On August 29, 2015, the Standing Committee of the National People’s Congress promulgated the Ninth Amendment to the Criminal Law of the People’s Republic of China (Amendment), which takes effect on November 1, 2015.  The Amendment changes the existing criminal law in seven aspects, including the amendment and addition of provisions on bribery and data privacy.  In this alert, we summarize some of the changes. 

As first proposed in November 2014 (see our previous alert), the Amendment modifies the standards applied to determine penalties for bribery of state functionaries, removing references to monetary amounts and replacing them with more general standards.  The new standards are referred to as: “relatively large,” “huge,” and “especially huge” and are intended to provide more flexibility to the judiciary for sentencing purposes.  In addition, if an individual is convicted of bribery and sentenced to the death penalty and is then granted a reprieve, if the sentence is reduced to life imprisonment, the individual cannot be paroled, or afforded a further reduction of his/her term of imprisonment.

The Amendment increases the penalties for offering bribes.  Mandatory fines, up to confiscation of property, are added as penalties for the crime of offering bribes.  Mitigating circumstances for individuals offering bribes have been restricted so that going forward in order to mitigate the punishment, a bribe-giver must voluntarily disclose his/her crimes before prosecution. Before the Amendment, in theory voluntary disclosure could be sufficient for complete exemption from punishment.  After the Amendment, in addition to voluntary disclosure before prosecution, a bribe-giver may be exempted from punishment entirely only if his/her information is crucial for solving a major case, or he/she performs major meritorious services that assist the state.

Additionally, the Amendment introduces a new offense of offering bribes to relatives of state functionaries or individuals who have close relationships with state functionaries, for the purpose of obtaining illegitimate benefits.  This offense also covers offering bribes to former state functionaries or their close relatives, or individuals with whom they have close relationships. Preventative measures are addressed in the Amendment as well.  For example, a court can order that a person who commits a duty-related crime be restricted from engaging in his/her relevant profession for a period of between three to five years.

In relation to data privacy, the Amendment adds provisions on the illegal sale or provision of a citizen’s personal information and provides the punishment for committing or facilitating such crimes.  For example, if an internet service provider does not fulfill the internet security obligations imposed by laws and administrative regulations, and the resulting violation causes wide dissemination of illegal information, or the leak of users’ personal information, the company will be penalized with fines, while supervisors or other persons with direct responsibility for the violation may be sentenced to up to three years imprisonment.

The Amendment reduces the number of crimes punishable by the death penalty.  Nine crimes are no longer capital offenses, reducing the total number of crimes for which the death penalty is applicable to 46.  

The Amendment also strengthens the protection of women and minors.  Engaging in the prostitution of an underage girl is no longer a separate crime, but will be charged as rape and aggravated penalties will apply to sentencing.   Purchasing trafficked women and minors is a new offense.

Certain behaviors relating to social activities are now criminalized, including organizing or abetting cheating in national exams, selling exam papers, or imposters taking national exams on behalf of others. 

Fabricated evidence can be an issue in Chinese litigation and the Amendment provides that a plaintiff who files a civil lawsuit relying on fabricated facts may be sentenced to imprisonment for up to seven years. 

The Amendment defines certain criminal conduct as terrorism or support for terrorism, including financing training programs for terrorist activities, recruiting and transporting personnel for terrorist organizations and similar acts.  Confiscation of property is added to the penalties for the crimes of organizing, leading, or participating in a terrorist organization.

The Amendment extends the scope of criminal liabilities under Chinese law, addressing many key issues that have emerged in recent years.  In particular, the Amendment clarifies certain criminal law issues relating to bribery and data privacy.