China mulls end of death penalty for some crimes

A proposed amendment to China's criminal law could see the abolition of capital punishment for a number of non-violent offences, including illegal money lending, as Cao Yin reports.

When she learned about a proposal to amend China's criminal law and abolish capital punishment for the crime of "illegal fundraising", Zeng Shan took a deep breath and sat quietly, remembering her father, Zeng Chenjie, who was executed for the crime in July 2013.

After a while, the 25-year-old broke her silence: "Maybe other people suspected or convicted of this charge will not face the death penalty in the future." Illegal fundraising involves private individuals who set themselves up as moneylenders and then invite "investors" to contribute to the principal fund, on the understanding that the extremely high rates interest the borrower is charged will bring them a huge profit.

The money is then loaned and the operation is administered by the fundraiser. If the money is repaid at the agreed rate, all is well, but defaults are common, and when they occur, investors often appeal to the local government for redress, thus bringing the activities of the fundraisers to the attention of the authorities.

However, few investors obtain compensation, because under a 2011 regulation issued by the Supreme People's Court, China's highest judicial body, private lending is only allowed if the interest charged is not more than four times the central bank's benchmark lending rate, and most illegal fundraisers charge rates that are many times in excess of the legal ceiling.

In May 2011, Zeng Chengjie, an entrepreneur from Changsha, the capital of Hunan province in Central China, was convicted of generating more than 3.4 billion yuan ($554 million) via illegal fundraising. He was sentenced to death by the city's intermediate court.

In June 2013, the Supreme People's Court reviewed and upheld the sentence. The 55-year-old was executed a month later.

'Economic misbehavior'

At the end of October, a session of the National People's Congress, the country's top legislature, discussed abolishing the death penalty for nine crimes, five of which relate to "economic misbehavior", including illegal fundraising.

According to Yi Shenghua, a criminal lawyer in Beijing, the reduction in the number of crimes subject to capital punishment has become a trend as China's lawmakers revise the criminal law. He said most of the calls for abolition relate to economic, non-violent crimes.

Under the law as it stands, 55 crimes are subject to the death penalty, a reduction from the 68 on the statute books before a 2011 amendment cut the number by 13.

Yi described Zeng Chengjie's case as the catalyst that accelerated the process of abolishing the death penalty for illegal fundraising, which most legal professionals consider a sensible and humane policy.

"Zeng Chengjie should be the last person to be sentenced to death for illegal fundraising," he said. "In reality, though, very few people are sentenced to death for this crime. Usually, the sentence is only handed down to people whose misdemeanours are particularly serious, such as raising a huge amount of money, or whose actions cause mass disturbances or damage social stability."

In 2012, Wu Ying, 32, an entrepreneur from Wenzhou in Zhejiang province, was sentenced to death after being convicted of illegally raising 770 million yuan between 2005 and 2007, and then failing to pay back the investors.

However, the Supreme People's Court stepped in and overruled the local court. Wu's death sentence was suspended for two years, and was later commuted to a lengthy prison term, which she is still serving.

Court officials said Zeng Chengjie's case was far more serious than Wu's because it led to three episodes of mass disturbance, and also resulted in an investor committing suicide by setting himself on fire.

Yi said depriving someone of their life is too high a price to pay for infringing other people's financial interests: "Capital punishment for economic misbehavior is not equitable to the crime. After all, life is the most precious thing, and the death penalty is irreversible. It isn't possible to reverse an execution in the event that we discover errors in the investigations or trials."

Protecting human rights

Ruan Qilin, a professor of law at the China University of Political Science and Law in Beijing, was of the same opinion. He said the reduction in the number of crimes subject to the death penalty will also serve to better protect human rights.

"Capital punishment will not be abolished in our country in the near future, but the reduction is being pushed forward regardless. Illegal fundraising just damages money, so it's unreasonable to punish the fundraisers by taking their lives," he said.

According to Wang Shaoguang, the lawyer who represented Zeng Chengjie, the charge of illegal fundraising has long been a controversial one "because sometimes the victims didn't pay attention to the funding risks, and simply wanted to make bigger profits.

"Some people were angry after they suffered economic losses, and rushed to ask the government for help, bringing the illegal operations to the attention of the authorities. Of course, the fundraisers defrauded the investors, but in the beginning, those same investors were lured by higher rates of interest and profit, and they failed to pay attention to the risks inherent in fundraising," he said.

"I agree with abolishing the death penalty for this charge, but what I care about more is legal clarification of this crime, whether it is tenable and should actually exist at all," he said, adding that lawyers can learn from observing cases of this nature which will help to improve the law.

"If a fundraiser is sentenced to death, the victims still won't be reimbursed," he said, and urged local governments to mediate with defrauded investors to resolve any conflicts.

"Punishing the fundraiser is just one part of the issue. The other part is working out how to aid the victims and help them to obtain compensation, which would be better for society stability, and would regulate the loan market," he said.

The amendment is likely to be ratified in February or March at the earliest, "and I hope the reduction in the number of crimes subject to capital punishment will boost our criminal law and make punishments scientific and reasonable", Wang added.

Zeng Shan echoed Wang, saying she is looking forward to seeing the revision and an improvement in China's criminal law.

"I'm reluctant to remember the summer of 2013, because I have had to force myself to get my life back on track, but I am following the progress of the proposal very closely," the sales representative from Hunan said.

"I hope those in similar circumstances to my father's won't face such an extreme punishment in the future."

Suggested change sparks legal debate

The proposal to abolish the death penalty for the crime of coercing women into prostitution aroused controversy when the issue was discussed at a bimonthly session of the National People's Congress, China's top legislative body.

According to some of the legal experts at the meeting, the damage that results from forcing people into prostitution is not as severe as that caused by some other violent offences, such as murder or intentional injury, and they felt it would be right to abolish the death penalty for coercion.

Zhao Bingzhi, a professor of criminal law research at Beijing Normal University, said the move to reduce the number of crimes subject to capital punishment is intended to protect human rights, and is one of the aims of China's ongoing reform of the judicial system.

Lawmakers have already abolished the death penalty for so-called economic crimes, and the latest proposal may accelerate the process whereby the punishment is abolished completely, Zhao said.

However, Xu Zhenchao, a member of the nation's top legislature, the Standing Committee of the National People's Congress, countered the argument. He said the threat of coercion would continue to hang over women if the death penalty isn't retained.

Tang Shili, another NPC member, echoed Xu's sentiments, saying that the ways in which offenders force women into prostitution are almost always cruel and thus constitute abuse, so the crime should still be subject to the most-severe punishment the law can provide.

In September, the Hunan Provincial High People's Court overturned death sentences handed down to two men, Zhou Junhui and Qin Xing, who had been convicted of rape, organising prostitution and forcing women into prostitution.

The court ruled that the men's crimes didn't warrant the death penalty, and commuted their sentences to life imprisonment.

Li Jianming, a professor of law at Nanjing Normal University, accepted that freed from the threat of execution, some offenders would continue to coerce women, but said many of them pressured their victims in non-violent ways, and the harsh punishment would be inapproriate.

He said that even if the penalty were to be abolished for coercion, offenders who killed or physically harmed their victims could be charged with homicide or causing intentional injury, both of which still carry the threat of capital punishment.