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6.01.2009

Greater uniformity in criminal sentencing?

Trial implementation of the Guiding Opinion on Sentencing Procedures (人民法院量刑指导意试行) and relevant procedural norms (人民法院量刑程序指导意见试行)has started today on a nation-wide scale.

Within each province, one intermediate and three basic people's courts will use the Guiding opinion in criminal trials. The adoption of uniform sentencing guidelines and their incorporation into trial procedure is among the goals of the Third Five-Years Reform Outline:


We shall regulate the discretionary power, incorporate sentencing into the court trial procedures, study and issue the Guiding Opinions on Sentencing Procedures of the People’s Courts. We shall improve the criminal procedures for the first and second instances, implement the relevant provisions on the roles of the procuratorial organs and lawyers in criminal trials, and strive to improve the quality and efficiency of trials.

This far, experiments have already taken place in various localities. There, judicial committees have issued local guiding opinions on sentencing procedures. These rules are normally for internal use, and cannot be quoted in written judgements. But if you want to read some them you can either order this book, or scroll down this page.

Let's see what changes - if any - the Guiding Opinion on Sentencing may bring.

One of the problems in the PRC criminal law is the vagueness of its statutory provisions, as for instance provisions on theft (art. 264).

There are three degrees of punishment for this crime:

1. the theft of "relatively large amounts of public or private property" is punished with no more than three years imprisonment, criminal detention or surveillance plus a fine.

2. the theft of "large amounts" of property is punished with three to ten years imprisonment.

3. the theft of "extraordinarily large amounts" of property or precious cultural relic can be punished with more than 10 years imprisonment, life imprisonment or the death penalty.


The Criminal Law does not go any further in specifying what sums can be considered relatively or extraordinarily large. So the principle of proportionality (罪刑相适应原则) becomes more difficult to apply.

To fill in this loophole, judicial interpretations (as this one), setting the treshold of "relatively large amount " to RMB 500-2000 have been issued. Provinces however enjoy the power to alter such tresholds, so for instance in Canton, Foshan and elsewhere a relatively large amount would be given by sums above RMB 2000.

When it comes to actual sentencing, such guidelines are clearly insufficient to limit judges' discretionary power. While they specify that RMB 2000 constitutes a "relatively large amount" of money, they do not indicate how severily the defendant should be punished.

Shall we sentence him to surveillance, criminal detention or imprisonment? If we pick imprisonment, then what term should we choose: one, two or three years? And what should our choice be based on?

The Guiding Opinion on Sentencing could potentially reduce such discretionary power, providing more uniformity in sentencing.


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