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12.21.2008

Further death penalty reforms?

Yesterday the National Conference of Senior Judges, outlined 10 tasks needed to further reform China's judicial system.

[Read Wang Shengjun's speech]

Task 2 on the agenda mentions reforming adjudication committees's jurisdiction, decision-making procedures, powers and management (adjudication committees underwent some reforms last November).

Task 4 involves, among others, futher reforming the death penalty review system, and adopting uniform criteria to adjudicate death penalty cases.

This is a much needed change, which is closely related to another critical area: the graduation of criminal penalties (量刑).

The Criminal Law only sets general standards to graduate penalties, using such ambiguous terms as light, serious, very serious etc. Detailed criteria are normally determined by Supreme People's Court or Supreme People's procuratorate judicial interpretations 司法解释.

At the moment a total of 68 crimes can be punished by death.

Parameters that specify fixed amounts in currency are used to graduate penalties for crimes against property, financial crimes etc.

Penalties for drug related crimes are graduated according to the amounts of psychotropic substances which are smuggled, produced or trafficked.

Penalties for crimes against the person, as forcible rape, are determined according to the circumstances 情节 in which the crime took place or its consequences 后果. But, sometimes neither the Criminal Law nor judicial interpretation give precise criteria on when a death sentence can be issued. The result, as you can imagine, is that judges can enjoy a certain discretionality.
Let's have a look at article 236 of the Criminal Law: forcible rape [强奸罪] (中文 - English)
A person who rapes a woman by force, threat or any other means shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years.
A person who has sexual relations with a girl under the age of fourteen years shall be deemed to have committed rape and shall be sentenced heavily.
A person who, under any of the following circumstances, rapes a woman or has sexual relations with a girl, shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment or death:
1. to rape a woman or to have sexual relations with a girl with flagrant circumstances;
2. to rape several women or to have sexual relations with several girls;
3. to rape a woman in a public place;
4. to rape the same victim in succession by two or more persons; or
5. to cause severe bodily injury or death of the victim or any other serious result.
第二百三十六条 以暴力、胁迫或者其他手段强奸妇女的,处三年以上十年以下有期徒刑。
  奸淫不满十四周岁的幼女的,以强奸论,从重处罚。
  强奸妇女、奸淫幼女,有下列情形之一的,处十年以上有期徒刑、无期徒刑或者死刑:
  (一)强奸妇女、奸淫幼女情节恶劣的;
  (二)强奸妇女、奸淫幼女多人的;
  (三)在公共场所当众强奸妇女的;
  (四)二人以上轮奸的;
  (五)致使被害人重伤、死亡或者造成其他严重后果的。
A rapist can be sentenced to death if he has committed this crime in circumstances which are heinous 恶劣, has raped "several" women or girls under 14, or if the rape has resulted also in severe body injury or other serious consequences, has taken place in public, has involved two or more persons.

Criteria to tell serious wounding from light body injuries exist. But, it is not easy to understand when circumstances are heinous, what is meant by "several women or girls under 14", or "serious consequences".


In the case of rape - at least - criteria on when a death sentence can be issued are too vague.

We're talking about a death sentence


(who would like to be the target?)


Local courts are aware of this and similar problems, so they have adopted "guiding opinions" (zhidao yijian) on death penalty use. But local opinions stating that the death penalty is to be used only on the most serious crimes don't help much either:
第二十五条 [死刑适用规则] 死刑只适用于罪行极其严重的犯罪分子, 并应当严格对死刑的适用