10.6092/issn.2531-6133/8150
China is improving its criminal law to gradually reduce the use of the death penalty, particularly in the Eighth and Ninth Amendments, and the law relating to the use of life imprisonment has also been changed in these two amendments, including upgrading it to the maximum punishment for those crimes from which the death penalty has been removed and reforming its termination mechanisms which include life imprisonment with possibility of release (LWPR) and without release (LWOR). In the light of this, following the introductory section, this paper will explore the upgrading of life imprisonment to the maximum punishment in these two amendments and analyze the reasons for this, which include the requirements of the proportionality principle, and the influence of the severe penalty doctrine, as well as political considerations. The paper will then examine the reforms carried out by the two amendments and relative judicial interpretations for the termination mechanism of life imprisonment on the basis of the conditions for its use as a sentence and its prevalence. Finally, the paper will make proposals for improving the current situation. These proposals include reducing the number of crimes punishable by life imprisonment and removing LWOR from the law, as well as explicitly defining applicable conditions.
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Huang Gui
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On Recent Changes to Life Imprisonment in the Context of the Gradual Reduction in the Use of the Death Penalty in China
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On Recent Changes to Life Imprisonment in the Context of the Gradual Reduction in the Use of the Death Penalty in China
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ARTICLES & ESSAYS                                                        https://doi.org/10.6092/issn.25316133/8150




On Recent Changes to Life Imprisonment in the Context of the Gradual
Reduction in the Use of the Death Penalty in China

                                                HUANG GUI †


TABLE OF CONTENTS: 1. Introduction; 2. Life Imprisonment for Crimes no Longer Subject to
the Death Penalty: its Upgrading to the Maximum Punishment and the Reasons for this
Development; 2.1. Upgrading Life Imprisonment to the Maximum Punishment; 2.2.
Reasons for Upgrading Life Imprisonment to the Maximum Punishment; 2.2.1. The
Proportionality Principle: Concerns regarding the Balance between the Punishment and
the Crime; 2.2. The Severe Penalty Doctrine: Concerns Regarding Penalties; 2.3. LWOR
for the Crimes of Embezzlement and Bribery: Political Concerns; 3. Reforms to Life
Imprisonment in the Context of Reducing the Use of the Death Penalty: Applicable
Conditions and Amending the Termination Mechanisms; 3.1. Conditions for Passing a
Sentence of Life Imprisonment; 3.2. Reforming the Termination Mechanisms for Life
Imprisonment: Increasing its Severity; 3.2.1. L.W.P.R.: Commutation; 3.2.2. L.W.P.R.:
parole; 3.2.3. L.W.O.R.: Crimes of Embezzlement and Bribery; 4. Further Reform
Proposals for the Life Imprisonment System; 4.1. Reducing the Number of Crimes
Punishable by Life Imprisonment; 4.2. Opposing LWOR for the Crimes of
Embezzlement and Bribery; 4.3. The Applicable Conditions should be explicitly provided
by the General Provisions of the Criminal Law; 5. Conclusion.

ABSTRACT: China is improving its criminal law to gradually reduce the use of the death
penalty, particularly in the Eighth and Ninth Amendments, and the law relating to the
use of life imprisonment has also been changed in these two amendments, including
upgrading it to the maximum punishment for those crimes from which h the death
penalty has been removed and reforming its termination mechanisms which include
life imprisonment with possibility of release (LWPR) and without release (LWOR). In
the light of this, following the introductory section, this paper will explore the
upgrading of life imprisonment to the maximum punishment in these two
amendments and analyze the reasons for this, which include the requirements of the
proportionality principle, and the influence of the severe penalty doctrine, as well as
political considerations. The paper will then examine the reforms carried out by the
two amendments and relative judicial interpretations for the termination mechanism
of life imprisonment on the basis of the conditions for its use as a sentence, and its
prevalence. Finally, the paper will make proposals for improving the current situation.
These proposals include reducing the number of crimes punishable by life
imprisonment and removing LWOR from the law, as well as explicitly defining
applicable conditions.

KEYWORDS: Life Imprisonment; Death Penalty; The Eighth Amendment; The Ninth Amendment;
China




                                          UNIVERSITY OF BOLOGNA LAW REVIEW

                                                  ISSN 2531-6133

                                                   [VOL.3:1 2018]

         This article is released under the terms of Creative Commons Attribution 4.0 International License


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            I would like to thank China’s Scholarship Council (CSC No. 201500500019) and the Stipendium Hungaricum
                                                Programme (Reference number: 2015-SH-14036) for their sponsorship.
          Best thanks the Editor in-Chief, Mr. Antonio Alderuccio, and his professional Editorial Team for their excellent
                                                     editing works on my paper. If there is any mistake, it belongs to me.


        1. INTRODUCTION
In terms of the death penalty, China is one of the retentionist states, keeping
company with other states like the United States, the United Arab Emirates,
Japan, India, Iran, Pakistan and fifty-two others.1 In accordance with the White
Paper on Judicial Reform in China, published by the Information Office of the
State Council in 2012, it is emphasized that “China retains the death penalty,
but strictly controls and prudently applies it”. 2 However, the Decisions of the
Central Committee of the Communist Party of China (hereinafter C.P.C.),
launched by the Third Plenary Session of the 18th Central Committee of the
C.P.C. in 2013, to a great extent, “softens” this death policy and promises that
China is implementing the policy of “gradually reducing the use of the death
penalty.” 3 Therefore, we can see that, in terms of legislation, China is making
progress to improve its national law to reduce the possibility of the use of
death penalty in judicial practice. This is clear from the fact that the use of the
death penalty for twenty-two crimes was repealed by the Eighth Amendment
to the Criminal Law of People Republic of China (hereinafter Criminal Law)
(the Eighth Amendment)4 and the Ninth Amendment to the Criminal Law (the
Ninth Amendment)5, in 2011 and 2015, respectively, so that the total number of
crimes punishable by death has been reduced from sixty-eight before 2011 to
forty-six nowadays. Meanwhile, in terms of judicial practice, under the death
policy of the C.P.C., the Supreme People’s Court (hereinafter S.P.C) insists on a


†
 Ph.D. Candidate of the University of Debrecen Géza Marton Doctoral School of Legal Studies.
Email: huanggui598@gmail.com/hg_0125@ 126.com.
1
  See Amnesty International, Death Sentences and Executions in 2015, AI Index ACT 50/3487/2016
(April 6, 2016).
2
  GUÓ WÙ YUÀN XĪN WÉN BÀN GŌNG SHÌ (国务院新闻办公室) [THE INFORMATION OFFICE OF THE STATE COUNCIL
OF THE PEOPLE’S REPUBLIC OF CHINA], zhōng guó dí sī fǎ gǎi gé bái pí shū <(中国的司法改革>白皮书) [The
White Paper on Judicial Reform in China] (Oct. 9, 2012), Zhōng yāng zhèng fǔ mén hù wǎng zhàn
(中央政府门户网站) [THE CENTRAL PEOPLE’S GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA],
http://www.gov.cn/jrzg/2012-10/09/content_2239771.htm.
3
  DECISION OF THE CENTRAL COMMITTEE OF THE COMMUNIST PARTY OF CHINA ON SOME MAJOR ISSUES
CONCERNING COMPREHENSIVELY DEEPENING THE REFORM (NOV. 12, 2013).
4
  Zhōng huá rén mín gòng hé guó xíng fǎ xiū zhèng àn (bā)(中华人民共和国刑法修正案（八)) [The
Eighth Amendment to the Criminal Law of the People’s Republic of China], (adopted by the
Standing Comm.Nat’l People’s Cong., Feb.25, 2011, effective May 1, 2011).
5
  Zhōng huá rén mín gòng hé guó xíng fǎ xiū zhèng àn (jiǔ) (中华人民共和国刑法修正案（九)) [The
Ninth Amendment to the Criminal Law of the People’s Republic of China], (adopted by the
Standing Comm.Nat’l People’s Cong., Aug. 29, 2015, effective Nov.1, 2015).




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policy of retaining the death penalty and also emphasizes the judicial policy of
“strictly controlling and prudently applying it, and making sure that the death
penalty is only imposed on a very few offenders who commit the most heinous
crimes.”6 However, China’s courts have been able to impose the death penalty
for these forty-six crimes on a large number of convicted criminals, according
to an Amnesty International Report.7 In this sense, the great number of crimes
punishable by death makes the whole penalty system become a strict one, 8 in
which, however, as some scholars have argued, “strategies to abolish the death
penalty are only one step on the road to the reformation of the elimination of
extreme sentences.”9 Obviously, with the developing reduction in the use of the
death penalty, life imprisonment (in Chinese, Wuqi Tuxing) will become the
next “extreme sentence”, i.e., “a kind of punishment that deprives the
convicts’ of their rights to freedom and keeps them in prison for the rest of
their lives, under which they are generally asked to accept education and
reform through labor if they are able to work.” 10 It can take two forms, i.e., life
imprisonment with the possibility of release (hereinafter L.W.P.R.) and without
release (hereinafter L.W.O.R.). De jure, life imprisonment is one of the principle
punishments in China’s penal system and the second heaviest punishment
after execution in terms of its severity; and it has also been reformed by the


6
   Cui Jia, Zhōu qiáng, yào jiān chí yán gé kòng zhì hé shèn zhòng shì yòng sǐ xíng dí zhèng cè，fáng zhǐ sǐ
xíng shì yòng chū xiàn dà fú bō dòng
(周强：要坚持严格控制和慎重适用死刑的政策，防止死刑适用出现大幅波动)[Zhou Qiang: to Insist on the
Policy of Strictly Controlling and Prudently Applying the Death Penalty; To Prevent the Number of Uses of
the Death Penalty Having Sharp Fluctuations], zhōng guó rì bào (中国日报) [CHINADAILY.COM.CN] (Jan. 1,
2017), http://www.chinadaily.com.cn/interface/toutiaonew/53002523/2017-01-
14/cd_27955754.html. Here, I have to point out that under China’s special regime, most important
criminal policies, like the death policy, are launched by the C.P.C., and the judicial authorities,
including the S.P.C. and Supreme People’s Procuratorate, have to implement these policies without
giving any other different opinions on them, although they can interpret these policies. For
example, regarding the death policy, one of the former Vice presidents of the Supreme People’s
Court, Huang Ermei, pointed out that, “China will not completely repeal the death penalty within
a quite long period due to China’s lacking the required conditions for repealing the death penalty
de facto and de jure.” See also Huáng ěr méi fǎ guān: zhōng guó zài xiāng dāng shí qī nèi bù néng fèi chú
sǐ xíng (黄尔梅法官：中国在相当时期内不能废除死刑) [The Judge, Huang Ermei: China will not completely
repeal the death penalty within a quite long period], Wǎng yì xīn wén (网易新闻) [WANGYI NEWS] (Mar.
7, 2008), http://news.163.com/08/0307/14/46EJDA5G0001124J.html.
7
  Amnesty International, supra note 1, at 2.
8
  See Chen Xingliang (陈兴良), Fàn zuì fàn wéi dí kuò zhāng yǔ xíng fá jié gòu dí diào zhěng — — 《 xíng fǎ
xiū zhèng àn ( jiǔ ) 》 shù píng 》 (《犯罪范围的扩张与刑罚结构的调整——《刑法修正案(九)》述评) [On the
Expansion of the Scope of the Crime and the Adjustment of the Penalty Structure: Comment on the Ninth
Amendment], Fǎ lǜ kē xué (xī běi zhèng fǎ dà xué xué bào) (法律科学(西北政法大学学报)) [SCIENCE OF
LAW (JOURNAL OF NORTHWEST UNIVERSITY OF POLITICAL SCIENCE AND LAW)], 2016(04), at 179, 184.
9
   Ashley Nellis, Tinkering with Life: A Look at the Inappropriateness of Life without Parole as an
Alternative to the Death Penalty, 67 UNIVERSITY OF MIAMI LAW REVIEW 439, 440 (2013).
10
   GĀO MÍNG XUĀN & MǍ KÈ CHĀNG (高铭暄，马克昌), XÍNG FǍ XUÉ (刑法学) [THE CRIMINAL LAW] 252 (2005).




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aforesaid two amendments, as well as other judicial interpretations, with the
aim of compensating for the deficiencies in the punishment system resulting
from the reduction in the use of the death penalty. In judicial practice, when
selecting a criminal punishment, life imprisonment is always an optional penal
measure alongside the death penalty for lethal, violent crimes, and other
serious crimes, such as embezzlement and bribery, and it is the legally
prescribed maximum punishment for certain crimes. Focusing on the
legislative facts regarding the changes in the use of life imprisonment,
therefore, this paper will examine the fact that life imprisonment has been
upgraded to the maximum punishment for certain crimes in these two
amendments and analyze the reasons for this in the second section, before
exploring the applicable conditions for life imprisonment and its reform
carried out by the two amendments and various judicial interpretations in the
third section. In the final section, further proposals for reform will be offered.




       2. LIFE IMPRISONMENT FOR CRIMES NO LONGER SUBJECT TO THE DEATH PENALTY:

    ITS UPGRADING TO THE MAXIMUM PUNISHMENT AND THE REASONS FOR THIS

    DEVELOPMENT
   2.1. UPGRADING LIFE IMPRISONMENT TO THE MAXIMUM PUNISHMENT
Life imprisonment has been upgraded to the maximum punishment for the
crimes that should have led to the death penalty under the 1997 Criminal Law,
as the Eighth and Ninth Amendments have removed the death penalty as an
option for thirteen crimes and nine crimes, respectively, including seven types
of crimes involving smuggling, seven types of financial crime, two types of
crimes involving control of cultural relics, two types of crimes related to
prostitution, two types of military crimes, one crime of teaching criminal
methods and the crime of larceny. These crimes were punishable by the death
penalty and life imprisonment under the 1997 Criminal Law, i.e. for these
crimes life imprisonment was an optional penal measure provided alongside
the death penalty. For example, the crime of teaching methods of crime was
punishable by the death penalty or life imprisonment under Article 295 of the
1997 Criminal Law, and the applicable conditions of the death penalty or life




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imprisonment for this crime were the same, i.e. “if the circumstance is
especially serious.”11 Life imprisonment became the maximum punishment for
this crime when the Eighth Amendment abolished the death penalty for it; in
accordance with the 1997 Criminal Law, the death penalty and life
imprisonment could also be imposed on an offender who commits larceny in
the same circumstances, i.e., if the offender steals from a banking institution
and the amount involved is especially large, or steals precious cultural relics
and the circumstances are serious.12 However, in the light of Article 152 of the
1979   Criminal     Law,    the    maximum        punishment       for     larceny         was        life
imprisonment rather than the death penalty, 13 and it was amended by the
National People's Congress (hereinafter N.P.C.) Decision on Severely Punishing
Criminals Who Seriously Undermine the Economy (March 8, 1982). In
accordance with this Decision, if the circumstances are especially serious, the
offender shall be sentenced to death or life imprisonment. 14 Currently, the
maximum punishment for larceny has become life imprisonment, again. In
accordance with the 1997 Criminal Law, a person who commits the crime of
smuggling legally proscribed goods shall, if the circumstances are especially
serious, be sentenced to life imprisonment or death.15 The death penalty for
this crime was stipulated by the Supplementary Provisions on Cracking Down
on the Crime of Smuggling (21 January 1988).16 All in all, by examining these
twenty-two crimes in the 1997 Criminal Law, we can see that the applicable
conditions in the Specific Provisions of the Criminal Law for life imprisonment
and the death penalty for these crimes were almost the same, the only
difference being that the “death penalty shall only be applied to criminals who




11
   Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法) [Criminal Law of People Republic of
China], (adopted by the Standing Comm.Nat’l People’s Cong., Jul. 1, 1979, effective as amended
Mar. 14, 1997), art. 295.
12
   Id. art 264.
13
   Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法) [Criminal Law of People Republic of
China], 1997, supra note 11, art. 152.
14
   Standing Committee of the National People’s Congress of the P.R.C. Decision on Severely
Punishing Criminals Who Seriously Undermine the Economy, 8 Mar. 1982, art 1.
15
   Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法) [Criminal Law of People Republic of
China],1997, supra note 11, art. 151.
16
   Quán guó rén mín dài biǎo dà huì cháng wù wěi yuán huì guān yú yán chěng yán zhòng pò huài
jīng jì dí zuì fàn dí jué dìng (全国人民代表大会常务委员会关于严惩严重破坏经济的罪犯的决定) [Standing
Committee of the National People’s Congress of the P.R.C. Decision on Cracking Down on the
Crime of Smuggling], Order no.62, 21 Jan. 1988.




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have committed extremely serious crimes”17 as provided by Article 48; in
addition, Articles 49, 50 and 51 stipulated the use of the death penalty. In these
cases, life imprisonment has developed to become the legally prescribed
maximum penalty without any change in the provisions. Furthermore, it must
be pointed out that the L.W.O.R. is newly provided for the crime of
embezzlement and bribery by the Ninth Amendment even though the death
penalty still remains an available sentence for this crime. L.W.O.R. thus
constitutes a severe punishment, just like the death penalty and is even “worse
than a death sentence”,18 because it keeps convicts in prison for the rest of
their lives. Given that “immediate execution for corruption crimes is rarely
used in recent years in judicial practice,” 19 L.W.O.R. can be considered the
maximum punishment for corruption crimes in judicial practice.



     2.2. REASONS FOR UPGRADING LIFE IMPRISONMENT TO THE MAXIMUM PUNISHMENT
It would appear that the most important reason for life imprisonment being
upgraded to the maximum punishment for those crimes from which the death
penalty is removed in the Eighth and Ninth Amendments is the criminal
punishment structure. Life imprisonment is the second heaviest punishment
after the death penalty; consequently, it is first in line after removing the death
penalty for these twenty-two crimes. However, this is only the ostensible
justification and is not sufficient to explain the substantial reasons why life
imprisonment - rather than punishments such as long-term fixed-term
imprisonment – has been upgraded to the maximum punishment. The deep-
rooted reasons for this, in accordance with the analysis of the Eighth and Ninth
Amendments,           may     be     classified     as    follows:      concerns           regarding            the
proportionality principle, the influence of the severe penalty doctrine, and
political concerns. These three reasons are related to the problems of how to



17
   Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法) [Criminal Law of People Republic of
China], 1997, supra note 11, art. 48.
18
   William W. Berry III, Life-with-Hope Sentencing: The Argument for Replacing Life-Without-Parole
Sentences with Presumptive Life Sentences, 76 OHIO STATE LAW JOURNAL 1051, 1054 (2015).
19
   Zhào bǐng zhì (赵秉志), Lùn zhōng guó tān wū shòu huì fàn zuì sǐ xíng dí lì fǎ kòng zhì jí qí fèi zhǐ — — yǐ
< xíng fǎ xiū zhèng àn ( jiǔ ) > wéi shì jiǎo (论中国贪污受贿犯罪死刑的立法控制及其废止——
以<刑法修正案(九)>为视角) [On Legislatively Controlling the Death Penalty for the Crimes of Embezzlement
and Bribery and its Abolition: From the Perspective of the Ninth Amendment to the Criminal Law], 38 XIÀN
DÀI FǍ XUÉ (现代法学) [MOD. L. SCI.], no. 1, 2016, at 8.




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determine the nature and gravity of the crime, the traditional punishment
concept, and the influence of the special political regime in China.



     2.2.1. THE PROPORTIONALITY PRINCIPLE: CONCERNS REGARDING THE BALANCE BETWEEN THE

PUNISHMENT AND THE CRIME
The proportionality principle is provided by Article 5 of the Criminal Law: “the
degree of punishment shall be commensurate with the crime committed and
the criminal responsibility to be borne by the offender”.20 This principle must
be observed in the whole process of establishing and applying criminal law,
and it reveals the basic rule of the paradoxical movement between crimes and
their punishments; the degree of punishment is decided by the seriousness of
the crime; only serious crimes should be punished severely, while less serious
crimes should receive lighter sentences, i.e., the change in punishment is
caused by the severity of the offence.21 In accordance with this principle, the
Criminal Law “stipulates various punishment ranges for the different qualities
of crimes, but also provides different degrees of punishment for crimes which
are of the same quality but have different circumstances.” 22 To measure the
severity of a crime, China advocates considering two factors together, i.e., the
consequences of the offence in terms of how it endangers society and the
personal      danger      the    offender      represents       to   others. 23         Consequently,
proportionally punishing the corresponding gravity of an offence emphasizes
two aspects, i.e., punishing the crime which has already been committed and
preventing the potential crime in line with the personal danger related to the
possibility of re-offending. Both the death penalty and life imprisonment serve
a function: to remove the slightest possibility of re-offending. This is why they
are always used for the heinous crimes under the Criminal Law.

20
     Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法) [Criminal Law of People Republic
of China], 1997, supra note 11, art. 5.
21
    See GĀO MÍNG XUĀN & ZHÀO BǏNG ZHÌ (高铭暄，赵秉志), ZHŌNG GUÓ XÍNG FǍ LÌ FǍ ZHĪ YǍN JÌN
(中国刑法立法之演进) [THE EVOLUTIONS OF CHINESE CRIMINAL LEGISLATION] 111 (2007).
22
     Lǐ yǒng shēng (李永升) , Zuì xíng xiāng shì yīng yuán zé zài wǒ guó xíng shì lì fǎ zhōng dí tǐ xiàn
(罪刑相适应原则在我国刑事立法中的体现) [Principles of Appropriate Sentencing Applied in China’s Criminal
Legislation], GUÌ ZHŌU MÍN ZÚ XUÉ YUÀN XUÉ BÀO: ZHÉ XUÉ SHÈ HUÌ KĒ XUÉ BǍN
(贵州民族学院学报：哲学社会科学版) [JOURNAL OF GUIZHOU UNIVERSITY FOR ETHNIC MINORITIES
(PHILOSOPHY AND SOCIAL SCIENCE)], No.5, 2009, at 85.
23
   See Lǐ Yǒng Shēng (李永升), Zuì xíng xiāng shì yīng yuán zé dí nèi hán jiě dú (罪刑相适应原则的内涵解读)
[Unscrambling the Intention of the Principle of Suitable Punishment for Crime], GĀN SÙ SHÈ HUÌ KĒ XUÉ
(甘肃社会科学) [GANSU SOC. SCI.], no.4, 2005, at 71, 73.




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Analyzing the twenty-two crimes for which the death penalty was repealed,
fourteen of them involve disrupting the order of the socialist market economy
stipulated in Chapter 3, five are crimes of obstructing the administrative order
provided in Chapter 6, one is the crime of property violation provided in
Chapter 5, and two are military crimes. “Undoubtedly, the crimes punishable
by death provided by the criminal law are all felonies”, 24 and they should be
provided with a correspondingly heavy punishment. As to these twenty-two
crimes, a suitable punishment should be stipulated for them where the death
penalty is repealed. Here, as examples for analysis, we will consider crimes of
disrupting the order of the socialist market economy and of arranging for, or
forcing, another person to engage in prostitution, provided in the Chapter 6.
Specifically, as of the present moment, “the death penalty for economic crimes
has already been repealed completely, except for the crimes of producing and
selling quack medicine and the crimes of producing and selling toxic and
hazardous food.”25 The latter two crimes can be punishable by death under the
Criminal Law if death is caused to another person or especially serious harm is
done to human health. Following this reasoning, the chief reason why these
two economic crimes are still punishable by death is that they can result in the
death of others, and thus bring full ethical accountability and - under the
influence of the “traditional concept of retributive punishment of a life for
life”26 - the death penalty is the universal value proposition of the entire
society for these economic crimes. “Economic crimes are statutory and
administrative offenses legislated with the aim of prohibiting evil.”27 “In
previous judicial experience, a severe punishment policy for economic crimes
has always been adopted so as to ensure the steady development of the social

24
   Chén Xīng Liáng (陈兴良), Jiǎn shǎo sǐ xíng dí lì fǎ lù xiàn tú (减少死刑的立法路线图)[Reduction of the
Legislation Road Map for the Death Penalty], ZHÈNG ZHÌ YǓ FǍ LǛ (政治与法律) [POL. SCI. & L.], no.7, 2015,
at 71, 73.
25
   Yè liáng fāng, ān péng míng (叶良芳，安鹏鸣) , Zhōng guó fèi zhǐ sǐ xíng dí lì fǎ lù jìng jí qí fāng àn —
— yǐ 《 xíng fǎ xiū zhèng àn（ jiǔ ）（ cǎo àn ） 》 dí guī dìng wéi shì jiǎo
(中国废止死刑的立法路径及其方案——以《刑法修正案（九）（草案）》的规定为视角) [The Legislative Road
to Death Penalty Abolition in China and its Solutions: From a Perspective of the Provisions of the Ninth
Amendment to Criminal Law (Draft)], XUÉ XÍ LÙN TÁN (学习论坛) [TRIB. STUDY], no.3, 2015, at 73.
26
   Wáng Lián Hé (王联合), Guān niàn xíng lùn gāng (观念刑论纲) [Introduction of the Penalty Concept], FǍ
XUÉ PÍNG LÙN (法学评论) [L. REV.], no.1, 2013, at 33, 34.
27
   Gāo Míng Xuān， Sū Huìy & Yú Zhìgāng (高铭暄，苏惠渔，于志刚), cóng cǐ tà shàng fèi zhǐ sǐ xíng dí
zhēng tú — —《 xíng fǎ xiū zhèng àn （ bā ） cǎo àn 》 sǐ xíng wèn tí sān rén tán (从此踏上废止死刑的征途
——《刑法修正案（八）草案》死刑问题三人谈) [Setting Out on the Journey to the Abolition of the Death
Penalty: The Trialogue on the Issues of the Death Penalty of the ‘The Eighth Amendment to the Criminal
Law (Draft)], FǍ XUÉ (法学) [L. SCI.], no.9, 2010, at 3, 6.




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economic order”28 because, “from the legislators’ and politicians’ perspective,
the harmful consequence[s] caused by economic crime to the whole economic
system is more severe and accountable than other property crimes”, 29
especially because, in “a state power society” like China, “crimes undermining
economic policy are not just deemed “economic crimes”, but are viewed as a
“crime against the state power”; defined as the most serious crimes, they
should be subject to the most severe punishment.” 30 From this perspective, life
imprisonment is the most suitable punishment for these kinds of economic
crimes, and where the death penalty is repealed, the punishment should be
upgraded to the maximum allowable, in accordance with the proportionality
principle, as its degree of severity is greater than that of fixed-term
imprisonment. As for the crimes of arranging for, or forcing, another person to
engage in prostitution (Article 358), they break the administrative order; to be
precise, “they are crimes that jeopardize social decency (Fang Ai Shehui
Fenghua).”31 Some members of the Standing Committee of the N.P.C. of China
argued that the death penalty for these crimes should not be repealed due to
the fact that the subjective culpability of the mind of the perpetrator is very
greatand they also have the opportunity to commit this crime again. In
everyday life these crimes occur frequently and cause great concerns among
the people and also have a great social impact, and so for these crimes, the
perpetrator has to be executed to assuage the people’s anger.32 A famous case
aaaaa




28
   Yóu Wěi & Zhào Yùn Fēng (游伟，赵运锋), Wǒ guó jīng jì fàn zuì biàn huà yǔ lì fǎ gǎi gé yán jiū
(我国经济犯罪变化与立法改革研究) [Changes in Economic Crimes and Legislative Reform in China], DŌNG
FĀNG FǍ XUÉ (东方法学) [ORIENTAL LAW], no.2, 2010, at 91, 101.
29
   Liú Yuǎn (刘远), Jīng jì fàn zuì sǐ xíng lì fǎ dí duō wéi jiě xī (经济犯罪死刑立法的多维解析) [A
Multidimensional Analysis of Legislation Imposing the Death Penalty for Economic Crime], XIÀN DÀI FǍ XUÉ
(现代法学) [MODERN LAW SCIENCE], no.6, 2007, at 176, 179.
30
   Wang Yunhai, The Death Penalty and Society in East-Asia - How to Understand and Compare the Death
Penalty in China, Japan and South Korea, 40 HITOTSUBASHI J. L. POL. 1, 3-4 (2012).
31
   Chén Xīng Liáng (陈兴良), supra note 24, at 76.
32
   See Chén Lì Píng (陈丽平)], Yī xiē cháng wěi wěi yuán jiàn yì rèn zhēn yán jiū jiǎn shǎo sǐ xíng zuì
míng yuán zé — — zǒu sī hé cái liào zuì děng bù yīng qǔ xiāo sǐ xíng
(一些常委委员建议认真研究减少死刑罪名原则——走私核材料罪等不应 取消死刑) [Some standing committee
members recommend examining carefully the principle of reducing the death penalty: the crime of
smuggling nuclear materials and other crimes should not be exempt from the death penalty] Quán guó rén
mín dài biǎo dà huì (全国人民代表大会) [THE NATIONAL PEOPLE’S CONGRESS OF THE PEOPLE’S REPUBLIC OF
CHINA]         (Dec.        17,        2014),       http://www.npc.gov.cn/npc/cwhhy/12jcwh/2014-
12/17/content_1889148.htm.




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took place several years ago, called the “Tanghui”,33 which caused a national
debate over the issue of the abolition of the death penalty for the crime of
arranging for, or forcing, another person to engage in prostitution. 34 In this
case, the pros and cons of imposing the death penalty for these two crimes
were balanced. The S.P.C, as China’s highest court, finally rejected the death
sentences because the circumstances of the crimes committed by the two
perpetrators are not enough to be imposed on the death penalty. However, the
opposing voices regarding the abolition of the death penalty for these two
crimes continued to be heard until the discussion of the Draft to the Ninth
Amendment. Some women’s welfare organizations sent an advice letter to
N.P.C. to express their strong feelings against the abolition of the death penalty
for these two crimes as they violate the victim’s rights to health, to life and to
sexual autonomy, as well as disturbing the social order, and also because they
are serious crimes of sexual violence; if the death penalty for them is removed,
the potential perpetrator will become encouraged to continue because of the
reduced cost of crime and the weakened legal deterrent, and the attraction of
an exorbitant profit.35 Although the Ninth Amendment did not adopt their
suggestion, severe punishment is still provided for these two crimes just like
the Explanations for the Draft of the Ninth Amendment to Criminal Law states

           These 9 crimes, which are no longer subject to the death penalty,
           which is rarely imposed on the convict who commits them, can be
           punished by the highest punishment, life imprisonment, after the
           abolition of death penalty… For these crimes should be punished
           heavily under the law if they deserve to be and, in order to guarantee



33
    In this case, Tanghui (唐慧) was the mother of the victim, an eleven-year-old girl who was
forced to engage in prostitution by the perpetrators, Zhou Junhui (周军辉), Qin Xing (秦星) and
others. Zhou and Qin were sentenced to death at the first trial and at the retrial, and at the second
and final retrial they were sentenced to life imprisonment. See generally, Táng huì(唐慧)], 360BǍI KĒ
(360百科) [360ENCYCLOPEDIA], http://baike.so.com/doc/1050580-1111313.html; see also Chái Huì Qún
(柴会群)], Shí me zào jiù liǎo táng huì? (什么造就了唐慧?) [What made Tanghui?], Nán fāng zhōu mò
(南方周末) [SOUTHERN WEEKLY] (Aug. 1, 2013) , http://www.infzm.com/content/93030.
34
    See Zhào Bǐng Zhì (赵秉志), Zhōng guó sǐ xíng lì fǎ gǎi gé xīn sī kǎo — — yǐ 《 xíng fǎ xiū zhèng àn（jiǔ）
（ cǎo àn ） 》 wéi zhǔ yào shì jiǎo (中国死刑立法改革新思考——以《刑法修正案（九）（草案）》为主
要视角) [New Thinking on Death Penalty in China: With the Perspective of Amendment IX (Draft) to
Criminal Law], JÍ LÍN DÀ XUÉ SHÈ HUÌ KĒ XUÉ XUÉ BÀO (吉林大学社会科学学报) 55 [JILIN U. J. SOC. SCI.
EDITION] no.1 2015, at 5, 6.
35
   See 9jiā jī gòu jiàn yì xiū gǎi xíng fǎ: jiāng xìng qīn nán xìng nà rù qiáng jiān zuì
(9家机构建议修改刑法：将性侵男性纳入强奸罪) [Nine Organizations Advise Amending the Criminal Law:
Interpreting Sexual Assaults on Males as the Crime of Rape] Xīn huá wǎng (新华网) [XINHUA NET] (Aug. 7,
2015), http://news.xinhuanet.com/legal/2015-08/07/c_128102881.htm.




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          the overall stability of public security, it is certain that the whole
          range of stricter punishments should not be restricted.36

In accordance with this explanation, for the sake of maintaining a tough stance
on these crimes, life imprisonment is the appropriate punishment, from the
perspective of both legislators and politicians. Just as the former Vice Director
of the N.P.C. Law Committee, Huang Taiyun, remarked, “. . . . after removing
the death penalty from these crimes, life imprisonment is still retained for
them. And it [the upgrading of life imprisonment] is appropriate, in
accordance with the proportionality principle, and it may make the penalty fit
the crime.”37



     2.2. THE SEVERE PENALTY DOCTRINE: CONCERNS REGARDING PENALTIES
The severe penalty doctrine, which took root in the mentalities of the rulers of
the different states which have emerged throughout China’s history, has been
transmitted through successive generations, and has had a deep influence on
legislation in different eras. “The concept of ‘penal severity is for chaotic
times, lenient punishment is for peaceful times’ has always been regarded as
the Chinese people’s essential concept of ruling the state and giving peace to
the world for thousands of years.”38 In the long term and under the highly
feudal regime, the thinking regarding punishment was strongly influenced and
marked by a culture which takes nationalism as its premise and criminal
instrumentalism as its basis, integrated with a retribution and deterrence
theory of punishment.39 This thinking regarding punishment was incisively
and vividly demonstrated in the legal utilitarianism period, which extended



36
    Guān yú <zhōng huá rén mín gòng hé guó xíng fǎ xiū zhèng àn (jiǔ) (cǎo àn) > dí shuō míng
(关于<中华人民共和国刑法修正案（九）（草案）>的说明) [THE EXPLANATIONS FOR THE DRAFT OF THE NINTH
AMENDMENT TO CRIMINAL LAW OF PEOPLE REPUBLIC OF CHINA] quán guó rén mín dài biǎo dà huì
(全国人民代表大会) [ NATIONAL PEOPLE’S CONGRESS OF THE PEOPLE’S REPUBLIC OF CHINA] (NOV. 3, 2014),
http://www.npc.gov.cn/npc/lfzt/rlys/2014-11/03/content_1885123.htm.
37
    Huáng Tàiyún (黄太云), xíng fǎ xiū zhèng àn bā > jiě dú ( yī ) (<刑法修正案八>解读(一))[Eighth
Amendment of Penal Law (First Explanation)], RÉN MÍN JIǍN CHÁ (人民检察) [PEOPLE’S PROCURATORIAL
SEMIMONTHLY], no. 6, 2011, at 1, 7.
38
   Hú Xué Xiāng, Zhōu Tíng Tíng (胡学相，周婷婷)], duì wǒ guó zhòng xíng zhǔ yì dí fǎn sī
(对我国重刑主义的反思) [Rethinking the Severity of Penalty in China], FǍ LǛ SHÌ YÒNG (法律适用) [J.L.
APPLICATION], no. 8, 2015, at 71.
39
   See Yù Wěi, Jiǎng Yǔ Yáng (喻伟，蒋羽扬)], duì xīn shí qī zhòng xíng zhǔ yì dí fǎn sī
(对新时期重刑主义的反思)[Rethinking the Severity Penalty Doctrine in the New Age], GUÓ JIĀ JIǍN CHÁ GUĀN
XUÉ YUÀN XUÉ BÀO (国家检察官学院学报) [J. NAT’L PROSECUTORS C.], no. 2, 1997, at 3, 12.




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from 1978 to 1997.40 During this period, “the criminal law was . . . . considered
the tool and means of ruling the state”,41 and criminal punishment was
deemed the most effective deterrent sanction, which best reflects the will of
the national rulers.42 In order to manage society, the ruler is expected to
contain crime and restore social order through criminal penalties.43 To
illustrate this point, we can consider a speech delivered by Deng Xiaoping, who
was the national leader at that time:

           The number of crimes, including serious ones, has increased
           substantially, and the people are very disturbed about this. Over the
           past few years, far from being checked, the tendency has grown.
           Why is that? Chiefly because we have hesitated to take prompt and
           stern actions to combat criminals and have given them very light
           sentences . . . . Serious offenders . . . . should be severely punished
           according to law. A number of criminals should be executed
           according to law . . . . The only way to stop crime is to be tough
           about it.44

Based on this speech, on 25 August 1983 the Communist Party of China C.P.C.
launched the Decision on Cracking Down Severely on Crimes, which claimed
that “cracking down severely on crimes is as serious a struggle of opposites as
that between us and the enemy in the political areas.” 45 Thus, the imposition of
the death penalty upon the so-called enemy was arguably justifiable at that
time. In 1986 Deng emphasized that:



40
    See CuīZìlì (崔自立), cóng rén zhì zǒu xiàng fǎ zhì — — xīn zhōng guó fǎ zhì jiàn shè zhōng fǎ zhì lǐ niàn
dí biàn qiān (从人治走向法治——新中国法治建设中法治理念的变迁)[From Rule by Man to Rule of Law: the
Evolution of the Concept of the Rule of Law during the Construction of New China], GǍI GÉ YǓ KĀI FÀNG
(改革与开放) [REFORM & OPENING], no. 6, 2009, at 8. In this paper, the author argues that in the
process of constructing the rule of law in China, the country has experienced four stages in
different eras, namely, legal instrumentalism, legal nihilism in the Mao Zedong era, legal
utilitarianism in the period from 1979 to 1997, and legal supremacy in the period from 1997 till
now.
41
   Wèi Chāng Dōng (魏昌东), Xīn xíng fǎ gōng jù zhǔ yì dí pī pàn yǔ fǎn sī (新刑法工具主义的批判与反思) [A
New Instrumentalism in Criminal Law: Criticism and Rectification], 法学 [L. SCI.], no. 2, 2016, at 86.
42
       See Dèng Xiǎogāng (邓小刚)], Lùn shè huì guǎn lǐ chuàng xīn shì yù xià dí lǐ xìng xíng fá guān
(论社会管理创新视阈下的理性刑罚观)[On the Rational Concept of Criminal Punishment under the Vision of
Social Management Innovation], KĒ XUÉ SHÈ HUÌ ZHǓ YÌ (科学社会主义) [SCI. SOCIALISM], no. 4, 2013, at
84.
43
   Id.
44
   Deng Xiaoping, “The Selected Works of Deng Xiaoping: vol.3’, The Selected Works of Deng
Xiaoping: Modern Day Contributions to Marxism--Leninism”.
45
   CPC, Decision On Cracking Down Severely On Crimes, NEWS OF THE COMMUNIST PARTY OF CHINA (Sept.
31, 2016), http://cpc.people.com.cn/GB/64162/64165/68640/68665/4739396.html.




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          The death penalty cannot be abolished, and some criminals must be
          sentenced to death . . . . Some criminals must be executed, but of
          course we have to be very careful in such matters. Some of the
          perpetrators of serious economic or other crimes must be executed
          as required by law. As a matter of fact, execution is one of the
          indispensable means of education . . . . “Executing some of them can
          help save many cadres. As the saying goes, execute one as a warning
          to a hundred.”46

In this regard, a Chinese scholar has argued that “the death penalty was
considered as the chief means to achieve the “strike hard (Yanda)” effect, and
its utilitarian effect was taken seriously; its deterrence effect, to a great extent,
was recommended by the ruler.”47 Therefore, after launching the Decision on
Cracking Down Severely on Crimes in 1983, the N.P.C. Standing Committee had
successively adopted twenty-five Special Criminal Laws by the time the current
Criminal Law was passed in 1997. To a great extent, the death penalty system,
as the product of utilitarianism, is based primarily on these special criminal
laws, and on the 1979 Criminal Law. The death penalty was repealed by the
Eighth and Ninth Amendments, which originated from these Special Criminal
Laws.

         Even though the country is now moving towards the era of legal
supremacy and is in the process of constructing a state based on the rule of
law, the concept of the severe penalty still has a great influence on policy
makers and legislators. As for specific policies an obvious example is that the
Chinese government has periodically instituted national crack downs against
crime. Referred to as "strike hard (Yanda)" anti-crime campaigns,48 in which
“harsher punishments were imposed on criminals, usually at a faster pace and
sometimes based on violations of normal procedures”, 49 these are always the
preferred measure adopted by the policymakers to curb crime. As for the
legislation, on the one hand, the traditional concept of “execute one as a


46
   Dèng Xiǎogāng (邓小刚), supra note 42.
47
   Chén Xīngliáng (陈兴良)], Sǐ xíng zhèng cè zhī fǎ lǐ jiě dú (死刑政策之法理解读)[Death Penalty Policies: A
Jurisprudential Perception], ZHŌNG GUÓ RÉN MÍN DÀ XUÉ XUÉ BÀO (中国人民大学学报) [J. OF RENMIN U. OF
CHINA], no. 6, 2013, at 2, 4.
48
   Since 1983, China has launched five rounds of national “strike hard” campaigns, the first in
1983, with others following in 1996, 2001, 2010 and 2014.
49
   Liang Bin, The Severe Strike Campaign in Transitional China, 33 J. OF CRIM. JUST., 301, 387 (2005).




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warning to a hundred” still has great influence on some legislators; for
example, some legislators, while discussing the Ninth Amendment, pointed out
that “a serious crime which has caused great harm to society must be given
severe punishment, so that the potential perpetrators may receive the signal
that a severe penalty shall be imposed on them if they commit these crimes.” 50
On the other hand, according to the requirement that “China carries out
judicial reform based           on its national conditions”,51 stipulating severe
punishments for serious crimes has its own realistic rationale and legitimacy,
due to the fact that China’s reality is always construed by the ruler and
legislator as the real foundation of the severe penalty doctrine in existence at
any given time. For example, the then Vice Director of the N.P.C. Law
Committee, Huang Taiyun, while interpreting the Eighth Amendment, said:

          China is now in a situation where conflict is spreading between
          people, with serious criminal cases and complicated struggles with
          the enemy, [and is] facing a heavy and arduous task of maintaining
          social harmony and stability; it therefore must firmly and correctly
          use the punishment tool of execution to effectively curb the rampant
          rise of crimes.52

Even though these two amendments removed the death penalty from twenty-
two crimes, and some scholars commented positively that the criminal
punishment system is now moving towards a lightening of penalties, mainly
due to the abolition of the death penalty,53 some scholars were critical and
pointed out that the punishment system has not changed and has, if anything,
become stricter.54 An obvious example of this is that the Ninth Amendment


50
   Chén Lì Píng (陈丽平), supra note 32.
51
   Zhōng guó dí sī fǎ gǎi gé bái pí shū <(中国的司法改革>白皮书) [The White Paper on Judicial Reform
in China], supra note 2.
52
   Huáng Tàiyún (黄太云), supra note 37, at 6.
53
   See Liú Yàn Hóng (刘艳红), xíng fá qīng huǎn, rén quán bǎo zhàng yǔ < xíng fǎ xiū zhèng àn bā>
(刑罚轻缓, 人权保障与<刑法修正案（八）>) [Leniency of Punishment, Protection of Human Rights and the
Eighth Amendment to Criminal Law], FǍ XUÉ JIĀ (法学家) [THE JURIST], no. 3, 2011, at 36.; Zhào bǐng zhì
& Jīn yì xiáng (赵秉志，金翼翔), Xíng fá qīng huǎn huà dí shì jiè bèi jǐng yǔ zhōng guó shí jiàn
(刑罚轻缓化的世界背景与中国实践) [On the Leniency of Punishment in the Context of the World and the
Practice in China], FǍ LǛ SHÌ YÒNG (法律适用) [J. L. APPLICATION], no.6, 2012, at 7; Sū Yǒngshēng
(苏永生), biàn dòng zhōng dí xíng fá jié gòu — — xíng (jiǔ duì xíng fá jié gòu yǐng xiǎng (变动中的刑罚结构—
—<刑（九）>对 刑罚结构影响) [The Changing Punishment Structure: The Influences of the Ninth
Amendment on the Criminal Law], ZHŌNG GUÓ SHÈ HUÌ KĒ XUÉ WǍNG (中国社会科学网) [CHINA’S SOCIAL
SCIENCE NET] (Mar. 1, 2016),
http://www.cssn.cn/fx/fx_xfx_984/201603/t20160301_2891951_1.shtml.
54
   See Jiǎ Jiàn & Liú Yuǎn (贾健，刘远), xíng fá jié gòu diào zhěng dí lǐ xìng sī kǎo — — yǐ <xíng fǎ xiū




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provides for L.W.O.R. for the serious crimes of embezzlement and bribery. One
Chinese scholar remarked that “LWOR reflects the policy of severely punishing
corruption, and for the potential offender who commits corruption, it can
function as a deterrent and containment.” 55 Consequently, the thinking behind
using severe punishment to control and deter crime still has a profound effect
on legislators and other Chinese people.



   2.3. LWOR FOR THE CRIMES OF EMBEZZLEMENT AND BRIBERY: POLITICAL CONCERNS
As regards the relationship between law and politics, there are three
characteristics of this relationship, namely politics as a goal, as a means or as
an obstacle.56 As a goal, politics defines certain predominantly legal values or
institutions as its goal, and they are also the same as the values or institutions
of the law; as a means, the law exists merely to fulfill certain political
interests; as an obstacle, law is deemed an obstacle on the way toward the
realization of certain political goals.57 In the light of the legal development of
contemporary China, the law, to a great extent, plays a key role as a means to
fulfill political interests; this is particularly true for the criminal law, which, as
a consequence, is determined by the country’s special political regime.

         According to the Preamble of the Constitution of China, the country is a
one-party state, and the system is one of multiparty cooperation and political
consultation led by the C.P.C.58 The C.P.C. does not only play a political
leadership role, but also directs legislation and law enforcement, and its view
or standpoint is considered the national will and so becomes law. 59 Party-led


zhèng àn (bā)> wéi qiē rù diǎn (刑罚结构调整的理性思考——以<刑法修正案（八）>为切入 点) [Rationally
Thinking on The Adjustment of the Punishment Structure: from the Perspective of the Eighth Amendment],
SHAN DŌNG JǏNG CHÁ XUÉ YUÀN XUÉ BÀO (山东警察学院学报) [J. SHANGDONG POLICE C.], no.4, 2011, at 11.; see
also Wèi Dōng (魏东), xíng fǎ xiū zhèng àn guān chá yǔ jiǎn tǎo (刑法修正案观察与检讨) [Watching and
Criticizing the Amendments to the Criminal Law], FǍ ZHÌ YÁN JIŪ (法治研究) [RES. ON THE RULE L.], no.2,
2013, at 17.
55
   《Zhuān jiā tán xíng fǎ xiū zhèng àn: zhōng shēn jiān jīn ràng jù tān bǎ láo dǐ zuò chuān
(专家谈刑法修正案（九）：终身监禁让巨贪把牢底坐穿) [Experts Discussing the Ninth Amendment to the
Criminal Law: Life Imprisonment without Possibility of Release: Let the Arch Corrupt Official Rot in
Detention] Zhōng guó xīn wén wǎng (中国新闻网) [CHINA NEWS SERVICE WEBSITE](Sept. 8, 2015),
http://www.chinanews.com/ll/2015/09-08/7510951.shtml.
56
   See Miro Cerar, The Relationship between Law and Politics, 15 ANN. SURV. INT’L & COMP. L. 19, 19-401
(2009).
57
   Id.
58
   Xianfa, (1982, last amended 2004).
59
   See Zhōng gòng zhōng yāng guān yú quán miàn tuī jìn yī fǎ zhì guó ruò gān zhòng dà wèn tí dí jué dìng




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legislation is a system with Chinese characteristics. In accordance with the
Constitution of the C.P.C., “leadership by the Party means mainly political,
ideological and organizational leadership”. 60 As an important branch of the
law, with the characteristics of the most compulsory, the criminal                                         law,
“serving as a political tool, is always highly praised,”61 and is led by the Party
and implements the Party’s ruling policies and will. The penalty system,
playing an important role in this, is the embodiment of this kind of mandatory
nature, and is also the result of political expediency; in particular, the death
penalty system “is mainly caused by the excessive politicization of the criminal
law.”62 In a situation in which the crime of embezzlement and bribery is still
punishable by death under Article 383 (3) of Criminal Law, stipulating L.W.O.R.
for this crime is another result of political considerations.                   63
                                                                                     On one hand, the
anti-corruption initiative is now a serious political campaign in China. 64 Upon
taking office in late 2012, China’s President, Xi Jinping, “vowed to crack down



(中共中央关于全面推进依法治国若干重大问题的决定)[Major Questions of Communist Party of China in
Comprehensively Moving the Government of the Country According to the Law Forward]( Oct.30, 2014)
Zhōng guó shè huì kē xué wǎng (中国社会科学网) [CHINA SOCIAL SCIENCE NET], (Oct. 30 2014),
http://www.cssn.cn/fx/fx_ttxw/201410/t20141030_1381703.shtml; Liú Jiāzhēng (刘家征), dǎng dí
lǐng dǎo hé yī fǎ zhì guó gāo dù tǒng yī (党的领导和依法治国高度统一) [On the High Unity of the Party’s
Leadership and Rule by Law], qiú shì wǎng (求是网)[ QIU SHI NET])(Feb. 10, 2015)
http://www.chinadaily.com.cn/interface/toutiaonew/53002523/2017-01-14/cd_27955754.html.
60
       Zhōngguó gòngchǎndǎng zhāngchéng(中国共产党章程)[Constitution of the Communist Party
of China], 2012.
61
     Liú Yuǎn (刘远), xíng fǎ dí dào dé xìng yǔ zhèng zhì xìng (刑法的道德性与政治性)[On the Morality of the
Criminal Law and its Politic], HUÁ DŌNG ZHÈNG FǍ DÀ XUÉ XUÉ BÀO (华东政法大学学报) [J. EAST CHINA U.
POL. SCI. & L.], no.5, 2007, at 54-55.
62
       Id. , at 54.
63
      In this regard, many Chinese scholars have criticized the fact that life imprisonment without
release for the crime is a political option, or emotional legislation. See RÈN ZHÒNG YUAN (任重远),
xíng fǎ xiū zhèng àn jiǔ: piáo sù yòu nǚ zuì méi liǎo, zhōng shēn jiān jīn lái liǎo (刑法修正案九：
嫖宿幼女罪没了，终身监禁来了) The Ninth Amendment to Criminal Law: the Crime of Prostitution Involving
a Girl under the Age of 14 is Abolished and Life Imprisonment without Possibility of Release is Provided,
nán       fāng      zhōu       mò      (南方周末)          [SOUTHERN     WEEKLY]       (Aug.    27,    2015),
http://www.infzm.com/content/111506. In this interview, Professor Chu Huaizhi said that “it (life
imprisonment without release) chiefly reflects political attitudes.” See also Liú xiàn quán (刘宪权),
Xíng shì lì fǎ yīng lì jiè qíng xù — yǐ < xíng fǎ xiū zhèng àn （ jiǔ ） > wéi shì jiǎo (刑事立法应力戒情绪—
以<刑法修正案（九）>为视角) [Criminal Legislation Should Strictly Avoid Emotion: From the Perspective of
the Ninth Amendment], 法学评论 [L. REV.], no.1, 2016, at 86. In this paper, the author pointed out
that “it [the government] may be ‘forced’ by the people to enact legislation inappropriately and
emotionally in order to severely punish corruption officers.”.
64
   WÚ JIÀNXIÓNG (吴建雄), Zěn yàng kàn dài jìn jī nián dí “gāo yā fǎn fǔ” (怎样看待近几年的“高压反腐”)
How to View the ‘Heavy Anti- corruption’ of Recent Years, zhōng guó gòng chǎn dǎng xīn wén wǎng
(中国共产党新闻网)                [COMMUNIST     PARTY      OF   CHINA’S    NEWS    NET]      (Feb.  25,   2016),
http://theory.people.com.cn/n1/2016/0225/c143844-28150603.html; See also ZHÈNG YONGNIÁN
(郑永年) [Zheng Yongnian], yùn dòng shì fǎn fǔ bài fú hé zhèng zhì lǐ xìng (运动式反腐败符合政治理性)
[The Campaign-style of Anti-corruption is Appropriate to Political Rationality], fèng huáng wǎng
(凤凰网) [IFENG NET] (Aug. 13,2014),
http://news.ifeng.com/exclusive/lecture/special/zhengyongnian2/.




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on both “tigers and flies” -powerful leaders and lowly bureaucrats - in his
campaign against corruption and petty officialdom” 65, “with a determination
to inflict heavy punishment for them in this special time”. 66 In this political
context, L.W.O.R. thus has political reasons for its existence. The Deputy
Director of the Criminal Law Office of the N.P.C. Standing Committee, Zang
Tiewei, also noted that “it [L.W.O.R.] is primarily designed for the present
situation of anti-corruption, [based] upon the Mass’s requirements… and to
implement the relative requirements of the central government.” 67 The S.P.C.’s
executive vice-president, Shen Deyong, also notedd that “it fully reflects the
Party     Central       Committee’s          distinct      attitude       toward,          and        steadfast
determination to severely punish, corruption crimes according to the law.”68
On the other hand, The White Paper of Judicial Reform in China emphasizes that
“[i]t (judicial reform) sticks to the line of relying on the people, strives to meet
their expectations, tackles problems of particular concern to the people, and
subjects itself to their supervision and examination”; 69 L.W.O.R. meets the
people’s requirements regarding the anti-corruption initiative. One of the
legislators, while discussing the Ninth Amendment (draft) said that the fact
that a corrupt official can be released early “is one of the basic reasons why the
people are not satisfied with the results of anti-corruption, and it also gives
these corruption officials a chance of “escape from prison.””70 All in all, the
relationship between politics and law has always existed since the founding of
New China in 1949, and the instrumentalism of criminal law, serving as the


65
   “Xi Jinping Vows to Fight ‘Tigers’ and ‘Flies’ in Anti-Corruption Drive”, The Guardian (Jan. 22, 2013),
https://www.theguardian.com/world/2013/jan/22/xi-jinping-tigers-flies-corruption.
66
    WÚ JIÀNXIÓNG (吴建雄), supra note 64.
67
     LǏ JÌNG & LIÚ RÓNG (李婧, 刘茸), Zāng tiě wěi: zhōng shēn jiān jīn bù shì xīn xíng zhǒng shì yòng yú
zhòng tè dà tān wū shòu huì fàn zuì (臧铁伟：终身监禁不是新刑种 适用于重特大贪污受贿犯罪) [Zang Tiewei:
Life Imprisonment without Possibility of Release is not a New Penalty Type, and it is Imposed for the Serious
Crime of Embezzlement and Bribery](Aug. 29, 2015) Rén mín wǎng - zhōng guó rén dà xīn wén wǎng
(人民网-中国人大新闻网)                [PEOPLE      NET       AND     NATIONAL     PEOPLE’S       CONGRESS       NET],
http://npc.people.com.cn/n/2015/0829/c14576-27531201.html.
68
    Zuì gāo fǎ tán duì tān guān zēng shè zhōng shēn jiān jīn: gǎi biàn wú qī míng bù fù shí xiàn xiàng
(最高法谈对贪官增设终身监禁：改变无期名不副实现象) [The Supreme People’s Court Talking about Adding
Life Imprisonment without Possibility of Release for Corrupt Officers: Changes in the Phenomenon of Life
Imprisonment are Changes in Name rather than in Reality](Nov. 5,2015) Rén mín wǎng (人民网)
[PEOPLE’S NET] http://politics.people.com.cn/n/2015/1105/c70731-27782403.html.
69
       Zhōng guó dí sī fǎ gǎi gé bái pí shū <(中国的司法改革>白皮书) [The White Paper on Judicial
Reform in China], supra note 2.
70
      Zhuān jiā tán xíng fǎ xiū zhèng àn (jiǔ) zhōng shēn jiān jīn ràng jù tān bǎ láo dǐ zuò chuān
(专家谈刑法修正案（九）：终身监禁让巨贪把牢底坐穿) [Experts Discussing the Ninth Amendment to
the Criminal Law: Life Imprisonment without Possibility of Release: Let the Arch Corrupt Official
Rot in Detention], supra note 55.




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regulatory tool of politics, is simply manifested in a new form. L.W.O.R. is an
obvious consequence of the new instrumentalism.




          3. REFORMS TO LIFE IMPRISONMENT IN THE CONTEXT OF REDUCING THE USE OF THE

     DEATH PENALTY: APPLICABLE CONDITIONS AND AMENDING THE TERMINATION

     MECHANISMS
There are currently 102 crimes punishable by life imprisonment in the present
Specific Provisions, accounting for 21.79% of a total of 468 crimes. 71 Almost all
of these 102 crimes are provided with a fixed-term imprisonment of not less
than ten years, forty-six of them are stipulated together with the death
penalty, five are provided with a fixed-term imprisonment of not less than
seven years,      72
                       and one is provided with a fixed-term imprisonment of not less
than fifteen years.73 The distribution of crimes punishable by life imprisonment
is shown in Table 1 below. Based on the distribution, this section intends to
examine the life imprisonment system in the Criminal Law of China and the
reforms conducted by the Eighth and Ninth Amendments, together with its
relative judicial interpretations.




See table in the next page




71
      See Xíng fǎ zuì xīn zuì míng yī lǎn biǎo (刑法最新罪名一览表)[Chart Showing the New Crimes in the
Criminal      Law],     zuì    míng     wǎng     (罪名网)     [CRIMINAL    NET]      (Apr.    9,    2016),
http://www.zuiming.net/51.html.
72
     These crimes include crimes involving the producing or selling food that is not up to safety
standards (Article 143), producing fake pesticides, fake animal pharmaceuticals or fake chemical
fertilizers, or selling pesticides, animal pharmaceuticals, chemical fertilizers or seeds (Article 147),
forming or using superstitious sects or secret societies or ‘unusual’ religious organizations or
using superstition to undermine the implementation of laws and administrative rules and
regulations (Article 300), making arrangements for another person to illegally cross the national
border (Article 318), and illegally possessing narcotic drugs (Article 348). See Zhōng huá rén mín
gòng hé guó xíng fǎ (中华人民共和国刑法)[Criminal Law of People Republic of China], amended
2015. This is the newest Criminal Law which is amended by the Ninth Amendment. In order to
differ from 1997 Criminal Law, it is hereinafter referred to as “the Criminal Law, 2015”.
73
   Id. This is the crime of smuggling, trafficking in, transporting or manufacturing narcotic drugs,
provided by Article 347 (1).




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Table 1:74 The distribution of crimes punishable by life imprisonment.



 Crimes and chapters in the Specific Provisions of the Criminal      Number of crimes punishable
 Law                                                                 with life imprisonment



 Crimes of endangering national security                             8
 (Chapter I)


 Crimes of endangering public security                               17
 (Chapter II)


 Crimes of disrupting the order of the socialist market economy      34
 (Chapter III)

 Crimes of infringing upon citizens’ personal and democratic
 rights                                                              5
 (Chapter IV)

 Crimes of property violation                                        4
 (Chapter V)


 Crimes obstructing the administration of public order               14
 (Chapter VI)


 Crimes of impairing the interests of national defence               3
 (Chapter VII)


 Crimes of embezzlement and bribery                                  4
 (Chapter VIII)


 Crimes of dereliction of duty                                       0
 (Chapter IX)

 Crimes of servicemen’s transgression of duties                      13
 (Chapter X)

 Total                                                               102




From Table 1, we can see that the greatest number of crimes involve disrupting
the order of the socialist market economy provided by Chapter III (thirty-four
crimes), followed by crimes of endangering public security in Chapter II,
(seventeen crimes); there is no crime punishable by life imprisonment in
Chapter IX.




74
     Id.




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     3.1. CONDITIONS FOR PASSING A SENTENCE OF LIFE IMPRISONMENT
In the General Provisions of the Criminal Law, there is no special provision to
stipulate directly the applicable condition for life imprisonment, such as is
provided for the use of the death penalty in some articles. 75 However, in the
light of Article 17, a criminal punishment, including life imprisonment, cannot
be imposed on a person who had not reached the age of fourteen-years-old
when he or she committed the crime. A person who was over sixteen at the
time he or she committed the crime shall be given a criminal punishment,
including life imprisonment; but a person who has reached the age of fourteen
but not the age of sixteen, and has committed intentional homicide,
intentionally hurts another person so as to cause serious injury or death, or
commits rape, robbery, drug-trafficking, arson, explosion or poisoning, has
criminal liability,76 although generally, he or she is not sentenced to life
imprisonment according to relative judicial interpretation. 77 In addition, under
the present Criminal Law, a person who has reached the age of seventy-five
may also be sentenced to life imprisonment if he/she has committed a crime
punishable by life imprisonment and/or death, even though Article 17-1, which
was added by the Eighth Amendment,78 provides that a person who has reached
the age of seventy-five may be given a lighter or mitigated penalty if he/she
commits an intentional crime.79 When considering other states, we can see that
their provisions for the use of life imprisonment are stricter than China’s. For
example, in accordance with Article 57 of the Romanian Penal Code, life
imprisonment shall not be imposed on an offender who has turned sixty-five
years of age at the date when the judgment to convict is returned, but shall be
replaced by a prison term of thirty years and a ban on the exercise of certain
rights for the maximum duration of the prison sentence80 and “life


75
   Id. These articles include Articles 48, 49, 50 and 51.
76
   Id. art 17.
77
   See Zuì gāo rén mín fǎ yuàn guān yú shěn lǐ wèi chéng nián rén xíng shì àn jiàn jù tǐ yīng yòng fǎ
lǜ ruò gān wèn tí dí jiě shì (最高人民法院关于审理未成年人刑事案件具体应用法律若干问题的解释) [The
SPC’s Interpretation on Several Legal Issues concerning the Specific Application of the Law in
Handling the Criminal Cases of Juveniles], Fǎ shì (法释) [2006]1 Hào (号) [Legal Interpretation no.1,
2006], art 13.
78
    Zhōng huá rén mín gòng hé guó xíng fǎ xiū zhèng àn (bā) (中华人民共和国刑法修正案（八）) [The
Eighth Amendment to the Criminal Law of the People’s Republic of China], supra note 4, art. 1.
79
   Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法)[Criminal Law of People Republic of
China], 2015, supra note 72, art 17-1.
80
   Criminal Code of the Republic of Romania, LAW # 286 of 17 July 2009, art 57.




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imprisonment is also not going to be applied for the minor offender”. 81 Under
the Hungarian Criminal Code, only persons over the age of twenty at the time
of the commission of the crime shall be sentenced to life imprisonment. 82
Except for these considerations relating to age, in the Criminal Law of China,
there is no specific general provision referring to the applicable conditions for
life imprisonment. However, conditions are provided by the Specific Provisions
in all kinds of crimes punishable by life imprisonment, and they include the
following types:

          1) Life imprisonment for “action crimes” (行为犯，xingweifan). The
actus reus of action crimes here is simply an act or behavior which is proved to
have already been committed, the consequences of which are immaterial, and
which is an important type of crime; most of these crimes are generally
relatively serious and are provided with a correspondingly heavy penalty, such
as the death penalty and life imprisonment. In the Criminal Law, life
imprisonment         is   normally       provided      for     action    crimes         without           any
consideration of circumstances or any other conditions; it is normally a
mandatory sentence, and in some crimes, it is the maximum legally prescribed
penalty. These action crimes include treason (Article 102), aiding the enemy
(Article 112), forming or leading a terrorist organization (Article 120), aircraft
hijacking (Article 121), intentional homicide (Article 232) and stealing, spying
into or buying military secrets for, or illegally offering such secrets to
agencies, organizations or individuals outside the territory of China (Article 431
(2)). All of these six crimes are very serious crimes and all of them can be
punishable by death.

          2) Life imprisonment may only be imposed on a perpetrator under
certain    legally-prescribed         circumstances          according     to     the      law.       These
circumstances include the crime scene, the object of the crime, the criminal
consequences, the means of the crime, and the position of the perpetrator in a
criminal organization, and so on. The crime scene is a significant legally
prescribed circumstance for passing sentence in the Criminal Law of China; for

81
   Viorica-Mihaela Frîntu, Pedeapsa Detenţiunii Pe Viaţă [Life Imprisonment Penalty], 4 ANNALS
CONSTANTIN BRANCUSI U. – JURID. SCI. SERIES 93, 97 (2013). According to Article 113 of the Criminal
Code of the Republic of Romania, a juvenile includes a person who is younger than sixteen years
old.
82
   Criminal Code of the Republic of Hungary, ACT C of 2012, sec 41.




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example, robbing public or private property by violence, coercion or other
methods carries a fixed-term imprisonment of not less than three but not
more than ten years, but if the criminal intrudes into another person’s
residence to rob, robs on board a means of public transportation, or rapes a
woman in a public place, he may be sentenced to life imprisonment or death. 83
The object of the crime is also an important sentencing factor; for example,
anyone robbing a bank or any other banking institution, 84 or stealing or
forcibly seizing guns, ammunition or explosives from state organs, members
of the armed forces, the police or the people’s militia,85 may be sentenced to
life imprisonment or death. Criminal consequence is another important
sentencing factor in a majority of provisions in the Specific Provisions. Some
provisions directly stipulate the consequence of crimes, with the amount of
property or illegal property involved in the crime serving as the applicable
condition for life imprisonment; for example, for economic crimes in Chapter
3, the amount of property or othergoods involved in the crime serves as a
sentencing factor,86 and some provisions stipulate “causing death or serious
injury, or causing heavy losses of public or private property” as the applicable
condition for life imprisonment. For example, Article 236 (3) provides that
anyone raping a woman and causing serious injury or death to the victim may
be sentenced to life imprisonment or the death penalty. 87 However, a majority
of provisions, i.e. around fifty-three provisions, include the terms “commit
major crimes” or “serious circumstance” or “especially serious circumstance”


83
    Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法)[Criminal Law of People Republic of
China], 2015, supra note 72, art. 263.
84
    Id.
85
    Id. art 127 (2).
86
    In the Specific Provisions, only the crimes of manufacturing or selling counterfeit or inferior
products, which are punishable by life imprisonment, are stipulated explicitly with the amount of
property involved in the crime, i.e., “if the amount of earnings from sales is more than 2 million
Yuan, he shall be sentenced to a fixed-term imprisonment of 15 years or life imprisonment” (See
See Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法)[Criminal Law of People Republic
of China], 2015, supra note 72, art 140); most of the other provisions use the phrase “the amount
involved is large or especially large” as the applicable condition for life imprisonment; see, for
example, Articles 152(3), 170, 178, 192, 194, 195, 196, 197, 200, 204, 206, 207, 224, 264, 267,
382(3) and 384. Based on the specific crime, the S.P.C. makes different judicial interpretations of
these vague terms. In addition, the crime of illegal drug-possession is provided with the term
“quantity” as the condition for sentencing to life imprisonment, namely, illegally possessing not
less than one kilogram of opium, or not less than fifty grams of heroin or methyl-aniline, or any
other large quantities of narcotic drugs”. See Zhōng huá rén mín gòng hé guó xíng fǎ
(中华人民共和国刑法)[Criminal Law of People Republic of China], 2015, supra note 72, art. 384.
87
   See Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法)[Criminal Law of People Republic
of China], 2015, supra note 72, arts 115, 141, 144, 147, 234, 263, 236(3), 390, 421, 422, 423 and 424.




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which serves as the applicable condition for life imprisonment. Generally,
these kinds of terms in the provision are normally regarded as “miscellaneous
provisions” (兜底条款，DoudiTiaokuan), and are in practice interpreted by the
S.P.C. accordance with the characteristics of different crimes, or according to
mandate, by the local High People’s Court, who make this kind of
interpretation according to the local economic and social situation. The means
of the crime is also a sentencing element; for example, robbing with a gun,88
or, by resorting to especially cruel means, causing severe injury to another
person, or reducing the person to complete disability,                      89
                                                                                 and using arms to
protect the smuggling, trafficking in, transporting or manufacturing of
narcotic drugs90 all may bring a sentence of life imprisonment or death. The
position of the perpetrator in a criminal organization is also an important
applicable condition for life imprisonment; for example, anyone who is a
ringleader of a gang engaged in abducting and trafficking in women and
children may be sentenced to life imprisonment.91 Meanwhile, there are other
applicable conditions for life imprisonment such as the perpetrator’s attitude
towards an admission of guilt, the perpetrator’s criminal record and so on.

         All in all, the applicable conditions for life imprisonment are not
stipulated directly by the General Provisions, except for the object of the
punishment itself, but rather by the provisions providing concrete crimes in
the Specific Provisions. Furthermore, life imprisonment in some crimes is
stipulated together with the death penalty, which serves as an alternative
option to the latter; the applicable conditions for both penalties are, in most
provisions, the same.92 In this case, the Supreme People’s Court S.P.C.
generally makes the judicial interpretation or produces other kinds of judicial
documents to guide the judge in choosing between the death penalty and life
imprisonment. However, a fact which should not be ignored is that these
judicial interpretations and documents cannot completely cover all the
situations and circumstances in all capital crimes. In this case, in judicial


88
   Id. art 263.
89
    Id. art 234(2).
90
   Id. art 247(2).
91
   Id. arts 103,104,105, 170, 240, 317,318, 328 and 347.
92
   Id. arts. 115, 119, 125, 127, 141, 232, 234, 236, 239, 263, 347, 369, 370, 383, 421, 422, 423, 424,
430, 431, 438, 439, 446.




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practice, on one hand, the judge can decide to choose between the death
penalty and life imprisonment according to the Articles 48 and 49, which
provide applicable conditions for the death penalty and limits for its use, as
well as details regarding the Criminal Law and its relevant judicial
interpretation. On the other hand, if the judge cannot decide how to choose
between the death penalty and life imprisonment in the first stage, he or she is
generally granted discretion. Regarding this discretion on the choice between
the death penalty and life imprisonment, the reality is that to a great extent, as
some scholars point out that, “in a case [which involves a decision on] whether
or not the convict should receive the death penalty with reprieve, it absolutely
depends on the judge’s inner conviction.” 93 Unlike the characteristics and
requirements of the judicial adjunctive documents, the judge generally does
not explicitly explain the reasoning in the sentencing decision. In the court’s
criminal judgement, therefore, it is almost impossible to find the reasoning
behind the choice between the death penalty and life imprisonment when the
judge uses his or her inner conviction to make the decision. 94 However, in some
cases, we can find some circumstances that lead the judge to use life
imprisonment rather than the death penalty. For example, in the case of “Zhou
Junhui and Qin Xing” forcing other persons to engage in prostitution, 95 in
which the crimes committed by these two perpetrators caused serious
consequences (social harm), and the perpetrator’s potential to commit offences
and his or her subjective mens rea are very obvious, they were sentenced to


93
   Chén Xīngliáng (陈兴良), sǐ xíng shì yòng dí sī fǎ kòng zhì: yǐ shǒu pī xíng shì zhǐ dǎo àn lì wéi shì jiǎo
(死刑适用的司法控制：以首批刑事指导案例为视角)[Judicially Controlling the Use of the Death Penalty: From
the Perspective of the First Criminal Guiding Cases], FǍ (法) [L. SCI.], no.2, 2013, at 44.
94
   Regarding this, I have already carried out research into criminal sentencing in China, and
published my research paper, On the Problems of the Just Sentence in China. In this paper, I
pointed out that in most criminal judgments the reasons for the final sentencing and the
reasoning procedures behind it are very simple; some of the decisions contain simply a short
sentence without any reasoning, and even if the judge cites the relevant provision, they declare
whether “the social harm is great or not”. This serves as the justification of sentencing decisions,
without any explanation of the meaning of ‘social harm’ and without exploring the responsibility
aspects of the crime. Gui Huang ,On the Problems of Just Sentencing in China, 56 HUNGARIAN J. L. STUD.
177, 181 (2015).
95
   See Zhōu Jūn Huī, Qín Xīng (周军辉，秦星) [2010] Yong the First Criminal Court First Trial. no. 55
((2010) Yǒng zhōng xíng yī chū zì dì 55 hào (永中刑一初字第55号); [2012] Xiang High Court Third
Criminal Trial. no. 31. ((2012) Xiāng gāo fǎ xíng sān zhōng zì dì 31 hào (湘高法刑三终字第31号);
[2014] Xiang High Court Criminal Retrial. no.5. ((2014) Xiāng gāo fǎ xíng zhòng zì dì 5 hào
(湘高法刑重字第5号). The judgement of this case can be found in the website “China Judgements
Online”http://wenshu.court.gov.cn/content/content?DocID=3a471b1c-dfa8-4ea0-b53f-
edf0a40d5ac5&KeyWord=%E5%91%A8%E5%86%9B%E8%BE%89%7C%E5%91%A8%E5%86%9
B%E8%BE%89%EF%BC%8C%E7%A7%A6%E6%98%9F.




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death in the first and second instances. However, in the retrial instance, the
sentencing results were reduced to life imprisonment because the criminal
effects were not considered especially serious, although the judge did not give
any further reasons for this in the judgement. 96 Actually, in China’s judicial
practice, when the judge has to make decision using his or her inner
conviction, he or she has to consider all kinds of relevant crime factors and
other external influence factors, but generally does not explicitly explain them,
nor lay out his or her reasoning for the sentencing in the judgement. Except for
most of the provisions previously mentioned, there are a few provisions in
which the applicable conditions for the death penalty are provided which are
explicitly stricter than that of life imprisonment; for instance, Article 113
provides that if the crime provided by Paragraph 2 of Article 103 and in Articles
105, 107 and 109, causes particularly grave harm to the State and the people, or
if the circumstances are especially serious, the offender may be sentenced to
death. In this case, the judge normally makes the sentencing decision
according to the criminal law and other relevant judicial interpretations.



     3.2. REFORMING THE TERMINATION MECHANISMS FOR LIFE IMPRISONMENT: INCREASING ITS

SEVERITY
The termination mechanisms make life imprisonment and its severity
different from fixed-term imprisonment and other punishment measures
in China’s punishment system. According to the present Criminal Law, a
twin-track approach is adopted to terminate life imprisonment, i.e.
L.W.P.R. and L.W.O.R. The Eighth and Ninth Amendments have also
amended these termination mechanisms to increase the severity of life
imprisonment so as to remedy the potential problems caused by the
reduction of the death penalty. This section will examine the termination
mechanisms and their reform.


96
   In this case, theS.P.C. gave a special press interview and answered some questions about the
case. See Zuì gāo fǎ wèn dá: zhōu jūn huī, qín xīng wéi hé wèi bèi hé zhǔn sǐ xíng
(最高法问答：周军辉、秦星 为何未被核准死刑)[THE SUPREME PEOPLE’S COURT PRESS INTERVIEW: WHY DID
THE SUPREME PEOPLE’S COURT NOT APPROVE THE DEATH SENTENCE IMPOSED ON ZHOU JUNHUI AND
QINXING](Jun. 13, 2014) Zhōng huá rén mín gòng hé guó zuì gāo rén mín fǎ yuàn
(中华人民共和国最高人民法院) [THE SUPREME PEOPLE’S COURT OF THE PEOPLE’S REPUBLIC OF CHINA],
http://www.court.gov.cn/zixun-xiangqing-6469.html.




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     3.2.1. L.W.P.R.: COMMUTATION
Considering the special penalty elimination system in China, release from
prison can generally come through the commutation of punishment and
parole, both of which are normally applied at the same time. According to
Article 78, commutation operates in two situations; namely, discretionary
commutation (酌定减刑，zhuodingjianxing) and mandatory or legally provided
commutation (法定减刑，fading jiangxing). Discretionary commutation of life
imprisonment refers to a situation in which the penalty “may” be commutated
if the offender “conscientiously observes prison regulations, accepts education
and reform through labor and shows true repentance or performs meritorious
services while serving his sentence, 97 but it is not certain whether the
commutation will granted or no and its likelihood is lower than with
mandatory commutation, which is a situation in which the penalty “shall” be
commutated, and this will certainly be granted by law if the perpetrator
performs any of the major meritorious services provided in the Criminal Law
as detailed below:

            1) Preventing another person from conducting major criminal activities;

            2) Informing against major criminal activities conducted inside or
outside prison and verified through investigation;

            3)     Assisting   judiciary   authorities   to     arrest         another           major
suspect/offender, including a joint offender;

            4) Having inventions or important technical innovations to his credit;

            5) Coming to the rescue of another in everyday life and activities, at the
risk of losing his own life;

            6) Performing remarkable services in fighting against natural disasters
or curbing major accidents; or

            7) Making other major contributions to the country and society. 98

For the offender sentenced to life imprisonment, if his performances meet the
conditions for discretionary commutation, the penalty may be commuted to a


97
     Id. art 78.
98
     Id. art 78.




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fixed-term imprisonment of twenty-two years after serving two years of the
sentence, if the offender shows true repentance or performs meritorious
services; it may be commuted to a fixed-term imprisonment of twenty-one to
twenty-two years if he or she shows true repentance and performs meritorious
services;99 by contrast, if the offender serving life imprisonment performs
major meritorious service, the sentence may be commuted to a fixed-term
imprisonment of twenty to twenty-one years; it may be commuted to a fixed-
term imprisonment of nineteen to twenty years if the offender shows true
repentance and performs major meritorious service. 100 These provisions have
been changed significantly by the Eighth Amendment and relative judicial
interpretation and are stricter than those of the 1997 Criminal Law. In
accordance with the 1997 Criminal Law and its judicial interpretations, if the
offender shows true repentance or performs meritorious services, his sentence
might be commuted to a fixed-term imprisonment of eighteen to twenty years,
and if the offender performs major meritorious service, it might be commuted
to a fixed-term imprisonment of thirteen to eighteen years. 101

         Compared with discretionary commutation, mandatory commutation
seems much more merciful. While serving his sentence, the offender may be
granted many commutations, but the interval between two commutations shall
not be less than two years, and after one or multiple commutations, the actual
term of the sentence served by an offender sentenced to life imprisonment
shall not be less than thirteen years, which was also increased from the ten
years provided by the 1997 Criminal Law. 102 The commencement date is
calculated from the date when the life imprisonment judgment is announced.103


99
    See Zuì gāo rén mín fǎ yuàn guān yú bàn lǐ jiǎn xíng, jiǎ shì àn jiàn jù tǐ yīng yòng fǎ lǜ wèn tí dí
guī dìng (最高人民法院关于办理减刑、假释案件具体应用法律问题的规定) [Supreme People Court’s
Provisions on Several Legal Issues concerning the Specific Application of the Law in Handling
Commutation and Parole Cases](People’s Republic of China) Supreme People Court Fǎ shì (法释)
(2016)23 Hào(号) [Legal Interpretation No.23, 2016]), arts. 7 and 8.
100
     Id. art 7.
101
    See Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法) [Criminal Law of People
Republic of China], 1997, supra note 11, art. 78, and Zuì gāo rén mín fǎ yuàn guān yú bàn lǐ jiǎn
xíng, jiǎ shì àn jiàn jù tǐ yīng yòng fǎ lǜ wèn tí dí guī ding
(最高人民法院关于办理减刑、假释案件具体应用法律问题的规定)[Supreme People Court’s Provisions on
Several Legal Issues concerning the Specific Application of the Law in Handling Commutation and
Parole Cases](People’s Republic of China) Supreme People Court Fǎ shì (法释) (1997)6 Hào(号)
[Legal Interpretation No.6, 1997]), art. 6.
102
      Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法) [Criminal Law of People Republic
of China], 1997, supra note 11, art. 78(2).
103
    Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法) [Criminal Law of People Republic




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The commutation per instance for the offender who shows true repentance or
performs major meritorious service shall be no more than nine months; for the
offender who shows true repentance and performs major meritorious service it
shall be no more than one year; for those who perform major meritorious
service it shall be no more than one and half years; for those who perform
major meritorious service and show true repentance, it shall be no more than
two years.104 In order to truly prevent people engaging in malpractices for
personal gain, power or corrupt financial dealings,105 on 21 January 2014 the
C.P.C.’s Central Political and Legal Affairs Commission (中共中央政法委,
ZhonggongZhongyangZhengfawei)                    promulgated         a     document              to     strictly
regulate and improve the conditions of commutation and parole for the
offenders who commit any crime which involves taking advantage of a duty,
disrupting the order of financial administration, or forming, leading, taking an
active part in, harboring, or conniving in an organization of a criminal
syndicate nature. Based on this document, in the new Provisions on Several
Legal Issues concerning the Specific Application of the Law in Handling
Commutation and Parole Cases, the S.P.C. extended the commencement date
for the commutation of life imprisonment imposed on the offenders who
commit any of the above mentioned crimes, i.e., it may be commuted to fixed
term imprisonment after the offender has served three years of the sentence,
although the actual executive terms after the commutation shall not be less
than twenty years. The interval between two commutations shall be two years
or more, and the commutation per instance shall be no more than one year,
although these requirements are not applied to the mandatory commutation;


of China], 2015, supra note 11, art. 78(2) and Zuì gāo rén mín fǎ yuàn guān yú bàn lǐ jiǎn xíng, jiǎ shì
àn jiàn jù tǐ yīng yòng fǎ lǜ wèn tí dí guī ding
(最高人民法院关于办理减刑、假释案件具体应用法律问题的规定) [Supreme People Court’s Provisions on
Several Legal Issues concerning the Specific Application of the Law in Handling Commutation and
Parole Cases], supra note 99, art. 8.
104
    Zuì gāo rén mín fǎ yuàn guān yú bàn lǐ jiǎn xíng, jiǎ shì àn jiàn jù tǐ yīng yòng fǎ lǜ wèn tí dí guī
ding     (最高人民法院关于办理减刑、假释案件具体应用法律问题的规定)                                 [Supreme      People     Court’s
Provisions on Several Legal Issues concerning the Specific Application of the Law in Handling
Commutation and Parole Cases], supra note 99, art. 6.
105
    See Zhōng gòng zhōng yāng zhèng fǎ wěi guān yú yán gé guī fàn jiǎn xíng, jiǎ shì, zàn yú jiān
wài zhí xíng qiē shí fáng zhǐ sī fǎ fǔ bài dí yì jiàn
(中共中央政法委关于严格规范减刑、假释、暂予监外执行切实防止司法腐败的意见) [The Opinions of the
Central Political and Legal Affairs Commission of the Communist Party of China (CPLACCPC) on
Effectively Preventing Judicial Corruption by Strictly Regulating the Commutation, Parole and the
Temporary Service of Sentences Outside Prison] (People’s Republic of China) Central Political and
Legal Affairs Commission of the Communist Party of China, Zhōng zhèng wěi (中政委)（2014）5
Hào (号) [ No. 5, 2014, Central Political Commission], art. 1(3).




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in other words, there is no limitation on the commencement date and interval
for mandatory commutation.106 These same restrictions on commutations are
also applied to the offenders who commit the crimes of endangering national
security, or terrorism, or is a ringleader of a gang engaged in drug-related
crimes or recidivism of drug crimes, and the offender who is a recidivist or
convicted of murder, rape, robbery, abduction, arson, explosion, dissemination
of hazardous substances or organized violence who is sentenced to death with
reprieve.107 There were no provisions with the same restrictions in the 1997
Criminal Law.

         In addition, life imprisonment reduced from the death penalty with
reprieve may be reduced to a fixed-term imprisonment of twenty-five years
after the offender has served two years of the sentence if he/she shows true
repentance or performs meritorious services. If he/she genuinely performs any
major meritorious services, the sentence may be commuted to a fixed term
imprisonment of twenty-three to twenty-five years after serving two years of
the sentence. Under the 1997 Criminal Law, in this case, it may be commuted
to a fixed-term imprisonment of fifteen to twenty years. 108 After one or
multiple commutations, the actual term of the sentence served by an offender
sentenced to the death penalty with reprieve shall not be less than fifteen
years, which is three years more than that provided by the 1997 Criminal
Law,109 excluding the probation period for suspension of execution; and it may
be commuted to a fixed term imprisonment after the offender has served three
years of the sentence.110 In addition, for a recidivist or someone convicted of
murder,      rape,     robbery,     abduction,       arson,     explosion,         dissemination               of


106
    Zuì gāo rén mín fǎ yuàn guān yú bàn lǐ jiǎn xíng, jiǎ shì àn jiàn jù tǐ yīng yòng fǎ lǜ wèn tí dí guī
dìng (最高人民法院关于办理减刑、假释案件具体应用法律问题的规定)[Supreme People Court’s Provisions
on Several Legal Issues concerning the Specific Application of the Law in Handling Commutation
and Parole Cases], supra note 99, art. 9.
107
    Id.
108
    Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法) [Criminal Law of People Republic
of China], 1997, supra note 11, art. 50; and Zuì gāo rén mín fǎ yuàn guān yú bàn lǐ jiǎn xíng, jiǎ shì
àn jiàn jù tǐ yīng yòng fǎ lǜ wèn tí dí guī ding
(最高人民法院关于办理减刑、假释案件具体应用法律问题的规定)[Supreme People Court’s Provisions on
Several Legal Issues concerning the Specific Application of the Law in Handling Commutation and
Parole Cases], supra note 99, art. 9.
109
    Id.
110
    Zuì gāo rén mín fǎ yuàn guān yú bàn lǐ jiǎn xíng, jiǎ shì àn jiàn jù tǐ yīng yòng fǎ lǜ wèn tí dí guī
ding     (最高人民法院关于办理减刑、假释案件具体应用法律问题的规定)                                 [Supreme      People     Court’s
Provisions on Several Legal Issues concerning the Specific Application of the Law in Handling
Commutation and Parole Cases ], supra note 99, art. 9.




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hazardous substances or organized violence who is sentenced to death with
reprieve, the court may, when sentencing, decide to put restrictions on the
commutation of his sentence in the light of the circumstances of the crime
committed; if he/she is granted a commutation while serving the sentence of
life imprisonment commuted from the death penalty with reprieve, the court
should strictly apply the conditions of the commencement date, the time
interval and the commutation range. 111 Namely, the life imprisonment
commutated from the death penalty with reprieve may only be commuted to
fixed-term imprisonment after the offender has served five years of the
sentence, and the commutation per instance shall be no more than six months;
for the offender who performs meritorious services, it shall be no more than
one year.112 In fact, the restrictions on commutation have been newly provided
by the Eighth Amendment and the judicial interpretation.

         “The commutation of punishment provided by the Criminal Law is a
kind of universal penalty implementation system with distinct characteristics,
and it is unique … in the world.” 113 In general terms, it is even a significant
condition for the convict serving life imprisonment to be granted parole
because “the conditions of parole are stricter than those of commutation.” 114
Furthermore, in practice, the application rate of commutation is always higher
than that of parole;115 for example, in accordance with the S.P.C.’s report, the
number of commutation cases from January to September 2014 amounted to
370,998, while only 26,904 parole cases.116 Even though it is impossible to


111
     Id. art. 10, and see also Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法)[Criminal
Law of People Republic of China], 2015, supra note 72, art. 50(2).
112
     Zuì gāo rén mín fǎ yuàn guān yú bàn lǐ jiǎn xíng, jiǎ shì àn jiàn jù tǐ yīng yòng fǎ lǜ wèn tí dí guī
dìng      (最高人民法院关于办理减刑、假释案件具体应用法律问题的规定)                                  [Supreme       People     Court’s
Provisions on Several Legal Issues concerning the Specific Application of the Law in Handling
Commutation and Parole Cases ], supra note 99, arts. 13 and 14.
113
      Xú Jìngcūn (徐静村), Jiǎn xíng, jiǎ shì zhì dù gǎi gé ruò gān wèn tí yán jiū
(减刑、假释制度改革若干问题研究) [On Several Issues on the Reform of Commutation of Punishment and
Parole],FǍ ZHÌ YÁN JIŪ (法治研究) [RES. ON RULE LAW], no.2, 2010, at 3.
114
     Liú Qiáng (刘强), Zài wǒ guó jiàn lì yǐ jiǎ shì wéi zhǔ, jiǎn xíng wéi fǔ ” dí zuì fàn chū yù xīn mó shì
(在我国建立以“假释为主、减刑为辅”的罪犯出狱新模式) [Establishing the New Model of Criminals Being
Released from Prison - ‘Parole Principally, Reduction of Penalty Secondly’ - in China], FǍ XUÉ ZÁ ZHÌ
(法学杂志) [L. SCI. MAG], no.1, 2012, at 45.
115
    Liǔ Yuán (柳原), Kuò dà jiǎ shì, suō xiǎo jiǎn xíng dí shí zhèng yán jiū (扩大假释、缩小减刑的实证研究)
[Empirical Research on Expanding the Application of Parole and Limiting Commutation], ZHŌNG GUÓ SĪ FǍ
(中国司法) [JUSTICE OF CHINA], no.11, 2014, at 67.
116
      Zuì gāo rén mín fǎ yuàn (最高人民法院) [SUPREME PEOPLE’S COURT ],《2014年1-9 Yuè rén mín fǎ
yuàn bàn lǐ jiǎn xíng jiǎ shì àn jiàn qíng kuàng (月人民法院办理减刑假释案件情况) [REPORT ON THE
COMMUTATION AND PAROLE CASES HANDLED BY THE PEOPLE’S COURT FROM JANUARY TO SEPTEMBER




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discover the exact number of cases of commutation of life imprisonment, the
statistical data above show that the possibility of commutation is much greater
than that of parole. One of the important reasons for this might be that most
enforcement authorities have to take supervisory responsibility if the convict
commits any other crime while serving his sentence outside of prison when he
is granted parole, so most enforcement authorities are against parole. 117




   3.2.2. L.W.P.R.: PAROLE
Parole is another significant method of early release from prison. In
accordance with Article 81 of the Criminal Law, an offender sentenced to life
imprisonment who has actually served not less than thirteen years of
imprisonment may be granted parole if he/she conscientiously observes the
prison regulations, accepts education and reform through labor, shows true
repentance and is not likely to commit any crime again. Actually, the
limitations for parole are almost the same as those provided by the 1997
Criminal Law, except that the term of punishment actually to be served is
longer than that provided by the 1997 Criminal Law, which was not less than
ten years.118 If special circumstances exist, upon the verification and approval
of the S.P.C., parole may be granted without regard to the above restrictions on
the term served.119 Here we can see that the condition of “he conscientiously
observes the prison regulations, accepts education and reform through labor,
and shows true repentance” and the minimum term to be served in prison,
which is not less than thirteen years, are the same as the basic condition for
commutation, but the conditions of parole are higher and stricter than those of
commutation because of the assessed risk of committing a crime again.
Regarding this risk, it should be comprehensively evaluated based on the
concrete circumstances of the crime committed by the convict, the facts of the


2014](Apr. 1, 2015) Zhōng huá rén mín gòng hé guó zuì gāo rén mín fǎ yuàn
(中华人民共和国最高人民法院)[ SUPREME PEOPLE’S COURT OF PEOPLE’S REPUBLIC OF CHINA].
http://www.court.gov.cn/fabu-xiangqing-14014.html.
117
    See generally, Láng Shèng (郎胜), Xíng fǎ xiū zhèng àn jiě dú (<刑法修正案（八）>解读)[Interpreting
“the Eighth Amendment to the Criminal Law], GUÓ JIĀ JIǍN CHÁ GUĀN XUÉ YUÀN XUÉ BÀO
(国家检察官学院学报) [J. THE NAT’L PROSECUTORS C.], no.2 (2011), at 149, 157.
118
      Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法) [Criminal Law of People Republic
of China], 1997, supra note 11, art. 81.
119
      Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法)[Criminal Law of People Republic
of China], 2015, supra note 72, art. 81.




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original sentence, the convict’s consistent performance while serving his/her
sentence, the convict’s age, physical condition, personality characteristics, and
his/her source of livelihood after release from prison, as well as the
supervision measures and conditions.120 In addition, “when a parole decision is
made on a convict, the impact of his/her release on parole on the community
where he lives shall be considered,”121 a provision which was added by Article
16 (3) of the Eighth Amendment. Article 81 (3) provides for an exception where
a “special circumstance exists”; but what exactly is this circumstance? In
accordance with judicial interpretation, it is a                            “circumstance . . . .
significantly       related       to the whole social and state interest”, 122 but this
interpretation is still not clear, and some scholars have pointed out that “the
concept      and     scope      of   the     specific     circumstance          defined          by      judicial
interpretation is ambiguous and it results in theoretical diversity and abuse in
judicial practice.”123 In addition, there is a prohibiting provision on parole for
some special convicts, including “the recidivist or a convict sentenced to life
imprisonment for murder, rape,                      robbery,      abduction, arson, explosion,
dissemination of hazardous substances, or organized violent crime.”124 It was
amended by Article 16 (2) of the Eighth Amendment. Even though those
convicts falling into the categories above cannot be granted parole, they can be
released early on commutation, in accordance with the present law. However,
the convict who is sentenced to life imprisonment and released on parole is
still supervised under the judicial authorities for a certain probation period. 125
During this probation period, the offender granted parole should observe the
following requirements: 1) observing laws and administrative rules and

120
      Zuì gāo rén mín fǎ yuàn guān yú bàn lǐ jiǎn xíng, jiǎ shì àn jiàn jù tǐ yīng yòng fǎ lǜ wèn tí dí
guī dìng (最高人民法院关于办理减刑、假释案件具体应用法律问题的规定) [Supreme People Court’s
Provisions on Several Legal Issues concerning the Specific Application of the Law in Handling
Commutation and Parole Cases], supra note 99, art. 15.
121
      Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法)[Criminal Law of People Republic
of China], 2015, supra note 72, art. 81(3).
122
     Zuì gāo rén mín fǎ yuàn guān yú bàn lǐ jiǎn xíng, jiǎ shì àn jiàn jù tǐ yīng yòng fǎ lǜ wèn tí dí
guī dìng (最高人民法院关于办理减刑、假释案件具体应用法律问题的规定) [Supreme People Court’s
Provisions on Several Legal Issues concerning the Specific Application of the Law in Handling
Commutation and Parole Cases], supra note 99, art 17.
123
     Liǔ Zhōngwèi (柳忠卫), Duì jiǎ shì shì yòng dí lì wài xìng guī dìng hé jīn zhǐ xìng guī dìng dí lǐ xìng fēn
xī (对假释适用的例外性规定和禁止性规定的理性分析) [Rational Analysis of the Exception Stipulations and
Prohibiting Stipulations of Parole Application], ZHÈNG FǍ LÙN CÓNG (政法论丛)[J. POL. SCI. & L.], no.1,
2006, at 58.
124
      Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法)[Criminal Law of People Republic
of China],2015, supra note 72, art. 81(2).
125
    Id. art 83.




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regulations, and submitting to supervision; 2) reporting on his own activities
as required by the supervising organ; 3) observing the regulations for receiving
visitors stipulated by the supervising organ; and 4) reporting to obtain
approval from the supervising organ for any departure from the city or country
he lives in or for any change in residence. 126 Furthermore, he/she shall be
subjected to community correction during parole.127 The community correction
system is newly established by the Eighth Amendment. 128 If he/she commits
another crime during the probation period for parole, or is discovered to have
committed, before the judgment is pronounced, other crimes for which no
punishment has been imposed, or he/she violates any provision of the laws,
administrative regulations or the relevant department of the State Council on
parole supervision and management if the above do not constitute a new
crime, his parole shall be revoked.129



      3.2.3. L.W.O.R.: CRIMES OF EMBEZZLEMENT AND BRIBERY
In fact, the convict who is not sentenced to immediate execution may be
released early on parole or commutation, regardless of the crime he/she
committed, if the release conditions have been satisfied, even though he/she
was restricted to commutation and prohibited parole before the Ninth
Amendment. However, this situation was changed by the Ninth Amendment.
According to Article 44(4) of the Ninth Amendment, for a convict who commits
the crimes of embezzlement or bribery and is sentenced to the death penalty
with reprieve, the court may, depending on the circumstances of the crime, at
the same time decide, after commuting the suspension of execution to life
imprisonment on the expiry of the two year period, to imprison him for life,
without       commutation       or   parole.130    In   accordance         with        the       judicial
interpretation made by the S.P.C. and the Supreme People’s Procuratorate
(hereinafter: S.P.P.) on 28 March 2016, a convict who has embezzled or taken


126
    Id. art 84.
127
    Id. art 85.
128
    Zhōng huá rén mín gòng hé guó xíng fǎ xiū zhèng àn (bā)( 中华人民共和国刑法修正案（八)) [The
Eighth Amendment to the Criminal Law of the People’s Republic of China] , supra note 4, art. 17.
129
    Zhōng huá rén mín gòng hé guó xíng fǎ (中华人民共和国刑法)[Criminal Law of People Republic of
China], 2015, supra note 72, art. 86.
130
     Zhōng huá rén mín gòng hé guó xíng fǎ xiū zhèng àn (中华人民共和国刑法修正案（九)) [The
Ninth Amendment to the Criminal Law of the People’s Republic of China], supra note 5, art. 44(4).




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bribes of not less than three million Yuan (C.N.Y.), may, in a case where the
circumstances are especially serious, the social impact is especially severe and
heavy losses are caused to the state and people, be sentenced to the death
penalty. However, if he/she surrenders voluntarily, performs any meritorious
service, confesses the crime and so on, and if the immediate execution is not
deemed necessary, a two year suspension of execution may be pronounced
simultaneously with the imposition of the death sentence, and at the same
time a decision taken to prohibit commutation and parole, according to the
circumstances of the case.131 This decision should be made at the first and
second trial, respectively, rather than upon the expiry of the two-year period,
and therefore it emphasizes that once the decision to impose L.W.O.R. has been
made, it will not be affected by the offender’s performance during the period of
suspension and it shall be enforced without any condition. Consequently, this
is termed the systemic rigidity of L.W.O.R.132

         The L.W.O.R. system was first established by the Ninth Amendment
after the first criminal law was passed in 1979 and was “a brand new
punishment measure”.133 Thus far, it has already been applied to three
convicts.134 The Chief Editor of the S.P.P.’s Research Office of Legal Policies,


131
     Zuì gāo rén mín fǎ yuàn, zuì gāo rén mín jiǎn chá yuàn guān yú bàn lǐ tān wū huì lù xíng shì àn
jiàn       shì      yòng       fǎ     lǜ      ruò       gān      wèn          tí      dí       jiě      shì
(最高人民法院、最高人民检察院关于办理贪污贿赂刑事案件适用法律若干问题的解释)                                               [The         Supreme
People’s Court’s and Supreme People’s Procuratorate’s Interpretation of Several Legal Issues
Concerning the Specific Application of the Law in Handling Criminal Cases of Embezzlement and
Bribery] ](the People’s Republic of China) Supreme People’s Court’s and Supreme People’s
Procuratorate’s, 法释 (2016) 9号 [Legal Interpretation No.9, 2016]), arts. 3 and 4.
132
     Liǎng gāo fā bù bàn lǐ tān wū huì lù xíng shì àn jiàn sī fǎ jiě shì
(“两高”发布办理贪污贿赂刑事案件司法解释) [Interpretations Concerning the Specific Application of
the Law in Handling Criminal Cases of Embezzlement and Bribery Issued by the ‘Two Supreme
Judicial Authorities (Supreme People’s Court and Supreme Peoples’ Procuratorate)’]( Apr. 18,
2016) Supreme People’s Court of People’s Republic of China, http://www.court.gov.cn/zixun-
xiangqing-19562.html.
133
     “jù tān” jiāng bǎ láo dǐ zuò chuān ？ — — jù jiāo xíng fǎ xiū zhèng àn （ jiǔ ） cǎo àn ： duì
zhòng tè dà tān wū fàn zuì zēng shè “ zhōng shēn jiān jīn (“巨贪”将把牢底坐穿？——
聚焦刑法修正案（九）草案：对重特大贪污犯罪增设“终身 监禁”) [‘WILL THE ‘CORRUPT OFFICIAL’ CONTINUE
TO ROT IN DETENTION? FOCUS ON THE NINTH AMENDMENT TO THE CRIMINAL LAW (DRAFT): STIPULATING LIFE
IMPRISONMENT WITHOUT POSSIBILITY OF RELEASE FOR SERIOUS CRIMES OF EMBEZZLEMENT AND BRIBERY](
Aug. 25, 2015) Zhōng yāng zhèng fǔ wǎng (中央政府网) [CENTRAL PEOPLE’S GOVERNMENT],
http://www.gov.cn/xinwen/2015-08/25/content_2919673.htm.
134
      These three convicts are Bai Enpei, Wei Pengyuan and Yu Tieyi. All of them are sentenced to
the death penalty with reprieve for having committed corruption crimes, and are not allowed to be
granted commutation and parole after the death penalty with reprieve is reduced to life
imprisonment. See Bái ēn péi děng sān jù tān bèi pàn chǔ zhōng shēn jiān jīn, shì fàng chū shí me xìn hào?
(白恩培等三巨贪被判处终身监禁，释放出什么信号？) [Such Bai Enpei as Three Arch Corrupt officials Are
Sentenced to Life Imprisonment without Release, what Kinds of Signals Are Released] Péng pài xīn wén
wǎng (澎湃新闻网) [PENGPAI NEWS] (Dec.14, 2016), http://www.szxinghan.cn/Social/13972494.html.




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Wan Chun, said that “it is a new enforcement measure of the death penalty,
which is in between the death penalty with immediate execution and the
general death penalty with reprieve.”135 Even though it exists only for the
crimes of embezzlement and bribery, it sends a significant signal about the
alternative penalties to execution in the context of gradually reducing the
death penalty. Some scholars positively affirmed L.W.O.R. and said that
“according to the principle of suitable punishment for a crime, trying to
impose LWOR on the convict who should have been sentenced to death for the
serious crime        of    embezzlemnt          or bribery is a positive and prudent
option.”136 “Compared with the immediate execution of the death penalty,
LWOR has its own humanitarian aspect.”137




         4. FURTHER REFORM PROPOSALS FOR THE LIFE IMPRISONMENT SYSTEM
According to aforesaid analysis, life imprisonment is, substantially, a long
term sentence where the convict who is sentenced to life imprisonment may be
released on parole or commutation, unless he/she commits a serious crime of
embezzlement or bribery and is sentenced to L.W.O.R. To a great extent, this
seems to be in line with the international trend of penal reform, and this long
term sentence is actually shorter than in some other states, such as the Czech
Republic, Finland, Romania and Turkey, and tallies with the guarantee of
human rights. However, there are still some problems with life imprisonment
in China should be further reformed as follows.




135
     Zuì gāo jiǎn wàn chūn zhǔ rèn děng zhuān jiā jiě dú tān wū huì lù sī fǎ jiě shì
(“最高检万春主任等专家解读贪污贿赂司法解释)[The Chief Editor of the Research Office of the Legal Policies
of the Supreme People’s Procurator of the P.R.C, Wan Chun and Other Experts Explaining the Judicial
Interpretations of the Anti-crime of Embezzlement and Bribery], Jīn rì tóu tiáo (今日头条) [DAILY NEWS]
(May 24, 2016), http://www.toutiao.com/i6288100038123979265/.
136
     Id.
137
     RUǍN QÍ LÍN (阮齐林)[Ruan Qilin], Yī fǎ cóng yán chěng zhì tān wū huì lù fàn zuì — — jiě dú < guān yú
bàn lǐ tān wū huì lù xíng shì àn jiàn shì yòng fǎ lǜ ruò gān wèn tí dí jiě shì (依法从严惩治贪污贿赂犯罪——
解读<关于办理贪污贿赂刑事案件适用法 律若干问题的解释>) [Severely Punishing Crimes of Embezzlement
and Bribery by the Law: Analyzing ‘Interpretation on Several Legal Issues Concerning the Specific
Application of the Law in Handling Criminal Cases of Embezzlement and Bribery’] [LEGAL DAILY] (Apr. 18,
2016),http://www.legaldaily.com.cn/index/content/201604/18/content_6591201.htm?node=20908.




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      4.1. REDUCING THE NUMBER OF CRIMES PUNISHABLE BY LIFE IMPRISONMENT
After the death penalty, life imprisonment is the second heaviest penalty in a
punishment system which “is consistently deemed to be a severe penal system
by Chinese academic circles.”138 Some scholars point out that “relying on the
death penalty is one of the tendencies in a criminal punishment system which
is becoming severe”.139 This is one important contributory factor to this severe
penal system, but the distribution of life imprisonment in the Specific
Provisions of the Criminal Law is another major reason. According to Table1,
there are now 102 crimes punishable by life imprisonment, including the forty-
six crimes punishable by death, accounting for 21.79% of all crimes which is
also now the maximum legal punishment for 56 crimes. In these cases, when
the death penalty was removed gradually from the Criminal Law, having life
imprisonment as the maximum legal punishment for around 102 crimes still
means that “the penalty system in the Specific Provisions is excessively
heavy”,140 an appraisal, which applies to the penal system as a whole. In this
sense, some scholars point out that “it runs counter to the efficiency of
criminal punishment and deviates from the penal goal.” 141 “The number of
crimes punishable by life imprisonment is so high that the disadvantage to its
seriousness and deterrence is fairly obvious.” 142 The number of crimes
punishable by life imprisonment needs to be reduced, particularly the number
of economic crimes. Economic crime is a kind of crime of greed, with the aim
of illegally acquiring profit; therefore, “the focus of preventing the economic
crime should be on improving the regulatory system, rather than relying too



138
     Sòng WěIwèi & Hán Méi (宋伟卫，韩玫), Zhěng tǐ qū qīng, dān jí fā zhǎn: wǒ guó xíng fá jié gòu gǎi
gé dí jī běn fāng xiàng (“整体趋轻、单极发展”：我国刑罚结构改革的基 本方向) [The Tendency to Move
Towards Generally Light Penalties, and Unipolar Development’: The Basic Direction of Our Penalty Structure
Reform], HÉ BĚI FǍ XUÉ (河北法学) [HEIBEI L. SCI.], Vol.32, no.3 , 2014, at 75, 79.
139
    Péng Wénhuá (彭文华), Wǒ guó xíng fá tǐ xì dí gǎi gé yǔ wán shàn (我国刑罚体系的改革与完善)
[Reforming and Improving the Criminal Punishment System in China], SŪ ZHŌU DÀ XUÉ XUÉ BÀO ( ZHÉ XUÉ
SHÈ HUÌ KĒ XUÉ BǍN (苏州大学学报(哲学社会科学版) [J. SOOCHOW U., PHILOSOPHY & SOC. SCI. EDITION], no.1,
2015, at 100, 101.
140
    Gāo míng xuān, sū huì yú, yú zhì gāng (高铭暄，苏惠渔，于志刚) , supra note 27, at 8.
141
    Lǐ Xiǎo ōu (李晓欧), Zhōng guó zhòng xíng huà bì duān jí qí xiàn zhì lù jìng — — yǐ < zhōng huá rén
mín gòng hé guó xíng fǎ xiū zhèng àn （ bā ） > wéi guān zhào (中国重刑化弊端及其限制路径——
以<中华人民共和国刑法修正案（八）> 为观照)[The Drawbacks of Heavy Punishment in China and the Road
to Limit them: Based on the Eighth Amendment to the Criminal Law of the P.R.C.], DĀNG DÀI FǍ XUÉ
(当代法学) [CONTEMP. L. REV.],no.6 , 2010, at 38, 40.
142
     Zēng Yà Jié (曾亚杰), wǒ guó wú qī tú xíng zhì dù gǎi gé tàn xī (我国无期徒刑制度改革探析)[On the
Reformation of the Life Imprisonment System in China], SHÍ DÀI FǍ XUÉ (时代法学)[PRESENTDAY L. SCI.],
Vol.6, no.2 , 2008, at 68, 68 - 74.




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much on criminal punishment”,                     143
                                                        and it is impossible to rely on such heavy
punishments as life imprisonment.



      4.2. OPPOSING LWOR FOR THE CRIMES OF EMBEZZLEMENT AND BRIBERY
As regards L.W.O.R., first provided by the Ninth Amendment for the crime of
corruption, different scholars have different opinions, both pro and contra. A
few scholars offer positive comments, arguing, for example, that it is an “anti-
corruption edged tool”,          144
                                       that “it can effectively remit the difficult situation in
which the criminal punishment of “the death penalty is overheavy but
custodial penalty is too light”, and it combines the function of abolishing and
limiting the death penalty”;                145
                                                  or that “it is a new punishment measure
integrating both leniency and severity for the serious crime of embezzlement
and bribery.”146 However, most scholars criticize it. Some scholars, for
example, doubt the legislation’s procedural legitimacy because it was only
reviewed once by the N.P.C. Standing Committee under Article 29(1) of the
Legislative Code, rather than the required three times; 147 some scholars point
out that “LWOR has distanced the offender from rehabilitation and his right to
hope is deprived and it seriously violates the punishment aim, which is
education and reform”,148 while others argue that “it may violate the principle
of equality (also limiting the legislator) provided by the Constitution”. 149


143
    Gāo Míngxuān, Sū Huìyú, Yú Zhìgāng (高铭暄，苏惠渔，于志刚), supra note 27, at 6.
144
    Huáng Jīngpíng (黄京平), zhōng shēn jiān jīn dí fǎ lǜ dìng wèi yǔ sī fǎ shì yòng
(终身监禁的法律定位与司法适用)[Legislative Role and Judicial Application of Life Imprisonment without
Parole], BEIJING LIÁN HÉ DÀ XUÉ XUÉ BÀO (RÉN WÉN SHÈ HUÌ KĒ XUÉ BAN）
(北京联合大学学报（人文社会科学版）)[J. BEIJING UNION U. (HUMAN. & SOC. SCI.)], NO. 4, 2015, at 98.
145
     Huáng Yǒng Wéi & Yuán Dēng Míng (黄永维，袁登明), < xíng fǎ xiū zhèng àn （ jiǔ ） > zhōng dí
zhōng shēn jiān jīn (<刑法修正案（九）>中的终身监禁) [ On Life Imprisonment without Possibility of
Release Provided by the Ninth Amendment to the Criminal Law], FǍ LǛ SHÌ YÒNG (法律适用)3 [J. L.
APPLICATION] 35, 35 (2016).
146
     Zhào bǐng zhì (赵秉志), supra note 19, at 8.
147
     Ou Yáng Běnqí (欧阳本祺), lùn < xíng fǎ > dì 383 tiáo zhī xiū zhèng (论<刑法>第383条之修正)[On the
Amendment of Article 383 of the Criminal Law], DĀNG DÀI FǍ XUÉ (当代法学)[CONTEMP. L. REV.], NO.1, 2016
at 18.
148
     Qián Yèliù (钱叶六), tān huì fàn zuì lì fǎ xiū zhèng shì píng jí zhǎn wàng — — yǐ < xíng fǎ xiū zhèng àn
（ jiǔ ） > wéi shì jiǎo (贪贿犯罪立法修正释评及展望——以<刑法修正案（九）>为视角) [Reviewing the
Amendment to the Crimes of Corruption and Bribery Legislation and Its Prospects: From the Perspective of
the Ninth Amendment to the Criminal Law], SŪ ZHŌU DÀ XUÉ XUÉ BÀO (ZHÉ XUÉ SHÈ HUÌ KĒ XUÉ
BAN）(苏州大学学报（哲学社会科学版) [ J. SOOCHOW U. (PHIL. & SOC. SCI. EDITION)], no. 6, 2015, at 99.
149
     Chē Hào (车浩), xíng shì lì fǎ dí fǎ jiào yì xué fǎn sī — — jī yú 《 xíng fǎ xiū zhèng àn （ jiǔ ） dí fēn xī
》(刑事立法的法教义学反思——基于《刑法修正案（九）的分析》)[Reflecting on Criminal Legislation From
the Perspective of Legal Dogma: Based on the Analysis of the Ninth Amendment to the Criminal Law], FǍ
XUÉ (法学) [LAW SCI.], no.10, 2015, at 9.




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Obviously, L.W.O.R. does not conform to the relevant international standards.
Nowadays, “Europe is setting against the imposition of very lengthy terms of
imprisonment that are irreducible”,150 and the E.C.t.H.R. has already clarified
its attitude towards life imprisonment by case law; life imprisonment without
reduction violates Article 3 of the E.C.H.R., and the courts in Germany, France,
Italy and Namibia have recognized that those subject to life sentences have a
right to be considered for release.151 Professor Michael M. O’Hear asserts that
“it is possible that life imprisonment without parole will enter a period of slow
decline that echoes the recent history of the death penalty.” 152 In the context of
this international tide and in accordance with some other international
standards, under the background of reduction of the death penalty, the Chinese
legislator has introduced L.W.O.R. for political reasons as if it were
euphemistically introducing a new death penalty; consequently, it will reduce
the criminal protection of human rights in China, and will not conform to
international trends, nor to the development of human rights. L.W.O.R.
therefore should be removed from the Criminal Law.



      4.3. THE APPLICABLE CONDITIONS SHOULD BE EXPLICITLY PROVIDED BY THE GENERAL

PROVISIONS OF THE CRIMINAL LAW
As with the analysis in the third section, no explicit provisions regarding the
applicable conditions for life imprisonment are provided by the General
Provisions, which means that “life imprisonment is inappropriately abused in
judicial practice”,153 and even violates human rights; for example, life
imprisonment may be imposed on a juvenile who has reached the age of
sixteen but not the age of eighteen when committing a crime, 154 on a convict
who has reached the age of seventy-five, and even on women who are
pregnant at the time of trial. In this situation, even disregarding the death


150
     Dirk Van Zyl Smit, Outlawing Irreducible Life Sentences: Europe on the Brink, 23 FED. SENT'G REP. 39,
39 (2010).
151
      See Dirk Van Zyl Smit, Life Imprisonment: Recent Issues in National and International Law, 29 INT'L
J. L. & PSYCHIATRY 405, 405 (2006).
152
     Michael M. O’Hear, The Beginning of the End for Life without Parole, 23 FED. SENT'G REP. 1,7 (2010).
153
    Lǐ Xiǎo ōu (李晓欧), supra note 141, at 40.
154
    It obviously violates Art. 37a of the G.A. Res. 44/25, Convention on the Rights of the Child, U.N.
Doc. A/RES/44/25 (Nov. 20, 1989), which provides that no child (who is younger than 18 years old)
shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.




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penalty, life imprisonment increases the severity of the present punishment
system and is not in conformity with the relevant international conventions or
treaties on the protection of human rights. With the aim of protecting an
offender’s human rights, the General Provisions should provide explicitly the
applicable conditions for life imprisonment; specifically, it should not be
imposed on a juvenile, nor on a person who has attained the age of 65, nor on
women who are pregnant at the time of trial.




         5. CONCLUSION
In the last century, and even stretching back over several centuries before that,
liberal utilitarian and humanistic ideas pushed for the abolition of the death
penalty across Europe,155 and they now continue to outlaw irreducible life
imprisonment, and have seen the E.C.t.H.R. putting this into practice through
their case law.156 The influence of these two important values has been
sweeping through China over the past few decades; however, most Chinese
scholars and legislators still focus on death penalty reform, debating how the
death penalty can be removed de jure and de facto, but give less attention to
the second heaviest punishment which lacks human rights protection - life
imprisonment. In the context of gradually reducing the use of the death
penalty, life imprisonment has already been upgraded to the maximum
punishment by the Eighth and Ninth Amendments after the death penalty was
removed as a possible sentence from twenty-two crimes. This is in line with
the developments in most abolitionist states, where a convict who is sentenced
to life imprisonment for most general crimes may be released; however, only
for serious corruption crimes, a convict who is given L.W.O.R. cannot be
released. These developments relating to L.W.O.R. may be attributable to the


155
    See Carolyn Hoyle, “Review Essay: The Death Penalty in Japan: Will the Public Tolerate Abolition?, by
Mai Sato” THE DEATH PENALTY IN JAPAN, (Springer Press, 2013) https://www.law.ox.ac.uk/centres-
institutes/centre-criminology/blog/2014/01/death-penalty-japan.
156
     See generally, Vinter and Others v. the United Kingdom, App. Nos. 66069/09, 130/10 and
3896/10, Eur. Ct. H.R (2013); Öcalan v. Turkey, App. No. 46221/99, 2005-IV Eur. Ct. H.R (2005);
László Magyar v. Hungary, App. No. 73593/10 (2014); Harakchiev and Tolumov v. Bulgaria, App.
Nos. 15018/11 and 61199/12, Eur. Ct. H.R (2014). In all of these cases, the ECtHR held that “whole
life” sentences with no possibility of review and no prospect of release were inhuman and
degrading treatment in breach of Article 3 of the European Convention on Human Rights.




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present anti-corruption campaign and to political concerns. Considering the
potential problems caused by the reduction in the use of the death penalty, the
recent two amendments have already reformed the termination mechanism of
life imprisonment to increase its severity so as to be commensurate with the
punishments for crimes from which the death penalty was removed. However,
the number of crimes punishable by life imprisonment is too great, the
applicable conditions are not provided clearly and certain provisions limiting
its use are lacking. Consequently, the punishment of life imprisonment as it
operates at present should be further improved for the sake of human rights
protection.




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