Draft CL amendments – Article 151 (3) smuggling of plants and the products thereof

Art. 151 par. 3 of the Criminal Law punishes smuggling plants and the products thereof.

The proposed amendments to the Criminal Law would expand somewhat its scope of application to “other commodities and goods” as well, and introduce lighter penalties.

At the moment this crime can be punished with a maximum of five years imprisonment, if committed in ordinary circumstances. The draft amendments would allow to apply criminal detention 拘役 as an alternative to imprisonment. Criminal detention lasts between 1 and 6 months only and is executed at facilities managed by local public security bureaus. Furthermore, the detainee is allowed to visit his relatives for one or two days a month.

Article 151 [Smuggling of weapons and ammunitions] Whoever smuggles weapons, ammunition, nuclear materials or counterfeit currency shall be sentenced to fixed-term imprisonment of not less than seven years and shall also be fined or sentenced to confiscation of property; if the circumstances are minor, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.

[Smuggling of cultural relics, gold, silver or precious metals] Whoever smuggles cultural relics, gold, silver or other precious metals, the export of which is forbidden by the State, or precious and rare species of wildlife as well as the products thereof, the import and export of which are forbidden by the State, shall be sentenced to fixed- term imprisonment of not less than five years and shall also be fined; if the circumstances are minor, he shall be sentenced to fixed-term imprisonment of not more than five years and shall also be fined.

[Smuggling of plants and the products thereof] Whoever smuggles precious and rare species of plants and the products thereof, the import and export of which is forbidden by the State, [or other commodities and goods the import or export of which is forbidden by the State] shall be sentenced to fixed-term imprisonment of not more than five years [or criminal detention] and shall also, or shall only, be fined; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined.

[Proposed amendment] 走私国家禁止进出口的珍稀植物及其制品或者国家禁止进出口的其他货物、物品的,处五年以下有期徒刑或者拘役,并处或者单处罚金;情节严重的,处五年以上有期徒刑,并处罚金

Whoever commits the crime as mentioned in the first or the second paragraph, if the circumstances are especially serious, shall be sentenced to life imprisonment or death and also to confiscation of property.

Where a unit commits the crime as mentioned in this Article, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished in accordance with the provisions of the paragraphs in this Article respectively.

Translation courtesy CECC

Comments

Fanxulitai. The proposed amendment says “shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention“. She suggested to insert a comma , before “or criminal detention” to avoid any potential misunderstanding about the maximum length of criminal detention. Currently criminal detention can last between 1 – 6 months.

Li Zupei

Suggested that or other commodities and goods the import or export of which is forbidden by the State” be changed into and other commodities and goods“, to broaden the scope of this provision.


Fanny Law (yes, this is 罗范椒芬‘s English name)

Criticized article 151 on grounds that the logical relationship between the criminal facts described in it is unclear. It is not clear whethere there exist any correlation between the “precious and rare species of plants and the products thereof” and the “other commodities and goods the import and export of which is forbidden by the state.” Suggested to add an explanatory paragraph to article 151.


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