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Interpretation and Reflection on New Judicial Explanation on Cult-Related Crimes
 
Adjust font size:   Close Kaiwind Hu Jiang 2017-06-15
 

 

On January 25, the 2017, the Supreme People’s Court and the Supreme People’s Procuratorate issued the “Explanation on Applicable Laws when Dealing with Criminal Cases Involving Organizing and Using Cult to Disturb Law Enforcement” (Judicial Explanation [the 2017]3, hereinafter referred to as the 2017 explanation), which came into effect on February 1, the 2017. By integrating previous explanations, the new explanation provides for many concrete issues in the definition of cult crimes and application. The previous judicial explanations or judicial documents issued in 1999, 2001 and 2002 shall not apply after the new explanation comes into effect. The the 2017 explanation includes 16 articles and covers many issues. To deepen understanding of the new explanation, it’s necessary to make in-depth theoretical study of it in the context of criminal law regulations and principles. This article will introduce the background of making this explanation and interpret it from 6 perspectives.

I. Background

Article 300 of 1997 Criminal Law provides for the crime of organizing and using superstitious sects, secret societies, cults and superstition to disturb law enforcement and the crime of using superstitious sects, secret societies, cults and superstition to kill people. It clarifies the components and criminal responsibility of cult crimes, providing the legal basis for punishing cult crimes. On October 30, 1999, the National People’s Congress Standing Committee passed the Decision to Ban Cult Organizations, Prevent and Punish Cult Activities, establishing the policy of punishing cult crimes in a stern way.

In order to facilitate the application of the revised Criminal Law, the Supreme People’s Court and the Supreme People’s Procuratorate issued a number of judicial explanations or judicial documents, including mainly the “Explanation on Applicable Laws when Dealing with Criminal Cases Involving Organizing and Using Cult” issued in 1999, “Explanation on Applicable Laws when Dealing with Criminal Cases Involving Organizing and Using Cult II” in 2001, and “Answers to Questions of Applicable Laws when Dealing with Criminal Cases Involving Organizing and Using Cults” in 2002. In addition, the Supreme People’s Court issued the Notice on Implementing the National People’s Congress Standing Committee’s Decision to Ban Cult Organizations, Prevent and Punish Cult Activities and Judicial Explanations Issued by the Supreme People’s Court and the Supreme People’s Procuratorate. Those judicial explanations or documents are important for judicial organs to correctly affirm cult crimes and maintain social order.

On August 29, 2015, the 16th Session of the 12th National People’s Congress Standing Committee adopted Criminal Law Amendment IV, which came into effect on November 1, 2015. The Amendment made a number of revisions on Article 300 of Criminal Law on cult crimes. For example, it increased the statutory sentence to a life sentence, added property punishments, criminalized the act of organizing and using superstitious sects, secret societies, cults and superstition to cause serious injury, clarified the crime number application standard of cult crimes, etc. It improved the criminal law regulations on punishing cult crimes. Since the Criminal Law Amendment IV revised Article 300 of Criminal Law, the previous judicial explanations and documents were not able to satisfy the needs to punish cult crimes in the new situation. It was urgent to make new judicial explanations based on the amended criminal law.

What’s more, in recent years, due to domestic and foreign influence, especially as the Internet and IT have developed, new trends and features emerge in the pattern, form and harm of cult crimes. New trends include “traditional and modern combined”, “urban and rural combined”, “foreign and domestic combined”, “open and secret combined”, which bring new difficulties and problems to the punishment of cult crimes. The supreme judicial organs needed to make a unified regulation on the application of laws regarding cult crimes. Therefore, it was necessary to make a new judicial explanation.

II. Clarifying the Definition of Cult Organizations

Accurately defining cult organizations is the basis of legally dealing with cult crime cases. The the 2017 explanation clarifies the definition of cult organizations. According to Article 1, illegal organizations that are established under the disguise of religion, qigong or others, deify and preach about its chief members, bewitch and deceive others by fabricating and spreading superstitious and evil thoughts, enroll and control members, and endanger society shall be affirmed as “cult organizations” as stipulated by Article 300 of Criminal Law. The regulation basically inherits the content of Article 1 of the 1999 explanation. Meanwhile, it adds “preach about chief members” to the basis of “deify chief members”. While “deify chief members” is the act to glorify chief members as gods, “preach about chief members” is the act to preach, advocate and brag about chief members. The two acts are similar but different to a certain degree. “Preach about chief members” does not necessarily have to portray chief members as gods. It might be limited to preaching the so-called “advanced thoughts”, “glorious achievement” and “kindheartedness” of chief members. In practice, some cults do not deify chief members but preach about them, which is also quite delusive. In nature, they are illegal organizations which delude people and harm society by fabricating fallacies. It helps to affirm groups as cults in order to punish cult crimes. This article implements the principle of punishing cult crimes severely and banning cults firmly.

III. Refining the Standard of Convicting and Punishing Cult Crimes

Article 300 of Criminal Law stipulates three kinds of punishment. For general crimes, the statutory punishment is imprisonment between 3 and 7 years with a fine; for very serious crimes, the punishment is imprisonment above 7 years or a life sentence with a fine or property confiscation; for less serious crimes, the punishment is imprisonment under 3 years, detention, surveillance or deprivation of political rights, with a fine or a separate fine. However, there are two questions in applying this article. First, how to understand the difference between “very serious crimes” and “less serious crimes”? Second, whether all the acts of organizing and using superstitious sects, secret societies, cults and superstition to disturb the law and administrative regulations shall constitute crimes? The criminal law articles on the standard to criminalize cult crimes and statutory sentences don’t say anything about the seriousness of acts. In this sense, this crime is a behavioral offense, which is an offense that is taken as finished when the criminal behavior is completed.However, criminal law is the strictest law and crimes punished by criminal law are ones which do the most serious harm to society. As to behavioral offenses, it doesn’t mean that the person shall be criminalized as long as he implements relevant behaviors. In fact, as to cult activities, criminal law and other laws and regulations such as Penalty Law on Public Security Administration stipulate that attention should be paid to the cohesion between criminal law and other laws when dealing with cult crimes. Thus, although the criminal law doesn’t provide for the seriousness of acts, the actual nature and degree of harm should be considered when affirming cult crimes. In addition, there is also difficulty in affirming the case of “serious injury and death” in Section II of Article 300. To solve those problems, Article 2, 3, 4 and 7 of the the 2017 explanation clarify the conviction standards and punishment standards of cult crimes.

(I) Articles 2 and 7 clarify the standard of criminalizing cult crimes.

Article 2 of the the 2017 explanation is about the standard for criminalizing the act of organizing and using superstitious sects, secret societies, cults and superstition to disturb law enforcement. It covers 12 items, including establishing cults, establishing other cults after the original cults are banned, etc. As to the act of making and spreading cult propaganda materials in Item 11, the explanation specifies the quantity that qualifies as an illegal act. As to the act of advocating cults through telecommunication networks in Item 12, the explanation specifies the standard to criminalize such an act. These concrete standards are quite detailed and instructive. Meanwhile, Item 13 makes a general regulation, i.e. “other serious cases”. This is to deal with crimes that might emerge in reality but are not regulated by law. The term “serious” means that the social harm done by the crime should be appraised correctly when criminalizing cult crimes. Only those acts that can cause serious social harm can be criminalized. Therefore, although Article 300 of Criminal Law doesn’t provide for the prerequisite of seriousness to affirm cult crimes, the explanation raises the requirement of “serious acts”, which complies with the nature of criminal law and reflects the principle of coordinating criminal law and other laws. When judging whether an act is “serious” or not, there are two standards. The first one is equivalence. The “serious acts” in Item 13 and the other 12 items are all standards set to criminalize cult crimes. The social harm they cause should be equivalent. As to the cases that are not included in this article, only those that are equivalent to the 12 items in terms of social harm can be affirmed as “serious”. The second standard is to combine subjective with objective. To judge whether an act is serious or not, we should not only consider the objective behavior of the perpetrator and harm it does but also the subjective evil character of the perpetrator.

Article 7 of the the 2017 explanation sets the standard to criminalize the act of organizing and using superstitious sects, secret societies, cults and superstition to seriously hurt or kill somebody. It covers 3 situations. (1) The criminalizing standard is the organization and use of cults to deceive others and cause 1 death or over 3 serious injuries. The punishment includes imprisonment between 3 and 7 years and a fine. (2) If the act causes more than 3 deaths or over 9 serious injuries or other serious harm, the punishment is over 7 years of imprisonment or a life sentence, together with a fine or property confiscation. (3) If serious injury is caused, the punishment is imprisonment under 3 years, detention, surveillance or deprivation of political rights, together with a fine or a separate fine. According to the explanation, “deceiving others and causing serious injuries or death” refers to the act of organizing and using cults to make and spread superstitious teachings, deceiving members or others to fast or maltreat themselves, or deluding patients to not receive normal treatment, which causes serious injuries or death.

(II) Article 3 clarifies the meaning of “very serious acts”.

It includes three categories. The first is the acts in Item 1 to Item 7 of Article 7, which cause very serious social harm. The second is the acts in Item 8 to Item 12 of Article 2, with the quantity or number reaching over 5 times that of corresponding standards. The third is other very serious acts. As to “very serious social harm” and “very serious act”, comprehensive judgment should be made in the context of actual cases.

(III) Article 4 clarifies the meaning of “less serious acts”.

It covers three categories. The first is acts included in Item 1 to Item 7 of Article 2, which cause less serious social harm. The second is the acts in Item 8 to Item 12 of Article 2, with the quantity or number reaching over 1/5 of corresponding standards. The third is other less serious acts. As to “less serious social harm” and “less serious act”, comprehensive judgment should be made in the context of actual cases.

IV. Implementing the Policy of Tempering Justice with Mercy

The policy of tempering justice with mercy is a basic criminal policy of China, which runs through the whole process of criminal legislation, justice and punishment. According to the Suggestions on Implementing the Policy of Tempering Justice with Mercy issued by the Supreme People’s Court, different crimes should be treated differently. Justice or mercy should be given according to different situations. The punishment should be suited to the crime. Only a minority should be cracked down on and isolated. Most criminals should be educated, reformed and saved. We should reduce opposition to society as much as possible. Therefore, the core of this policy is “differentiated treatment”. As some scholars have said, “the core of tempering justice with mercy is differentiated treatment”. Cult crimes come with very complicated social, economic and cultural reasons. Cult crimes and criminals are quite different from each other in terms of objective harm and subjective malice. Therefore, when dealing with such cases, different crimes and criminals shall be treated differently, according to the policy of tempering justice with mercy. Article 8 and 9 of the the 2017 explanation fully implements this policy.

(I) Heavy punishment for 7 serious criminal acts

Article 8 of the the 2017 explanation stipulates 7 criminal acts that are to be punished severely. They include: (1) colluding with foreign organs and people to engage in cult activities; (2) setting up a cult organization, enrolling members or organizing cult activities across different provinces, autonomous regions or municipalities directly under the Central Government; (3) gathering to make trouble and carry out cult activities publicly in important public places, detention centers or during important national holidays and major events; (4) gathering to make trouble and carry out cult activities after the cult is banned or the organization is confirmed as a cult; (5) public servants who engage in cult activities; (6) advocating a cult to minors; (7) promoting a cult in school or other education or training institutions.

Among those 7 situations, some are special due to means and patterns, e.g. colluding with foreign organs and people; some are special due to the places and time of the crimes, e.g. in important public places or during important national holidays; some are special due to the perpetrators, e.g. public servants; some are special due to the victim, e.g. advocating a cult towards minors. For those reasons, they do more harm to society than general cult crimes. Therefore, the explanation stipulates that they shall be punished severely. This reflects the policy of heavy punishment.

(II) Leniency for 3 crimes

Article 9 of the the 2017 explanation provides for situations where leniency applies. Some cult criminals can receive less severe punishment. They are: (1) those who commit “less severe” cult crimes and are able to express sincere regret and his/her will to withdraw from the cult and no longer engage in cult activities can be dismissed from prosecution or criminal punishment. If the person is tricked or coerced into joining the cult, he/she will not be taken as a criminal. (2) those who commit cult crimes as stipulated in Article 2 of the explanation who express sincere regret withdraw from the cult and no longer engage in cult activities before the first verdict against them can be affirmed as “less severe acts”. (3) those who commit “very severe” cult crimes as stipulated in Article 3 of the explanation but are able to express sincere regret and a will to withdraw from the cult and no longer engage in cult activities before the first verdict against them can be affirmed as not “very severe.” General punishment applies, i.e. imprisonment between 3 and 7 years together with a fine. Those articles reflect the policy of leniency.

Article 9 of the the 2017 explanation on leniency to cult crimes establishes the withdrawal mechanism of cult crimes, i.e. those who express sincere regret and a willingness to quit the cult and no longer engage in cult activities shall be given leniency. Withdrawal mechanisms are common in foreign laws and regulations on organized crime. There are also similar articles in China’s Anti-Espionage Law and other laws. A withdrawal mechanism helps reduce the cost of fighting crimes and increases the effect of punishment. Article 9 fully reflects the policy of giving leniency to certain criminals, which helps disintegrate cults, encourage and reform cult criminals. It is of significance to punish cult crimes, maintain social stability and save criminals. It is worth noting that although the judicial explanation asks criminals to express sincere regret and express clearly their decision to quit the cult and no longer engage in cult activities, it stipulates different situations. Criminals with less severe acts, very severe acts and general acts shall be treated differently. Criminals with less severe acts will be dismissed from prosecution or criminal punishment or not be taken as criminals. However, criminals with very severe acts and general acts shall shoulder criminal responsibilities. The leniency given to the former is larger than the latter. This shows that not only subject malice but also objective harm should be considered when deciding on punishment. Cult crimes with very severe acts and general acts do greater harm than crimes with less severe acts. Therefore, although such crimes can be treated with leniency, the leniency will be strictly limited. This shows a realistic and scientific attitude and also complies with the policy of differentiated treatment.

V. Establishing the Identification and Application Rules on Cult Crime Cessation.

The form of crime cessation is critical. Crime cessation form refers to the form of the development that the crime is at when it is stopped: whether the crime stops for subjective or objective reasons. According to China’s Criminal Law, there are two kinds of cessation forms, i.e. finished form and unfinished form. The finished form of crime is also called completed crime. Unfinished form includes preparation for a crime, criminal attempt and criminal suspension. According to Section 1, Article 300 of Criminal Law, the crime of organizing and using superstitious sects, secret societies, cults and superstition to disturb law enforcement is a behavioral crime. As long as the perpetrator implements certain acts, he/she commits the crime and the crime is finished. But this doesn’t mean that this crime doesn’t have an unfinished form. In the process of the act, it’s very possible that a criminal attempt, suspension and preparation exists. How to deal with the case where the perpetrator is caught before disseminating propaganda materials or during dissemination? Article 6 of the 2002 judicial explanation made relevant provisions. The 2017 explanation integrates previous provisions and establishes the rules to identify and apply the cessation form of cult crimes in Article 5. According to this article, holding and carrying cult propaganda materials for the purpose of dissemination, or being arrested in the course of dissemination, and the quantity of materials reach the standard stipulated by Article 2 to 4 of the 2017 explanation will be treated differently.

If the materials are made by the perpetrator, the case will be treated as a finished crime.

If the materials are not made by the perpetrator and not spread, the case will be treated as criminal preparation.

If the materials are not made by the perpetrator and are seized in the course of dissemination, the case will be treated as a criminal attempt.

If the materials are not made by the perpetrator and some of them have been spread, the case will be treated as a completed crime. The part that is not spread will be considered when deciding on the punishment.

It can be seen that this article mainly targets the act of making and spreading cult propaganda materials. According to Article 2, it’s a specific form of cult crime to make and spread cult propaganda materials. When deciding on its cessation form, it’s necessary to confirm whether the materials are made by the perpetrator or not. In the first case, if they are made by the perpetrator, as long as the perpetrator makes the materials, holds and carries the materials for spreading or the materials are seized in the course of dissemination, it will be taken as a finished crime. In the second case, if the materials are not made by the perpetrator, then there are 3 different cases: (1) if the materials are not spread, it will be taken as criminal preparation; (2) if the materials are seized in the course of dissemination, it will be taken as an unfinished crime; (3) if part of the materials are spread, it will be taken as finished crime, and the rest that are not spread will be considered when deciding on punishment. The focus is on whether the perpetrator spread the materials and whether the materials have been spread. In the second case, since the materials are not made by the perpetrator, it’s not enough to consider it as finished crime just for holding/carrying materials or materials being seized. The perpetrator has a purpose to spread the materials, thus the standard to judge the form of crime is whether the act of spreading is implemented and whether the materials have been spread. If the materials have been spread, it’s a finished crime. If not, it’s an unfinished crime, despite of the act of spreading. If there’s no act of spreading, it’s criminal preparation. Of course, there might be cases where part of the materials have been spread and part of them not. Because the spreading act is a whole, the criminal law regulates the act of spreading cult materials rather than to what extent they are spread, thus the finished form is not influenced by the fact that part of the materials is not spread. Therefore, the 2017 explanation stipulates that this case shall be taken as a finished crime but the fact that part of the materials are not spread will be considered when deciding on punishment.

It’s noteworthy that the 2017 explanation stipulates that certain cult crimes shall be taken as crime preparation, which reflects the policy of punishing cult crimes severely.

Article 22 of Criminal Law provides for crime preparation. In principle, all the direct, deliberate crimes that are discovered in the process of preparing tools and creating crime conditions shall be punished according to the corresponding pattern of crime preparation. However, different from the provision that all crime preparation shall be punished in principle, few cases were punished as crime preparation. Thus, some scholars think that “Article 22 of Criminal Law is dead and has become meaningless and should be deleted by revising the criminal law.” However, as society changes and crimes upgrade, it’s become the choice of many countries to punish crime preparations in legislation, which reflects the trend of advanced criminal punishment. For example, criminal law in Japan introduces the provisions on aborted crime, dangerous crime and preparative crime. Italian criminal law punishes preparative behavior for the purpose of terrorism or subversion. China’s Criminal Law Amendment IX also clearly provides for punishment for preparation of terrorist activities as a separate crime, reflecting the policy of moving up the punishment on certain crimes. Cult crime is a type of organized crime. It uses the disguise of religion and advocates fallacies, and it is quite motivational and deceptive. Ordinary people are easily deceived and deluded by cults. Therefore, as long as a cult crime is committed, it will cause serious infringement upon the legitimate rights and interests of citizens and social order. It is very harmful to society. It’s a basic policy of criminal legislation and justice to severely punish and crack down on such crimes. Therefore, even if it’s in the form of crime preparation, it is still very harmful and should be punished.

VI. Clarifying Crime Number Application Standard of Combined Cult Crimes and other Crimes

As to crime number application standards of cult crimes, Section 3 of Article 300 of the 1997 Criminal Law stipulated that the act of organizing and using superstitious sects, secret societies, cults and superstition to rape women and swindle property shall be treated as rape and fraud and shall not be punished as several crimes combined. To punish cult crimes, the Criminal Law Amendment IX revised this and stipulates clearly that the act of organizing and using superstitious sects, secret societies, cults and superstition to disturb law enforcement as well as rape women and swindle property shall be punished as combined crimes. However, in the course of cult crimes, the perpetrator usually commits other crimes. Regarding this, based on the latest criminal law revision and integrating previous judicial explanations and documents, the the 2017 explanation makes corresponding provisions in Article 10, 11 and 12. There are 3 situations.

(I) If the act of organizing and using cults to disturb law enforcement and regulation is accompanied by the act of inciting disintegration of the country and overthrowing state power or insulting and defaming others, combined punishment shall apply. According to the 1999 judicial explanation, if cult crime is accompanied by the act of endangering the state, the punishment shall be decided as the crime of endangering state security. The 2017 explanation makes revision and improvement according to the latest amendment to Criminal Law.

(II) The act of organizing and using a cult, making and spreading superstitious and evil teachings, organizing, planning, inciting, coercing, instigating and helping its members or others to commit suicide or self-injury shall be punished as deliberate killing or hurting. Article 4 of the 1999 judicial explanation and Article 9 of the 2001 judicial explanation made provisions on the act of instigating, coercing, organizing, planning, inciting and helping others to commit suicide, self-injury or self-mutilation. The 2017 explanation integrates previous regulations into one piece of legislation.

This regulation should be differentiated from the crime of organizing and using superstitious sects, secret societies, cults and superstition to injure and kill stipulated by Section 2 of Article 300 of Criminal Law. That crime refers to the act of organizing and using superstitious sects, secret societies, cults and superstition to deceive others to injure and kill. This crime might be similar to the crime stipulated in the judicial explanation in terms of consequences, but the two are obviously different. (1) They are different in behavior. The crime of organizing and using superstitious sects, secret societies, cults and superstition to injure and kill is that the perpetrator organizes and uses such tools to deceive others. In the judicial explanation, it’s not only the act of organizing and using cults, making and spreading superstition, but also the act of organizing, planning, inciting, coercing, instigating and helping members or others to commit suicide or self-injury. (2) They are different in cause and effect. In the crime of organizing and using superstitious sects, secret societies, cults and superstition to injure and kill, the serious injury and death of a victim is not caused directly by the criminal suspect but as a consequence of making and spreading superstition and deception. For example, the victim dies because the suspect spreads the rumor that it’s not necessary to take medicine to cure disease. According to the judicial explanation, the serious injury and death of the victim is caused by the direct implementation of the cult’s criminal activity. (3) They are different in subjective guilt. As to the crime of organizing and using superstitious sects, secret societies, cults and superstition to injure and kill, although some scholars assert that this is intentional, the suspect spreads superstition to deceive others but does not intend to injure or kill the victim. According to the judicial explanation, the suspect intends to injure or kill the victim, and in some cases, the suspect seeks to injure or kill the victim in an active way, e.g. coercing others to commit suicide. Therefore, this crime is both directly intentional and indirectly intentional.

(III) If the cult member endangers public security by means of self-burning, self-explosion or other dangerous methods, it shall be punished as crime of arson, explosion,or endangering public security by dangerous means. It inherits the basic content of Article 10 of the 2001 judicial explanation. In practice, some cult members burn or blow themselves up because they have been deceived or deluded. If these acts endanger public security and comply with criminal law provisions on the crime of arson, explosion,or endangering public security, they shall be punished as those crimes. Of course, if the acts of cult members to burn or blow themselves up do not endanger public security nor constitute other crimes, they shall not shoulder criminal responsibility for their act of burning or blowing themselves up. They shall shoulder legal responsibility according to the Penalty Law of Public Order Administration.

It’s noteworthy that Article 11 and 12 of the 2017 explanation don’t provide for combined punishment. The reason is that according to Section 3, Article 300 of Criminal Law, only when organizing and using superstitious sects, secret societies, cults and superstition to disturb law enforcement is accompanied by the act of raping women and swindling property, combined punishment shall apply. The prerequisite is that the perpetrator commits the crime of organizing and using superstitious sects, secret societies, cults and superstition to disturb law enforcement. According to Article 11 and 12 of the 2017 explanation, no matter if it’s the act of causing others to commit suicide and self-injury or the act of endangering public security, it does not happen in the course of organizing and using cults to disturb law enforcement. Therefore, combined punishment does not apply to this crime. For example, the self-burning of cult members does not constitute the crime of organizing and using cults to disturb law enforcement. When it endangers public security, it shall be punished as crime of arson. Of course, according to criminal law, if the crime of organizing and using a cult to disturb law enforcement is combined with the crime of homicide, intentional injury, arson or explosion, combined punishment shall apply.

VII. Clarifying other important issues in cult crime identification

In addition to the above 5 aspects, the 2017 explanation also makes provisions on other important issues in cult crime identification.

(I) Establishing calculating rules of number or quantity in cult crimes

For acts of making or spreading cult propaganda materials and advocating cult through telecommunication networks, the number and quantity is a major factor in establishing crime or criminal responsibility. Therefore, the key to determine this category of cult crime is to calculate the number and quantity accurately. Article 6 of the 2017 explanation makes provisions in two aspects.

1. Accumulative calculating rules of number and quantity of cult propaganda materials

If the perpetrator makes/ spreads cult propaganda materials and advocates a cult through telecommunication networks many times and avoids punishment, the number or quantity shall be accumulated. The point is that the perpetrator didn’t receive punishment before, including both criminal punishment and administrative punishment. If the perpetrator has been punished for his or her illegal behavior, accumulative calculation shall not apply.

2. Proportional calculation rules of cult propaganda materials

For the acts of making/spreading cult propaganda materials and advocating cult through telecommunication networks, if the materials are of different kinds or forms, proportional calculation shall apply. For example, the perpetrator makes both slogans and books and video tapes. If every type of materials is calculated separately, it will be difficult to make a judicial determination. In some cases, if calculated separately, none of the materials satisfies the conviction standard. But their comprehensive harm is large and deserves punishment. To solve this problem, the judicial explanation stipulates that proportional calculation shall apply. The calculation shall be in strict accordance with Article 2, 3 and 4 of the 2017 judicial explanation. For example, according to Item 11 of Article 2, over 1000 leaflets, spray paintings, pictures, slogans and newspapers are equivalent to over 250 books or magazines. Therefore, the proportion of the two is 4:1. When a crime involves both, proportional calculations shall apply.

(II) Clarifying rules to deal with complicity

Article 13 of the 2017 explanation stipulates that those who provide funds, space, techniques, tools, food, accommodation, transportation or help for people that they clearly know are organizing and using cults to commit crime will be treated as accomplices. Since they clearly know that the people they help commit crimes, they have shared intention and shared behavior, which complies with criminal law provisions. Three conditions need to be satisfied to determine complicity. First, the perpetrator must have reached the age of criminal responsibility and have criminal responsibility capacity. Second, the perpetrator objectively provides convenience or help such as funds, space and techniques. Third, the perpetrator objectively knows that others organize and use cults to commit crime. If the perpetrator provides conveniences or help for a legal and just purpose without knowing that the people he or she helps is a cult criminal, the perpetrator shall not be determined as an accomplice. If the perpetrator provides harbor or shelter after the cult criminal commits a crime, the perpetrator shall not be determined as accomplice but will be judged for harboring and protecting a criminal.

(III) Clarifying application of deprivation of political rights

According to Article 14 of the 2017 explanation, criminals who organize and use cults to disturb law enforcement, organize and use cult to cause serious injury and death and disturb social order seriously can be deprived of political rights. Deprivation of political rights is a supplemental punishment in criminal law. The political rights refers to the right of citizens to take part in national and social management, including the right to elect and be elected, freedom of speech, right to publish, gather, associate, demonstrate, right to assume the office of government agencies, and right to hold the post of leader in state-owned companies, enterprises, institutions, and societies. Cult crimes cause serious social harm. Depriving the political rights of criminals who seriously disturb social order will help increase punishment on those crimes and better maintain social order.

(IV) Establishing procedure to determine cult propaganda materials

Article 15 of the 2017 explanation is about the procedure to determine cult propaganda materials. If it’s difficult to determine whether the materials are for cult propaganda, public security organs above city level can be entrusted to make the determination. When dealing with cult crime cases, the People’s Court and Procuratorate can determine whether the involved materials are for cult propaganda according to their content. However, because cult crimes are complicated, in order to avoid punishment, some criminals attempt many methods to cover up the fact when making and spreading cult propaganda materials. For example, they disguise cult propaganda materials as religious materials. This causes difficulty to judicial determination. To solve this problem, the explanation stipulates clearly that public security organs above city level can be entrusted to make the determination. The People’s Court or Procuratorate and other organs that deal with cult crimes can entrust public security organs above city level.

VIII. Conclusion

Criminal law is a sharp sword to punish crimes, protect people, maintain order and ensure security. It’s China’s unswerving principle to ban cults and severely punish cult crimes. Making clear provisions on difficult issues in determination and punishment of cult crimes by way of judicial explanation will help solve difficult problems in judicial practice, ensure correct application of criminal law and maintain justice and authority. Based on the latest criminal law amendment, the 2017 explanation responds to new trends in cult crimes, sorts out and integrates previous judicial explanations or documents, makes clear provisions on the application of cult crime laws, provides clear legal basis for the judiciary, and will surely play an active role in promoting the punishment of cult crimes. In application, criminal law should be followed strictly, judicial explanation should be correctly understood, and crimes and punishment should be determined correctly according to the actual cases and law.

References

[i] Hu Jiang, Tight Criminal Law Network to Punish Cult Crimes, www.kaiwind.com

http://www.kaiwind.com/anticult/xingao/zqtj/201509/06/t20150906_2801113.shtml,2015-09-06.

[ii] Wu Minggao, Trends of Cult Crimes and Countermeasures, Politics and Law Magazine, Issue 2, Page 81-83

[iii]GaoMingxuan& Ma Kechang, Studies on Criminal Law (Edition 7), Peking University Publishing House, Higher Education Publishing House, 2016, Page 149

[iv] Chen Xingliang, Standardizing Studies on Criminal Law, Law Press, 2008, Page 355

[v] Wang Zuofu, Practical Studies on Criminal Law Provisions, China Fang Zheng Press, 2007, Page 1326

[vi] YangShuwen: Reflections on Punishment Principles on Crime Preparation in China, Jiangsu Police Academy Journal, Issue 1, 2005, Page 63

[vii] Hu Jiang, On Crime of Preparation for Terrorist Activities, Beijing Police Academy Journal, Issue 5, 2016, Page 12

[viii] FengDianmei, Issues on Organizing and Using Cult to Commit Crimes, Shandong University Journal(Page on Philosophy and Social Sciences, Issue 2, 2000,Page 118

The author of this article is associate professor, postgraduate tutor and Doctor of Law in the Law School of Southwest University on Politics and Law

(Editor in charge: Xin Mu)

 

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