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中华人民共和国刑法(修正)(二)

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  Chapter IV The Concrete Application of Punishments

  Section 1 Sentencing

  Article 61 When sentencing a criminal, a punishment shall be imposed based on the facts, nature and circumstances of the crime, the degree of harm done to society and the relevant provisions of this Law.

  Article 62 In cases where the circumstances of a crime call for a heavier or a lighter punishment under the provisions of this Law, the criminal shall be sentenced to a punishment within the limits of the prescribed punishment.

  Article 63 In cases where the circumstances of a crime call for a mitigated punishment under the provisions of this Law, the criminal shall be sentenced to a punishment less than the prescribed punishment.

  Even if the circumstances of a crime do not warrant a mitigated punishment under the provisions of this Law, the criminal may, upon approval of the Supreme People's Court, be sentenced to a punishment less than the prescribed punishment according to the special particulars of the case.

  Article 64 All property illegally obtained by a criminal shall be recovered, or compensation shall be ordered. Legal property of the victim shall be returned. Contrabands and possessions of the criminal that were used in the crime shall be confiscated. The property confiscated and fine shall be turned over to the State Treasury, and shall not be misappropriated or disposed without authorization.

  Section 2 Recidivists

  Article 65 If a criminal commits another crime punishable by fixed-term imprisonment or heavier penalty within five years after serving his sentence of not less than fixed-term imprisonment or receiving a pardon, he is a recidivist and shall be given a heavier punishment. However, this shall not apply to cases of negligent crime.

  For criminals who are paroled, the period stipulated in the preceding paragraph shall be counted from the date the parole expires.

  Article 66 A criminal who has committed a crime of endangering the state's security at any time after serving his sentence or receiving a pardon shall, if he commits another crime of endangering the state's security, be dealt with as a recidivist.

  Section 3 Voluntary Surrender and Rendering Meritorious Service

  Article 67 Voluntary Surrender refers to the case that anyone who voluntarily surrenders himself to a judicial organ after committing a crime, and truthfully confesses his crime. A criminal who conducts voluntary surrender may be given a lighter or mitigated punishment. Those whose crimes are relatively minor may be exempted from punishment.

  If a suspected criminal or defendant under compulsory measure or criminal who serves a sentence truth fully confesses his other crimes that is unknown to a judicial organ, he shall be dealt with as voluntary surrender.

  Article 68 A criminal who is verified that he discloses another person's crime, or provides key clues that lead to solve another case or renders other meritorious service may be given a lighter or mitigated punishment. Those who renders great meritorious service may be given a mitigated punishment or be exempted from punishment.

  Those who not only conducts voluntary surrender but also renders great meritorious service shall be given a lighter punishment or be exempted from punishment.

  Section 4 Combined Punishment for Several Crimes

  Article 69 For a criminal who commits several crimes before a judgment is pronounced, unless he is sentenced to death or life imprisonment, his term of punishment shall be decided in such a way that it may not exceed the total of the terms for all the crimes and must be longer than the maximum term for any one of the crimes, depending on the circumstances of each case. However, the term of public surveillance may not exceed three years, the term of criminal detention may not exceed one year, and fixed-term imprisonment may not exceed twenty years.

  If among the crimes there are any for which a supplementary punishment is imposed, the supplementary punishment must still be executed.

  Article 70 If after a judgment has been pronounced but before the punishment has been completely executed it is discovered that before the judgment was pronounced the criminal committed another crime for which he was not sentenced, a judgment shall also be rendered for the newly discovered crime; the punishment to be executed shall be determined on the basis of the punishments imposed in the former and latter judgments and according to the provisions of Article 69 of this Law. Any portion of the term that has already been served shall count towards fulfil ment of the term imposed by the latest judgment.

  Article 71 If after a judgment has been pronounced but before the punishment has been completely executed the criminal again commits a crime, another judgment shall be rendered for the newly committed crime; the punishment to be executed shall be decided on the basis of the punishment that remains to be executed for the former crime and the punishment imposed for the latter crime and according to the provisions of Article 69 of this Law.

  Section 5 Suspension of Sentence

  Article 72 A suspension of sentence may be granted to a criminal sentenced to criminal detention or to fixed-term imprisonment of not more than three years if, according to the circumstances of his crime and his demonstration of repentance, suspension of the sentence will not result in further harm to society.

  If a supplementary punishment has been imposed on a criminal whose sentence has been suspended, the supplementary punishment must still be executed.

  Article 73 The probation period for suspension of criminal detention shall be not less than the term originally decided and not more than one year, but it may not be less than two months.

  The probation period for suspension of fixed-term imprisonment shall be not less than the term originally decided and not more than five years, but it may not be less than one year.

  The probation period for suspension of sentence shall be counted from the date the judgment is made final.

  Article 74 Suspension of sentence shall not be applied to recidivists.

  Article 75 A criminal whose sentence has been suspended shall observe following provisions: Article 75 A criminal whose sentence has been suspended shall observe following provisions:

  (1) observe laws and administrative regulations, submit to supervision;

  (2) report his own activities according to observing organs' stipulations;

  (3) observe observing organs' stipulations on meeting with guests; and

  (4) report and obtain approval from observing organs for any departure from the city or county where he lives or change in residence.

  Article 76 A criminal whose sentence has been suspended shall, during the probation period for suspension, observed by the public security organ, and the unit to which he belongs or a basic-level organization shall take concerted action. If the cases stipulated in Article 77 of this Law do not occur, the punishment originally decided shall not be executed upon the expiration of the probation period for suspension, and such a fact shall be declared in public.

  Article 77 During the probation period for suspension, if a criminal whose sentence has been suspended commits further crime or, is found that he committed another crime for which he was not sentenced, the suspension shall be revoked and a judgment shall also be rendered for the newly committed crime or newly discovered crime, and the punishment to be executed shall be decided on the basis of the punishment for the former and latter crimes and according to the provisions of Article 69 of this Law.

  A criminal whose sentence has been suspended shall, if he violates a law or a regulation or relevant provisions concerning supervision and administration on suspension promulgated by the Department of Public Security under the State Council during the probation period for suspension, and the circumstance of such violation is severe, suspension shall be revoked and punishment originally decided shall be executed.

  Section 6 Commutation of Punishment

  Article 78 A criminal sentenced to public surveillance, criminal detention, fixed-term imprisonment or life imprisonment may have his punishment commuted if he observes the rules of prison conscientiously, accepts education and reform, and shows true repentance or performs meritorious service while serving his sentence. Those who perform any of following great meritorious service shall have punishment commuted:

  (1) prevent other persons from committing serious crimes;

  (2) bring accusations with respect to the serious crimes within or outside the prison, and such accusation is verified;

  (3) conduct invention, creation or great technical innovation;

  (4) risk life to save others in routine production and life;

  (5) make outstanding performance in resisting natural disaster or in removing serious accident; or

  (6) provide other great contributions to the state and society.

  After commutation, the term of punishment actually to be served by those sentenced to public surveillance, criminal detention or fixed-term imprisonment may not be less than half of the term originally decided; for those sentenced to life imprisonment, it may not be less than ten years.

  Article 79 Commutation of punishment of a criminal shall be put forward in the form of the proposal document concerning commutation of punishment by the executing organ towards an intermediate people's court or a people's court at higher level. The people's courts shall form a collegial panel to hold a trial, and decide commutation of punishment for those who show true repentance or have fact of performing meritorious service. No commutation shall be decided unless by a legal procedure.

  Article 80 A term of fixed-term imprisonment that is commuted from a life imprisonment shall be counted from the date the order of commutation is issued.

  Section 7 Parole

  Article 81 Criminals sentenced to fixed-term imprisonment who have served more than half of the term of their original sentence or criminals sentenced to life imprisonment who have served not less than ten years of their term may be granted parole if they observe rules of prison conscientiously, accept education and reform, and show true repentance, and will no longer cause harm to society after parole. If special circumstances exist, and upon approval of the Supreme People's Court, the above restrictions relating to the term served may be disregarded.

  Recidivists and criminals sentenced to fixed-term imprisonment of more than ten years or life imprisonment for violent crimes such as committing homicide, causing explosion, robbery, rape and kidnapping shall not be granted parole.

  Article 82 Parole of a criminal shall be decided according to the procedure stipulated in Article 79 of this Law. No parole shall be granted unless by a legal procedure.

  Article 83 The probation period for parole in the case of a fixed-term imprisonment shall be equal to the portion of the term that has not been completed; the probation period for parole in the case of life imprisonment shall be ten years.

  The probation period for parole shall be counted from the date the criminal is released on parole.

  Article 84 A criminal who is granted parole shall observe following provisions:

  (1) observe laws and administrative regulations, submit to supervision;

  (2) report his own activities according to the stipulations of the supervising organs;

  (3) observe the stipulations of meeting with guests promulgated by the supervising organs; and

  (4) report and obtain approval from the supervising organs for any departure from the city or county where he lives or change in residence.

  Article 85 A criminal who is granted parole shall be subject to supervision by a public security organ during the probation period for parole. If the circumstance stipulated in Article 86 of this Law does not occur, the punishment to which he was originally sentenced shall be considered to have been completely executed upon the expiration of the probation period for parole; and such a fact shall be declared in public.

  Article 86 If a criminal who is granted parole does commit further crime during the probation period for parole, the parole shall be revoked and combined punishment for several crimes shall be decided according to Article 71 of this Law.

  During the probation period for parole, if a criminal who is granted parole is found that before the judgment was announced he committed another crime for which he was not sentenced, parole shall be revoked and combined punishment for several crimes shall be decided according to Article 70 of this Law.

  A criminal who is granted parole shall, if he violates a law or an administrative regulation, or a stipulation on supervision and administration concerning parole promulgated by the Department of Public Security under the State Council during the probation period for parole, and such an act does not constitute a further crime, parole shall be revoked according to the legal procedure, and the criminal shall be sent to prison for the execution of the unexecuted punishment.

  Section 8 Limitation

  Article 87 Crimes shall not be prosecuted if the following periods have elapsed:

  (1) five years, when the maximum prescribed punishment is fixed-term imprisonment of less than five years;

  (2) ten years, when the maximum prescribed punishment is fixed-term imprisonment of not less than five years but less than ten years;

  (3) fifteen years, when the maximum prescribed punishment is fixed-term imprisonment of not less than ten years; and

  (4) twenty years, when the maximum prescribed punishment is life imprisonment or death. If after twenty years it is considered that a crime must be prosecuted, the matter must be submitted to the Supreme People's Procuratorate for approval.

  Article 88 No limitation on the period for prosecution shall be imposed with respect to criminals who escape from investigation or trial after a people's procuratorate or public security organ or state security organ places the case on file and conducts investigation, or a people's court handles the case.

  No limitation on the period for prosecution shall be imposed if a victim puts forward accusation during a limitation period for prosecution, and a people's court or people's procuratorate or public security organ shall place the case on file but fails to do so.

  Article 89 The limitation period for prosecution shall be counted from the date of the crime; if the criminal act is of a continual or continuous nature, it shall be counted from the date the criminal act is terminated.

  If further crime is committed during a limitation period for prosecution, the limitation period for prosecution of the former crime shall be counted from the date the latter crime is committed.

  Chapter V Other Provisions

  Article 90 Where the provisions of this Law cannot be completely applied in national autonomous areas, the people's congresses of those autonomous regions or the provinces concerned may formulate adoptive or supplementary provisions based on the political, economic and cultural characteristics of the local nationalities and the basic principles stipulated in this Law, and these provisions shall go into effect after they have been submitted to and approved by the Standing Committee of the National People's Congress.

  Article 91 “Public property” as mentioned in this Law refers to the following:

  (1) property owned by the state;

  (2) property owned collectively by working people; and

  (3) property by social donation and property as specific-purpose fund all of which are used for helping the poor or for other causes of public welfare. Private property that is being managed, used or transported by the state organs, state-owned companies or enterprises, collective-owned enterprises and people's organizations shall be treated as public property.

  Article 92 “Citizens' privately owned property” as mentioned in this Law refers to the following:

  (1) citizens' lawfully earned income, savings, houses and other means of livelihood;

  (2) any means of production that are under individual or family ownership according to law;

  (3) legal property owned by individual household and private enterprises; and

  (4) shares, stocks, bonds and other property owned by individuals according to law.

  Article 93 “State functionaries” as mentioned in this Law refers to personnel of state organs who are engaged in public service according to law.

  Personnel of state-owned companies or enterprises or institutions and people's organizations who are engaged in public service and personnel who are appointed and sent by state organs, state-owned companies or enterprises or institutions to non-state-owned companies or enterprises or institutions or mass organizations to carry out public service, and other personnel who are engaged in public service according to law, shall be treated as state functionaries.

  Article 94 “Judicial functionaries” as mentioned in this Law refers to staff who have the functions of investigation, prosecution, adjudication and supervision and management.

  Article 95 “Serious injuries” as mentioned in this Law refers to any of the following:

  (1) injuries resulting in loss of a person's use of a limb or in disfigurement;

  (2) injuries resulting in loss of a person's hearing, sight or the function of any other organ; and

  (3) other injuries that cause grave harm to a person's physical health.

  Article 96 “To violate the state stipulations” as mentioned in this Law refers to violation of laws and decisions enacted by the National People's Congress and its Standing Committee, and of administrative regulations enacted by the State Council or administrative measures adopted by the State Council or decisions and orders issued by the State Council.

  Article 97 “Ringleader” as mentioned in this Law refers to any criminal who has the role of organizing, planning or directing a criminal group or a crowd assembled to commit a crime.

  Article 98 “To be handled only upon complaint” as mentioned in this Law means that a case shall only be handled if the victim brings a complaint. If the victim is unable to bring a complaint because of coercion or intimidation, a people's procuratorate or a close relative of the victim may bring his complaint.

  Article 99 “Not less than”, “not more than” and “within” as mentioned in this Law all include the given figure.

  Article 100 Any person who was given a criminal punishment shall, when joining the army or getting a job, report truthfully that he was ever given a criminal punishment to relevant units, and shall not conceal the fact.

  Article 101 The General Provisions of this Law are applicable to other laws with provisions for criminal punishments, unless otherwise provided in other laws.

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