Sie sind auf Seite 1von 23


Zhou Zhenjie, A Limiting Approach to Criminal Liability
of State Organs, 5 China Legal Sci. 3, 24 (2017)

Content downloaded/printed from HeinOnline

Tue Nov 14 04:29:02 2017

-- Your use of this HeinOnline PDF indicates your acceptance

of HeinOnline's Terms and Conditions of the license
agreement available at

-- The search text of this PDF is generated from

uncorrected OCR text.

-- To obtain permission to use this article beyond the scope

of your HeinOnline license, please use:

Copyright Information

Use QR Code reader to send PDF to

your smartphone or tablet device
VOL. 5 JULY 2017 NO. 4


@ 2017 by The China Legal Science Journals Press


Zhou Zhenjie


I. INTRODUCTION ....................................................... 4
THE CRIMINAL LIABILITY OF STATE ORGANS ............................... 5
A. Is the CriminalLiability of State Organs Constitutional? ....................................... 5

B. Has Criminal Liabilityof State Organs Been Refused by judicial Practice? ......................... 7

C. Can State Organs Assume the Consequences of Conviction? ...................................... 8

D. Is There Any Foreign Precedent We Can Follow? ............................................. 9

III. A COMPARATIVE STUDY................................................9

IV. ANALYSIS OF ARGUMENTS.............................................13
CRIMINAL LIABILITY OF STATE ORGANS.................................15
A. Why Should CriminalLiability of State Organs Be Limited? .................................... 15
B. How to Restrict the Criminal Liability of State Organs? ........................................ 17
VI. CRIMINAL LIABILITY OF THE PEOPLE'S COURT .............................
VII. CONCLUSION.........................................................23

Zhou Zhenjie*

This article holds that criminal liability of state organs is acceptablefrom the
standpoints of the Constitution, judicialpractice, the purpose ofpunishment
and comparative law, and the deep involvement of state organs in economic
activities making it necessary to use criminalpenalties to effectively regulate
their activities. Meanwhile, it suggests that the differences between state organs
and commercial organizations being recognized and legislators impose
restraintson the criminalliability of state organs by requiringthe existence of
a specific victim or obligation. Moreover although the criminal liability of
the People's Court has virtually no advocates in China now, this article insists
that the People's Court can assume criminal liability because they are
categorizedas "state organs"under the Constitution and theirpositions in the
nationalpoliticalstructureas executive organs with the will of the legislature
and the Party causes them to behave as administrative authorities rather
than as organs in a checks-and-balancesrelationshipwith legislative and
executive branches.


It is potentially counterintuitive that a state organ, such as a People's Court, a

People's Procuratorate or a governmental department, could be criminally
charged or convicted. However, this is the case in China. In the 1980s, illegalities
such as tax evasion and the speculation of state organs were not rare because all
state organs, including the military, could invest in or run commercial
organizations. In fact, it is the appalling number and scale of such illegal
economic activities as the smuggling of state organs and state-owned
corporations, enterprises and government-funded public institutions that made
it appropriate for corporate criminal liability to be introduced into the Customs
Law of 1987.' The criminal liability of state organs was barely questioned at that
time because governments and economic enterprises were not separate from each
other, and the intricate relationship between state organs and judicial authorities
made the prosecution and conviction of state organs quite rare news.
Since the end of 1990s, the criminal liability of state organs gradually drew

* Professor at the College for Criminal Law Science of Beijing Normal University.
14-15 (China Procuratorial Press, 2001).

public and academic attention with the advent of both reforms separating
economic functions from administrative authorities and the development of
media technology. Especially, the Urumqi Railway Transportation Intermediate
People's Court bribery case in 2006 where a criminal charge of corporate bribery
was filed against the defendant People's Court intrigued a nationwide debate as
to whether state organs can and should be held criminally responsible. 2 This
article will answer this question from legal and comparative perspectives and
bring forward a limiting approach.



According to article 30 of the CriminalLaw of the People's Republic of

China (PRC) as last amended in 2012 (hereinafter referred to as the Criminal
Law),3 no legal barrier can be found in imposing criminal liability on state
organs. Convictions of state organs in judicial practice, such as that of the Bureau
of Commerce of the Rushan Municipal Government, Shandong Province in 1994
and that of the People's Procuratorate of Qing'an County, Heilongjian Province
in 2000 make it clear that state organs have long been the subject of criminal
law.' Therefore, the only question that remains to be considered here is whether
state organs should be held criminally responsible, which is further broken down
to following questions according to arguments brought forward by opponents and

A. Is the CriminalLiability of
State Organs Constitutional?

The opponents begin negating the criminal liability of state organs by

questioning its constitutionality. Referring to provisions of articles 5(3) and
(4) of the Constitution of the PRC, they insist that state organs use powers
on behalf of the will of the state, the embodiment of which is the function of
ensuring national and public stability and safety. Correspondingly, like oil
and vinegar, it cannot coexist with criminality. Even if an offender committed
2 Jia Ling & Zeng Yuexing, State Organs Should Not Be Actor of Unit Crime, 11 Law Science 36 (2002); Ma Kechang, State Organs
Should Not Be Deemed as a Perpetratorof an OrganizationalCrime, 29 (5) Modern Law Science 57 (2007); Zhu Jianhua, Can an
Entity Be Held an Offender, 30 (1) Modern Law Science 89 (2008); Zuo Zhenjie, State Organs CannotBecome Actor of Corporate
Crime, 26 (4) Xi'an Social Sciences, 108, 109 (2008).
3 The article provides that any company, enterprise, institution, state organ, or organization that commits an act that endangers
society, which is prescribed by law as a crime committed by a unit, shall bear criminal responsibility.
4 ZHOU ZHENJIE, UNIT CRIME IN THE COMPARATIVE LAW, at 80-81 (China People's Public Security University Press, 2012).
5 Article 5(3) provides that all state organs must abide by the Constitution and other laws, and article 5(4) provides that all acts in
violation of the Constitution or other laws must be investigated, and no organization or individual is privileged to be beyond the
Constitution or other laws.

crimes through a collective decision in the name of a state organ, the act in
question should be regarded as an individual crime that has nothing to do
with public powers, and this leads to the conclusion that the individual actors
should be blamed.6
In contrast, the advocates of the criminal liability of state organs argue
that on one hand, unlike certain foreign countries where the criminal liability
is confined by the Constitution to individuals, for example, prior to the
enactment of Legislative Decree 231/2001, introducing corporate criminal
liability, Italian Constitutional Court interpreted article 27(1) of the Italian
Constitution, which states that "La responsabilita penale & personale
(criminal liability is personal)", to mean that criminal charges could only be
brought against a natural person,' no provision of Chinese Constitution
prohibits state organs from being criminally charged. On the other hand, the
constitutional provision in article 5(4) that "all acts in violation of the
Constitution or other laws must be investigated" does not prohibit the
criminal liability of state organs but rather requires judicial authorities to
prosecute state organs when they violate criminal law because the "other
laws" referred to, undoubtedly include the CriminalLaw.
In addition, article 50 of the General Principles of the Civil Law,
provides that "a state organ with independent fund sources shall be qualified
as a legal person on the day it is established", and article 36 provides that a
legal person "has capacity for civil rights and capacity for civil conduct and
independently enjoys civil rights and assumes civil obligations in accordance
with the law". State organs, as legal persons, satisfy all the following
requirements of "units" in article 30 of the Criminal Law of 1997: first,
established in accordance with the law; second, possessing necessary
property or funds; third, possessing their own name, organization and
premises; and fourth, being able to independently bear civil liability.
Therefore, Chen Min concluded that no reason can be found for the
exemption of state organs from criminal liability.
In theory, Li Zhiliu further explains that State organs' capacity to develop
criminal wills justifies putting them in the list of criminal actors because this
correctly reflects the fact that state organs commit acts endangering the society.'
State organs, as a category of units, possess independent decision-making power.
Therefore, they undoubtedly are capable of developing their own wills. As long

6 Jia Ling & Zeng Yuexing, supra note 2; Zhu Jianhua, supra note 2.
7 Joanna Kyriakakis, Corporate Criminal Liability and the ICC Statute: the Comparative Law Challenge, 56(3) Netherlands
International Law Review 333 (2009).
8 Chen Min, On the Scope ofActor of Unit Crime, 5 Journal of Inner Mongolia Agricultural University (Social Science Edition) 22,
24 (2010).
9 Li Zhiliu, Reasons That State Organs Should Not Be Actor of Unit Crime, 11 Law and Society 67 (2011).

as the capability of organizations other than state organs to develop their wills
is recognised, no reason exists for negating the wills of state organs. With their
independent wills, state organs are naturally capable of making a decision towards
criminal action and, in turn, of making it a reality.

B. Has CriminalLiability of
State Organs Been Refused by JudicialPractice?

The opponents hold that, although the existing CriminalLaw provides state
organs as an actor, the their crimes are usually treated as those of individuals by
judicial authorities. In other words, in practice, the law establishing the criminal
liability of state organs is not consistently enforced. 0 The effectiveness of a law
lies in its implementation, and the implementation of a law is to realize the goals
of the legislature. The establishment of the criminal liability of state organs,
whose main activity is supposed to use public powers in accordance with the law,
will thwart the legislative goal of strengthening state power and protecting the
people's democratic dictatorship. In sum, such legislation lacks vitality, and if the
vitality is obtained by coercion, it would put state power in hardship and danger.
The only way to avoid this dilemma is to abolish the criminal liability of state
The advocates, while admitting insufficient enforcement of the Criminal
Law, argue that convictions of state organs do exist, and the reluctance of
judicial authorities to prosecute state organs does not call for the abolition of
the law but rather for an effective mechanism to ensure its strict
implementation and that it is significant to safeguard the correct use of
state power and the people's democratic dictatorship and the loyalty of
governmental organizations and the public trust in the law. Guo Jianhua has
concluded that accusing state organs helps enhance public trust and
confidence in the law. 2 If crimes committed by state organs go unpunished, it
would be hard to imagine that the public trusts the loyalty of state organs to
the law. As a matter of fact, the strict and fair punishment of culpable state
organs is exceedingly helpful in establishing and enhancing public trust and
will never result in the loss of confidence in the law.
What is more important is that Chinese legislature has shown no
intention or willingness to exempt state organs from criminal liability, as
shown by the Amendment VIII to the Criminal Law of 1997 (hereinafter

10 Jia Ling & Zeng Yuexing, supra note 2; Ma Kechang, State Organs Shall Not Be Actor of Corporate Crime, 21 People's
Procuratorate Semi-Monthly 5 (2007).
11 Jia Ling & Zeng Yuexing, supra note 2.
12 Guo Jianhua, State Organs ShouldBe Actor of Unit Crime, 2 Journal of Yibin College 79, 80 (2008).

referred to as Amendment VIII) that entered into force on May 1, 2011.

Amendment VIII made significant breakthroughs in punishment reform.
For example, it abolished death penalty for thirteen non-violent economic
crimes for the first time since 1979 and exempted those older than
seventy-five from such punishment. However, although the prosecution of
the Urumqi Railway Transport Intermediate Court had been at the center of
public debate for nearly five years, Amendment VIII did not adopt any legal
or judicial restraints on the criminal liability of state organs. To the contrary,
the liability was extended to be applied to more crimes, such as possession of
counterfeit invoices and refusal to remunerate workers. From this
amendment, it can be inferred that the legislature has no intention of
abolishing or restricting the criminal liability of state organs.

C. Can State OrgansAssume

the Consequences of Conviction?

The opponents bring forward a practical argument, that is, state organs
are incapable of assuming the consequences of conviction. The only
punishment applicable to state organs is the imposition of fine now. Because
state organs' sole financial source is national allocations, the fines imposed
on state organs will ultimately be paid by the state budget.'" Meanwhile, they
suggest that punishing state organs cannot contribute to the realization of the
purpose of criminal punishment, because the precondition for the purpose to
be realized is that criminals feel the suffering of criminal penalty, but, as
Zhao Bingzhi once insisted, legal persons are not living moral agents with
their own minds, so the purpose of punishment could never be realized
through punishing them.' Meanwhile, the absolute majority of economic
organizations in the 1980s were state owned. Moreover, they raise the
following questions for the advocates: if a state organ, for example a local
government, was convicted and thereby became a criminal, how could its
citizens accept the ruling of a "criminal"? Can a "criminal" govern the
society? How should a "criminal" use public powers? Weather this would
lead to a constitutional paradox?'
The advocates insist that the fact that state organs are obliged to compensate
citizens who suffered from their wrongful law enforcement activities or from
miscarriages of justice in accordance with the law renders it unreasonable to hold
that they are incapable of assuming the consequence of conviction. Meanwhile,

13 Jia Ling & Zeng Yuexing, supra note 2, 39.

14 Zhao Bingzhi, Thoughts on IncapabilityofLegal PersonsofBeing Crime Subject, 5 China Legal Science 53, 58 (1989).
15 Zhu Jianhua, supra note 2.

they hold that to punish state organs with property penalties could generate a
prevention effect because it would inhibit other corporations from following such
a disgraceful example. As to these questions raised by the opponents, the author
rebutted that such reasoning would lead to the conclusion that not only the
criminal liability of state organs but also that of all government-related
organizations, such as public universities, middles schools, state-owned
corporations, the Women's Federation and the Trade Union, should be abolished
because the criminal liability of such organizations would lead to the same
constitutional paradox. Then, he continued, asking the question that if we could
not accept the ruling of a "criminal", could we accept the fact that a "criminal"
teaches us, offers us services and manages our property? In fact, the criminal
liability of government-related public organizations is rarely questioned. On the
contrary, they are frequently charged, especially with accepting bribes."b

D. Is There Any ForeignPrecedent

We Can Follow?

Finally, the opponents raise their argument from a comparative perspective.

For instance, Ma Kechang held that the prosecution of state organs was based on
no rational foundation because the nature of a legal person, as Western scholars
often referred, is in the context of companies and enterprises.' The offences of
legal persons, according to the criminal law of Western countries, refer only to
those illegal acts by companies and enterprises and do not include those by state
organs. The inclusion of state organs in the scope of criminal actors under
Chinese CriminalLaw has no equivalence in Western theory and lacks profound
academic research. Consequently, opponents conclude that the provision for the
criminal liability of state organs has no theoretical basis. It is true that China
imported the concept of "corporate criminal liability", referring to the foreign
practice of punishing commercial organizations. However, is it also true that state
organs cannot be held liable under criminal laws abroad? To answer this question,
laws in several representative countries are examined closely in the following


Geographically, corporate criminal liability has significantly been extended

over the past twenty years. According to the report titled CorporateLiability in
Europe by Clifford Chance LLP in 2012, in nearly all European countries that
16 ZHOU ZHENJIE, supra note 4, 87.
17 Ma Kechang, supra note 10, 5.

have been intensively influenced by civil law tradition, legal entities historically
could not commit a crime. France was the first European country with civil law
to introduce the concept of corporate criminal liability in 1992, followed by
Belgium in 1999, Italy in 2001, Poland in 2003, Romania in 2006, Luxembourg
and Spain in 2010 and the Czech Republic in 2012. The Netherlands had adopted
corporate criminal liability as early as in 1976. Elsewhere, Argentina, Indonesia,
South Africa and so on have adopted corporate criminal liability in various ways
In common law systems, the traditional rule is that the king can do no
wrong. For example, the state, government, and ministries are not criminally
liable for common law crimes in England. In fact, the common law allows only
incorporated bodies, in other words, organizations with the status of a juristic
person, to be criminally prosecuted. When the Canadian legislature passed Bill
C-45, an act to amend the Criminal Code (criminal liability of organizations) in
2003, Macpherson expressly stated that that the bill was unconstitutional because
it authorized the prosecution of organizations other than legal persons.
According to him, the bill went beyond corporate criminal liability, and the new
rules were intended to extend to punish other "organizations liable" in the same
way as corporations, including many associations of persons that do not possess
a separate legal personality from the individuals who compose them as a
corporation does. Therefore, he continued to conclude that the state was
punishing people not for what they personally had done but rather for their
membership in an allegedly criminal association, and this violated the
presumption of innocence enshrined in section 11(d) of the Canadian Charterof
Rights andFreedoms.
In contrast to common law crimes, legislators have created statutory
offences with which the Crown can be criminally charged. A typical example is
the CorporateManslaughterand CorporateHomicide Act of 2007 of the UK,
which introduced the new statutory offence of corporate manslaughter. According
to section 1(1) of the act, an organization is guilty of an offence if the way it
manages or organizes its activities causes a person's death and amounts to a gross
breach of a relevant duty of care owed by the organization to the deceased. The
"organization" here refers not only to a corporation but also to a department or
other body listed in schedule 1, a police force, a partnership, a trade union or an
employment association.

CORPORATIONS, at http://198.1 0.85.29/Allens- Arthur- Robinson- Corporate- Culture- paper- for- Ruggie- Feb- 2008.pdf (Last
visited on June16, 2014).
19 Darcy Macpherson, Extending Corporate CriminalLiability: Some Thoughts on Bill C-45, 30 (3) Manitoba Law Journal, 329, 329

According to the legal guidance of the UK's Crown Prosecution Service,'

those subject to the act include incorporated bodies, such as companies limited
by shares or guarantees, organizations such as local authorities, 2' and NHS
Trusts.' Although the Crown immunity, that Crown bodies such as government
departments could not be prosecuted, was a long-established legal doctrine, the
act allows prosecution of the "department or other body listed in Schedule 1",
which includes the Assets Recovery Agency, the Attorney General's Office, the
Cabinet Office, the Central Office of Information, the Crown Office and
Procurator Fiscal Service, the Crown Prosecution Service, the Department for
Communities and Local Government, the Department for Culture, Media and
Sport, the Department for Education and Skills, the Department for Environment,
Food and Rural Affairs, the Department for International Development, the
Department for Transport, the Department of Trade and Industry, and so on.
The State of Victoria in Australia takes a similar stance. The Victorian
Parliament introduced the Crimes (Workplace Deaths and Serious Injuries) Bill
of 2001 on November 21, 2001. Although historically it was a fundamental
principle that the Crown could do no wrong in Victoria, that is, no part nor
representative of the Crown was legally liable for wrongful acts,' the Law
Reform Commission of Victoria expressly stated that it intended the Crimes Bill
to bind the Crown in all its capacities as far as constitutionally possible and to
make the Crown criminally liable and subject to criminal sanctions.' In addition,
the first foreign bribery prosecutions against Securency International Pty. Ltd.,
and Note Printing Australia Pty. Ltd., two subsidiaries of Australia's central bank,
the Reserve Bank of Australia, by the Commonwealth Director of Public
Prosecutions for their engaging in widespread bribery and corruption of foreign
public officials in various Asian and other countries with the intent of convincing
various foreign governments to award them valuable banknote printing contracts
since late 1990s through July 2011 present a real-life example that public
authority might be responsible for corporate misconduct.
Regarding the criminal liability of public authorities in the US, there has
20 According to the User Guide at CPS official homepage, the Legal Guidance is prepared by the Crown Prosecution Service. It
provides guidance to prosecutors and paralegal staff in relation to many criminal offences and procedural issues. The Legal
Guidance is used as an aid to guide Crown Prosecutors and Associate Prosecutors in the use of their discretion in making decisions
in cases.
21 Section 2(3) of the Local GovernmentAct of1972.
22 Section 5(5) of the NationalHealth Service and Community CareAct of1990.
23 It should be noted that although the Crown historically referred to the source of the power of the three arms of government, the
legislature, the judiciary and the executive, legislative power now is exercised by parliament, judicial power is vested in the courts
and executive power is exercised by elected governments. The expression "the Crown" now usually refers solely to the executive
branch of government.
24 Law Reform Commission of Victoria, CriminalLiability for Workplace Death and Serious Injury in the Public Sector: Report 10
SECURES FIRST CONVICTION AND SENTENCE AND PRESSURE INCREASES ON AUSTRALIA'S CENTRAL BANK, at category/securency-international (Last visited on December 8, 2013).

been no case of a governmental institution being criminally charged, but the

courts have not denied the possibility of governmental institutions being held
criminally liable so far, although section 2.07 (4)(a) of the Model Penal Code
developed by the American Law Institute in 1962 expressly states that the entities
organized as or by a governmental agency for the purpose of executing
governmental programs are not included in "corporation". The Canadian Bill
C-45, mentioned earlier, which came into force on March 31, 2004, expands
criminal liability to all organizations, including "a public body, body corporate,
society, company, firm, partnership, trade union or municipality, or an association
of persons that is created for a common purpose, has an operational structure, and
holds itself out to the public as an association of persons". Obviously, according
to the bill, it is possible for public authorities to be criminally charged in Canada.
Elsewhere, especially in continental law countries, the majority of
jurisdictions exempt the state or government from criminal liability. However,
laws authorizing the prosecution of governmental organizations do exist. For
example, according to article 121-2 of the French Penal Code of 1992, juristic
persons such as associations, foundations, parties and syndicates, with the
exception of the state itself, are liable for the crimes they commit. In addition,
the Penal Code, although exempting some territorial collectives when exercising
governmental functions that they cannot delegate to private organizations,
provides that the majority of public entities may be held criminally responsible
in the way private entities are. Similarly, the Criminal Code of Denmark of 1930
introduced a criminal liability institute of legal entities from articles 25 to article
27 in the Act 474 of 1996. According to article 26(1) and article 27(2), the
Criminal Code also applies to municipal and state authorities when they are
supposed to incur liability for violations committed when carrying out activities
corresponding or similar to activities carried out by private individuals or
companies, for example breaching environmental protection legislation regarding
the management and operation of a municipal sewage treatment plant. Another
Nordic state, Finland, adopted the concept of corporate criminal liability in 1995
by amending section 9 of Chapter 1 of its Criminal Code (39/1889).' According
to section 1 of Chapter 9 of the code, corporate criminal liability is applicable to
all public entities except when offences are committed in the exercise of public
authority.' It should be noted that Germany, although it does not have corporate
criminal liability so far, imposes administrative-penal sanctions on public entities

26 This section provides as follows: if, under this chapter, Finnish law applies to the offence, Finnish law applies also to the
determination of corporate criminal liability.
27 This section provides as follows: first, a corporation, foundation or other legal entity in the operations of which an offence has been
committed shall on the request of the public prosecutor be sentenced to a corporate fine if such a sanction has been provided in this
code for the offence. Second, the provisions in this chapter do not apply to offences committed in the exercise of public authority.

and territorial collectives, according to Pop."

The foregoing examples show that the criminal liability of public authorities
is already an accepted practice in certain jurisdictions, and many countries have
made express legal provisions for it. It is also clear from modern laws that
legislatures primarily have commercial organizations in mind when they enact
corporate criminal liability laws because such organizations acquire ever more
influence in society and have sufficient property to achieve illicit ends.
Conversely, this might explain why states are reluctant to prosecute public
authorities, who are expected to act legally and fairly in carrying out public
management and national affairs, and those states that have endorsed prosecution
of public authorities generally require preconditions such as breach of duty or
impairment of a specific legal interest. Certainly, it must be noted that no
jurisdiction has accepted state criminal liability.
In conclusion, Chinese scholars who oppose the criminal liability of state
organs cannot find convincing support from a comparative perspective.


It seems that both the arguments of opponents and those of advocates can
find legal and practical support. Then, how to comment on them? As far as the
author is concerned, corporate criminal liability is, as its history demonstrates,
a compromise between traditional criminal law principles and pragmatic
regulation pressure by its nature. It is by no way a consequence of theoretical
deduction but a legal creation to satisfy policy needs. Before the 1800s, criminal
liability of organizations was also refused by the common law countries because
they could not be morally blamed. However, in the middle of 1800s when
Industrial Revolution spread over Europe, English courts, confronted with
numerous violations by railway companies, changed their stance and began
charging corporations for criminal omissions.' Similarly, it is due to social and
regulatory needs the American courts kept modifying laws in relation to the status
of legal persons and extended corporate criminal liability in the beginning of
In China, between 1950s and 1970s, when the US and England began
prosecuting corporations for nearly all crimes depending on vicarious liability
and identification principle, the criminal liability of legal entities attracted neither


king/2006/2006_Pop.pdf (Last visited on December 23, 2014).
29 Leonard Orland & Charles Cachera, Corporate Crime and Punishment in France: CriminalResponsibility of Legal Entities under
New French CriminalCode, 11 Connecticut Journal of International Law 111 (1995).
978883 (Lastvisited on November 23, 2015).

political nor academic attention in China, because during this period, the Chinese
economy was centrally planned, and all corporations were owned by the state,
therefore, the nation was similar to one giant enterprise. Property rights, an open
market and private enterprises, considered to be fundamental elements of a
market economy, could not be seen because of absolute control by the central
government on entire national economy' The implementation of opening up and
reform policy in the beginning of 1980s, while bringing China high productivity
and prosperity as anticipated, created the objective environment for corporate
crime. As Zhang Zhongyou comments, the appearance of crimes by organizations
is undoubtedly a product of the commodity industry.' And their springing-up
at the initial stage of implementation of the opening-up and reform policy in
China annotated this conclusion well. Correspondingly, the Chinese legislature,
disregarding strong opposition of the majority of criminal law researchers,
introduced the concept by modifying the Customs Law in 1987. In conclusion,
it was also the pressing need to regulate illegality by organizations that gave birth
to corporate criminal liability in China. The foregoing fact implies that the answer
to the question whether state organs should be criminally charged should lay more
importance on regulatory needs than on theoretical considerations. If we had
strictly adhered to traditional criminal theories based on morality and
individualism, the criminal liability of organizations would not have been
accepted in China, as the German CriminalLaw has insisted. Given that Chinese
Constitution contains no restriction on criminal liability of state organs, illegality
by state organs has long been a sanction object of criminal law and the national
psychology of considering criminal law is the most effective prevention tool, the
criminal liability of state organs should be maintained.
However, both the advocates and opponents neglected the following
fundamental facts. One is that state organs vary substantially. Because the
Criminal Law of 1997 contains no specific provision or limitation, it is legally
proper to define the scope of state organs according to chapter 3 of Chinese
Constitution, the Structure of the State. According to the chapter, two categories
of state organs can be distinguished from each other, including those that can be
regarded as the state itself, such as National People's Congress, as the highest
organ of state power, the President of the PRC as the symbol of the state and the
State Council as the executive body of the highest organ of state power, and those
that cannot, such as People's Congresses and People's Governments at local
levels, self-governing organs of national autonomous areas and judicial
authorities. The substantial difference between these two categories of state
(Last visited on October 12, 2013).
32 ZHANG ZHONGYOU, supra note 1, 63-64.

organs is that the former acts on behalf of the PRC, such as establishing foreign
relation, enacting laws and declaring a war, while the latter can only exert
particular powers in accordance with legal authorization.
The other is that the acts of state organs vary substantially too. According
to the status of state organs in particular circumstances, their acts can be divided
into those of exerting state powers granted by the Constitutionand laws and those
of establishing, altering and terminating civil relations. State organs appear as law
enforcement authorities in the case of the former, while as equal civil entities in
the case of the latter. The former can be sub-divided into general acts directed to
nonspecific regulation objects, such as promulgating laws and issuing
departmental regulations, and particular acts against specific individuals. The
latter can be further sub-divided into those against employees of state organs,
such as awarding, appointment and imposing internal sanctions, and those against
other social members, such as revoking a production certificate, confiscating
illicit proceeds, warning and enforcing administrative arrests.


A. Why Should Criminal Liability of

State Organs Be Limited?

The foregoing variances among state organs and their acts entail that we
should carefully impose rational restrictions on the criminal liability of state
organs. In the first place, as mentioned above, the "state organs" in article 30 of
the Criminal Law include those state organs that represent the PRC itself, one
could logically conclude that China has accepted state criminal liability. In theory,
it is possible for a state to appear as a perpetrator in given cases, as Hardingonce
commented in the Rainbow Warrior case, where the Rainbow Warrior,' a vessel
belonging to the environmental organization Greenpeace and noticeably active
in supporting Greenpeace in protest activities against seal hunting, whaling and
nuclear weapons testing in the late 1970s and early 1980s, was blown up in
Auckland Harbour of New Zealand by French secret service agents just as it was
about to leave to protest against French nuclear testing on July 10, 1985. France
might be viewed as a state terrorist organization. Therefore, the need for a legal
regime that can hold states as organizations liable for criminal acts has been

33 Christopher Harding, Vingt ans Apres: Rainbow Warrior, Legal Ordering and Legal Complexity, 10 Singapore Year Book of
International Law and Contributors 99, 101 (2006).

recognized.' Nevertheless, state criminal liability has not entered into any
international instrument or foreign legislation because, as H/ils once stated, the
system for international justice is currently still too weak to enforce against major
global players. If viewed from the absence of state criminal liability in
international and foreign legal instruments, the broad scope of "state organs" in
Chinese CriminalLaw is undoubtedly worth rethinking.
Additionally, the opponents of the criminal liability of state organs are not
completely incorrect in arguing that consideration should be paid to unique
functions of state organs. After all, the main functions of state organs are
managing public activities, such as developing business strength by offering job
training and unemployment insurance; protecting and regulating the sustainable
use of natural resources; enacting and enforcing civil laws; and providing public
goods and services for the well-being of the whole community, such as disaster
relief, fireworks shows, basic health care and subsidized housing. The majority
of national activity is undertaken at the macro level and is not directed at
particular person. Consequently, it is difficult to establish the guilty mind required
for the commission of a crime. Additionally, excessively broad application of the
criminal liability of state organs may lead to the reluctance of public authorities
to undertake public functions. There is precedent for this line of reasoning. For
example although article 3 of CorporateManslaughterand CorporateHomicide
Act of 2007 in the UK endorses the prosecution of public authorities and allows
them to be charged with corporate manslaughter if they are found to have
breached a "relevant duty of care", the Act excludes from its operation the duties
of care "owed by a public authority in respect of a decision as to matters of public
policy (including in particular the allocation of public resources or the weighing
of competing public interests)".
Finally, China's Criminal Law of 1997 does not distinguish between the
criminal liability of state organs and that of commercial organizations.
However, in many cases, such as contract fraud, commercial organizations
may be, if the circumstances are not serious enough to warrant criminal
punishment, punished under the Civil Law, such as the Contract Law of the
PRC adopted in 1999, whereas state organs would be punished under the
Criminal Law because the ContractLaw does not generally apply to them. It
is a fundamental principle that, regardless of how effective or useful a tool of
social control it may be, the Criminal Law should be used as a last resort
because it controls by coercion and deprives of citizens' rights to property,
freedom and even life. For this reason, the Criminal Law should be applied

IN THE CONGO, at (Last visited December 12, 2014).
35 Id

only after other laws that have been proved to be incapable of working

B. How to Restrict the CriminalLiability of

State Organs?

As far as the author is concerned, restrictions should be imposed on two

levels: judicial and legislative. At the judicial level, laws other than the Criminal
Law that apply to state organs should be used first. In other words, a state organ
should not be punished under the CriminalLaw unless the circumstances of the
case are so serious that sanctions available under other relevant laws inadequately
reflect the nature of the act. For example, article 2 of China's Administrative
ProcedureLaw allows any citizen, legal person or other organization considering
that his or its lawful rights and interests have been infringed upon by a specific
administrative act of an administrative organ or its personnel to bring a suit before
a People's Court. According to article 11, "specific administrative act" includes
the following: first, administrative sanctions, such as detention, fines or
confiscation of property; second, a compulsory administrative measure, such as
restricting personal freedom; third, administrative acts that infringe upon one's
managerial decision-making power; fourth, the refusal by an administrative organ
to issue a permit or license; fifth, the refusal by an administrative organ to uphold
its statutory duty to protect one's personal and property rights; sixth, the failure
of an administrative organ to issue a pension according to law; seventh, illegal
demand by an administrative organ for performing duties; eighth, other acts of
administrative organs considered to have infringed on other personal or property
rights. If any of the preceding acts is committed, the CriminalLaw should not be
applied unless and until it is determined that the nature of the act is so serious that
it cannot adequately be dealt with under the Administrative ProcedureLaw.
At the legislative level, it is first necessary to exclude those state organs that
represent the PRC from the "state organs" included in article 30 of the Criminal
Law. These are: first, the People's Congress of the PRC and its standing
committee, which is the highest organ of state power; second, the President of
the PRC, who is the symbol of the PRC; third, the State Council of the PRC,
which is the executive body of the highest organ of state power; fourth, the
National Committee of the Chinese People's Political Consultative Conference
and fifth, the National Military Committee directing the armed forces of the
country. These organs must be excluded because, as has been noted, to prosecute
them is to prosecute the PRC itself.
Next, to adhere to the fundamental principle that the CriminalLaw should

concentrate on the protection of particular legal interests, the criminalization of

a corporate act should be based on the existence of a specific person whose legal
interests might be impaired or a specific obligation that a state organ is mandated
to fulfil. Requiring these two elements would preclude "abstract acts" that have
not entered the regime of Administrative ProcedureLaw and become punishable
under the CriminalLaw.
A hypothetical example of the fisrt situation above is article 7 of Chinese
PrisonLaw of 1994. It provides that a prisoner's human dignity, personal safety,
lawful property, right to defense, petition, complaint and accusation and other
rights that have not been removed or restricted according to law, shall not be
violated. Correspondingly, article 248 of the CriminalLaw of 1997 provides that
it is a crime for any police or other officer of an institution of confinement, such
as a prison, a detention house or a custody house, to beat a prisoner or maltreat
a prisoner by subjecting him or her to corporal punishment, and the consequences
for this crime are serious. In this case, if a prison, detention house or custody
house is grossly negligent in supervising employees who impair a prisoner's
personal rights, the negligent act might be criminalized.
A hypothetical example of second situation above is article 42 of the Water
Law of 2002. The article stipulates that local people's government at or above the
county level is responsible for taking measures to safeguard the waterworks
within their administrative areas, especially dams and dykes, and eliminating
dangers within a specified time frame. If a local government is grossly negligent
in fulfilling its safeguarding duties and thereby a dam is broken, even if no
personal harm results, such an act could be criminalized due to the breach of a
specific obligation.



The final problem related to the criminal liability of state organs that
deserves close examination is the criminal liability of the People's Court. This is
because even advocates of prosecuting state organs in general argue against it in
the specific instance of the Urumqi Railway Transport Intermediate People's
Court Bribery case; even though they admit that this People's Court falls within
the scope of "state organs" pursuant to the Constitution of the PRC. It has also
been argued that the principle of constitutionalism means that judicial authorities,
such as those in the legislature and administration, should not and cannot be
subject to criminal charges and trial. Judges, as human beings, may make
mistakes. If they commit a crime, they also should be punished by law. However,

the method of punishing a judge is special in Western countries, because the

impeachment process generally precedes any criminal charges or trial, and such
cases are quite rare in countries with developed constitutionalism.' Therefore,
before addressing the question whether the People's Court could be prosecuted,
we need to ask what the term judicial authority in China refers to and whether
the prosecution of the People's Court violates constitutionalism.
Regarding the first question, unlike in Western countries where judicial
authority usually refers to a court of law, judicial authority in China, according
to the Constitution, includes not only the People's Court but also the People's
Procuratorate and even the sections in charge of criminal investigation of public
security organs, national security organs and prison administrations as the
Criminal ProcedureLaw of 1979, last amended in 2012, indicates that they are
equivalent cooperation organs for the purpose of executing the law.' Therefore,
the fact that judicial authorities in Western jurisdictions incur no criminal liability
is not a compelling argument against the criminal liability of the People's Court
in China.
What, then, is constitutionalism? Briefly, as Fellman summarises, its central
element is that no government officials should be allowed to do anything freely
in any manner they choose in a political society, they must observe the limitations
on power and the procedures required by the supreme constitutional law of the
society.' In a word, the cornerstone of constitutionalism is to limit the power of
government under a higher law. From a procedural viewpoint, constitutionalism
means that citizens of a given state may file a lawsuit based on that state's
constitution. China has a constitution. Can Chinese citizens therefore bring a
lawsuit before the People's Court when our constitutional rights are deliberately
violated by governmental organisations or their employees?
The answer is no. In the Qi Yuling case of 2001, known as both the first
constitutional litigation case in China, the Supreme People's Court (SPC) did
attempt to start constitutional litigation in China." In this case, Qi Yuling, the
plaintiff, sued the defendants Chen Xiaoqi, one of Qi Yuling's classmates in junior
middle school who failed the preselection middle-level training school
examination, Chen Kezhang, Chen Xiaoqi's father, the Zaozhuang Intermediate
People's School, the Jining Municipality School of Commerce, and Tengzhou
Eighth Junior Middle School for jointly appropriating her by using her an

36 Chen Yunsheng, Judicial ParticularityShould Be Stressed and Protected, 17 Prosecutorial View 56 (2006).
37 Article 7 of the law expressly requires the people's courts, the people's procuratorates, and public security authorities to coordinate
and check each other to ensure correct and effective enforcement of law according to their division of functions.
38 Thomas E. Kellogg, Constitutionalismwith Chinese Characteristics?ConstitutionalDevelopment and Civil Litigation in China, 7(2)
International Journal of Constitutional Law 215 (2009).
39 Yuan Wenfeng, Reference to, Connotation to and Remedy of the Constitution Provision on the Right to Education, 4 Politics and
Law 66 (2015).

acceptance letter to Jining College of Commerce without her consent, violating

her constitutional right to education in 2001. The first instance court, while
confirming that the defendants appropriated the plaintiff's name in violation of
article 99 of the General Principleof Civil Law, ruled that there was not sufficient
evidence proving the violation to her right to education in article 46 of the
Constitution.` Qi Yuling appealed the decision to Shandong Provincial Higher
People's Court on the ground of article 46 of the Constitution. Shandong
Provincial High People's Court submitted the case to the SPC for interpretation,
taking into the account of the difficulties in finding the facts and applying the law.
On June 28, 2001, the SPC, after careful consideration, issued Official Reply
on Whether the Civil Liabilities Shall Be Borne for the Infringement upon a
Citizen's FundamentalRight to Education Protectionby the Constitution, holding
definitely that the facts in this case showed Chen Xiaoqi and others had violated
the fundamental right to education enjoyed by Qi Yuling in accordance with the
provisions of the constitution by means of violating the rights to a person's name.
Shandong Provincial Higher People's Court then, according to the interpretation
and direct quote of article 46 of the constitution, ruled that the defendants violated
the plaintiff's right to education.
Chinese legal scholars made fierce comments on the Qi Yuling case, holding
that it had the potential to open a new era in the development of constitutional
legal scholarship and calling for the creation of some sort of constitutional review
mechanism, and the media even referred to it as the China's Marbury v Madison,"
a landmark US Supreme Court case forming the basis for the exercise of judicial
review in the US under article III of the US Constitution." Therefore, the Qi
Yuling case was thought as the first constitutional case in China. Since then,
litigants have continued to bring constitutional claims in the judicial system. The
SPC itself, however, abandoned its attempts to push forward on constitutional
development because of political pressure. Along with the abolition of the Official
Reply on Whether the Civil Liabilities Shall Be Borne for the Infringement upon
a Citizen's FundamentalRight to Education Protectionby the Constitutionby the
SPC in its Decision on Abolition of CertainJudicialInterpretationsIssued before
the End of 2007, the judicial review of constitutional provisions has, in fact, been
put to an end.
The reason behind the abolition is quite simple. Constitutional litigation
requires interpretation of the Constitution, which is beyond the jurisdiction of the
People's Court because that authority of supervising the enforcement and
40 Article 46 of the Constitution provides as follows: citizens of the People's Republic of China have the duty as well as the right to receive
education. The State promotes the all-round development of children and young people, morally, intellectually and physically.
41 Marbury v Madison, 5 U.S. 137 (1803).
42 Shen Kuit, Is It the Beginning of the Era of the Rule of the Constitution? ReinterpretingChina's First Constitution Case, 12 (1)
Pacific Rim Law and Policy Journal 199 (2003).

interpreting of the Constitutionrests solely on the National People's Congress and

its Standing Committee, according to articles 62 and 67 of the Constitution." The
interpretation by the SPC therefore cannot be tolerated because it would have to
trespass on the realm of the legislature and in turn would shake the entire political
structure. The absence of a law or an act permitting citizens to personally apply
for an interpretation of the Constitution or authorizing them to sue pursuant to
the Constitution makes it impossible for an individual to curtail a governmental
act by means of constitutional laws. In conclusion, although it might be argued
that constitutional litigation is theoretically possible,' China is not currently a
state bound by the constitutionalism.
Meanwhile, the first half of 2013 saw a series of attacks on the
constitutionalism in the Communist Party of China's official voices such as the
People's Daily and the Global Times. For example, YangXiaoqing, a Professor
at Renmin University of China," started the attacks with his article A Comparative
Study on Constitutionalism and People's Democracy, stating that Western
constitutionalism is a deceptive concept because it cloaks freedom and
democracy, the very nature of their being privileges exclusively enjoyed by the
bourgeois. Meanwhile, the bourgeois manipulate various media to propagate the
so-called freedom and democracy under the constitutionalism and their universal
values worldwide with the ultimate intent of maintaining their control in the fields
of global economy, politics, ideology and discursive hegemony. Therefore, China
must adhere to the People's Democratic Dictatorship and discard the Western
concept of constitutionalism. Subsequently, the overseas edition of the People's
Daily published three commentaries consecutively on August 5, 6 and 7, 2013
that criticized the constitutionalism, namely that ConstitutionalismIs in Nature
a Weapon in the War for Public Opinion, American ConstitutionalismIs Not
Worthy of the Name and To Pursue Constitutionalismin ChinaIs No More Than
Edging Wood for Fish. Advocating the constitutionalism is proclaimed to be a
challenge to the spirit of Eighteenth National Congress and the Leadership of the
Communist Party of China, and constitutional theories are considered to be
misleading and obstructions to reforms. Briefly, the constitutionalism, and the
ideas with which is associated, is facing strong political resistance in China.
Moreover, the position of the People's Court within China's national power
structure is different from that of a court of law in Western countries because of
China's inherently different political system. The national power structure in

43 Article 62 of the Constitution provides that the National People's Congress exercises the following functions and powers: first, to
amend the Constitution; second, to supervise the enforcement of the Constitution, and article 67 provides that the Standing
Committee of the National People's Congress exercises the following functions and powers: to interpret the Constitution and
supervise its enforcement.
44 Xie Wangyuan, On the Existence of ConstitutionalLitigation in China, 1 Modern Law Science 13 (2009).
45 Yang Xiaoqing, A ComparativeStudy on Constitutionalism andPeople's Democracy, 10 Red Flag Manuscript 4 (2013).

Western countries is based on the principle of the separation of powers, which

is the cornerstone of any democratic system. According to this principle,
legislative, executive and judicial functions are separated and delegated to
independent bodies to prevent arbitrary and unfair governmental action and to
prevent the powers to make, enforce, and interpret the laws from being controlled
by one body. For example, the US Constitutiondivides the powers of government
into three branches: legislative, executive, and judicial. Briefly, the legislative
branch makes the nation's laws, the executive branch enforces the laws through
the actions of the President and various executive agencies and the judicial
branch, composed of the Supreme Court and lower Federal Courts, decides cases
that arise under the laws. In such a political system, the legislature, the executive
and the courts of law are in a checks-and-balances relationship. If a prosecutor,
who is a member of the executive, had the power to prosecute a court of law, the
whole political structure would be compromised. Therefore, based on the
principle of separation of powers, prosecuting a court of law is inconceivable in
a democratic country. A wrongful act committed by a state organ in Western
countries is in principle not a subject regulated by criminal law but entering the
realm of the constitution; state organs cannot become offenders in criminal
procedure, although they can be sued in a constitutional court."
China's Constitution establishes a different principle, the principle of
democratic centralism, according to which the National People's Congress and
Local People's Congresses at various levels are constituted through democratic
elections. They are responsible to the people and are subject to their supervision.
All administrative, judicial and prosecutorial organs of the state are created by
the People's Congresses to which they are responsible and by which they are
supervised.' Meanwhile, paragraph 7 of the Preamble of the Constitutionrequires
the Chinese people to "adhere to the people's democratic dictatorship and the
socialist road . . steadily improve socialist institutions, develop the socialist
market economy, develop socialist democracy, and improve the socialist legal
system" under "the leadership of the Communist Party of China". In other
words, the People's Courts are executive organs of the wills of the People's
Congresses and of the Communist Party of China. The only difference between
the People's Courts and governments is that the former administer judicial
authority, whereas the latter administer executive authority.
The function of the People's Court and the selection process of judges
demonstrate that the nature of the People's Court is more administrative than
judicial. According to article 3 of the Organic Law of the People's Court
46 Zhou Jing & Li Wenjun, Should Official Organs Become Defendants in Criminal Cases, 8 (2) Journal of Jiangsu Politechnic
University 37 (2007).
47 Article 3 of the Constitution ofthe People'sRepublic of China.

(hereinafter referred to as the Organic Law), the function of the People's Court
is to adjudicate criminal and civil cases to "safeguard the system of dictatorship
of the proletariat, maintain the socialist legal system and public order, . . ensure
the smooth progress of the socialist revolution and socialist construction in the
country". Therefore, the ultimate goal of the People's Courts is not to administer
law and justice but to safeguard the system of dictatorship of the proletariat,
which is obviously a political end.
How are judges selected in China? Presidents of local People's Courts at
various levels are elected by local People's Congresses at corresponding levels,
and their Vice Presidents, Chief Judges and Associate Chief Judges of divisions,
and Judges are appointed and removed by the Standing Committees of the Local
People's Congresses at the corresponding levels. The President of the Supreme
People's Court is elected by the National People's Congress, and its Vice
Presidents, Chief Judges, Associate Chief Judges of divisions and Judges are
appointed or removed by the Standing Committee of the National People's
Congress. " The term of office of Presidents of People's Courts at all levels is the
same as that of People's Congresses at the corresponding levels." The selection
process of Judges seems to be similar to that of officials in Administrative Organs,
as is the term of office of Presidents of People's Courts. Moreover, on March 16,
2008, Legal Evening disclosed that more than 40 percent of Presidents of High
People's Courts at the provincial level did not have a legal education background
and were transferred directly from such as positions as Party Secretary. That is,
they were politically appointed rather than freely elected.
In summary, the People's Courts' position in the national power structure,
their function and the selection process of Judges demonstrate that in China, the
judiciary is quite different, if not completely different, from that in Western
countries, which have adopted the principle of separation of powers, which is
more administrative than judicial in nature. Correspondingly, the criminal liability
of the People's Courts, just like that of other State organs, is acceptable in the
current political context.


Among the problems, China has encountered in extending and applying

corporate criminal liability, the criminal liability of state organs might be the most
dramatic one. It has led not only to ferocious debates in academic circles but also
to a public controversy. The author holds that the criminal liability of state organs
is acceptable from the standpoints of the Constitution, judicial practice, the
48 Article 34 of the Organic Law.
49 Article 35 of the Organic Law.

purpose of punishment and Comparative Law. The deep involvement of state

organs in economic activities makes it necessary to use criminal penalties to
effectively regulate their activities. Meanwhile, the differences between state
organs and commercial organizations necessitate imposing restraints on the
criminal liability of state organs by requiring the existence of a specific victim
or obligation.
The criminal liability of the People's Court has virtually no advocates in
China. However, the author insists that although there are currently no laws
allowing the prosecution of courts of law in Western jurisdictions, the People's
Court can nonetheless assume criminal liability. This is because they are
categorized as "state organs" under the Constitution and their position in the
national political structure as executive organs of the will of the legislature and
the Party causes them to behave as administrative authorities rather than as organs
in a checks-and-balances relationship with the legislative and executive branches.

(Revised by Robert D. Roderick)

F f95 A 4A ,]A1 A TJ-"i ,4 A4A t4 , 7I