Violent Crime and Intentional Killing
Recent years have seen a narrowing of the range of violent and lethal crimes that are likely to result
in the death penalty. Article 232 of the Criminal Law states that whoever intentionally kills (guyi sharen)
shall be sentenced to death, life imprisonment or fixed-term imprisonment of not less than 10 years.
The Criminal Law, article 14 also states that “an intentional crime occurs where there is clear
knowledge that the act will have socially harmful consequences, and there is an intention or
indifference to the occurrence of those consequences. Criminal responsibility shall be borne for
intentional crimes.” Thus, any person who is aware that his act may result in death is guilty of
‘intentional’ killing. (see Chapter 2 on vulnerable defendants for more on criminal responsibility in
Chinese law.)
Article 234 of the criminal law, however, also stipulates that, “intentional injury” (guyi shanghai)
resulting in death or, if by “especially cruel means, causes severe injury to the person, reducing the
person to utter disability”, is also eligible for the death penalty. For this crime, the death penalty is
placed in a different position in the list of available punishments from the article for intentional killing
suggesting that it is not the recommended punishment. Article 234 lists the available punishments for
“intentional injury resulting in death” as “fixed-term imprisonment of not less than 10 years, life
imprisonment or death.” Whereas for “intentional killing” the punishments are listed as “death, life
imprisonment or fixed-term imprisonment of not less than 10 years”.
Although the National People’s Congress does not state the reasoning behind the order of the
punishments, it has been inferred that the recommended punishment is given first, and this is borne
out in evidence of sentencing.16 In some cases, lawyers have pressed the court to revise a murder
charge to “intentional injury resulting in death” in an attempt to mitigate the sentencing. Court
judgments provide limited explanation of the sentencing decision and, often, there is no reasoning
given about aggravation or mitigation. However, one forensic expert observed that while there may
be multiple factors contributing to the death of a person, courts in China tend to hold the defendant
responsible if they were involved. Although judges seem to show little interest in distinguishing
between intentional killing and other violence with lethal consequences, courts may eventually reduce
the sentence where the circumstances are complex and death sentences are most likely to be given
for the crime of “intentional killing”.
In cases of domestic violence in which the victim has murdered the perpetrator, there has, however,
been a move away from death sentences and a recognition of mitigating factors. This is a development
from previous policy in which cases of battered wives accused of murdering their husbands were
treated as intentional killing and many were sentenced to death with immediate execution. In March
2015, the SPC, the SPP, the Ministry of Public Security, and the Ministry of Justice jointly issued the
"Opinions on Handling Domestic Violence Criminal Cases in accordance with the Law" ("Opinions").
This is China's first criminal justice guidance document focused on comprehensively punishing and
preventing domestic violence crimes, clarifying a series of issues in the application of the criminal law
including considerations for sentencing, such as the fault of the victim. In December 2015, the
Standing Committee of the National People’s Congress (NPCSC) also passed China’s Anti-Domestic
Violence Law, which came into effect in March 2016. In judicial practice, there has been a trend
16
Bricker, Cary and Vitiello, Michael. ‘Chinese Homicide Law, Irrationality, and Incremental Change’, 27 Temp. Int'l &
Comp. L.J. 43. 2013.
16
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