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Debate: Death penalty

(China Daily)
Updated: 2010-09-13 08:17

Should capital punishment be abolished for 13 economics-related non-violent crimes as proposed by an amendment to the Criminal Law? A legal practitioner says 'yes', while a lawyer says 'no'.

Meng Lin

Time we did away with such punishment

On Aug 23, China's top legislature began the first reading of an amendment to the Criminal Law, which proposes to drop the death penalty for 13 economics-related non-violent crimes.

If the National People's Congress approves the amendment it would signify a big step forward in the country's human rights development. The protection of citizens' fundamental rights, especially the right to life, should get priority over social interests and other rights. Irrespective of the economic order, neither public nor private property rights should take precedence over the right to life.

The first concern of legislators, however, should be to adjust social relations by means other than punishment (such as civil or administrative mediation). Criminal law should be used to protect people's legal interests only after all other measures have failed.

Therefore, the focus at present should be on improving the supervision mechanisms to prevent economic crimes rather than sentencing to death people committing economics-related crimes.

Though the number of criminals sentenced to death has increased in the past decade, the number of economic crimes, such as corruption and bribery, has remained high. The amount of money involved in economic crimes has been rising, too. This shows that the death penalty has not acted as a deterrent for people committing economics-related crimes.

More than 100 countries and regions across the world have abolished or virtually abolished the death penalty. The number of countries that still hand capital punishment to criminals is only about 70. And the laws of most of those 70 countries use the death penalty only against people who have endangered national security or committed murder. China is the only country that uses capital punishment for non-violent economics-related crimes.

China has signed the International Covenant on Civil and Political Rights. The first paragraph of the covenant's Article 6 stipulates: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." The second paragraph says: "In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes ", and an economics-related crime cannot be considered serious enough to invite the death penalty. So, as a signatory to the covenant, China should abide by its obligatory regulations.

Since such economics-related crimes can invite capital punishment in China, people committing them will continue trying to flee abroad. And once they do so, the Chinese government will find it hard - as experience shows - to get them back to face justice at home.

The problem is criminals who fail to flee the country could face death penalty and those who do will succeed in evading the law. This reduces the possibility of the government recovering the economic losses suffered by the country in economics-related criminal cases.

Capital punishment has become one of the biggest issues for which the West has been denouncing China. Though total abolition of the death penalty is not possible for lack of proper social conditions, it would be advisable to abolish it for economics-related criminal cases.

Such a move would reflect the country's social and legal development, as well as respect for life.

The author is a legal practitioner in Yangzhou, Jiangsu province.

Yi Shenghua

Social realities do not favor a ban

The amendment to the Criminal Law, which proposes to drop the death penalty for 13 economics-related non-violent crimes and people above 75 years of age, may be the biggest in China's history of the Criminal Law.

As a professional lawyer who specializes in criminal defense, I want capital punishment to be banned. But I don't think this is the right time to abolish the death penalty, especially for the 13 economics-related crimes.

According to the amendment, the 13 crimes have three things in common: They are economics-related, non-violent and less likely to invite the death penalty. But only nine of the 13 are part of the "crimes breaking socialist market economy" laws. The others are not truly "economics-related".

Besides, the 13 crimes are not necessarily "non-violent" in nature. For example, armed gangs are often involved in smuggling, and it is not rare for the death penalty to be handed down in such cases. Hence, the amendment's proposal to drop the death penalty for the 13 crimes is neither reasonable nor persuasive.

On frauds, for example, the draft amendment proposes to drop capital punishment for crimes involving bills, financial instruments and letters of credit.

The draft, however, says the death penalty should not be lifted for fundraising frauds, one of the most controversial crimes.

There are many similarities in practice between an "illegal pooling of public deposits" and a "fundraising fraud". The most s

evere sentence for "illegal pooling of public deposits" would be only 10 years' imprisonment but for "fundraising fraud" it could be death. This means two similar crimes can invite two totally different punishments. It is thus important to drop the death penalty for all such crimes to avoid making a travesty of justice.

"Forging or selling forged special VAT (value added tax) invoices" is a crime, for which the amendment suggests the death penalty be dropped. But it proposes that similar kinds of "counterfeiting currency" be subject to capital punishment.

Since the two kinds of crime are similar and cause equal harm, they should not be treated as being different in nature.

If the amendment is passed, it may prompt criminals to "shift" from committing crimes that invite severe punishment - or even the death penalty - to crimes that invite light punishment. This certainly goes against the original intent of the amendment.

Another subject being hotly debated is whether the death penalty should be lifted in bribery and corruption cases. I believe that as long as death penalty exists, the law should treat people equally and not allow the old feudal privileges to be revived, which during imperial rule protected government officials from severe punishment.

Corruption is one of the main reasons for social inequality. It leads to other, heinous crimes.

The existing system to combat corruption is very severe, and the death penalty is still one of the strongest deterrents to criminals.

But once the death sentence is abolished the cost one pays for being corrupt would be reduced drastically. That could lead to a dramatic rise in the number of corruption cases. Some corrupt officials could usurp huge amounts of social wealth even at the risk of losing their freedom. Moreover, people would lose confidence in the country's judicial system, aggravating social contradictions.

No matter how the death penalty regime is reformed, the goal should be to reduce crimes and maintain social justice. But if the results run counter to the original intention, a legal reform could only be a setback for justice.

The author is a Beijing-based lawyer.