Chinese Criminal Law Under the 1997 Criminal Code

The Criminal Law of the People’s Republic of China is codified in the 1997 Criminal Code, which replaced the 1979 Criminal Code as part of the comprehensive reform of Chinese criminal justice. The 1997 Code substantially revised and expanded criminal law, codifying crimes previously defined in separate regulations, introducing the principle of legality, and rationalising the system of punishments. The Code has been amended 11 times since 1997, with the amendments progressively expanding the scope of criminalisation, adjusting penalties, and responding to emerging forms of criminality.

Structure of the 1997 Criminal Code

The Code is divided into a General Part and a Special Part, comprising 452 articles. The General Part (Articles 1-101) establishes the fundamental principles of criminal law, the definition of crime, the grounds for criminal liability, the system of punishments, and the rules for their application. The Special Part (Articles 102-452) defines specific crimes organised into ten chapters according to the object of criminal protection: crimes against national security; crimes against public safety; crimes disrupting the order of the socialist market economy; crimes against the rights of the person and democratic rights; crimes against property; crimes against the order of social administration; crimes against national defence interests; crimes of embezzlement and bribery; crimes of dereliction of duty; and crimes of military personnel.

The bipartite structure follows the civil law tradition, with the General Part providing the conceptual framework that governs the application of all specific provisions in the Special Part. The Code’s systematic organisation reflects the influence of Soviet and continental European criminal law models, adapted to Chinese conditions and socialist legal principles.

The Principle of Legality

Article 3 of the Code codifies the principle of legality: no conduct is criminal and no punishment may be imposed unless the conduct and punishment are expressly defined by law. The provision reversed the pre-1997 approach, under which supplementary regulations and judicial interpretations had created a fragmented and at times retroactive system of criminal liability. The principle of nulla poena sine lege is reinforced by Article 12, which prohibits the retroactive application of criminal law unless the new law decriminalises conduct or provides for a lighter penalty.

The principle of legality is qualified in practice by the breadth of Chinese criminal provisions. Many articles in the Special Part use general language that grants courts substantial interpretative discretion. The crime of hooliganism (流氓罪), which was notoriously broad in the 1979 Code, was abolished in 1997, but other broadly defined offences remain, including the crime of illegal business operations (非法经营罪), which has been applied to a wide range of conduct, and the crime of picking quarrels and provoking trouble (寻衅滋事罪), which has been used to punish conduct that does not fit neatly into other criminal categories.

The system of judicial interpretations issued by the Supreme People’s Court and the Supreme People’s Procuratorate supplements the Code by providing detailed rules on the application of criminal provisions. These interpretations define terms, establish evidentiary standards, set sentencing guidelines, and resolve ambiguities in the statutory text. While not formally part of the Code, judicial interpretations exercise binding force on lower courts and are essential to the practical operation of Chinese criminal law.

Classification of Crimes

Chinese criminal law classifies crimes according to the nature of the offence, the protected legal interest, and the applicable penalty. The primary classification follows the chapter structure of the Special Part, with each chapter corresponding to a category of protected interests. Within each chapter, specific offences are distinguished by the elements of the crime, the degree of harm, and the applicable punishment range.

The gravity of offences is reflected in the penalty structure. Less serious offences are punishable by fines, criminal detention (up to six months), or fixed-term imprisonment of up to three years. Moderate offences carry penalties of three to ten years. Serious offences carry penalties of ten years to life imprisonment or the death penalty. The classification determines the applicable rules on jurisdiction, arrest, bail, statute of limitations, and parole.

Punishment Types

The Code provides for a graduated system of punishments. The principal punishments are public surveillance (管制, guanzhi), criminal detention (拘役, juyi), fixed-term imprisonment (有期徒刑, youqi tuxing), life imprisonment (无期徒刑, wuqi tuxing), and the death penalty (死刑, sixing). Supplementary punishments include fines (罚金, fajin), deprivation of political rights (剥夺政治权利, boduo zhengzhi quanli), and confiscation of property (没收财产, mosou caichan).

Public surveillance requires the offender to remain in the community under supervision, with restrictions on movement and activities, for a period of three months to two years. Criminal detention is short-term imprisonment served in a detention centre rather than a prison, for a period of one to six months. Fixed-term imprisonment ranges from six months to 15 years, or up to 25 years in cases of cumulative punishment for multiple offences. Life imprisonment is imposed for the most serious crimes, with the possibility of commutation to fixed-term imprisonment after a minimum period of service.

The Death Penalty System

The death penalty occupies a central place in Chinese criminal justice. The Code initially listed 68 crimes subject to capital punishment, though subsequent amendments have reduced this number. Crimes punishable by death include murder, rape, robbery, drug trafficking, embezzlement, bribery, and certain national security and public safety offences. The scope of capital offences has been narrowed by successive amendments, particularly through the Ninth Amendment (2015), which removed the death penalty for nine economic crimes.

The death penalty requires approval by the Supreme People’s Court. From 1980 to 2007, the SPC had delegated death penalty approval to higher people’s courts for most crimes, a period during which executions increased substantially. In 2007, the SPC reclaimed exclusive jurisdiction over death penalty approval, requiring all death sentences to be reviewed by the SPC before execution. The reform aimed to reduce the number of executions and improve the quality of death penalty adjudication.

The two-year suspended death sentence (死缓, sihuan) is a distinctive feature of Chinese criminal law. A person sentenced to death with a two-year suspension is not executed immediately but is given a two-year period of observation. If the person does not intentionally commit a crime during the two-year period, the sentence is generally commuted to life imprisonment or fixed-term imprisonment of 25 years. If the person does intentionally commit a crime, the death penalty may be executed. The suspended death sentence serves as a mechanism for leniency and has significantly reduced the number of actual executions.

The death penalty may not be imposed on persons under 18 at the time of the crime, on women who are pregnant at the time of trial, or on persons aged 75 or older at the time of trial (unless they have caused death through extreme violence). The Ninth Amendment introduced a further limitation, prohibiting the death penalty for elderly persons aged 75 or older regardless of the offence, except where torture or extreme violence is used to cause death.

Criminal Liability of Legal Persons

Chinese criminal law recognises the criminal liability of legal persons (单位犯罪, danwei fanzui). A legal person may be held criminally liable for offences committed by its responsible personnel in the name of the legal person and for the benefit of the legal person. Where a legal person is convicted, a fine is imposed on the legal person, and the responsible personnel may be subject to imprisonment or other penalties.

The scope of legal person criminal liability has expanded through successive amendments. The Ninth Amendment (2015) added new offences for which legal persons may be held liable, including terrorism financing,反腐败 (anti-corruption) offences, and information security offences. The attribution of criminal intent to legal persons follows the principle of identification: the acts and intentions of senior management and responsible personnel are attributed to the legal person itself.

Abolition of Reeducation Through Labour

The system of reeducation through labour (劳动教养, laodong jiaoyang) was a quasi-criminal administrative detention system that operated outside the criminal process. Under this system, persons deemed to have committed minor offences or to be socially undesirable could be detained for up to four years without trial, without access to legal representation, and without judicial review. The system was administered by the public security authorities through the reeducation through labour committees.

The system was formally abolished in December 2013 by a decision of the NPC Standing Committee. The abolition followed years of domestic and international criticism and reflected the government’s commitment to improving the human rights record and strengthening the rule of law. The abolition required the enactment of amendments to the Criminal Law and the Public Security Administration Punishments Law to address the conduct previously subject to reeducation through labour.

Economic Crimes

Economic crimes occupy a prominent place in the Special Part. Chapter III of the Special Part, covering crimes disrupting the order of the socialist market economy, contains over 100 articles addressing offences including intellectual property infringement, tax evasion, smuggling, financial fraud, insider trading, and money laundering. The provisions have been significantly expanded through amendments, reflecting the growing complexity of China’s economy and the government’s focus on economic regulation.

Intellectual property crimes include trademark counterfeiting, copyright infringement, patent infringement, and trade secret misappropriation. The amendments have progressively strengthened criminal protection for intellectual property, lowering the thresholds for criminal liability and increasing penalties. The Ninth Amendment introduced criminal liability for trade secret theft by current or former employees and for the acquisition of trade secrets through electronic intrusion.

The 2020 Amendment and Age of Criminal Responsibility

The Eleventh Amendment to the Criminal Law (2020) introduced a significant change to the age of criminal responsibility. Previously, the age of criminal responsibility was 16 generally, with specified serious crimes (including murder, rape, robbery, and arson) subject to criminal liability from age 14. The 2020 amendment lowered the age of criminal responsibility to 12 for certain serious violent crimes, including intentional homicide and intentional injury causing death or serious disability by especially cruel means.

The amendment was motivated by several highly publicised cases involving violent crimes committed by minors, which sparked public debate about the adequacy of the juvenile justice system. The NPC Standing Committee amended Article 17 to provide that a person aged 12 to 14 may be held criminally responsible if the offence involves intentional homicide or intentional injury causing death or serious disability by especially cruel means, provided that the Supreme People’s Procuratorate approves the prosecution. The amendment represents a significant departure from the previous age limits and reflects the legislature’s response to public concerns about juvenile delinquency.

Criminal Procedure and Judicial Implementation

Criminal justice in China operates under the 2012 Criminal Procedure Law, which introduced important due process protections including the right to legal representation during investigation, the prohibition on extracting confessions by illegal means, the exclusionary rule for illegally obtained evidence, and enhanced rights for defence lawyers. Despite these procedural guarantees, implementation remains uneven: defence lawyers face practical obstacles in accessing clients and evidence, and the conviction rate remains extremely high at over 99%.

The criminal justice process follows a hierarchical structure. Minor cases are handled by basic people’s courts with a single judge. More serious cases are heard by collegiate panels of three judges or a combination of judges and lay assessors. Cases involving the death penalty require adjudication by a collegiate panel and review by the judicial committee of the adjudicating court before submission to the SPC for approval.