(Oct. 6, 2008) On August 29, 2008, the Standing Committee of the National People's Congress conducted the first reading of Amendment Seven of the Criminal Law of the People's Republic of China (Draft). Amendment Six of the Law was promulgated and effective on June 29, 2006. The 12 provisions set forth in the draft Amendment Seven – apparently the highest number of revised or new articles since the comprehensive 1997 revision of the Law – cover crimes of graft and bribery, of disruption of the “socialist market order,” of infringement of citizen's rights, and other crimes. Highlights of the proposed changes are as follows:
Graft and bribery:
- Doubles the maximum term of imprisonment for state functionaries convicted of the crime of having a large amount of property from unexplained sources from five years to ten (art. 395).
- Adds two new paragraphs to the crime of improper use of official powers and position to seek benefits for, and extort or accept money or property from, a favor-seeker by means of another official's performance of duties (i.e., influence peddling) (which is punishable as a crime of bribery). A proposed new paragraph 2 prescribes the punishments – including the maximum of at least seven years of fixed-term imprisonment and a fine or confiscation of the property if the amount is “exceptionally huge” or there are other 'exceptionally serious' circumstances – when such actions are instituted by close relatives of or persons closely connected to state officials. A proposed new paragraph 3 prescribes the same penalties in connection with officials who have left office or their close relatives and intimate acquaintances who take advantage of the official's former powers or position to carry out similar types of activities (art. 388).
Disruption of market order:
- Gives stiffer penalties and a broader scope of application for the smuggling of rare plants and their products, with a proposed penalty of not less than five years in 'serious circumstances' and application to 'other commodities and goods forbidden by the state to be imported or exported' (art. 151(3)).
- Includes “futures” in the current provision on punishments for insider trading of securities-related information (180)(1) and adds a paragraph to cover unlawful trading activities of financial institution personnel through the use of other operational information that has not yet been made public (so-called “rat trading,” laoshu cang) (art. 180, new (4)). It may be noted that on May 13, 2008, the Supreme People's Procuratorate and the Ministry of Public Security issued the Supplementary Rules to the Standards for Pursuing Economic Crime Cases in a move “to crack down on an increasing number of illegal financial activities such as insider trading and market manipulation.” (Rules on Insider Trading Tightened, CHINA LAW & PRACTICE (June 2008), available at http://www.chinalawandpractice.com/Article/1938594/Channel/9951/RULES-ON
-INSIDER-TRADING-TIGHTENED-.html.) In recent months, several fund managers have been prosecuted for such activities (see, for example, China Begins Trial of Major Insider Trading Case [Guangfa Securities], CHINA VIEW, July 19, 2008, available at http://news.xinhuanet.com/english/2008-07/19/content_8574242.htm.)
- Pares down the current provision on tax evasion and adds a new paragraph on non-pursuit of criminal liability, with certain exceptions, for those who make good on taxes owed after being subject to a fine and administrative punishment (art. 201).
- Inserts a new provision on punishments for engaging in multi-level marketing (or, direct selling) when the circumstances are “serious” or “exceptionally serious” (art. 225-1).
- Adds a new paragraph to the provision on the crime of money laundering to cover criminal liability of the work unit (art. 312(2)).
Infringement of citizen's rights:
- Inserts language in the provision on the crime of kidnapping to prescribe a punishment of fixed-term imprisonment of three to ten years and a fine when the circumstances are relatively less serious (art. 239).
- Adds a provision on protection of privacy, penalizing – with up to three years of fixed-term imprisonment or criminal detention and/or a fine state if the circumstances are serious – personnel of financial, telecommunications, communications, educational, and medical work units and the like who sell or unlawfully provide to others citizens' individual information that was obtained in carrying out their duties or in the course of providing services (art. 253-1).
- Adds a new provision prescribing punishment for persons convicted of organizing minors to carry out various types of offenses against public order (art. 262-2).
Other proposed changes:
- Revises the provision on the crime of causing serious animal or plant epidemics, to cover not only violation of laws on quarantine but also on epidemic prevention (art. 337(1)).
- Adds language to the provision on illegal production or sale of armed forces uniforms or special symbols such as number plates of vehicles, to include forgery, theft, sale or illegal supplying of or use of the latter (art. 375(2)).
(Xing Fa Xiuzheng An (Qi) cao'an quanwen ji shuoming [Complete text and explanation of Draft Amendment (Seven) of the Criminal Law], National People's Congress official website, Aug. 29, 2008, available at http://www.npc.gov.cn/npc/xinwen/lfgz/2008-08/29/content_ 1447387.htm; Jujiao Xing Fa Xiuzheng An (Qi) Cao'an [Focus on Draft Amendment (Seven) of the Criminal Law], XINHUA NET, Aug. 29, 2008, available at http://news.xinhuanet.com/legal/2008-08/25/content_9706778.htm; Selected PRC Legal Provisions: Criminal Justice – Criminal Law of the People's Republic of China, Congressional Executive Commission on China website, [online text of Criminal Law, in Chinese and in English translation, with separate texts of the six amendments], http://www.cecc.gov/pages/selectLaws/criminalJustice/index.php (last visited Sept. 29, 2008).)
According to a webpage of the National People's Congress that records the status of public submissions of opinions on draft laws, thus far there have been over 2,900 suggestions submitted on the draft amendments and nearly 760 persons have participated in the process. The submission period is from August 29, 2008 to October 10, 2008. (Draft Laws for Opinions Are in the Process of Being Solicited, National People's Congress Management System for Solicitation of Opinions on Draft Laws website (in Chinese), http://22.214.171.124/COBRS_LFYJ/user/Law.jsp (last visited Sept. 29, 2008).)