Experts Suggest Amending Article 383 of “Criminal Law” of the People’s Republic of China
According to China Youth Daily, the Second Intermediate Court in Beijing issued a court decision for the bribery, or embezzlement trial of the former Secretary of the Guizhou Communist Party Committee, Liu Fangren. Liu was convicted of bribery and sentenced to lifetime imprisonment. Money he received from bribery, 6.6 million yuan (~$800,000) and 19,900 U.S. dollars, and all of his personal assets will be confiscated. On the same day, the People’s Intermediate Court of Shenzhen rendered a judgment in the case of Huang Yihui, the former Secretary of the Communist Party Committee and Director of Shenzhen Bureau of Road Administration, who is also Director of the Bureau of Municipal Civil Administration. Initially Huang received the death penalty for the charge of bribery and five-year imprisonment for receiving a huge amount of assets from an unidentifiable source. The final sentence for several crimes Huang had committed was death penalty with two years stay of execution, deprivation of political rights for life and confiscation of all personal assets (valued at approximately 35 million yuan.) (News source: both excerpted from New Beijing, June 30, 2004.)
According to Criminal Law, bribery or embezzlement of up to 100,000 yuan or more carry death penalty for the offender. However, we haven’t seen such a penalty handed down from a court. Even for those who bribed, or accepted bribery of amounts of not less than 100,000 yuan, the death penalty was rarely seen in sentencing. It’s reasonable to raise this question: why do judges have such enormous discretion in making decisions?
To get to the root of the matter, the loophole exists in the law itself. Article 383 of Criminal Law states that persons who embezzle not less than 100,000 yuan shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and may also be sentenced to confiscation of property; if the circumstances are especially serious, he shall be sentenced to death and also to confiscation of property. Article 386 provides that whoever has committed the crime of acceptance of bribes shall, on the basis of the amount of money or property accepted and the seriousness of the circumstances, be punished in accordance with the provisions of Article 383.
A detailed analysis of Article 383 reveals that it is very problematic. Based upon Article 383, what rationale for sentencing would the judge use for those who embezzle not less than 100,000 yuan? The sentencing could carry many options, such as fixed-term imprisonment, life imprisonment, or even the death penalty. As for the death penalty, it could also be imposed with several years’ stay of execution. There are many options for fixed-term imprisonment as well: ten years, fifteen years, twenty years, etc. Then, what are the criteria for judgment? This is the first argument.
Second, Article 383 is applicable to those who embezzle not less than 100,000 yuan. No ceiling has been defined. One can interpret it as an infinite amount. Such a statement is equal to giving those who embezzle and bribe more audacity and room to be greedy. In terms of sentencing, those who embezzle 100,000 yuan are subject to “more than 10 years imprisonment,” the same as those who embezzle millions or tens of millions yuan. Then, what on earth is the difference between not less than 100,000 yuan and millions or tens of millions of yuan? Isn’t it just a judgment call by the judge?
Third, “if the circumstances are especially serious, he shall be sentenced to death and also to confiscation of property.” What indeed is an “especially serious” circumstance? What is a “circumstance?” How does one define “especially serious?” What is the extreme of “especially”? If even several million or tens of millions of yuan, which could exceed ten or several hundred-fold of the amount of 100,000 yuan, do not constitute an “especially serious circumstance,” what then is the criterion for an “especially serious circumstance?”
This reminded me of an ironclad law. When the Red Army was in Yanan, there was a “General Program of Border Area Discipline.” Within the “General Program,” there was an unequivocal law found in “Rules of Personnel of Government Affairs,” which read, “Those who embezzle up to 50 yuan or more are subjected to removal from office; those who embezzle up to 500 yuan or more will be subjected to death penalty.” What was the worth of 500 yuan back then? It was, at most, a cadre’s salary earned in two or three years time. Perhaps the law was not complete or perfect at that time, but it was put in an unambiguous way. In comparison, our current law lacks accuracy and precision; they give too much room for interpretation, such as when specifying “no less than” a certain amount. Words such as “especially serious circumstance” are too ambiguous to be used in making laws. If the law invites too much room for imagination, the judge could interpret it either broadly or narrowly. Undoubtedly, such ambiguity undermines the dignity and authority of the law. It is very ineffective in punishing corruption. Corruption cases involving more than millions and/or tens of millions yuan are on the rise steadily nowadays. It is probably related to the broad discretion of judges in making decisions.
One thousand people in an audience will probably be inspired with one thousand different interpretations of “Hamlet.” It’s just such a huge canvas for one’s imagination. This is the charm of art. However, there should be no room left for imagination in law. It should not be permitted to interpret the same law one way or another. Thus, Article 383 and 386 fall short, in terms of precise guidance for those in the judiciary. To a certain extent, it has become a protective shield for corrupt officials. It must be amended.
Based on a report at Protecting Citizens Rights website: http://www.gmwq.org/web/news_view.asp?newsid=124