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2022-11-01 10:49:47

As rising prosperity and technological advances transform Chinese society, the nation’s criminal profile is changing dramatically. In the past decade or so, the number of violent felonies has plunged while new forms of misdemeanors emerged, creating new challenges for the legal system.

From 2013 to 2021, the number of serious violent crimes including murder, robbery and kidnapping declined by nearly 30%, according to data released by the Supreme People’s Court in July. Nearly 85% of all criminal convictions in 2021 ended with light sentences of less than three years imprisonment.

From 1999 to 2019, the number of people prosecuted for serious violent crimes dropped from 162,000 to 60,000, an average decrease of 4.8% annually. In 2019, 21% of those convicted were sentenced to jail terms of more than three years, compared with 45.4% a decade earlier, the Supreme People’s Procuratorate said in its 2020 work report.

Zhang Jun, the Procurator-General, said during the top legislative meeting in 2021 that China’s crime structure has changed significantly with a shrinking share of felonies but rising numbers of misdemeanors.

The changes reflect the country’s enhanced governance and improved law enforcement capacity with the use of new technologies such as big data and cloud computing, said Lu Jianping, a law professor at Beijing Normal University. This is also because of alterations in people’s lifestyles such as the rising popularity of automobiles and online transactions.

China identified drunk driving as a criminal offense in 2021 subject to as much as six months detention and fines. Since then, the number of people charged with impaired driving has increased significantly. In 2021, prosecutors pursued such charges against 350,852 people, accounting for about 20% of criminal cases that year.

A 2015 revision of the Criminal Law added assisting in cybercrimes as a criminal offense subject to as many as three years of imprisonment in response to a surge in online and telecom scams. The charge applies to those who intentionally apply technology, marketing or transaction assistance to criminal activities in cyberspace. In 2021, nearly 130,000 people were prosecuted on such charges, an eight-fold increase from the previous year and ranking third among all criminal cases behind impaired driving and theft.

The new trends are pressing judicial departments to adapt and explore changes in the handling of less serious violations, shifting away from a stance of severe punishment and toward greater leniency.

Excessive punishment for light crimes will only cause more conflicts and hostility.

“The statistics showed that in general, the era of misdemeanor crimes has come, which is the progress of the rule of law,” said Chang Zheng, a founding partner of Beijing Hengning Law Firm. “But at the same time, the number of serious crimes is still large, and the society is still not peaceful.”

In April 2021, top prosecutors established a principle of prudent detention and prosecution for criminal cases, providing a framework for dealing with misdemeanors.

In September, the highest court issued new rules governing bail to support the more lenient posture toward less severe offenses. Local authorities have also taken steps to test new practices to develop a more tolerant system, such as expedited processing of minor crimes, opting for community service instead of prosecution and sealing minor criminal records for female offenders to reduce the impact on their lives.

Legal experts are calling for a more rational view of crimes and systematic arrangements to properly handle offenses with different levels of severity. “Misdemeanors should not be treated as severe as felonies, and excessive punishment for light crimes will only cause more conflicts and hostility,” said Li Rongbin, chief prosecutor in Pingshan District, Shenzhen.

Defining misdemeanors

Despite lingering disputes over the classification of misdemeanors, judicial departments in practice normally treat offenses punishable with less than three years of imprisonment as minor crimes.

But legal experts differ on whether the classification should be based on penalties written in the law or actual sentences by courts.

Wu Hongyao, professor of criminal law at China University of Political Science and Law, said misdemeanors should be defined as offenses subject to less than three years jail time in criminal code. “Misdemeanors in the legislative sense are distinct, as such criminal acts are dangerous to society, but the offenders as people are not necessarily socially dangerous,” Wu said.

Others called for a broader definition. Zhang Bo, a senior judge on the Chongqing High Court, said that although some crimes are subject to a maximum penalty of more than three years, the cases of offenders who receive lighter punishments should still be treated as misdemeanors.

Judicial practitioners in China have often opted to follow the broader approach to classifying minor crimes in recent years, taking into consideration both legal terms and actual sentences, Caixin learned.

In 2021, more than 85% of China’s convicted criminals received less than three-year jail terms, compared with 76.7% in 2011. From 2009 to 2020, the country’s homicide convictions fell by half from 14,667 to 7,157 while the number of robbery cases plummeted from 283,243 to 11,303.

But the country’s Criminal Law has also been expanded over the years with the addition of 27 new offenses, mostly misdemeanors like drunk driving and throwing objects at high altitude such as tall buildings.

Social changes require the laws to protect new rights such as privacy and personal data security by adding new crimes and punishments, Lu said.

Leaning toward leniency

How to interpret the law regarding new forms of violations and set fair penalties is the main issue facing judicial practitioners, said Shi Yanan, deputy chairman of the Chinese Society of Criminology.

The orientation of criminal law in modern societies is tough but not draconian, meaning the law must be strictly formulated but punishments should not be excessively severe, Li said. The principle is restraint and prudence, he said.

Legal experts in recent years have increasingly called for abandoning a felony mindset in dealing with misdemeanors and for more sophistication in the law of criminal procedure to differentiate the handling of minor crimes from that of serious ones.

The lack of specifics in handling misdemeanor cases means police tend to follow the same procedure for minor offenses as for felonies.

The lack of specifics in handling misdemeanor cases means police tend to follow the same procedure for minor offenses as for felonies, often leading to excessive apprehensions, Lu said. This generates excessive costs for society and causes unnecessary pain for suspects, he said.

The handling of misdemeanors should consider the most reasonable and effective methods to correct criminal behaviors, Wu said. “Criminal penalties are not the only choice, and it is not necessary to put all offenders convicted of minor crimes into prison,” Wu said.

In developed countries such as the United States and France, a set of systematic arrangements has been designed to handle minor crimes, including practices such as simplified legal proceedings and various noncustodial sentencing options such as fines and community service.

Chinese authorities have taken steps toward change. In April, the top procuratorate said the judicial system should follow the principle of prudent detention and prosecution. Two months later, the central government issued guidelines requiring law enforcers to seek a proper balance in handling criminal cases and lean toward leniency for those pleading guilty.

Miao Shengming, head of the first prosecutor’s office at the Supreme People’s Procuratorate, said in a public speech that the prudency principle means that leniency should be granted for most minor crimes.

Changes are immediate. Data from the top procuratorate showed that about 39% of criminal suspects were not detained before prosecution in the first half of 2022, rising from 17.9% in 2013. About 23% of suspects avoided prosecution, compared with only 4.9% in 2013.

In September, the top court, the top procuratorate, the Ministry of Public Security and the Ministry of State Security jointly revised the rules governing bail, making explicit that suspects who don’t pose a danger to society should be allowed bail.

The leniency posture applies not only to individual offenders but also to companies involved in criminal cases. Since 2020, the top procuratorate has pushed forward pilot programs in several localities to allow eligible companies to avoid prosecution for minor violations such as tax-related offenses and pollution, offering opportunities for businesses to correct flaws without major business disruption.

Testing reforms

“Efficient and fair judicial processing protects human rights,” said Pingshan District Procuratorate’s Li.

In May, the Pingshan Procuratorate, along with local law enforcement authorities, released a set of guidelines for a pilot program to simplify the processing of misdemeanor cases. According to Li, the program applies to offenses with clear evidence and no dispute in which the suspects plead guilty and face less than three years imprisonment.

According to the Pingshan Procuratorate, the average time spent on investigation and trials for misdemeanor cases has been cut by 75% since the launch of the pilot program.

Other places such as Xiangyang city in Hubei province are testing community service for minor criminal offenders to avoid prosecution.

Legal experts also suggested increasing the use of fines and probation to replace jail terms for minor offenders. “It is a global trend to increase the application of fines for minor crime punishment and reduce the use of imprisonment,” said Chongqing High Court’s Zhang.

The pace of legislation has lagged behind judicial practice.

But the changes face limits due to the constraints in China’s current law of criminal procedures, which lacks provisions to support the changes. The pace of legislation has lagged behind judicial practice, Li said.

In August 2021, the Intermediate Court of Zhangzhou city in Fujian province initiated the country’s first test of sealing the criminal records of females convicted of minor offenses.

The test was lauded as a pioneering step toward eliminating the impact of conviction records for certain offenders, which often blocks them from starting a new life.

But the Zhangzhou pilot program was halted not long after it started. A source from the intermediate court said the rules for the program needed to be more detailed.

Zhang said the Zhangzhou test faces legal obstacles as the current Criminal Law stipulates that offenders report their conviction records to communities, employers, and other entities after their release.

The elimination of misdemeanor criminal records is a key step toward humanizing the judiciary system, Li said. “As the crime structure changes, the justice system should also step up its development,” Li said.

Reporter: Yang Liu, Shan Yuxiao and Han Wei.

This article was originally published by Caixin Global. It has been republished here with permission.

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