The amendment to the Criminal Law should also apply the principle of leniency and leniency

The amendment to the Criminal Law should also apply the principle of leniency and leniency

Author: Zhang Chun, a partner of Guangdong Zhiheng (Guangzhou) Law Firm, focusing on the defense of economic crime cases

Note: This article is original and may not be reproduced without permission

The Criminal Law of the Mainland China (1997 Criminal Law) adopts the principle of treating retroactivity from the old with leniency based on the actual needs and the requirements of the legality of crimes.

Article 12 of the Criminal Law stipulates: "After the founding of the People's Republic of China, if the laws at the time do not consider the acts of this Law to be crimes, the laws at that time shall apply; If the law at the time considers it to be a crime, and it should be prosecuted in accordance with the provisions of Chapter IV, Section 8 of the General Provisions of this Law, criminal responsibility shall be pursued in accordance with the law at that time, but if it is not considered a crime by this Law or the punishment is relatively light, this Law shall apply. Judgments that have already been rendered in accordance with the laws at that time before the implementation of this Law shall continue to be valid. ”

In this regard, we believe that the amendment to the Criminal Law should still implement the principle of treating the old with a lighter approach as stipulated in the Criminal Law, and distinguish between the following different situations:

1. If the 1997 Criminal Law is not considered a crime, but the Criminal Law Amendment is considered a crime, the Criminal Law before the entry into force of the Criminal Law Amendment can only be applied, and the Criminal Law Amendment is not retroactive.

Therefore, the perpetrator cannot be held criminally responsible on the grounds that the amendment to the Criminal Law has already defined the act as a crime, the scope of the subject matter of the crime has been expanded, and the standard of the elements of the conduct constituting the crime has been lowered.

2. If the Criminal Law of 1997 considers it to be a crime, but the amendment to the Criminal Law does not consider it to be a crime, as long as the act has not been tried or the judgment has not yet taken effect, the provisions of the amendment to the Criminal Law shall apply, that is, the amendment to the Criminal Law has retroactive effect.

3. Where the 1997 Criminal Code and the Criminal Law Amendment are considered to be crimes and should be prosecuted in accordance with the provisions of section 8 of chapter IV of the Criminal Code, criminal responsibility shall be pursued in principle under the 1997 Criminal Code. However, if the penalty of the Criminal Code 1997 is heavier than the Criminal Law Amendment, the Criminal Law Amendment applies.

4. If an effective judgment has been rendered under the 1997 Penal Code, the judgment shall remain in force. This is not the case even if the act does not constitute a crime or is punishable by a lesser sentence than the 1997 Penal Code, as provided for in the amendments to the Penal Code.

This is because whether the criminal law applies retroactively to an act is limited to situations where it has not been tried or has been tried but no effective judgment has been rendered; Judgments that have already taken effect should not be changed in accordance with the provisions of the Criminal Law, so as to preserve the seriousness and stability of the effective judgments of the people's courts.

Article 12, paragraph 2 of the Criminal Law of 1997 has made clear provisions in this regard. The key to the application of the Criminal Law Amendment (IX) is to compare the 1997 Criminal Law and the Criminal Law Amendment (IX) which has a lighter penalty for the crime of corruption and bribery, and if the Criminal Law Amendment (IX) is lighter, the amendment should be applied. However, Amendment (9) to the Criminal Law only changes the standard for conviction and sentencing for the crime of corruption and bribery from the simple amount standard previously stipulated to the standard of amount plus circumstances, and divides the amount into three levels: "relatively large amount", "huge amount" and "especially huge amount", but does not stipulate the specific standards of "relatively large amount", "huge amount" and "especially huge amount".

On April 18, 2016, the Interpretation was promulgated and came into force on that date, further clarifying and concretizing the criteria for "relatively large amount", "huge amount" and "particularly huge amount" stipulated in Amendment (9) to the Criminal Law.

We believe that, judging from the nature of the judicial interpretation of the Criminal Law itself, according to Article 6 of the Provisions on Judicial Interpretation promulgated by the Supreme People's Court on March 2, 2007, judicial interpretations can only interpret the specific application of criminal law in criminal justice practice, and it is a clarification and concretization of the issues arising from the specific application of criminal law within the original legislative intent.

Therefore, judicial interpretations have the characteristics of dependence, that is, they must be strictly attached to the provisions of the criminal law provisions interpreted, and no new laws can be created, and the criminal law cannot be amended or supplemented.

Therefore, its effect should be synchronized with the effect of the criminal law interpreted by it, i.e. it should enter into force at the same time as the criminal law interpreted by it. From this perspective, the Interpretation should be synchronized with the effect of Amendment IX to the Criminal Law, i.e., although the Interpretation was promulgated on April 18, 2016, its effect can be retroactively extended to the effective date of Amendment IX to the Criminal Law on November 1, 2015.

In addition, on December 7, 2001, the Supreme People's Court and the Supreme People's Procuratorate promulgated the Provisions on Issues Concerning the Temporal Effect of the Application of Criminal Judicial Interpretations (hereinafter referred to as the "Provisions"), which clearly stipulates: "2. For acts that occurred before the implementation of the judicial interpretation, there was no relevant judicial interpretation at the time of the act, and the cases that have not been handled or are being handled after the implementation of the judicial interpretation shall be handled in accordance with the provisions of the judicial interpretation. III. For conduct that occurred before the implementation of the new judicial interpretation, where there was already a relevant judicial interpretation at the time of the act, it is to be handled in accordance with the judicial interpretation at the time of the act, but where the application of the new judicial interpretation is beneficial to the criminal suspect or defendant, the new judicial interpretation is to be applied. IV. For cases that have already been completed before the implementation of the judicial interpretation, in accordance with the laws and judicial interpretations at the time, where there is no error in the determination of facts and application of law, there is no change. ”

Specifically, in judicial practice, the application of a judicial interpretation should first depend on whether there were other interpretations on the same issue before the interpretation was issued, and if there is no other interpretation, the interpretation is the only judicial interpretation, and the interpretation shall apply.

If two interpretations are issued on the same issue and there is a contradiction in the content, the judicial interpretation that is favorable to the criminal suspect or defendant should be selected as the basis for conviction and sentencing.

Compared with the old law, the punishment of the revised Criminal Law and related judicial interpretations is obviously lighter, and in this case, the principle of applying the criminal law should be followed, and the new standard of lighter punishment should be applied to convict and sentence the defendant.

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Author: Zhang Chun, a partner of Guangdong Zhiheng (Guangzhou) Law Firm, focusing on the defense of economic crime cases