Substantive Chinese Criminal Law

Sources and Development of Chinese Criminal Law

The Criminal Law of the People’s Republic of China was first enacted in 1979 as part of the post-Mao legal reconstruction and was comprehensively revised by the 1997 Criminal Code, which remains the primary source of substantive criminal law. The 1997 Code expanded the 1979 Code from 192 to 452 articles, abolished the analogy system, codified the principle of legality, and systematically organised criminal offences in a General Part (Articles 1-101) and a Special Part (Articles 102-452). The Code has been amended eleven times, with the most significant amendments being the Eighth Amendment (2011), which reduced the scope of the death penalty and introduced community correction; the Ninth Amendment (2015), which further reduced capital offences and expanded terrorism and corruption provisions; and the Eleventh Amendment (2020), which lowered the age of criminal responsibility. The Standing Committee of the National People’s Congress (NPC) exercises legislative authority over criminal amendments, typically issuing a Criminal Law Amendment every few years.

The Principle of Legality

Article 3 of the 1997 Code codifies the principle of legality (zui xing fa ding): conduct is criminal and punishable only if the Code expressly so provides. This represented a fundamental departure from the 1979 Code, which permitted conviction by analogy — applying the most closely analogous provision to conduct that was socially dangerous but not specifically criminalised. The abolition of analogy was a landmark reform, aligning Chinese criminal law with the nullum crimen sine lege principle recognised in civil law systems. Article 12 reinforces legality by prohibiting the retroactive application of criminal law unless the new provision decriminalises the conduct or provides for a lighter penalty.

In practice, the principle is qualified by the breadth of many criminal provisions. The crime of illegal business operations (Article 225) has been applied expansively, and the crime of picking quarrels and provoking trouble (Article 293) has been used in cases of petitioning and protest. The system of judicial interpretations issued by the Supreme People’s Court (SPC) and Supreme People’s Procuratorate (SPP) supplements the Code with binding rules on interpretation, effectively creating subsidiary criminal norms.

Classification of Crimes

The Special Part of the Code organises crimes into ten categories according to the object of criminal protection. Chapter I covers crimes against national security, including treason, secession, subversion of state power, espionage, and terrorism. Chapter II covers crimes against public safety, including arson, flooding, explosion, hijacking, and the illegal possession of firearms. Chapter III covers crimes against the socialist market economic order, including smuggling, intellectual property infringement, financial fraud, and tax evasion — the largest chapter with over 100 articles. Chapter IV covers crimes against the rights of the person and democratic rights, including homicide, assault, unlawful detention, and sexual offences. Chapter V covers property crimes including robbery, theft, fraud, and extortion. Chapter VI covers crimes against social order, including organised crime, drug offences, prostitution-related offences, and computer crimes. Chapters VII through X cover national defence, embezzlement and bribery, dereliction of duty, and military crimes respectively.

Elements of Crime

Chinese criminal law doctrine, influenced by Soviet legal theory, analyses criminal liability through four constituent elements. The object of crime (fanzui keti) is the social interest protected by the criminal law. The objective aspect (fanzui keguan fangmian) comprises the act or omission, the prohibited consequence (where relevant), and the causal relationship. A criminal act requires voluntariness and may be committed by act or, where a legal duty exists, by omission. Causation is assessed through the theory of necessary causation, requiring that the act inevitably and naturally produced the consequence.

The subject of crime (fanzui zhuti) is the natural person who committed the offence, meeting the age and capacity requirements. The age of criminal responsibility (Article 17) is 16 for all offences, 14 for 18 specified serious offences including murder, rape, robbery, arson, and drug trafficking, and, since Amendment XI (2020), 12 for intentional homicide or intentional injury causing death by especially cruel means, subject to SPP approval. Legal persons (units) may also be subjects of crime where the Code expressly so provides.

The subjective aspect (fanzui zhuguan fangmian) encompasses intent (guyi) or negligence (guoshi). Intent includes direct intent (zhijie guyi — knowledge and will that the conduct will cause the prohibited result) and indirect intent (jianjie guyi — knowledge that the conduct may cause the result and indifference toward that possibility). Negligence includes reckless negligence (youyujing guoshi — the actor foresees the possibility of the result but lightly assumes it can be avoided) and negligent negligence (wuyijing guoshi — the actor does not foresee the result but should have foreseen it).

Justifiable Defence and Necessity

Articles 20 and 21 address justifiable defence (zhengdang fangwei) and necessity (jinji bihuo). Justifiable defence permits the use of force against an ongoing unlawful infringement to protect the state, public interest, the person, or property. Excessive defence exceeding the limits of necessity and causing serious harm bears criminal liability but with mitigated punishment. Article 20(3) creates a special rule for defence against violent crimes: the use of force causing death or injury in defence against an ongoing assault, murder, robbery, rape, kidnapping, or other violent crime endangering life is not excessive defence and bears no criminal liability.

The 2020 SPC and SPP guidance on justifiable defence responded to public concern over cases where defenders were prosecuted for injuring or killing attackers. The guidance instructs prosecutors and courts to interpret the defence provisions in favour of the defender, to consider the defender’s subjective perception of danger, and not to impose unrealistic expectations of restraint on defenders facing violent attacks. This guidance followed high-profile cases in which defenders were initially charged after repelling attackers, triggering public outrage and debate about the “dubious self-defence” (erxiang fangwei) problem.

Unit Crimes

Chinese criminal law recognises the criminal liability of units (danwei) — legal persons and other organisations — for certain economic and social order offences. Under Articles 30-31, where a unit commits an offence against the social market economic order or certain social order offences, a fine is imposed on the unit, and the directly responsible managers and other directly responsible personnel bear individual criminal liability. The scope of unit liability has expanded through amendments to cover new forms of criminality, including terrorism financing, environmental offences, and information security offences. The attribution of criminal intent to units follows the principle of identification: the acts and intentions of senior managers and other responsible personnel are attributed to the unit.

The System of Punishments

Article 33 lists five principal punishments (zhuxing): public surveillance (guanzhi, three months to two years, involving community supervision); criminal detention (juyi, one to six months, served in a detention centre); fixed-term imprisonment (youqi tuxing, six months to 15 years, up to 25 years in cumulative sentencing); life imprisonment (wuqi tuxing); and the death penalty (sixing). Three supplementary punishments (fujia xing) under Article 34 include fines (fajin), deprivation of political rights (boduo zhengzhi quanli), and confiscation of property (mosou caichan). Deprivation of political rights may be imposed separately or as an additional penalty, lasting one to five years or, for death penalty or life imprisonment cases, life.

The Death Penalty

The death penalty remains a feature of Chinese criminal law but has been progressively restricted. The 1997 Code permitted the death penalty for 68 crimes; this number has been reduced through amendments. The Eighth Amendment (2011) removed 13 economic crimes from the capital list, and the Ninth Amendment (2015) removed an additional nine. The SPC assumed exclusive review authority over all death sentences in 2007, reversing a 26-year period during which this authority had been delegated to provincial High People’s Courts. This reform significantly reduced the number of executions, though precise figures remain a state secret.

The suspended death sentence (sihuan, Article 48) is a distinctive Chinese institution. A person sentenced to death may be granted a two-year suspension of execution. If the offender does not intentionally commit a crime during the two-year period, the sentence is usually commuted to life imprisonment or fixed-term imprisonment of 25 years. If the offender intentionally commits a crime and the circumstances are grave, the death penalty may be executed following SPC approval. The suspended death system has dramatically reduced actual executions while maintaining the deterrent effect of capital sentencing. The death penalty may not be imposed on persons under 18 at the time of the crime, on pregnant women, or on persons aged 75 or older at the time of trial (except those causing death by extreme violence).

The 2020 Amendment XI: Age of Criminal Responsibility

The Eleventh Amendment (2020) lowered the age of criminal responsibility from 14 to 12 for certain serious violent crimes, responding to public concern after several high-profile cases of violent offences committed by minors. Under the amended Article 17(3), a person aged 12 to 14 may be held criminally responsible if they commit intentional homicide or intentional injury causing death or causing serious disability by especially cruel means, where the Supreme People’s Procuratorate approves the prosecution. This was the first lowering of the age of criminal responsibility since the 1979 Code and was accompanied by enhanced provisions on correctional education for minors who commit acts harmful to society but lack criminal responsibility.

The 2021 Amendments and National Security

The 2021 amendments introduced provisions implementing the Hong Kong National Security Law (HKNSL), which was adopted separately by the NPC Standing Committee in June 2020 and annexed to the Basic Law of Hong Kong. The amendments to the Criminal Code expanded jurisdiction over secession and subversion offences committed in Hong Kong and provided for the punishment of conduct endangering national security. The HKNSL established a separate system of offences — secession, subversion, terrorism, and collusion with foreign forces — and created the Office for Safeguarding National Security in Hong Kong. The relationship between the HKNSL and the Criminal Code reflects the broader integration of national security concerns into Chinese criminal law, which has expanded significantly through the series of amendments.