Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Sunday, August 19, 2012

How much time will Gu Kailai actually have to serve under Chinese law?

Gu Kailai has been sentenced to death with a two-year suspension. Under Art. 50 of the Criminal Law, if she commits no new intentional crimes while in prison, that sentence will be commuted after two years to life imprisonment. It can even be commuted to 25 years’ imprisonment if she “genuinely demonstrates major merit” (确有重大立功表现). And further reductions are possible after the initial commutation.

Under Art. 78 of the Criminal Law and a 2011 Supreme People’s Court directive, those sentenced to life imprisonment or a term of years (including as a result of a commuted death sentence) may have their sentences reduced for good behavior (that's my own term; Chinese law speaks of showing repentance or establishing merit) during their imprisonment. And various forms of good behavior are listed, including (in the 2011 SPC directive) paying compensation. Presumably that will not be a problem for Gu.

But there are limits: Art. 78 of the Criminal Law states that a death sentence commuted to life imprisonment may under no circumstances be reduced to less than 25 years of actual time served, and a death sentence commuted to 25 years’ imprisonment may under no circumstances be reduced to less than 20 years of actual time served, in each case counting from the date of the original commutation. And even less is possible: in its 2011 directive, the Supreme People’s Court simply overrode the Criminal Law and stated that a commuted sentence could ultimately be reduced to as little as 15 years of actual time served. [ADDITION: A colleague also points out the intriguing possibilities of medical parole even earlier after just 9 years of actual time served: see this post from Dui Hua Foundation.]

I can’t resist digressing here to point out that the 2011 SPC directive is pretty remarkable: only a few months before, on February 5, 2011, the National People’s Congress Standing Committee had passed an amendment to the Criminal Law, effective May 1, that specifically established the 25/20-year rule. Yet on Nov. 21, 2011, the Supreme People’s Court passed its directive (effective July 1, 2012) overriding this rule. Needless to say, the SPC has absolutely no authority to directly contradict NPC legislation in this way. They can’t even claim, as is often done, that the existing rule was out of date and simply needed to be changed.

 

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Comments

And whether you're an honest man, or whether you're a thief, depends on whose solicitor has given me my brief. W.S. Gilbert of Gilbert and Sullivan fame.

Posted by: fdawei | Aug 25, 2012 10:44:52 PM

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