code of P.R. China, §§ Art.128, §129, §131, §132, §134 to 136, §139, §146, §148, §181, §219, §236, §240, §243, § 250, §276, §277, §284, §288, §291, §321, §324, §334, §358, §368, §369, §370, §377, §380, §400, §402, §408, §412, §413, §416, §425, §427, §428, §436, §437, §443 (2011). On the theory of liability, criminologists pointed out that the principle of consequence is necessary for negligent crime in China. Although some offences in specific provisions do not set quantitative standards, the fact that the criminal law system criminalizes serious offences and the administrative law system controls minor offences separately was deemed to better control and concentrate human resource. See Penal Code of China, No. 5, §§Art.10 (1979); Penal Code of China, No. 83, §§ Art.13 (1997); Supreme Procuratorate & Minister of Public Security, Case Register Norms for Economic Crime, No. 11 (2001); Supreme Procuratorate & Minister of Public Security, Case Register Supplementary Norms for Economic Crime, No. 2 (2008); Supreme Procuratorate & Minister of Public Security, Case Register Norms (1st), No. 36 (2008); Supreme Procuratorate & Minister of Public Security, Case Register Norms (2nd), No. 22 (2010); Supreme Procuratorate, Case Register Norms for Abuse Authority, No. 49 (2005); Supreme Procuratorate, Case Register

70


requirements for crime will not be processed in the criminal justice system, although these implicit criteria cannot be listed one by one because the penal code itself has to be concise. 39 Using assault as an example, the Penal Code of China does not set up any specific condition in terms of intentional assault against another person. 40 However, an interpretation from the Supreme Court declared that an offence will be crime only if the assault caused a degree of minor injury（輕傷） that involved organ or body harm. 41 Personal assault that does not cause at least minor injury will not be crime but a public security offence, 42 which is subject to an administrative fine ranging from RMB200 to 500, or administrative detention not more than 15 days. 43 Gambling is another example. The Penal Code does not list any quantitative requirement, but implicit criteria utilized by courts still have an effect on conviction. 44 Interpreted by the Supreme Court, judges convict gamblers only if an offence meets the following requirements:

39 40

41 42 43

44

Norms for Bribery (2000); Supreme Procuratorate, Case Register Norms, No. 10 (1999). See Penal Code of China, No. 83, §§ Art.234, §303 (1997). See Penal Code of China, No. 83, §§ Art.234 (1997). It reads: Whoever intentionally injures another is to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, or limited confinement. See Supreme Court, et al., Standard of Less Injury, No. 6, §§Art.2 (1990). See Supreme Court, Sentencing Guideline, No. 38, §§Art.99 (2010). See Law of Public Security Administration Punishments, No. 38, §§ Art.43 (2005). See Penal Code of China, No. 83, §§Art. 303 (1997). It reads: Whoever, for the purpose of profits, assembles people to engage in gambling, opens a gambling house, or makes an occupation of gambling is to be sentenced to not more than three years of imprisonment, criminal detention, or limited confinement, in addition to fine.


71

(a) the offender makes profit over RMB5,000, (b) the offender invests money over RMB50,000, or (c) over 20 people participated in gambling. 45 Therefore an offence that does not meet these standards would not be a crime, but a public security offence subject to administrative detention not more than 15 days or a fine not more than RMB3,000. 46

Decriminalized Minor Offences As discussed above, China decriminalizes minor offences by setting up both qualitative and quantitative criteria. The structure of criminal offences is clear that serious offences will be crimes, while less serious offences will not be prosecuted if the police, the procurator, and the judge decide that the offences are too trivial to be criminal offences (Peerenboom, 2002).

47

Minor offences will be punished in the

administrative law system by agencies such as the offender’s supervising department or law enforcement agencies. What type of agencies regulates these offenders depends on the particular violation and the offender’ status. The punishment for civil servants, for example, might be a supervising department or a disciplinary department（紀委） , if the violations are related to his duty. Noncriminal administrative offences are conceptually divided into three 45

46 47

kinds,

targeting

companies,

citizens,

and

civil

servants,

See Supreme Court & Supreme Procuraorate, Legal Interpretation in Gamble Criminal Case, No. 3, §§ Art.1 (2005). See Law of Public Security Administration Punishments, §§ Art.70 (2005). Police officers in China have the discretion to decide whether an offence is administrative offence or nonadministrative . But the discretion has to be supervised by a superior agency or the procuratorate, and the victims or offenders have the right to appeal if injustice happened.

72


respectively. Correspondingly, punishment will be different if the effectiveness of punishment is the primary consideration.

Administrative Law Violation The first type of administrative offence is minor violations related to civil and business obligations, such as failing to pay tax, exercise employment supervision, and complete corporation registration. If a company is involved in tax evasion, the violation would be punished according to the seriousness of the behavior. Serious violations beyond the threshold of RMB10,000 will be deemed as crime and then processed by the criminal justice system, 48 while less serious offences (e.g., tax evasion less than RMB10,000) will be treated as administrative offences. In the entire system of the Penal Code of China, quantitative criteria exclude many minor offences such as intellectual property right offence, running business without a license or permission, and environment offences. Given the criticism for overcriminalization, minor offences could be handled by administrative law or regulations. Offenders of these offenses are unlikely to pose a high risk to society in China, though similar offenses, such as driving without insurance, speeding, and driving without licenses, are crimes in most states of the Unite

States

and

England

(Carrow

&

Reese,

1976).

49

The

decriminalization of minor administrative offences could be helpful to free the overloaded system by transferring many minor offences to the administrative system. 48

49

See Penal Code of P. R. China, No. 83, §§ Art.201 (1997); Supreme Court, Interpretation for Tax Evasion, No.33, §§Art.1 (2002). asserting that there is a common recognition that criminalizing traffic offences is inappropriate since motor vehicle becomes increasingly an essential manner for life.


73

Public Security Offence A second form administrative offence is the public security offence. The Law of Public Security Administration Punishments codifies public order offences as administrative offences, which are less serious than crimes. Public security offences in China are similar to misdemeanors, infractions, or other public order offences in Western countries (Yang, 1994). 50 Under the influence of the former Soviet Union, China has decriminalized public order offences since the promulgation of the Penal Code in 1979, especially after the promulgation of the Law of Public Security Administration Punishments in 2005 (Lee, 1962; Robinson, 1996).

51

Punishment toward public order violations without evil

consequence aims at correcting the offender, and it has already been accepted as a popular argument that decriminalizing public order offences keeps the traditional entity of criminal law in line with moral evil and social harm (Loewy, 1988; Saga, 1984).The administrative punishment in China saves judicial cost and increases the effectiveness of social control of deviance 52 (Beale, 2005; Friday, 1976; Krehl, 2003). Public security offences dominate the noncriminal administrative

50

51

52

The most important reason is that the Penal Code of China tries to decriminalize less serious public order offences, considering the administrative nature of infraction or misdemeanor. The dispute over if the criminal law should decriminalize public order offences in the last decades has been influencing the legislation in Western countries since 1960s, especially in Europe. Today criticisms against overcriminalization of public order offences are stronger in the Anglo-American legal system than the civil law system. With regard to the ineffectiveness of imprisonment, the academia recommends to think over the criminalization of public order offences.

74


offences (Xiaoliang, 2009; Yang, 1994). 53 Based on quantitative criteria for crimes, 53 provisions of public security offences are divided into four groups, including acts disrupting public order, acts impairing public safety, acts infringing upon personal rights or property rights, and acts impairing social administration. 54 Theoretically, public security offences can be explained as offences that fail to satisfy the requirement of quantitative and qualitative requirements of crimes, including either traditional social deviance (such as petty theft, gun possession) or mala prohibitum (such as petty drug offence, prostitution). Most importantly, the decriminalization of public security offences would neither impact negatively offenders’ personal development nor increases the risk of severe penalty if the offender responsible for the minor offence can be rehabilitated

by

administrative

punishment

(Peerenboom,

2001;

Wedeman, 2004).

Internal Administrative Offence The

third

noncriminal

administrative

offence

is

internal

administrative offence（紀律違法） in which civil servants violate the law or regulations for their duty or occupational disciplines. The consequence of internal administrative offence is administrative sanction （行政處分） , which is disciplinary punishment rather than criminal penalty. Civil servant violation is committed by officials in various government agencies and departments of the Chinese Communist Party. Such offenses include, but do not limit to, misconduct, abuse of power, duty negligence, and minor corruption (Wedeman, 2004). Under the 53

54

Researches found that the public security offences in China took up a large portion of all offences, when compared to Western countries. See Law of Public Security Administration Punishments, No. 38, §§ Art.23 to76 (2005).


75

quantitative standard for conviction, the nature of internal administrative offence is similar to civil servant crimes codified in the Penal Code. The basic difference is that a crime involves more serious consequence, a large monetary amount, and serious circumstances handled by the criminal justice system; inversely administrative inner offences indicate trivial consequence, amount or circumstances disposed of by the Disciplinary Committee （紀委） or other supervisory departments. Taking the social custom of giving gifts in China as an example: the decriminalization via the practice of internal administrative offence prevents receiving gift to maintain good social relationship from being labeled as crime (Rocca, 1992; Steidlmeier, 1999). 55 The essential function of administrative sanction has been denoted as a means of deviance control in recent cases (Peerenboom, 2001; Wedeman, 2004). The internal administrative punishment means a lot for career government officials and politicians. One’s government career is ceased during the period of internal administrative punishment and the offence will be recorded in his or her personal archives. Meanwhile the increasing severity of corruption makes criminal law and internal administrative sanction choices in anti-corruption campaign (Van Rooij, 2005; Wedeman, 2005). Cases of internal administrative offence are rarely reported publicly in China, despite of a high prevalence of such sanctions. Internal administrative punishment is frequently utilized to quell public dissatisfaction with official misconduct after a major accident or incident caused serious death, pollution, and damage. Sometimes internal administrative sanction becomes a tool to sanction individuals who could not be criminally convicted because of their high

55

It is a ubiquitous phenomenon in China to give gift in political and business atmosphere as a cultural custom.

76


and powerful official or political positions. The decriminalization via internal administrative offence is not a proven way to control corruption 56 (Chang, 2009; Hong & Xing, 2009; Remin Net, 2010) .

Crime Decriminalization in Real Justice As discussed above, China continues to decriminalize petty offences by means of setting up mandatory criteria and restricting official discretions (Jehle & Wade, 2006). 57 Discussing decriminalization by crime definition, this paper suggests that decriminalization in China is outweighing overcriminalization. We’ve discussed the legislative criteria for crime control. Next we turn to our empirical research based on data from three courts in China.

Applicable Criteria The traditional culture of relying upon administrative measures and the influence of extra-legal factors (e.g., people’s relationship and power protection) in China makes law difficult to be neutrally applied in judicial cases (Keller, 1994; Lubman, 2006; Orts, 2001). Nevertheless, quantitative criteria discussed above help judges and judicial workers to maintain independence from extra-legal interference. Nowadays more

56

57

Official reports already published real cases of power abuse in recent years that replace criminal penalty with inner administrative sanction. Prof Jehle generalized three patterns to cope with the overloaded criminal justice system in Western countries, including oral criminal trial with record, decriminalization, and discretion for prosecution and conviction. Given the number of criminal cases tried orally without court record in the UK and the US, and decriminalization and use of discretion in Netherland, France, Germany, and Poland, we believe that decriminalization in China is moving towards the track of Western countries.


77

and more social conflicts and public protests around the country have been observed because of corruption, illegal land seizure, police misconduct, labor disputes and environmental pollution. Discontent with government officials puts much pressure on judicial workers. As a result, they often take public opinions and reactions into consideration when making a decision, especially in major and influential cases. For instance, Sun Weiming, a white-collar employee drunk-driving without a license, crashed his car into a vehicle in front of him on freeway in 2009. In the course of escape, he hit another car. The ordeal caused the death of four people and serious injury of another. Sun’s case received nationwide attention, and the Chengdu Court convicted Sun and sentenced him to death under public pressure. The Higher Court of Sichuan reduced Sun’s death sentence into life imprisonment after appeal. 58 Scholars argued that the trial court judges convicted Sun under social pressure, and his punishment is considerably more severe than what the traffic accident deserved (Liqing, 2010; YinXiang, 2010). 59 The mandatory standards for crimes allow judges to make decisions without worrying about public influence and to reduce the opportunity of corruption. As shown in Table 2, these standards unify rules nationwide or provincewide and curb judicial discretion to acquit and convict offenders. Below, we discuss quantitative standards for a number of frequent crimes by turning to judicial interpretations and the Penal Code.

58 59

See Chengdu vs. Sun, Chuan (Final) No. 690 (2009). Literatures criticize the conviction for Sun’s case.

78


Table 2 Quantitative Standards for Frequent Crimes in China

Fraud Robbery Looting Extortion Receiving Stolen Goods Forgery (Product)

Large amount ∗ • No requirement Large amount ∗ • Large amount ∗ •

Quantity b ￥ 500 to 2,000 τ ￥ 500 to 2,000, or repeat offence (3 times within one year) ￥ 3,000 to 10,000 —— ￥ 500-2,000 ￥ 1,000 to 3,000

Implicit standard •

￥ 4,000 to 5,000

Large amount ∗

Tax Evasion

Large amount

Trademark violation

Large amount or serious circumstance ∗

Patent violation

Serious circumstance ∗

Copyright violation

Large amount or serious circumstance ∗

Business Secret violation


￥ 50,000 ￥ 50,000 and up to 10% of payable tax Sales ≥ ￥ 500,000, or illegal profit ≥ ￥ 300,000, or making 20,000 pieces of trademark Sales ≥ ￥ 200,000， or illegal profit ≥ ￥ 100,000， or causing loss ≥ ￥ 500,000 Sales≥ ￥ 50,000, or illegal profit ≥ ￥ 30,000, or 500 pieces of works Illegal profit ≥ ￥ 500,000, or causing loss ≥ ￥ 500,000

Classification Crime Property Theft Crime Burglary

Economic Crime Intellectual Property Crime

Standards Large amount

a

∗•

Large amount/ Recidivism ∗ •

∗

White Collar Offering bribery Implicit Standard ∗ Crime Receiving Bribery Implicit Standard ∗ Embezzlement Large Amount ∗ Insider Trading Drug Crime

Drug Trafficking Drug Manufacturing


￥ 5,000 ￥ 5,000 ￥ 5,000 Sales≥ ￥ 500,000, or making profit or causing lose ≥ ￥ 150,000

No requirement

——

No requirement

——


79

Table 2 Quantitative Standards for Frequent Crimes in China (continued) Classification

Crime

Standards

a

Drug Possession

Large amount ∗

Gambling


Traffic Accident

Serious consequence ∗

Drunk Driving

No Requirement

Public Order Crime

Traffic Crime

Violent Crime

Note:

a

b

τ

Intentional injure Implicit amount ∗

Quantity b Opium 200g, Heroin or methamphetamine 10g, or other drug with large amount ≥ Three People and making profit ≥ ￥ 5000, or ≥ Three People and Gambling money ≥ ￥ 50,000, or ≥ 20 participants ≥ one death or three serious injuries, or damage ≥ ￥ 300,000 or 1 serious injury for illegal driving —— Minor injury (organ or body injury)

∗ Indicate quantitative standards unified nationwide. • Indicate quantitative standards varied in different provinces. The quantity is the threshold for crime, offences below the quantity listed in the form are not crime; quantity in the form is part of standards for specific crime. The Supreme Court of China has increased the quantitative standard for theft from￥ 500 to￥ 1000 in 2013.

To study the application of quantitative standards to real criminal cases, we investigate all criminal judgments（刑事判決書） of three county courts in 2010, including the Pudong Court of Shanghai, the Jinshui Court of Zhengzhou, and the Gaoxin Court of Chengdu. 60 A total 60

Because there is no specific criminal justice statistics published in China, we searched more than ten courts’ official website around mainland China to gather judgments. We found that these three courts sample published more and reliable criminal judgments than others. Especially Pudong published its 96.6% of all judgments as checking by the case series number. While these

80


of 4,453 judgments with key information (e.g., the amount of money the offender obtained, victims’ damage, goods sold, the value of the victims’ belongings) were obtained from the three sample courts. Given that the amount of money reflects the seriousness of offence, this article lists only the minimum amount in property crimes and corruption crimes, and ignores public order crimes and violent crimes because both are difficult to test under the implicit criteria scheme. We compare the legislative quantitative threshold standards with the actual minimum amount applied by judges in real cases to demonstrate that the quantitative standards indeed exist and exclude minor offences in China. The minimum amounts indicate whether and how the offences meet the mandatory threshold of each crime. Table 3 displays the quantitative standards and the minimum monetary amount in criminal cases handled by all three sample courts. It is clear that the figures of minimum amounts in real cases are equal to or greater than the legislatively required quantitative standards for crimes included in our study (i.e., theft, receiving stolen goods, looting, fraud, extortion, and bribery). For instance, the quantitative requirement for theft in Shanghai is RMB2,000, while the minimum amount in real convicted cases at the Pudong County Court of Shanghai in 2010 was RMB2,000. The quantitative requirement for theft in Henan province is RMB1,000, while the minimum amount in convicted cases at the Jinshui County Court of Zhengzhou in 2010 was also RMB1,000. Similarly the minimum requirement for theft in the city of Chengdu is RMB1,000 yuan, and the minimum amount of convicted cases at the Gaoxin County Court of Chengdu was RMB1,080 in 2010. Thus, it is apparent that the

courts were not randomly selected, their judgments offering a good start point of analyzing the decriminalization of offences in China.


81

quantitative criteria of theft did help the criminal justice system to decriminalize cases of petty theft in which the offender stole less money than the required quantitative threshold. Table 3 Quantitative Standards and Minimum-Amount in Real Criminal Cases (Unit: ￥ yuan) Court

Pudong Court Jinshui Court Gaoxin Court Quant. Minimum Quant. Minimum Quant. Minimum Standards Amount Standard Amount Standard Amount

Crime 2,000 Theft 800 Pick-pocketing Recidivist * Burglary 0 Robbery Receiving 4,000 Stolen Goods 500 Looting 4,000 Fraud 3,000 Extortion 5,000 Bribery * Note: the offender stole ≥ ** Sichuan increased Oct.2011.

2,000 800 325 93

1,000 1,000 —— —— Recidivist 829 0 20

4,456

1,000

1,000

517 4,000 3,000 30,000

500 3,000 2,000 5,000

550 5,000 2,050 13,650

1,000 —— —— 0 1,000 500 2,000 * * 1,000 ——

1,080 —— —— 58.5 1,525 3,883 7,726 4,500 100,000

￥ 325, but 4 burglaries within one year. the standards of fraud from￥ 2,000 up to￥ 5,000 in

Shanghai set RMB 800 as the quantitative requirement for pickpocketing, which is lower than that of theft. 61 As seen in Table 3, at the Pudong County Court of Shanghai, the minimum value of property for convicted pick-pocketing cases is equal to the quantitative requirement. There is no standard for pick-pocketing in Sichuan Province and Henan Province. As burglary carries two standards (based on either the amount 61

See Shanghai Higher Court & Shanghai Procuratorate & Shanghai Police Bureau & Shanghai Justice Bureau, Norms for Theft, No. 242, §§Art.1 (1998).

82


of goods value or money, or whether the offence is a repeat offense), the required minimum amount for burglary is lower than that of common theft (Liang & Lu, 2006). 62 In burglary cases that we analyzed, the Pudong Court of Shanghai has a threshold of RMB325 or over four burglaries within one year, and the Jinshui Court of Zhengzhou used RMB829 or over three burglaries as the threshold. For looting, 63 Shanghai, Henan, Sichuan have the same requirement for conviction at the level of RMB500. The minimum amounts in the three courts are RMB517 in Pudong, RMB550 in Jinshui, and RMB3,883 in Gaoxin. Obviously the money or value of goods the offender snatched is indeed larger than the quantitative requirement for conviction. For other criminal offences in the three courts, such as receiving stolen goods, fraud, extortion, and bribery, similar patterns are found. That is, the minimum amounts occurred in convictions are identical to or larger than the required threshold for crimes. The quantitative standards of crimes thus exclude many minor offences from being prosecuted by the criminal justice system. When compared robbery with other crimes, a different picture surfaced: the minimum amounts incurred by robbery at all three courts show very small monetary amounts (ranging from RMB20 to 93), and the quantitative standards for conviction in three courts are zero. The reason is that the Penal Code of China does not set any quantitative standards for robbery since robbery is considered a very dangerous and violent act against social stability and personal safety. Both the Supreme 62

63

Burglary was codified in the same article with common theft, as the Penal Code of China does not divide theft into different titles and terms. Looting is classified as property crime, as the offender snatch the victim’s money or belongs without using violence against the victims. See the Penal Code of China, No. 83, §§Art.267 (1997).


83

Court and the Supreme Procuratorate have not provided judges any advice as to how to convict robbery offenders. The obvious difference between robbery and other property crimes also lends proof that quantitative criteria for crime would help the criminal justice system to limit crime to offences with serious harm. The quantitative criteria listed in Tables 2 and 3 become the dividing line between conviction and acquittal. Minor offences that failed to meet the criteria will not be charged as crime but transferred to the administrative system as discussed above. The statistics in Tables 2 and 3 demonstrate the decriminalization of minor offences in China through legislation (Yixu, 1995).

Model of Decriminalization For the purpose of utilitarianism, criminal punishment should be applied to true offences and reserved as the last resort for social protection (Husak, 2004). As for crime and crime control in China, decriminalization via qualitative and quantitative criteria constructs a hierarchy model for various offences. As shown in Figure 1, all offences make up a pyramid based on offense severity. The quantitative and quantitative criteria remove minor offences, located at the bottom of the offences system with large numbers, and only label serious offences crime after decriminalizing minor offences. Only serious offences on the top of the hierarchy are transferred into the criminal justice system. The decriminalization of less serious offences in China decreases the possibility of conviction for minor offences, enabling a large number of offenders to live in a normal and helpful environment (Schultz, 1999; Shepherd, 2002), 64 and receive

64

Based on the labeling theory, it is commonly accepted that criminal record

84


rehabilitation without a criminal record.

Decriminalization

Decriminalization Crime

Prostitution,

(Serious Offence)

Implicit norm

Serious Consequence

Large Amount

Abortion, etc.

Serious Circumstance

Traffic Offence,

Theft, Fraud, Loot, Forgery, Vandalism, Tax Evasion, Bribery, Embezzlement, Perjury, Drug Possession, Intellectual Property Offence, etc.

Minor Offence (Noncriminal Administrative Offence) Administrative

Public

Inner

Law Violation

Security

Administrative

Offence

Offence

Offence Hierarchy in China (Crime and Minor Offence)

Note: Prostitution covers both prostitutes and clients; traffic offence excludes drunk driving, road race, and serious traffic accidents; abortion in China is lawful.

Figure 1

A Hierarchy Model: Decriminalization in China

devalues self-esteem, and easily decreases one’s economic status if criminal record impacts one’s job application or social appreciation. Once the offenders lose their opportunity of work, recidivism is his or her fate, and doomed to be out for three strikes.


85

Conclusion With its rapid development in the global economy, China faces many new challenges. Although decriminalization in China helps release the pressure of overcrowded prisons, the control system of noncriminal offences remains confusing outside the criminal justice system. Among the three types of minor offences discussed above, public security offences stand out. Legally speaking, all kinds of minor offences could be punished by maximum detention not more than 15 days, yet the law is not properly enforced in the administrative system. The control for public security offence is far more complicated than its legal stipulations, due to the old administrative rules about Education and Labor Confinement（勞動教養） , which was made fifty years ago and is still enforced everywhere today. 65 Minor offences such as prostitution, drug abuse, and minor theft are still subject to confinement for up to two years of detention without judicial approval (Bureau of Laodong Jiaoyang, 1991). 66 Consequently, the administrative punishment could possibly be severer in these cases than criminal penalty, given that the penalty for criminal detention（拘役） only lasts not more than six months, and non-confinement criminal surveillance（管制） only lasts from one month to two years (Chen, 2002, 2008). 65

66 67

67

With the passage of the Law of Public Security

Before the Law of Public Security Administration Punishments was promulgated, numerous minor offences were punished by Laojiao. See State Government, Decision about Laodong Jiaoyang, No. 78, §§Art.1 (1957); State Government, The Temporary Solution for Laodong Jiaoyang, No. 17, §§ Art.10 (1982). SCNPC, Decision about Prostitution (1991), No. 51, §§Art.4. Literatures have criticized the Laodong and Jiaoyang system in China for

86


Administration Punishments in 2005, it was hoped that detention with not more than 15 days should be the maximum punishment for public security offence. However, the same practice of the Education and Labor Confinement continued in the last seven years. Chinese scholars have urged legislators to abolish the practice of the Education and Labor Confinement to avoid the asymmetry between criminal penalty and administrative punishment (Renwen, 2010). Overcriminalization of minor offences is common phenomena in Western countries and leads to expansive criminal justice systems. We discussed how crime definition could impact the distribution of crimes, how qualitative criteria could differentiate crime from noncriminal offences, and how quantitative standards of serious circumstances, large amount, serious consequence, and implicit criteria in China help the criminal justice system exclude minor offences. On the issue of minor offences, we discussed three types of offences, including administrative law violation, public security offence, and internal administrative offence. Finally, we collected criminal cases from three courts in China to demonstrate that the legislative standards in China indeed prevented a large number of minor offences from being convicted and sentenced as crimes, and we also drew a model for crime control based on the hierarchy of offense severity. Overall, China’s criminal law system tries to criminalize serious offences based on stringent standards, and decriminalizes minor offences that do not meet these standards. Such legislative definitions of crime impact the structure of crime, crime rates, and crime distribution in China. It is our hope that this research will facilitate future research on relevant issues and provide directions for future criminal justice reforms decades.


87

in China. Finally, it should be acknowledged that China has witnessed overcriminalization as well in recent decades (e.g., the number of criminalize offences in the Penal Code was substantially increased from 97 in 1979 to 480 in 1997). At the same time, public opinion and attitudes also seemed to favor criminalizing more offences that violate moral

and

ethical

standards

(e.g.,

drunk

driving).

Such

an

overcriminalization trend deserves more serious scholarly attention in the future. At this moment, it is difficult to judge if China is going to follow the same path of overcriminalization like many Western countries. The tug war between overcrimialization and decriminalization will continue. China has much to learn from the experience of other nations (and vice versa) in the years to come.

88


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求解過度犯罪化的迷惑？中國的去罪化經驗 * 熊謀林中國西南財經大學法學院助理教授

梁斌美國奧克拉荷馬州立大學圖爾薩分校社會學系副教授

摘

要

過去幾十年，西方國家見證了刑事法的擴張過程其導致刑事司法系統疲於應對大量輕微違法。為了應對過度犯罪化問題，全球的犯罪學家因此提倡去罪化。中國政府嘗試透過僅將嚴重違法行為規定為犯罪的方式去控制犯罪，並將行政違法和民事違法行為去罪化。中國刑法典清晰地將嚴重違法行為定義為犯罪，並且聲稱除此之外的不滿足犯罪嚴格標準的行為將不是犯罪。這些非犯罪行為按照行政程序處理，而不是刑事程序處理。輕微違法被進一步分為治安違法、行政違法、紀律違法。借助於跨國視角下的犯罪定義不同模式比較，這篇文章探索了中國刑事司法系統去罪化的深遠意義，並且利用中國三個法院的判決書資料為此提供了經驗證據。

關鍵詞：中國、犯罪、刑事法、去罪化、輕微違法

*

收到日期： 2013/08/11；修改日期： 2013/10/14；接受日期： 2013/10/22

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