The Death Penalty in Chinese Criminal Law

Table of Content

1. Introduction
1.1. Current Statistics

2. Part I – The Death Penalty in Substantive Criminal Law

3. Part II – The Death Penalty in Procedural Criminal Law

4. Conclusions

5. Bibliography

1. Introduction

‘I am for the death penalty. Who commits terrible acts must get a fitting punishment. That way he learns the lesson for the next time.^[1] ’

Britney Spears.

The death penalty is one of the oldest measures to sanction violations of law. In one of the earliest codification known, in the Codex Hammurabi, the death penalty was allowed for several crimes (for example):^[2]

(1) for stealing or handling stolen goods from the kings property,

(2) for a man who raped a virgin in the house of her father and

(3) for murder of spouses or incest.

In recent centuries the death penalty changed according to the changes in the society. In medieval ages the death penalty was also in use for offences against heretics who did not share the beliefs of the majority of the people and other offences against religious beliefs or institutions.

After the Age of Enlightenment the whole state structure was rationalized. The king was no longer ruler from divine ordinance; instead the state was formed by a mutual relationship of man and man.^[3] Therefore also the role of the death penalty in the criminal law system changed. Nowadays one can clearly see which crimes are deemed to be the most serious, either by the political elite or by the people. Therefore the crime of corruption may be sentenced to death in China,^[4] because it is deemed as a serious problem by the Chinese officials and the people need to see, that not only the commoners, but also the political elite is confronted with serious punishments. Another example for this view of the death penalty is Thailand, where it is possible to be sentenced to death for serious drug crimes.^[5]

Because of the severe, irreversible and unchangeable character of the death penalty there have to be special procedural provisions in order to guarantee that no innocent is convicted to it. In China every death penalty needs to be approved by the Supreme People’s Court before the execution.^[6]

One also has to add, that the death penalty is only a penalty designed for the general prevention of crimes. For special prevention reasons a life term imprisonment would be sufficient.

1.1. Current Statistics

In the contemporary world Europe and Central Asia basically have abolished the death penalty, with one exception: Belarus. In America only the United States retain this penalty. On global level over one third of the countries abolished the death penalty by law or in practice and from 59 states only 25 executed death sentences in the year 2008. In the same year at least 2390 humans were executed (in 25 countries) and at least 8864 humans were sentenced to death in 52 countries. So out of the 59 states, which have not yet abolished the death penalty in the year 2008 25 executed death sentences, 52 issued new death sentences and 7 did not even issue new death sentences.^[7]

The main methods to execute death sentences are:^[8]
(1) beheading (Saudi Arabia)
(2) electrocution (United States)
(3) hanging (Bangladesh, Botswana, Egypt, Iran, Iraq, Japan, Malaysia, Pakistan, Saint Kitts & Nevis)
(4) lethal injection (China, United States)
(5) shooting (Afghanistan, Belarus, China, Indonesia, Iran, Mongolia, Vietnam)
(6) stone to death (Iran)

These two ways of executing a death sentences in China can be found in article 212 of the Criminal Procedure Law of the People’s Republic of China.

2. Part I – The Death Penalty in Substantive Criminal Law

The legal basis for the death penalty in the Chinese criminal law is article 33, which lists all five kinds of penalties provided by this law:

(1) public surveillance,
(2) criminal detention,
(3) fixed-term imprisonment,
(4) life imprisonment and
(5) the death penalty.

In contemporary Chinese criminal law 68 crimes are punishable with the death penalty, only 10 of those are frequently punished with the death penalty and 2 have to be sentenced to death^[9]. Also scholars suggested abolishing the death penalty for non-violent crimes, which will not happen due to the public opinion.^[10]

Crimes punishable with the death penalty shall not be prosecuted in the case 20 years have elapsed since the crime happened. However in cases where it seems to be necessary to prosecute anyway, the Supreme People’s Procuratorate has to approve.^[11]

According to the Chinese criminal law the death penalty shall only be applied to criminals who have committed extremely serious crimes. In cases in which an immediate execution is not deemed to be necessary, a suspension period of two years may be imposed together with the death sentence.^[12] Anyone’s death sentence is changed to life imprisonment if he does not commit an intentional crime in these two years of suspension. If the convicted has performed a major meritorious service, his sentenced may be changed to a fixed term imprisonment of not less than 15 years, but not more than 20 years.^[13]

All death sentences have to be verified and approved by the Supreme People’s Court, especially those which should be executed immediately. Death sentences with a suspension may be approved by Higher People’s Courts.^[14] If it has been verified that an intentional crime has been committed during the suspension period, the death sentence is executed upon approval of the Supreme People’s Court.^[15] Since these special approval procedures have been implemented 25% less of the death sentences have been executed.^[16] There are also some restrictions on the death penalty. Adolescent persons, who are under 18 years old at the time they committed a crime, cannot be sentenced to death,^[17] in accordance with the rule that criminals who have not yet reached the age of 18 should get a lighter punishment^[18]. And also women, who are pregnant at the time of the trial, may not be sentenced to death.^[19]

The terms of suspension of execution starts counting from the date the judgment becomes final and the term of a fixed term imprisonment, which is a changed death sentence with suspension of execution, is counted from the date the suspension of execution expires.^[20]

An important legal consequence, which comes together with the death penalty, is the depravation of political rights. Everybody, who is sentenced to death is deprived of his political rights, however when the death penalty with a suspension is commuted into a fixed-term imprisonment, the deprivation of political rights is limited to not less than three years but no more than ten years.^[21]

3. Part II – The Death Penalty in Procedural Criminal Law

The Intermediate People’s Court is the court of first instance for trialing crimes, which may be sentenced to death,^[22] although also a Higher People’s Court can be a first instance court.^[23] Also the court has to designate a lawyer, in order to secure the defendant’s rights, in cases where the death penalty may be imposed.^[24]

Judgments sentencing the defendant to death or to death, but imposing a two years suspension need to be approved by the Supreme People’s Court or the responsible Higher People’s Court, in order to be executed.^[25] The Criminal Procedure Law of the People’s Republic of China dedicated Chapter IV to special provisions concerning the death penalty’s approval procedures. Starting with the general provision, that death sentences have to be approved by the Supreme People’s court.^[26] In cases where the defendant does not appeal to the responsible Higher People’s Court, it shall nevertheless review the case and submit it to the Supreme People’s Court for approval, or bring the case up for trial or remand the case for retrial, if it does not agree with the death sentence.^[27] All reviewing procedures conducted by the Supreme People’s Court or a Higher People’s Court have to be handled by a collegial panel composed of three judges.^[28]

In the case that criminal, who is sentenced to death with a two year suspension, commits an intentional crime the Higher People’s Court shall submit the case to the Supreme People’s Court for approval of execution of the death sentence.^[29] When issuing an approval the president of Supreme People’s Court has to sign and issue an order to execute the death sentence.^[30] The death sentence is finally to be executed by a People’s Court at a lower level within seven days after receiving the approval from the Supreme People’s Court. This lower level court shall inform the Supreme People’s Court if the judgment may contain an error, if the criminal exposes major criminal facts or if the criminal is pregnant. If the first two reasons, which caused a suspension of the sentence, disappeared, a report has to submitted to the president of the Supreme People’s Court. With his signature the sentence can be executed. In the case of a pregnant criminal the sentence shall be altered.^[31]

Before the sentence is finally executed the People’s Court shall notify the People’s Procuratorate at the same level to send an officer to supervise the execution. The execution has to be performed at a designated place and a written record has to be prepared. This record will be transmitted to the Supreme People’s Court. No executions are in public, although they have to be announced.^[32]

Article 212 of the Criminal Procedure Law of the People’s Republic of China further statues:

‘The judicial officer directing the execution shall verify the identity of the criminal, ask him if he has any last words or letters and then deliver him to the executioner for execution of the death sentence. If it is discovered before the execution that there may be an error, the execution shall be suspended and a report submitted to the Supreme People’s Court for an order.

After a death sentence is executed, the People’s Court that caused the death sentence to be executed shall notify the family members of the criminal.’

[...]

^[1] http://prodp.proboards47.com/index.cgi?board=student&action=display&thread=6183, June 12th, 2009

^[2] http://www.uni-protokolle.de/Lexikon/Codex_Hammurapi.html, June 12th, 2009

^[3] Thomas Hobbes – Brauchen wir eine Renaissance der Aufklärung?: Rechtsphilosophische Grundlegungen, Ludwig Hetzel, Grin Verlag 2008, p. 15f

^[4] article 383 Criminal Law of the People’s Republic of China

^[5] http://travel.state.gov/travel/cis_pa_tw/cis/cis_1040.html#criminal_penalties, June 12th, 2009

^[6] article 48 Criminal Law of the People’s Republic of China

^[7] http://www.amnesty.at/todesstrafe/zahlen_fakten.php, June 12th, 2009

^[8] http://www.amnesty.at/todesstrafe/zahlen_fakten.php, June 12th, 2009

^[9] The wording of the other 66 crimes is as follows: ‘may be punished to death penalty’.

^[10] According to the course in Chinese criminal law, Tsinghua University, spring term 2009

^[11] article 87 Criminal Law of the People’s Republic of China

^[12] article 48 Criminal Law of the People’s Republic of China

^[13] article 50 Criminal Law of the People’s Republic of China

^[14] article 48 Criminal Law of the People’s Republic of China

^[15] article 50 Criminal Law of the People’s Republic of China

^[16] According to the course in Chinese criminal law, Tsinghua University, spring term 2009

^[17] article 49 Criminal Law of the People’s Republic of China

^[18] article 17 Criminal Law of the People’s Republic of China

^[19] article 49 Criminal Law of the People’s Republic of China

^[20] article 51 Criminal Law of the People’s Republic of China

^[21] article 57 Criminal Law of the People’s Republic of China

^[22] article 20 Criminal Procedure Law of the People’s Republic of China

^[23] article 200 Criminal Procedure Law of the People’s Republic of China

^[24] article 34 Criminal Procedure Law of the People’s Republic of China

^[25] article 208 and article 201 Criminal Procedure Law of the People’s Republic of China

^[26] article 199 Criminal Procedure Law of the People’s Republic of China

^[27] article 200 Criminal Procedure Law of the People’s Republic of China

^[28] article 202 Criminal Procedure Law of the People’s Republic of China

^[29] article 210 Criminal Procedure Law of the People’s Republic of China

^[30] article 210 Criminal Procedure Law of the People’s Republic of China

^[31] article 211 Criminal Procedure Law of the People’s Republic of China

^[32] article 212 Criminal Procedure Law of the People’s Republic of China