Chapter IV The Concrete Application Of Punishments

Chapter IV The Concrete Application Of Punishments

Section 1. Sentencing

Article 61. When deciding the punishment of a criminal element, the sentence shall be imposed on the basis of the facts of the crime, the nature and circumstances of the crime, and the degree of harm to society, in accordance with the relevant stipulations of this law.

Article 62. Where the circumstances of a criminal element are such as to give him a heavier punishment or a lesser punishment under the stipulations of this law, he shall be sentenced to a punishment within the legally prescribed limits of punishment.

Article 63. Where the circumstances of a criminal element are such as to give him a mitigated punishment under the stipulations of this law, he shall be sentenced to a punishment below the legally prescribed punishment.

Although the circumstances of a criminal element do not warrant giving him a mitigated punishment under the stipulations of this law, he too may be sentenced to a punishment below the legally prescribed punishment based on the special situation of the case and with the approval of the Supreme People’s Court.

Article 64. All articles of property illegally obtained by the criminal element shall be recovered or he shall be ordered to make restitution or pay compensation for them.
The legitimate property of the victims shall be promptly returned.Contraband and articles of the criminal’s own property used for committing the crime shall be confiscated.
Articles of confiscated property and fines shall be handed over to the national treasury and shall not be diverted or otherwise disposed of.

Section 2. Recidivists

Article 65. A criminal element who has been sentenced to a punishment of not less than fixed-term imprisonment and who, within five years after his punishment has been completely executed or he has received a pardon,commits another crime for which he should be sentenced to a punishment of not less than a fixed-term imprisonment is a recidivist and shall be given a heavier punishment.

However, negligent commission of a crime is an exception.
In situations where a criminal element is granted a parole, the period stipulated in the preceding paragraph is to be counted as commencing on the date of expiration of the parole.

Article 66. Criminal elements endangering state security who, at any time after their punishment has been completely executed or they have received a pardon, commit another crime endangering state security are all to be treated as recidivists.

Section 3. Voluntary Surrender and Meritorious Service

Article 67. The act of voluntarily giving oneself up to the police and giving a true account of one’s crime after committing it is an act of voluntary surrender. Criminal elements who voluntarily surrender may be given a lesser punishment or a mitigated punishment. Those among them whose crimes are relatively minor may be exempted from punishment.

Where criminal suspects, defendants, and criminals serving sentences give a true account of their other crimes which are not known to the judicial organ, their actions are regarded as an act of voluntary surrender.

Article 68. Criminal elements who perform meritorious service by exposing other people’s crimes that can be verified or who provide important clues leading the cracking of other cases may be given a lesser punishment or a mitigated punishment. Those who performed major meritorious service may be given a mitigated punishment or may be exempted from punishment.

Those who surrender themselves voluntarily and perform major meritorious service after committing a crime shall be given a mitigated punishment or exempted from punishment.

Section 4. Combined Punishment For More Than One Crime

Article 69. If a person commits more than one crime before judgment has been pronounced, except where he is sentenced to death or life imprisonment, the term of sentence that it is decided to be executed, in consideration of the circumstances, shall be less than the total term for all the crimes but more than the maximum term for any of the crimes; however, the term of control cannot exceed three years, the term of criminal detention cannot exceed one year, and fixed-term imprisonment cannot exceed 20 years.

If among the crimes there are any for which a supplementary punishment is to be imposed, the supplementary punishment must still be executed.

Article 70. If, after judgment has been pronounced but before the punishment has been completely executed, it is discovered that, before judgment was pronounced, the sentenced criminal element committed another crime for which he has not been sentenced, a judgment shall be rendered for the newly-discovered crime, and the punishment to be executed for the punishments sentenced in the two, former and latter, judgments decided according to the stipulations of Article 69 of this law. The term that has already been executed shall be counted in the term decided by the new judgment.

Article 71. If after judgment has been pronounced but before the punishment has been completely executed the sentenced criminal element again commits a crime, a judgment shall be rendered for the newly-committed crime, and the punishment to be executed for the punishment that has not been executed for the former crime and the punishment imposed for the latter crime decided according to the stipulations of Article 69 of this law.

Section 5. Suspension of Sentence

Article 72. A suspension of sentence may be pronounced for a criminal element who has been sentenced to criminal detention or to fixed-term imprisonment for not more than three years, according to the circumstances of his crime and his demonstration of repentance, and where applying a suspended sentence will not in fact result in further harm to society.

If a criminal element for whom a suspension of sentence has been pronounced has been sentenced to a supplementary punishment, the supplementary punishment must still be executed.

Article 73. The probation period for suspension of criminal detention is to be not less than the term originally decided and not more than one year, but it may not be less than two months. The probation period for suspension of fixed-term imprisonment is to be not less than the term originally decided and not more than five years, but it may not be less than one year.

The probation period for suspension is to be counted as commencing on the date the judgment becomes final.

Article 74. Suspension of sentence is not to be applied to recidivists.

Article 75. A criminal element for whom a suspension of sentence has been pronounced shall observe the following stipulations:

(1) observing the law and administrative statutes and accepting
supervision;
(2) reporting his activities in accordance with the stipulation of the
observing organ;
(3) following the observing organ’s stipulation on meeting visitors;
(4) reporting and applying to the observing organ for approval before leaving or moving from the city or county of residence.

Article 76. A criminal element for whom a suspension of sentence has been pronounced is to be observed by the public security organ during the probation period for suspension, with his unit or the basic level organization taking coordinated action. Upon the expiration of the probation period for suspension, public pronouncement that the punishment originally decided is not to be executed shall be made, provided there are no circumstances as stipulated in Article 77 of this law.

Article 77. If a criminal element for whom a suspension of sentence has been pronounced commits new crimes during the probation period for suspension or is discovered that, before judgment was pronounced, the sentenced criminal element committed another crime for which he has not been sentenced, the suspension is to be revoked and the punishment to be executed for the punishments imposed for the former and latter crimes is to be decided according to the stipulations of Article 69 of this law. If, during the probation period for suspension, a criminal element for whom a suspension of sentence has been pronounced violates relevant provisions governing the supervision and control of suspension of sentence provided for in the law, administrative statutes, or regulations of public security departments of the State Council, the suspension is to be revoked and the punishments originally imposed shall be executed.

Section 6. Reduction of Sentence

Article 78. A criminal element who is sentenced to control, criminal detention, fixed-term imprisonment or life imprisonment may have his sentence reduced if, during the period his punishment is being executed, he earnestly observes prison regulations, accepts reform through education, truly repents, or performs meritorious service.

The sentence shall be reduced if any of the following meritorious services are performed:
(1) preventing someone from engaging in major criminal activities;
(2) informing on major criminal activities in or outside the prison that can be verified;
(3) making inventions or major technological renovations;
(4) risking his life to save others in day-to-day production activities and life;
(5) performing outstanding service in combating natural disaster or preventing major accidents;
(6) making other major contributions to the state or society.
For those sentenced to control, criminal detention, or fixed-term imprisonment, the term of the punishment actually to be executed may not, after reductions of sentence, be less than half of the term originally decided; for those sentenced to life imprisonment it may not be less than 10 years.

Article 79. To receive reductions of sentence for criminal elements, the organ executing the sentence shall submit letters of sentence reduction proposal to the people’s court at or above the intermediate level. The people’s court shall form a collegial panel to examine the proposals and to issue sentence reduction orders for those who demonstrate true repentance and performed meritorious service.

Article 80. The term of fixed-term imprisonment that is reduced from life imprisonment is counted as commencing on the date of the order reducing the sentence; no sentence reduction shall be made without due legal process.

Section 7. Parole

Article 81. A criminal element sentenced to fixed-term imprisonment of which not less than half has been executed, or a criminal element sentenced to life imprisonment of which not less than 10 years has actually been executed, may be granted parole if he earnestly observes prison regulations, undergoes reform through education, demonstrates true repentance, and will not cause further harm to society after being paroled.

If special circumstances exist, with the approval of the Supreme People’s Court, the above restrictions relating to the term executed need not be imposed.

Criminal elements who are recidivists or who are sentenced to fixed-term imprisonment of more than 10 years or to life imprisonment for murder, bombing, robbery, rape, kidnap, or other violent crimes shall not be granted parole.

Article 82. The granting of parole to criminal elements shall be carried out in accordance with the procedures stipulated in Article 79 of this law; no parole shall be granted without due legal process.

Article 83. The probation period for parole in the case of fixed-term imprisonment is the term that has not been completed; the probation period for parole in the case of life imprisonment is 10 years.
The probation period for parole is counted as commencing on the date of parole.

Article 84. Criminal elements granted parole shall observe the following stipulations:

(1) observing the law and administrative statutes and accepting supervision;
(2) reporting his activities in accordance with the stipulation of the supervising organ;
(3) observing the supervising organ’s stipulation on meeting visitors;
(4) reporting and applying to the observing organ for approval before leaving or moving from the city or county of residence.

Article 85. During the probation period for parole, a criminal element who is granted parole is to be supervised by the public security organs, and upon completion of the parole, if there are no circumstances as stipulated in Article 86 of this law, the punishment to which he was originally sentenced is to be considered as having been completely executed, and a public pronouncement to the effect shall be made accordingly.

Article 86. If, during the probation period for parole, a criminal element commits any further crime, the parole is to be revoked and the punishment is to be executed for the punishment that has not been executed for the former crime and the punishment imposed for the latter crime decided according to the stipulations of Article 71 of this law.

If, during the probation period for parole, a criminal element violates relevant provisions governing the supervision and control of suspension of sentence provided for in the law, administrative statutes, or regulations of public security departments of the State Council but the violation does not constitutes a new crime, the parole shall be revoked in accordance with the legal procedures and the parolee shall be returned to prison to complete the unfinished prison term.

Section 8. Limitation

Article 87. Crimes are not to be prosecuted where the following periods have elapsed:

(1) in cases where the maximum legally-prescribed punishment is fixed-term imprisonment of less than five years, where five years have elapsed;
(2) in cases where the maximum legally-prescribed punishment is fixed-term imprisonment of not less than five years and less than ten years, where ten years have elapsed.
(3) in cases where the maximum fixed-term imprisonment is not less than ten years, where fifteen years have elapsed.
(4) in cases where the maximum legally-prescribed punishment is life-imprisonment or death, where twenty Years have elapsed. If it is considered that a crime must be prosecuted after twenty years, the matter must be submitted to the Supreme People’s Procuratorate for approval.

Article 88. No limitation on the period for prosecution is to be imposed in cases where, after the people’s procuratorates, public security organs, or state security organs have filed to investigate or after the people’ s courts have decided to hear the cases, the criminal element escapes from investigation or adjudication.

No limitation on the period for prosecution is to be imposed in cases where, after the victims filed charges within the period for prosecution, the people’ s court, people’s procuratorates, or public security organs refused to file for investigation as they should.

Article 89. The period for prosecution is counted as commencing on the date of the crime; if the criminal act is of a continuous or continuing nature, it is counted as commencing on the date the criminal act is completed.
If any further crime is committed during the period for prosecution, the period for prosecution of the former crime is counted as commencing on the date of the latter crime.

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