China: Information on the provisions in the Chinese Criminal Code dealing with suspended sentences and the meaning of a suspended sentence according to the Criminal Code, particularly on what it means for a person to be sentenced to prison for a fixed term then later receive a suspended sentence

According to a 1984 copy of the 1979 Criminal Law of the People's Republic of China, available at the Documentation Centre in Ottawa, matters related to the suspension of sentences are governed by Articles 67 to 70 (The Criminal Law and the Criminal Procedure Law of China 1984, 28-29).

Article 67 of this law stipulates that

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 it is considered that 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 must still be executed (ibid.).

With regard to the probation period for suspension, Article 68 states that

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 one month.

The probation period for suspension of fixed term imprisonment is not to be 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 (ibid.).

Under article 69, suspension of sentence can not be applied to "counterrevolutionary criminal or recidivists" (ibid., 29)

Finally, according to Article 70,

Criminal element for whom a suspension of sentence has been pronounced is to be turned over by the public security organ to his unit or to a basic level organization for observation during the probation period for suspension, and, if he commits no further crime, upon the expiration of the probation period for suspension, the punishment originally decided is not to be executed; if he commits any further crime, the suspension is to be revoked and the punishment to be executed for the punishments imposed for the former and latter crimes according to the stipulations of Articles 64 of this Law (ibid.).

Further information on this subject could not be found among the sources consulted by the DIRB. However, attached please find two documents providing general information on the Criminal Law and legal process in China, which may be of interest to you.

This response was prepared after researching publicly accessible information currently available to the DIRB within time constraints. This response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find attached the list of additional sources consulted in researching this information request.

Reference

The Criminal Law and the Criminal Procedure Law of China. 1984. Beijing: Foreign Languages Press.

Attachments

Australia, Department of Foreign Affairs and Trade. 1991. Report of the Australian Human Rights Delegation to China 14-26 July 1991. Canberra: Australian Government Publishing Service, pp. 67-75.

Chen, Albert Hung-yee. 1992. An introduction to the Legal System of the People's Republic of China. Singapore: Butterworths Asia, pp. 185-90.

The Criminal Law and the Criminal Procedure Law of China. 1984. Beijing: Foreign Languages Press, pp. 28-29.

Other Sources Consulted

Country Reports on Human Rights Practices for 1994. 1995.

Foreign Broadcast Information Services (FBIS) daily reports [Cambridge]. January 1989-March 1995.