China: Multiple Areas of Criminal Law Changing under New Amendment

China: Multiple Areas of Criminal Law Changing under New Amendment

(Feb. 26, 2021) On December 26, 2020, the National People’s Congress Standing Committee (NPCSC) of the People’s Republic of China (PRC) adopted the 48-article Amendment XI to the PRC Criminal Law. Taking effect on March 1, 2021, the new amendment makes changes to multiple areas under the Criminal Law, including public safety, food and drug safety, financial order, trade secrets protection, and public health, by adding new crimes and adjusting penalties for existing ones. It also changes one of the general provisions under the Criminal Law to lower the age of criminal responsibility for certain crimes.

The PRC Criminal Law was first passed in 1979 and comprehensively revised in 1997. Since then, the NPCSC had adopted 10 amendments to the 452-article Law. Amendment Eight, passed in 2011, contains 50 articles, and Amendment Nine of 2015 has 52 articles, while the most recent amendment, Amendment Ten of 2017, has only one article.

Highlights of Amendment XI:

  1. Age of Criminal Responsibility

The PRC Criminal Law provides that a person must have reached the age of 16 when committing a crime in order to bear criminal responsibility. Those between 14 and 16 bear criminal responsibility if they commit certain crimes, i.e., intentional homicide, intentional assault causing serious injury or death, rape, robbery, drug-trafficking, arson, explosion, or poisoning. (PRC Criminal Law art. 17.)

Under amended article 17 of the Criminal Law, those between 12 and 14 can now be prosecuted if they commit the crimes of intentional homicide or intentional assault that causes death or, by “especially cruel means,” causes serious injury or disability, and if the Supreme People’s Procuratorate approves the prosecution. (Amendment XI art. 1.)

  1. Trade Secrets Misappropriation and Commercial Espionage

Article 219 of the Criminal Law on trade secret protection is revised to enumerate “fraud” and “electronic intrusion” as additional means of trade secrets misappropriation. The standards for sentencing the crime of trade secret misappropriation are changed from “causing great loss” and “causing especially serious consequences” to “having serious circumstances” and “having especially serious circumstances.” The amendment also increases the maximum penalty for trade secrets misappropriation from seven years to 10 years in prison, if the circumstances are “especially serious.” (Amendment XI art. 22.)

A new article 219a on the crime of commercial espionage is added to the Criminal Law. This article subjects a perpetrator of trade secrets misappropriation that benefits an overseas entity or individual to harsher punishment than if the misappropriation was to benefit a domestic entity. Article 219a reads:

Whoever steals, detects, buys, or illegally provides business secrets for any foreign agency, organization, or person shall be sentenced to fixed-term imprisonment of not more than five years and shall also, or shall only, be fined; or if the circumstances are serious, such person shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined.

According to this article, if the defendant’s actions were to benefit an overseas entity or individual, the sentence would be fixed-term imprisonment of not less than five years and a fine, if the circumstances are serious. With exceptions, “fixed-term imprisonment” under the PRC Criminal Law ranges from six months to 15 years when guilty of a single offense. (PRC Criminal Law art. 45.)

  1. Crime of Implanting Gene-Edited Embryos into Humans

The amendment adds a new article 336a to the Criminal Law, creating a new crime of implanting gene-edited or cloned human embryos into human or animal bodies, or implanting gene-edited or cloned animal embryos into human bodies. The sentence is up to seven years in prison and a fine, if the circumstances are “especially serious.” (Amendment XI art. 39.)

This article appears to be in response to the gene-edited babies incident in 2018, in which a scientist edited genes of human embryos and implanted the embryos in the mother, who gave birth to twin girls. The scientist was sentenced to three years in prison for the crime of “illegal medical practices” in 2019, when the Criminal Law lacked specific provisions to punish such conduct.

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