牢底怎能坐穿？ –– 中國貪污受賄犯罪終身監禁的限制適用和體系性改良

Abstract

Life imprisonment is the product of the rise of free punishment, and is the harshest punishment second only to the immediate execution of death penalty, and is respected as an alternative measure of death penalty. In 2015, the Ninth Amendment to the Criminal Law of China added a system whereby the death penalty for defendants convicted of corruption and bribery crimes is commuted to life imprisonment after a two-year reprieve. The official explanation is that some corruption and bribery criminals use their past influence to interfere in the execution of criminal punishments, and some judicial authorities seem too lenient when deciding the commutation and parole conditions of corruption and bribery criminals who received harsh sentencing. As a result, these criminals actually served insufficient time in prison, seriously hindering judicial justice and stirring up social repercussions, that’s why a life imprisonment system is applied upon the expiration of two-year reprieve of death penalty. In their view, life imprisonment is not an independent category of criminal punishment, but a special measure of execution with a suspended death sentence, as an alternative measure to restrict the application of the death penalty. The emerging life imprisonment has become an important approach for the country to grapple with corruption and further promote national anti-corruption program, with characteristics of crime policy at national level looming large.

As a breakthrough provision for non-violent crimes, China's life imprisonment system for corruption and bribery crimes has become an important issue theorists and judicial circles are facing due to the hasty and rough legislation, about the way how it will accurately and strictly apply, whether we should expand its scope of legislation on the basis of the experimental legislation, and what its future will ultimately be in the grand picture of the modernization of China's criminal law governance. Based on judicial practice and previous researches, this paper strives to theoretically close the potential legal loopholes, through empirical investigation and theoretical analysis. Utilizing normative research and empirical study, we will find a path from realism to idealism. Except the first chapter -the introduction, this paper is divided into five chapters to explore life imprisonment comprehensively. From the perspective of interpretive theory, this paper attempts to explore the standards and principles for the application of life imprisonment, the dilemma and outlets of penalty enforcement, so that the application of stipulated law can be limited to a reasonable range. The author also tries to distinguish and analyze the real legal nature of life imprisonment from the perspective of legislative theory, reassess its justness basis, judge its future development under close and prudent scrutiny, offer a glimmer of hope for system reconstruction, and eventually call for the self-improvement of China's penal system and the enhancement of good laws and good governance, so that we can refute those clamorous opinions of the mass which tend to expand the application scope of life imprisonment.

By assessing and analyzing the realization and deviation of life imprisonment from the purpose of punishment, as well as the compatibility and challenges of penal humanism, this thesis clarifies the basic opinion that life imprisonment without parole lacks justness basis. This paper discusses the enlightenment to Chinese life imprisonment from the source level of life imprisonment system. This thesis unveils the life imprisonment with Chinese characteristic in an holistic and systematic approach, arguing that criminal policy considerations should not cover up its nature- a kind of execution of death penalty with reprieve and also a specific execution of unfixed-term imprisonment, making it a mixed penal punishment. It covertly establishes a life imprisonment that cannot be commuted or paroled in the Specific Provisions of Criminal Law in China, which turns out to be a real unfixed-term imprisonment de facto. Life imprisonment has created a "double torture" where both death penalty and life imprisonment are included in the same criminal law. Through comparative analysis of the binding judgments of life imprisonment, combined with the legal norms, from perspective of the Criminal Law dogma, this paper discusses the application conditions of life imprisonment, try to interpret the "four special" identification standards for the death penalty for corruption and bribery crimes. Meanwhile it distinguishes the application standards for the death penalty, unfixed-term imprisonment, death penalty with reprieve and life imprisonment, and put forward five principles to help. Based on the comparison of the current situation between foreign execution and domestic execution, reasonable and feasible assumptions and measures are put forward for the reform of punishment execution mode. Arbitrary interpretations that violate the legislative intentions should not be performed though they try to justify the flawed legal provisions. Even though life imprisonment has many drawbacks, according to the legislative intent and the provisions of the criminal law, during the execution of life imprisonment, the sentence cannot be commuted because of major meritorious service, nor can it be temporarily executed outside prison. Under the current political, economic, and social background, life imprisonment should not be an unchanging penalty execution, and we should take into account the relief channels for criminals.

We should not only study how to reduce the drawbacks of this legal system from the perspective of interpretation, but also give a more perfect answer from the perspective of legislation theory. This paper puts forward the systematic improvement of life imprisonment system for corruption and bribery crimes in China from the perspective of reality and necessity. The paper puts forward the conception of "three steps" for the fate of life imprisonment system, that is, limited application and improvement of relief, timely abolition and transformation of life imprisonment. At this stage, we should limit the application of Life-Without-Parole as much as possible and actively research the feasibility of relief channel of life imprisonment. Under the current social and political background in China and some time to come, there is still a lack of political factors and public support for pardoning criminals who have been sentenced to life imprisonment for corruption and bribery. Therefore, we should also learn from the pardon systems of other countries in the world, and work out a tentative plan of a Chinese-style bottom-up amnesty system. Under the premise that the death penalty for corruption and bribery cannot be abolished, it is suggested that the existing commutation of death with reprieve should be introduced into sentencing the crimes of corruption and bribery in due course, and the application of life imprisonment shall be replaced by long-term imprisonment. When the requirements of abolishing death penalty across the board are met in China, life imprisonment will be thoroughly reformed and divided into life imprisonment without commutation or parole and ordinary life imprisonment like unfixed-term imprisonment, that’s how we increase the deterrent effect of life imprisonment and live up to the principle that the punishment shall be commensurate with the crime committed. At the present stage, while limiting and tightening the conditions for the application of life imprisonment, consideration can also be given to strengthening the procedural control of its application and establishing a review procedure consistent with the death penalty, that is, a system in which the review power is uniformly exercised by the Supreme People's Court, explore the establishment of a compulsory appeal procedure. From the perspective of what it should be, life imprisonment without commutation or parole can only be a band-aid solution in the evolution of criminal punishment and the realization of the purpose of criminal law. We must be alert about improper legislation in the name of substitute punishment of death penalty. Life imprisonment in China should not be prospered or expanded, and we should maintain calm and sober assessment and judgment, and stay vigilant about its proliferation under irrational impetus. The existing penal system, after restrained modification, can shoulder the important task of modernizing the penal system, and gradually modernizing China's criminal law governance system and capacity of governance.

Date of Award	15 Feb 2024
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Guobin ZHU (Supervisor)