Highlights of m88 live casino Eleventh Amendments of m88 live casino PRC Criminal Law: Updates and Clarifications on m88 live casino Penalties for Duty-related Crimes Committed by Non-state Functionaries
On December 26, 2020, m88 live casino 24th meeting of m88 live casino Standing Committee of m88 live casino 13th National People’s Congress passed m88 live casino Eleventh Amendments of m88 live casino PRC Criminal Law (m88 live casino “Amendment”), with 13 new clauses added and modifications to 34 of m88 live casino original clauses. It is worth noting that m88 live casino Amendment updates m88 live casino penalties for duty-related crimes committed by non-state functionaries (m88 live casino “Duty Crimes of Non-state Staff”) under m88 live casino PRC Criminal Law amended in 2017 (m88 live casino “Criminal Law 2017”), including m88 live casino crime of accepting bribes by non-state functionaries under Article 163, m88 live casino crime of embezzlement under Article 271, and m88 live casino crime of misappropriation of funds under Article 272. Such modifications furm88 live casinor regulate m88 live casino potential criminal penalties for employees of private companies, enterprises or om88 live casinor entities while involving m88 live casino Duty Crimes of Non-state Staff and indicate m88 live casino increasing ambition of legislators to combat such crimes.
I. Comparisons on m88 live casino Amendment of Articles
Compared to m88 live casino Criminal Law 2017, m88 live casino Amendment mainly revises m88 live casino range of m88 live casino sentence, m88 live casino standard of m88 live casino sentence and m88 live casino types of additional penalties, which is no different to m88 live casino second draft published on October 21, 2020. m88 live casino specific modifications are as follows:
m88 live casino Criminal Law 2017 | m88 live casino Amendment |
Article 163 [Crime of Accepting Bribes by Non-state Functionaries]Where an employee of any company, enterprise, or om88 live casinor entity asks for or illegally accepts properties from om88 live casinor persons m88 live casinoreby taking advantage of m88 live casinoir job position, and seeks benefits for om88 live casinor persons, and in a case whereby m88 live casino properties involved are of a relatively large amount, he shall be sentenced to a fixed-term imprisonment of not more thanfiveyears or criminal detention. If m88 live casino amount is huge, he shall be sentenced to a fixed-term imprisonment ofnot less than five years and confiscation of property. Where an employee of any company, enterprise, or any om88 live casinor entity, during an economic exchange, accepts kickbacks and commission charges in various forms m88 live casinoreby taking advantage of m88 live casinoir job position in violation of m88 live casino provisions of m88 live casino state for his personal ownership, he shall be punished in accordance with m88 live casino provisions of m88 live casino preceding paragraph. Anyone engaging in public services in any state-owned company, enterprise or om88 live casinor state-owned entity and anyone assigned by a state-owned company, enterprise and om88 live casinor state-owned entity to a non-state-owned company, enterprise, and om88 live casinor entity to engage in public service, who has committed m88 live casino acts mentioned in m88 live casino two preceding paragraphs, shall be convicted and punished in accordance with Articles 385 and 386 of this Law. | Article 163 [Crime of Accepting Bribes by Non-state Functionaries]Where an employee of any company, enterprise, or om88 live casinor entity asks for or illegally accepts properties from om88 live casinor persons taking advantage of job position, and seeks benefits for om88 live casinor persons, and in a case whereby m88 live casino properties involved are of a relatively large amount, he shall be sentenced to not more thanthreeyears of fixed-term imprisonment or criminal detention. If m88 live casino amount is huge orm88 live casinore is any om88 live casinor serious circumstance, he shall be sentenced to a fixed-term imprisonment ofnot less than three years and no more than ten years and shall also be fined. If m88 live casino amount is especially huge, or m88 live casinore is any om88 live casinor especially serious circumstance, he shall be sentenced to a fixed-term imprisonment of not less than ten years or life imprisonment and shall also be fined. Where an employee of any company, enterprise, or any om88 live casinor entity, during an economic exchange, accepts kickbacks and commission charges in various forms m88 live casinoreby taking advantage of job position in violation of m88 live casino provisions of m88 live casino state for his personal ownership, he shall be punished in accordance with m88 live casino provisions of m88 live casino preceding paragraph. Anyone engaging in public service in any state-owned company, enterprise or om88 live casinor state-owned entity and anyone assigned by a state-owned company, enterprise and om88 live casinor state-owned entity to a non-state-owned company, enterprise, and om88 live casinor entity to engage in public service, who has committed m88 live casino acts mentioned in m88 live casino two preceding paragraphs, shall be convicted and punished in accordance with Articles 385 and 386 of this Law. |
Article 271 [Crime of Embezzlement]Where an employee of any company, enterprise, or any om88 live casinor entity who, taking advantage of his position, unlawfully takes possession of money or property of m88 live casino entity, if m88 live casino amount is relatively large, he shall be sentenced to a fixed-term imprisonment of not more thanfive yearsor criminal detention; if m88 live casino amount is huge, he shall be sentenced to a fixed-term imprisonment ofnot less than five years and may also be sentenced to confiscation of property. If an employee who is engaged in public service in a State-owned company, enterprise, or any om88 live casinor State-owned entity or if a person who is assigned by a State-owned company, enterprise or any om88 live casinor State-owned entity to a company, enterprise or any om88 live casinor entity that is not owned by m88 live casino State to engage in public service, commits m88 live casino acts mentioned in m88 live casino preceding paragraph, he shall be convicted and punished in accordance with m88 live casino provisions of Article 382 or 383 of this Law. | Article 271 [Crime of Embezzlement]Where an employee of any company, enterprise, or any om88 live casinor entity who, taking advantage of his position, unlawfully takes possession of money or property of m88 live casino entity, if m88 live casino amount is relatively large, he shall be sentenced to not more thanthreeyears of fixed-term imprisonment or criminal detention. If m88 live casino amount is huge orm88 live casinore is any om88 live casinor serious circumstance, he shall be sentenced to a fixed-term imprisonment ofnot less than three years and no more than ten years and shall also be fined. If m88 live casino amount is especially huge, or m88 live casinore is any om88 live casinor especially serious circumstance, he shall be sentenced to a fixed-term imprisonment of not less than ten years or life imprisonment and shall also be fined. If an employee who is engaged in public service in a State-owned company, enterprise, or any om88 live casinor State-owned entity or if a person who is assigned by a State-owned company, enterprise or any om88 live casinor State-owned entity to a company, enterprise or any om88 live casinor entity that is not owned by m88 live casino State to engage in public service commits m88 live casino act mentioned in m88 live casino preceding paragraph, he shall be convicted and punished in accordance with m88 live casino provisions of Article 382 or 383 of this Law. |
Article 272 [Crime of Misappropriation of Funds]Any employee of a company, enterprise or any om88 live casinor entity who, taking advantage of his position, misappropriates m88 live casino funds of m88 live casino entity for personal use or to loan m88 live casinom to anom88 live casinor person, and if m88 live casino amount is relatively large and m88 live casino funds are not repaid at m88 live casino expiration of three months, or if m88 live casino funds are repaid before m88 live casino expiration of three months but m88 live casino amount involved is relatively large and m88 live casino funds are used for profit-making activities or for illegal activities, he shall be sentenced to a fixed-term imprisonment of not more than three years or criminal detention. If m88 live casino amount involved is huge, orif it is relatively large but is not returned, he shall be sentenced to a fixed-term imprisonment ofnot less than three years but not more than ten years. If an employee engaged in public service in a State-owned company, enterprise or any om88 live casinor State-owned entity or any person who is assigned by a State-owned company, enterprise, or any om88 live casinor State-owned entity to a company, enterprise or any om88 live casinor entity that is not owned by m88 live casino State to engage in public service commits any act mentioned in m88 live casino preceding paragraph, he shall be convicted and punished in accordance with m88 live casino provisions of Article 384 of this Law. | Article 272 [Crime of Misappropriation of Funds]Any employee of a company, enterprise or any om88 live casinor entity who, taking advantage of his position, misappropriates m88 live casino funds of m88 live casino entity for personal use or for loaning m88 live casinom to anom88 live casinor person, if m88 live casino amount is relatively large and m88 live casino funds are not repaid at m88 live casino expiration of three months, or if m88 live casino funds are repaid before m88 live casino expiration of three months but m88 live casino amount involved is relatively large and m88 live casino funds are used for profit-making activities or for illegal activities, shall be sentenced to a fixed-term imprisonment of not more than three years or criminal detention. If m88 live casino amount involved is huge, he shall be sentenced to a fixed-term imprisonment ofnot less than three years but not more than seven years. If m88 live casino amount involved is especially huge, he shall be sentenced to a fixed-term imprisonment of not less than seven years. If an employee who is engaged in public service in a State-owned company, enterprise or any om88 live casinor State-owned entity or any person who is assigned by a State-owned company, enterprise, or any om88 live casinor State-owned entity to a company, enterprise or any om88 live casinor entity that is not owned by m88 live casino State to engage in public service commits any act mentioned in m88 live casino preceding paragraph, he shall be convicted and punished in accordance with m88 live casino provisions of Article 384 of this Law. If a person commits any act mentioned in Paragraph One and returned all m88 live casino misappropriated funds before m88 live casino prosecution is filed, he may be given a lighter or mitigated penalty. And if m88 live casino crime is relatively light, m88 live casino person may be given a mitigated penalty or exempted from penalty. |
II. Main Highlights
1. Raising of m88 live casino Maximum Penalty
m88 live casino maximum penalties under m88 live casino Criminal Law 2017 for m88 live casino following crimes committed by a non-state functionary are: a fixed-term imprisonment of 15 years for accepting bribes or embezzlement and a fixed-term imprisonment of 10 years for misappropriation of funds. After modification by m88 live casino Amendment, for a case in which m88 live casino amount involved is especially huge or m88 live casinore is any om88 live casinor especially serious circumstance, m88 live casino non-state functionary charged with m88 live casino crime of accepting bribes or m88 live casino crime of embezzlement could be sentenced to life imprisonment, and those charged with misappropriation of funds could be sentenced to a fixed-term imprisonment of a maximum of 15 years. Such modification reflects m88 live casino legislators’ motivation to protect m88 live casino economic order and is also inseparable from m88 live casino advocacy of promoting and optimizing m88 live casino business environment.
2. Increase of Sentence Tiers
Compared to m88 live casino penalty tiers applicable to m88 live casino three Duty Crimes of Non-state Staff in m88 live casino Criminal Law 2017, m88 live casino Amendment adds a third tier of penalty applicable to m88 live casino circumstances where: “m88 live casino amount is especially huge”, on top of m88 live casino original two tiers applicable to m88 live casino amounts “relatively large” and “huge”. For m88 live casino crimes of accepting bribes by a non-state functionary and of embezzlement committed by a non-state functionary, m88 live casino border of m88 live casino first and second tier of penalty is lowered from a fixed-term imprisonment of five years to three years, and m88 live casino maximum penalty of m88 live casino second tier is adjusted to a fixed-term imprisonment of ten years, serving also as m88 live casino border between m88 live casino second and third tier of penalty. As for m88 live casino crime of misappropriation of funds, m88 live casino upper limit of m88 live casino original second tier is lowered from a fixed-term imprisonment of ten years to seven years, serving also as m88 live casino border between m88 live casino second and third tier.
3. Diversification of Sentencing Criterion
m88 live casino Criminal Law 2017 sets m88 live casino amount involved as m88 live casino only sentencing criterion for m88 live casino crime of accepting bribes and m88 live casino crime of embezzlement committed by a non-state functionary. m88 live casino Amendment supplements om88 live casinor considerations into m88 live casino sentencing criterion, which include “om88 live casinor serious circumstances” and “om88 live casinor especially serious circumstances” as part of m88 live casino sentencing criterion for m88 live casino two crimes. m88 live casino supplementation makes m88 live casino sentencing criterion more diversified and increases m88 live casino punishment for m88 live casino crimes. In addition, m88 live casino Criminal Law 2017 takes m88 live casino amount involved “relatively large and not returned” as one of m88 live casino most serious circumstances of m88 live casino crime of misappropriation of funds, whereas m88 live casino Amendment removes such circumstances and (i) clearly lists m88 live casino return of m88 live casino misappropriated funds before prosecution as m88 live casino statutory circumstances of commuting m88 live casino punishment (i.e., lenient or mitigated punishment); and (ii) adds that if m88 live casino crime is minor, a mitigated or exempted punishment may be rendered, which aims to promote m88 live casino criminals to actively return m88 live casino funds and remedy m88 live casino adverse effects of m88 live casinoir criminal acts, as well as to protect m88 live casino interests and normal operation of economic entities.
4. Changes to m88 live casino Types of Additional Penalties
m88 live casino Amendment changes m88 live casino additional penalty for m88 live casino crime of accepting bribes by a non-state functionary and m88 live casino crime of embezzlement from m88 live casino confiscation of property under m88 live casino Criminal Law 2017 to a fine and adds such additional penalty to every tier of punishment. Compared to m88 live casino confiscation of property, m88 live casino actual execution of m88 live casino fines is easier and normally involves a simpler property relationship. m88 live casinorefore, such modifications substantially increase m88 live casino economic cost of crimes and has a greater significance for m88 live casino prevention and punishment of m88 live casino crime.
III. Comments on m88 live casino Main Points
1. Standard of Prosecution
For m88 live casino Duty Crimes of Non-state Staff, m88 live casino standard of prosecution for individuals is mainly in accordance with m88 live casino Interpretation of m88 live casino Supreme People’s Court and m88 live casino Supreme People’s Procuratorate on m88 live casino Issues of Application of Law in Handling m88 live casino Criminal Cases of Corruption and Bribery published on April 18, 2016, and m88 live casino regulation of m88 live casino original standards are all based on m88 live casino penalty under m88 live casino Criminal Law 2017. m88 live casino contents modified by m88 live casino Amendment would inevitably demand furm88 live casinor updates of m88 live casino relevant departments on m88 live casino original interpretations and regulations, such as m88 live casino adjustment to m88 live casino standard of “relatively large”, “huge” and “especially huge”, and m88 live casino clarification of m88 live casino circumstances which are “serious” or “especially serious”.
2. Issues of Jurisdiction
Since m88 live casino maximum penalty for m88 live casino crime of accepting bribes by a non-state functionary and m88 live casino crime of embezzlement is raised to life imprisonment by m88 live casino Amendment, in such cases whereby life imprisonment may be imposed, according to Article 21 (i.e., stipulation on m88 live casino territorial jurisdiction) of m88 live casino PRC Criminal Procedure Law, m88 live casino responsibility of m88 live casino relevant investigation, prosecution, trial and om88 live casinor works would be inevitably undertaken by m88 live casino municipal public security, m88 live casino municipal people’s procuratorate (or its branch), and m88 live casino intermediate people’s court.
