Chapter IV Concrete Application of Criminal Punishment

Section 1 Sentencing

Article 61 Punishment to be imposed on an offender shall be determined based on the facts of the crime, the nature and circumstances of the crime and the gravity of harm to society, in accordance with the relevant provisions of this Law.

Article 62 Where the circumstances of the crime committed fit into those for a heavier or lighter punishment provided by this Law, the offender shall be sentenced within the range of the statutory punishment.

Article 63 Where the circumstances of the crime committed fit into those for a mitigated punishment provided by this Law, the offender shall be sentenced to a punishment below the statutory punishment. Where this Law provides several sentencing ranges, the punishment shall be determined within the next range of punishment below the statutorily prescribed one.

An offender not eligible for a mitigated punishment as prescribed by this Law may still, in light of the special situation of the case and with approval from the Supreme People’s Court, be sentenced to a punishment below the prescribed one.

Article 64 All property illegally obtained by an offender shall be recovered, or the offender shall be ordered to return it or pay compensation for it. The lawful property of victims shall be returned without delay. Contraband and the offender’s personal property which has been used for the commission of a crime shall be confiscated. All confiscated property and fines shall be turned over to the State Treasury and shall not be misappropriated or be dealt with without authorization.

Section 2 Recidivists

Article 65 A recidivist is an offender who has been sentenced to fixed-term imprisonment or an even heavier punishment and, within 5 years after the completion of his sentence or the granting of pardon, commits another crime punishable by fixed-term imprisonment or an even heavier punishment. A recidivist shall be subjected to a heavier punishment. However, any crime committed negligently or committed when an offender is under the age of 18 shall not be counted when the court determines whether the offender is a recidivist.

For an offender released on parole, the period prescribed in the preceding paragraph of this Article shall be calculated from the date of the expiration of the parole.

Article 66 An offender who was ever convicted of the crime of endangering national security, the crime of terrorist activities or organized crime of a gang nature and, after the completion of his sentence or the granting of pardon, commits any of the aforementioned crimes again at any time, shall be convicted and punished as a recidivist.

Section 3 Voluntary Surrender and Meritorious Performance

Article 67 Voluntary surrender means that an offender, having committed a crime, voluntarily surrenders himself and makes a truthful confession on the crime he has committed. A voluntarily surrendered offender may be subjected to a lighter or mitigated punishment, and may be exempted from punishment if the crime he has committed is a relatively minor one.

Where a criminal suspect or defendant who is under a compulsory measure or a convict who is serving his sentence makes truthful confession on another crime he committed which is still unknown to the judicial organs, he shall be considered as having voluntarily surrendered himself.

A criminal suspect who makes truthful confession may be given a lighter punishment although his confession does not fit within the definition of voluntary surrender as is provided in the preceding two paragraphs, and may be given a mitigated punishment if any especially serious consequence is avoided for his truthful confession.

Article 68 An offender who carries out meritorious performance such as reporting a criminal activity of another person which is later verified, or providing an important clue that leads to the solving of another case, may be subjected to a lighter or mitigated punishment. An offender who carries out major meritorious performance may be given a mitigated punishment or be exempted from punishment.

Section 4 Combining Punishments for Multiple Crimes

Article 69 Where a person commits more than one crime before a judgment is rendered, except where a death penalty or life imprisonment is to be imposed, the term of the sentence shall be determined as appropriate and shall be not longer than the accumulated total of terms for all crimes committed, but not shorter than the maximum punishment of all the punishments meted out respectively for the crimes committed. However, the combined term of non-custodial correction shall not exceed 3 years; the combined term of short-term custody shall not exceed 1 year; and the combined term of fixed-term imprisonment shall not exceed 20 years if the cumulative term of punishment is less than 35 years, and shall not exceed 25 years if the cumulative term of punishment is not less than 35 years.

Of the punishments imposed for multiple crimes, where there is both fixed-term imprisonment and short-term custody, fixed-term imprisonment shall be executed. Where there is both fixed-term imprisonment and non-custodial correction, or both short-term custody and non-custodial correction, non-custodial correction shall still be executed after the execution of fixed-term imprisonment or short-term custody finishes.

Where punishments imposed for multiple crimes include any supplementary punishment, the supplementary punishment shall also be executed. In the case that supplementary punishments imposed are of the same type, they shall be combined for execution and shall be executed separately if they are of different types.

Article 70 Where, after a judgment is rendered on a crime but before the sentence thereunder is completely executed, it is discovered that the convicted had committed another crime before the said judgment was rendered, for which he has not been sentenced, a judgment for the newly discovered crime shall be rendered, in which the combined punishment to be executed for this crime and the earlier crime shall be determined in accordance with the provisions of Article 69 of this Law. The term that has already been served shall be counted towards the term determined in the new judgment.

Article 71 Where, after a judgment is rendered on a crime but before the sentence thereunder is completely executed, the convicted commits another crime, a judgment for the newly committed crime shall be rendered, and the punishment to be executed shall be determined by combining the punishment for this crime and the remainder of punishment for the earlier crime in accordance with the provisions of Article 69 of this Law.

Section 5 Probation

Article 72 Probation may be granted to offenders sentenced to short-term custody or fixed-term imprisonment of not more than 3 years if all the following conditions are met, among whom those under the age of 18, pregnant women, and those at or above the age of 75 shall be granted probation:

(1) that the circumstances of the crime are relatively minor;

(2) that the offender has shown repentance;

(3) that the offender poses no risk of committing another crime; and

(4) that the granting of probation does not have a major adverse influence on the community in which the offender lives.

As probation is granted, in light of the relevant situation of the crime, the offender may be concurrently prohibited from engaging in certain activities, or entering certain areas or premises, or having contacts with certain persons during the probation period.

The supplementary punishment, if any, imposed on an offender granted probation shall still be executed.

Article 73 The period of probation for short-term custody shall be not less than the term of custody originally decided and not more than 1 year, but it shall not be less than 2 months.

The period of probation for fixed-term imprisonment shall be not less than the term of imprisonment originally decided and not more than 5 years, but it shall not be less than 1 year.

The period of probation shall begin on the date when the judgment is made final.

Article 74 Probation is not applicable to a recidivist or a ringleader of a criminal group.

Article 75 An offender on probation shall observe the following provisions:

(1) abiding by laws and administrative regulations and submitting himself to supervision;

(2) reporting his activities in accordance with the rules set by the supervising authority;

(3) obeying the rules regarding meeting visitors set by the supervising authority; and

(4) reporting to and obtaining approval from the supervising authority organ before leaving the city or county where the offender lives, or for a change of residence.

Article 76 An offender on probation shall be subjected to community correction in accordance with the law. If no circumstances as prescribed in Article 77 of this Law exist, the punishment originally decided shall no longer be executed on the expiration of the probation period and a pronouncement to this effect shall be made.

Article 77 Where an offender on probation commits a new crime or it is found that a judgment is yet to be made on another crime he had committed before the judgment granting the probation was rendered, the probation shall be revoked and a judgment shall be made on the newly committed or found crime. The punishment to be executed shall be determined combining the punishment originally decided and the punishment for the newly committed or found crime in accordance with the provisions of Article 69 in this Law.

Where an offender on probation violates laws, administrative regulations, or the provisions on the supervision and administration of probation of the relevant departments under the State Council, or violates the restraining order given in the judgment of the people’s court, the probation shall be revoked and the punishment originally imposed shall be executed where the circumstances are serious.

Section 6 Commutation

Article 78 An offender sentenced to non-custodial correction, short-term custody, fixed-term imprisonment or life imprisonment may have his sentence commuted while serving the sentence, if the offender observes prison rules, accepts education and rehabilitation, shows sincere repentance, or carries out meritorious performance. His sentence shall be reduced if he has carried out any of the following major meritorious performance:

(1) preventing a major crime from being committed by others;

(2) reporting a major criminal activity in or outside the prison, which is later verified;

(3) making an invention or a major technological innovation;

(4) rescuing others in work and daily life while risking his own life;

(5) making great contributions to fighting against a natural disaster or preventing a major accident; or

(6) making other major contributions to the state or society.

The term of the sentence actually executed after commutation may not be less than the time period listed as follows:

(1) for those sentenced to non-custodial correction, short-term custody or fixed-term imprisonment, not less than half of the term originally decided;

(2) for those sentenced to life imprisonment, not less than 13 years; and

(3) for those sentenced to death with reprieve and for whom commutation is restricted by the people’s court in accordance with the provisions of the second paragraph of Article 50 of this Law, not less than 25 years if his sentence has been reduced to life-imprisonment in accordance with the law after the expiration of the reprieve; and not less than 20 years if his sentence has been reduced to fixed-term imprisonment of 25 years after the expiration of the reprieve.

Article 79 To have the sentence of an offender commuted, the executing authority shall submit a recommendation on commutation of the sentence to an intermediate people’s court or above. The people’s court shall form a collegial panel to adjudicate and, where the offender demonstrates sincere repentance or carries out meritorious performance, render an order for commutation of the sentence. No sentence may be reduced without statutory procedures.

Article 80 The term of fixed-term imprisonment commuted from life imprisonment shall begin at the date when the order for commutation of the sentence is rendered.

Section 7 Parole

Article 81 Where an offender sentenced to fixed-term imprisonment has already served half or more of his sentence, or an offender sentenced to life imprisonment has served 13 years or longer in prison, the offender may be granted parole if he has observed the prison rules, accepted education and rehabilitation, demonstrated sincere repentance, and will no longer pose a risk of committing another crime. Under special situations, granting of parole is not subject to the aforementioned term-serving restrictions upon the approval from the Supreme People’s Court.

Parole shall not be granted to a recidivist or an offender sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment for intentional homicide, rape, robbery, kidnapping, arson, explosion, releasing hazardous substances, or organized crime of a violent nature.

As for whether to grant parole, the impact on the community where the parolee is going to live shall be taken into consideration.

Article 82 The granting of parole to an offender shall be in accordance with the procedures provided in Article 79 of this Law. No parole may be granted without statutory procedures.

Article 83 The period of parole for fixed-term imprisonment is the remaining term that has not been served; and the period of parole for life imprisonment is 10 years.

The period of parole begins on the date when the offender is released on parole.

Article 84 An offender granted parole shall observe the following provisions:

(1) abiding by laws and administrative regulations and submitting himself to supervision;

(2) reporting his activities in accordance with the rules set by the supervising authority;

(3) observing rules on meeting visitors set by the supervising authority; and

(4) reporting to and obtaining approval from the supervising authority before leaving the city or county where the parolee lives, or for a change of residence.

Article 85 A parolee shall be subjected to community correction in accordance with the law. If there is no circumstance as prescribed in Article 86 of this Law, upon the expiration of the parole period, the sentence originally imposed shall be regarded as having been served and a pronouncement to this effect shall be made.

Article 86 Where a parolee commits a new crime, the parole shall be revoked and combined punishment for multiple offenses shall be imposed in accordance with the provisions in Article 71 of this Law.

Where it is found that a parolee has not been sentenced for another crime he had committed before the judgment was rendered, the parole shall be revoked and a punishment for multiple offenses shall be imposed in accordance with the provisions in Article 70 of this Law.

Where a parolee violates laws, administrative regulations or rules on the supervision and administration of parole set by the relevant departments under the State Council, which does not constitute a new crime, the parole shall be revoked in accordance with the statutory procedures and the parolee shall be taken back to prison to serve the remaining term of the sentence.

Section 8 Limitation Period

Article 87 A crime shall no longer be prosecuted when the following periods have elapsed:

(1) 5 years, where the maximum punishment prescribed for the crime is fixed-term imprisonment of less than 5 years;

(2) 10 years, where the maximum punishment prescribed for the crime is fixed-term imprisonment of not less than 5 years but less than 10 years;

(3) 15 years, where the maximum punishment prescribed for the crime is fixed-term imprisonment of not less than 10 years; or

(4) 20 years, where the maximum punishment prescribed for the crime is life imprisonment or death penalty. If it is considered that a crime must be prosecuted after 20 years, the case shall be submitted to the Supreme People’s Procuratorate for approval.

Article 88 Where an offender evades investigation or trial after his case is filed for investigation by the people’s procuratorate, the public security organ or the state security organ, or after his case is accepted by a people’s court, the limitation period is not binding.

Where a victim brings an accusation within the limitation period, and the people’s court, the people’s procuratorate, or the public security organ fails to accept the case while it should do so, the limitation period is not binding.

Article 89 The limitation period shall begin on the date when the crime is committed. Where the criminal act is of a continuous or continuing nature, it shall begin on the date when the criminal act is completed.

If the offender commits any other crime during the limitation period, the limitation period of the former crime shall begin on the date when the new crime is committed.