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People’s Republic of China: Economic and Financial Crimes September 2002 LL File No. 2002-13494 LRA-D-PUB-000157 The Law Library of Congress, Global Legal Research Directorate (202) 707-5080 (phone) • (866) 550-0442 (fax) • [email protected] • http://www.law.gov This report is provided for reference purposes only. It does not constitute legal advice and does not represent the official opinion of the United States Government. The information provided reflects research undertaken as of the date of writing. It has not been updated. 2002-13494 LAW LIBRARY OF CONGRESS PEOPLE’S REPUBLIC OF CHINA ECONOMIC AND FINANCIAL CRIMES The People’s Republic of China extensively revised its Criminal Law in 1997 to include a wide variety of crimes involving illegal economic and financial activities. In terms of scope, organization, and overall clarity, the Law might be said to represent an advance in rule by law, even if not rule of law. However, the Chinese Communist Party still dominates the criminal justice system in the PRC; in particular, through the power of its Central Discipline Inspection Commission to investigate and determine whether Party members should be subject to criminal punishment for alleged offenses. This seems to result in differential application of the Law–between Party members and non-Party members, between Party members with powerful connections and those without, and between Party members whose behavior is singled out to serve as a warning to others and those who may be left untouched because they possess highly sensitive information about or are intimately connected with the top leadership. There are also differences in how the Criminal Law is applied in different time periods and across different regions. Thus, despite the progress that has been made with the enactment of the revised Law, serious flaws in the implementation of equal justice remain and constitute a major o bstacle to the realization of the rule of law in China. The Constitution 1 and the Criminal Law2 of the People’s Republic of China (PRC) claim to provide equal justice under the law. One measure of the realization of equal justice and the rule of law in the PRC is how the Criminal Law, as revised in 1997, treats economic and financial crimes. 3 Another measure is how the Law’s provisions 1 Art. 33, ¶2, states: “All citizens of the People’s Republic of China are equal before the law.” Moreover, art. 5, ¶4, states: “No organization or individual may enjoy the privilege of being above the Constitution and the law.” The current Constitution was adopted by the National People’s Congress on Dec. 4, 1982, and was last revised on Mar. 15, 1999. For a bilingual Chinese-English text, see CHINA LAWS FOR FOREIGN BUSINESS, ¶4-500 (North Ryde, NSW, CCH Australia Limited, 1985-. loose-leaf). 2 Art. 4 states: “The law shall be equally applied to anyone who commits a crime. No one shall have the privilege of transcending the law.” The Criminal Law was adopted on July 1, 1979, and extensively revised on Mar. 14, 1997. It went into effect on Oct. 1, 1997, and was last amended on Dec. 28, 2002. For the 1997 text, see 2 ZHONGHUA RENMIN GONGHEGUO QUANGUO RENMIN DAIBIAO DAHUI CHANGWU WEIYUANHUI GONGBAO [Gazette of the Standing Committee of the National People’s Congress of the People’s Republic of China] 138-218 (Mar. 30, 1997); for an English translation, see 9 THE LAWS OF THE PEOPLE’S REPUBLIC OF CHINA (1997), 21-149 (Beijing, Publishing House of Law, 1998). 3 It may be noted that certain provisions and decisions regarding economic and financial crime that were issued as supplements to the original 1979 Criminal Law remain in effect, but the relevant provisions of the 1997 Law prevail over any provisions involving criminal responsibility (as opposed to administrative penalty), since those provisions were incorporated into the 1997 Law. These provisions and Decisions are listed in Appendix II of the Criminal Law. For example, there are Decisions on the punishment of crimes of disrupting financial order, of tax evasion and refusal LAW LIBRARY OF CONGRESS – 2 are applied in criminal cases–are harsher penalties applied for the same crimes in some cases but not in others? The incidence of such crimes has significantly increased in recent years in tandem with the rapid growth of China’s economy. Corruption in particular remains widespread, despite special government initiatives to control it. In 2001, some 175,364 officials, including 16 at the provincial and ministerial level, received disciplinary sanctions from the C hinese Communist Party (CCP) and the government. Authorities uncovered 174,633 corruption cases and in the first 11 months of the year confiscated 250 million yuan (US$1 equals about 8.4 rmb or yuan) and punished 1,400 people for accepting illegal payment s. 4 The people’s procuratorates (the prosecutorial organs of the judiciary) investigated 36,447 corruption cases involving 40,195 people and more than 4.1 billion yuan. More than 1,300 cases, in which 9,452 people were implicated, involved amounts of about one million yuan each. The people’s courts convicted 20,120 persons for bribe-taking and embezzlement. These included 5 provincial or ministerial level officials, 89 prefecture-level officials, and 419 county-level officials. The Supreme People’s Court and the Ministry of Public Security (police) joined forces in apprehending 3,046 criminals who had fled with embezzled money, recovering 680 million yuan in the process.5 This report will review the relevant provisions of the PRC Criminal Law on embezzlement and bribery and other economic and financial crimes. For purposes of illustration, it will describe examples of high-profile cases dealing with such crimes–in particular, the crime of corruption committed by high officials. Punishments for units (a corporation, enterprise, institution, office, or organization) set forth in the provisions on corruption and economic/financial misconduct have not been included in this review. It may be noted that, unless otherwise stipulated in the relevant provisions, a unit will be fined for commission of a crime, and the responsible persons in charge or those directly at fault will be punished (arts. 30-31). Crimes of Embezzlement and Bribery (arts. 382-396) The Criminal Law of the PRC covers crimes of corruption under Chapter VIII, “Crimes of Embezzlement and Bribery,” articles 382 to 396. It should be noted that specific definitions of such terms as “serious circumstances,” “relatively large,” or “huge” amounts, etc., are not provided in the Law. to pay tax, of smuggling and disseminating (etc.) pornographic materials, and of forging (etc.) Special Invoices for Value-Added Tax. 4 16 Provincial-Level Officials Punished Last Year, PEOPLE ’ S DAILY, Jan. 24, 2002, via http://english.peopledaily.com.cn/200201/24/ print20020124_89240.html. 5 Anti-Corruption Struggle Fruitful, Top Judge, Procurator, PEOPLE ’ S DAILY, Mar. 11, 2002, via http://english.peopledaily.com.cn/ 200203/11/print20020311_91882.html. LAW LIBRARY OF CONGRESS – 3 Embezzlement “Embezzlement” is defined as the appropriation, theft, or swindling of public money or property or its illegal acquisition by other means by taking advantage of one ’s office as a State functionary. The term “State functionary” as used in the Law’s provisions refers not only to staff of government agencies and State institutions but also to managers of State-owned enterprises as well as persons appointed or assigned by these various entities to conduct official business.6 Persons authorized by State organs, State-owned companies or enterprises, State institutions, or people’s organizations to administer and manage State-owned property who take advantage of their office to commit such acts will also be regarded as guilty of the crime of embezzlement (art. 382, paras. 1 and 2). The punishment for embezzlement depends on the seriousness of the circumstances. An individual who embezzles at least 100,000 yuan will be subject to a sentence of at least 10 years to life imprisonment and may also have his/her property confiscated; in especially serious circumstances, the death penalty and confiscation of property may be imposed. If the amount is at least 50,000 but less than 100,000 yuan, the punishment is a minimum of five years’ imprisonment and may also include confiscation of property. A sentence of life imprisonment and property confiscation will be imposed in especially serious circumstances. If the amount embezzled is at least 5,000 but under 50,000 yuan, the punishment will be 1 to 7 years of imprisonment; if the circumstances are serious, the sentence will be 7 to 10 years’ imprisonment. If someone who embezzles at least 5,000 but not more than 10,000 yuan shows “true repentance” after committing the crime and voluntarily returns the embezzled money, he/she may be given a lighter sentence or be exempted from criminal punishment but be given an administrative sanction. A person found guilty of embezzling less than 5,000 yuan will be sentenced to up to two years of imprisonment or criminal detention 7 if the circumstances are relatively serious but will be given an administrative sanction if they are relatively minor (art. 383, para. 1). Anyone who has repeatedly committed embezzlement without being punished will be sentenced on the basis of the cumulative amount of money embezzled (art. 383, para. 2). These provisions also apply to State funct ionaries who accept gifts when engaging in domestic official business or contacts with foreigners but fail to hand such gifts over to the State as required by State regulations and the amount involved is relatively large (art. 394). 6 See Landon Prieur, Anti-Corruption Laws and Regulations in Asia: The People’s Republic of China, 35 ASIA BUSINESS LAW REVIEW, 30 (Jan.
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