UNDERSTANDING AND APPLICATION OF THE LIFELONG IMPRISONMENT COMMUTATION FROM THE PERSPECTIVE OF CRIMINAL LAW DOGMATICS
Lu Ling
TABLE OF CONTENTS
I. ISSUES AND CONTROVERSY
A. The Origin of the Issues
B. Application of Major Meritorious Service to Articles 50, 78 and 383
II. CONTROVERSY OVER THE COMMUTATION DURING THE PERIOD OF SUSPENSION OF EXECUTION
A. Commentary on the Viewpoint of ‘No Commutation’
B. Commentary on the Viewpoint of ‘Performance of Major Meritorious Service Shall Lead to Commutation of Fixed-term Imprisonment of 25 Years’
C. The Rationality of the Doctrine of Affirmation and Its Reasons
III. CONTROVERSY REGARDING THE COMMUTATION DURING THE EXECUTION OF LIFE IMPRISONMENT
A. Overview of the Viewpoints of ‘Shall Be Commuted’ and ‘No Commutation’
B. The Divergence between the Doctrines of ‘Shall Be Commuted’ and ‘No Commutation’
C. Rationality of the Doctrine of ‘Shall Be Commuted’ and Its Reasons
IV. CONCLUSION
Whether a criminal convicted of embezzlement and bribery sentenced to lifelong imprisonment can be commuted is extremely controversial. In the perspective of criminal law dogmatics, through systematical interpretation of articles 50, 78 and paragraph 4 of article 383 of the Criminal Law, this study found that, under certain circumstances commutation of life imprisonment does not negate the policy of severely punishing corruption crimes. Absolute lifelong imprisonment only applies to the following circumstances: during the period of suspension of execution, a criminal sentenced to lifelong imprisonment has neither committed intentional crime which leads to either execute the death penalty or been re-counted the period of suspension of execution, nor performed major meritorious service; after his punishment is commuted to life imprisonment, he never performs major meritorious service.I. ISSUES AND CONTROVERSYIn 2015, the Standing Committee of the National People’s Congress promulgated the Amendment IX to the Criminal Law of the People’s Republic of China. One of the most significant changes by the Amendment is the launch of lifelong imprisonment to the existing penalties for crime of embezzlement and bribery, which immediately caused widespread concerns and stormy discussions. The nationwide concerns about the addition of the provision on bribery is closely related to the current anti-corruption campaign circumstance, while fierce controversy in academia lies mainly in how to apply lifelong imprisonment justly and humanely under the premise of acknowledging legislation.A. The Origin of the IssuesThe Amendment IX to the Criminal Law of the People’s Republic of China adds paragraph 4 in article 383, that is, for the criminal who has been convicted of the crimes of paragraph 1 and sentenced to death penalty with a suspension of execution according to subparagraph 3, according to the circumstances of the crime and other circumstances, the people’s court may determine simultaneously lifelong imprisonment which is executed without commutation and without parole after the criminal’s punishment is commuted to life imprisonment upon the expiration of the two-year period of suspension of execution.Bai Enpei became the ‘first man of lifelong imprisonment in China’. On October 9, 2016, the Intermediate People’s Court of Anyang City in He’nan Province publicly heard the case of Bai Enpei, who was the former Vice-chairman of the National People’s Congress Committee of Environment and Resource Protection and who accepted bribes and held a huge amount of property with unidentified source. The court sentenced Bai Enpei to death penalty with a two-year suspension of execution, deprival political rights for life, confiscation of all personal property and lifelong imprisonment without commutation or parole which would be executed after his punishment is commuted to life imprisonment upon the expiration of the two-year period. Subsequently, a number of extraordinarily serious corrupt criminals were sentenced to the death penalty with a two-year suspension of execution and consequently converted to life imprisonment. On October 17, 2016, Wei Pengyuan, the former Deputy Director of the Coal Department of the National Energy Administration, on October 21, 2016, Yu Tieyu, the former Deputy General Manager of Material Supply Branch of Heilongjiang Long Coal Mining Group Co., Ltd, on May 27, 2017, Wu Changshun who was the Vice-chairman of Tianjin Municipality Political Consultative Conference and former Director of Bureau of Public Security, on December 21, 2016, Yang Chenglin, the former Party Secretary and Chairman of Inner Mongolia Bank Co., Ltd, were respectively sentenced to death penalty with two-year suspension of execution and lifelong imprisonment without commutation or parole which would be executed after their punishment is commuted to life imprisonment upon the expiration of the two-year period of execution of suspended death penalty according to law.In the public opinion, lifelong imprisonment is directly related to the policy of being tough on corruption crime, which also means that the corruption criminals should be jailed for life, and spend the rest of their lives in prison, and cut off their way out.However, in contrast to the general public’s optimism, the academic circles are calm and prudent. First of all, it is noted that life imprisonment was not imposed when the draft of Amendment IX to the Criminal Law of the People’s Republic of China was first proposed in October, 2014 and nor such reference announced in its second review draft, while it officially appeared in the report of Law Committee of the National People’s Congress’s review of the Amendment IX to the Criminal Law of the People’s Republic of China (Draft) which made the third review draft on August 24, 2016. The Amendment IX to the Criminal Law of the People’s Republic of China was voted and approved on August 29, 2015. The official appearance of life imprisonment was late, and the time for deliberation was short. New proposed provisions of the Amendment IX to the Criminal Law of the People’s Republic of China (Third Review Draft) were voted and approved after one review by the Standing Committee of the National People’s Congress, which provoked significant oppositions, especially to the provision of lifelong imprisonment.Its legislative foundation and preparation have provoked sharp questions. But since legislation has been rushed through, the academic community is more concerned about how to apply lifelong imprisonment in a just and humane manner. In consequence, the core issues have arisen. Are criminals sentenced to lifelong imprisonment not allowed to commute and should they spend life behind bars under any circumstances, or can they be commuted? At the macroscopical perspective of criminal policy, can lifelong imprisonment inevitably not be commuted under the circumstance of being tough on corruption crimes, and does the lifelong imprisonment which is commuted when the criminals satisfy statutory requirement negate the policy of being tough on corruption crimes? These issues need to be carefully examined. If it is considered that lifelong imprisonment with commutation does not negate the policy of being tough on corruption crimes, in the perspective of criminal law dogmatics, can it be proved that lifelong imprisonment can be commuted under the certain circumstance? This study explores the possibility and application of commutation of lifelong imprisonment from the perspective of criminal law dogmatics.B. Application of Major Meritorious Service to Articles 50, 78 and 383In terms of the wording and literal meaning of paragraph 4 of article 383 of the Criminal Law, a lifelong imprisonment sentence seems to amount to life in prison and no further commutation. But in fact, there is extreme controversy about this issue.The first of the main controversies is that since when the criminal sentenced to life imprisonment cannot be commuted? Is the starting time of ‘cannot be commuted’ defined as the beginning of death penalty with a two-year suspension of execution, or beginning of life imprisonment which commuted from death penalty with a two-year suspension of execution?The origin of this debate mainly comes from the formulation of paragraph 4 of article 383 of the Criminal Law, that is, ‘the people’s court may determine simultaneously according to the circumstances of the crime’ and ‘lifelong imprisonment is executed after death penalty with a two-year suspension of execution is commuted to life imprisonment’. The focus of controversy is the meaning of ‘the death penalty with the suspension of execution’ to lifelong imprisonment, therefore settlement of this controversy mainly involves the application of article 50 of the Criminal Law, and the crux of the controversy lies in how to understand the meaning of commutation.The second of the controversies is that, when the death penalty with suspension of execution is commuted to life imprisonment upon the expiration of the two-year period, and when the statutory commutation of the general provisions of the Criminal Law occurs, whether the criminal sentenced to life imprisonment can be commuted? This controversy mainly stems from the formulation of ‘cannot be commuted’ in paragraph 4 of article 383 of the Criminal Law and ‘shall be commuted’ in article 78 of the Criminal Law. It is not difficult to find that ‘cannot be commuted’ and ‘shall be commuted’ are mandatory regulation, and are respectively stipulated in the General Provision and Specific Provision of the Criminal Law. Therefore the solution of this controversy mainly involves understanding and application of the relationship between paragraph 4 of article 383 and article 78.
II. CONTROVERSY OVER THE COMMUTATION DURING THE PERIOD OF SUSPENSION OF EXECUTIONA two-year suspension of execution pronounced simultaneously with the imposition of the death sentence is the first legal consequence that individuals convicted of embezzling extremely huge amounts or engaging in corruption under other extremely serious circumstances face. Upon the expiration of the two-year period of suspension where these criminals commit no intentional crimes, there will be different legal consequences. According to article 50 of the Criminal Law, a criminal sentenced to death with a suspension of execution will face consequences as follows: First, if he has committed an intentional crime, and of which the circumstances are flagrant, the death penalty shall be executed; Second, if he has committed an intentional crime which does not satisfy the requirement of execution, the terms of suspension of execution of the death penalty shall be re-counted again; Third, if he has committed no intentional crime during the period of suspension of execution, his punishment shall be commuted to life imprisonment upon the expiration of the two-year period; Fourth, if he has performed major meritorious service, his punishment will be commuted to fixed-term imprisonment of 25 years. Correspondingly, after the expiration of the two-year period of the suspended death penalty, the first three consequences of the criminals sentenced to the death with suspension of execution cause no divergence of opinion. What scholars have been disputing is the fourth consequence, that is, if the offender has truly performed significant meritorious service, shall his punishment be commuted to fixed-term imprisonment of 25 years? According to the formulation of article 50, a criminal sentenced to death with a suspension of execution may be commuted to fixed-term imprisonment of 25 years because of major meritorious service, which tends to differ in accordance with paragraph 4 of article 383, which clearly provides that ‘lifelong imprisonment without commutation’. These two provisions seem to conflict. Therefore, the issue of whether the major meritorious service during the period of suspension of execution will result in a commutation has engendered a great controversy and a straight antagonism of directly opposed factions. A. Commentary on the Viewpoint of ‘No Commutation’The faction against the view that major meritorious service leads to commutation emphasises that paragraph 4 of article 383 clearly provides ‘no commutation’, that is a criminal sentenced to lifelong imprisonment is not applicable to commutation, even if he performs major meritorious service during the period of suspension of execution, his punishment cannot be commuted to fixed-term imprisonment of 25 years, but to implement lifelong imprisonment.1. Viewpoint of ‘No Commutation’ and Its Reason. — The Supreme People’s Court and the Supreme People’s Procuratorate hold that lifelong imprisonment should execute unconditionally and shall not be affected by the performance of serving sentence. On April 18, 2016, the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the Interpretation on Several Issues of Law’s Application concerning Handling Criminal Cases of Corruption and Bribery. At the press conference, the Supreme People’s Court stated that being tough on corruption crimes according to law is the consistent principle of punishing crimes in relation to corruption and bribery. Lifelong imprisonment is mainly applicable to extraordinarily serious corrupt criminals, but neither excessive enough to be sentenced to death penalty with immediate execution, nor minor enough to be sentenced to death penalty with a suspension of execution. So lifelong imprisonment should be mandatory. Life imprisonment is decided simultaneously with the imposition of death penalty with suspension of execution, meaning that this decision cannot be postponed until the expiration of the two-year period of execution of suspended death penalty and then executed depending on the situation, and it will be unconditionally executed once it is made, without influence by the fact of major meritorious service during the period of suspension of execution. According to this interpretation, the two supreme institutions clarify that lifelong imprisonment is pronounced simultaneously with the imposition of death penalty with suspension of execution, which does not have to wait for expiration of the suspension of execution and does not consider the convict’s performance during the period of serving sentence. In this regard, the fact of major meritorious service does not affect the enforcement of life imprisonment.Theoretically, some scholars have derived the conclusion of ‘no commutation’ from legislative intent and the nature of life imprisonment. The first among these thoughts, some commentators approbate that the main purpose of the establishment of the life imprisonment system is to strengthen the punishment of extraordinarily serious corrupt crimes. Moreover, lifelong imprisonment is a lenient punishment for the extraordinarily serious corrupt criminal who should have been sentenced to death penalty with immediate execution. If it is allowed that major meritorious service during the period of suspension of execution can lead to the commutation of fixed term 25-year imprisonment, it would be seen as a circumvention of the practical application of the new lifelong imprisonment rule, which then leads to a decline of the penalty strength and a paradox to the original intent of the legislation. It is noteworthy that the attitude of scholars who advocate this view is quite ambiguous or even paradoxical.In other words, they argue that criminal sentenced to death penalty with a suspension of execution and lifelong imprisonment cannot be commuted during the period of suspension of execution for considering the current criminal policy, but from the perspective of long-term vision, his punishment should be commuted to fixed-term imprisonment of 25 years because of major meritorious service. They are in favour of considering such a provision that taking major meritorious service into account applies commutation of lifelong imprisonment to extraordinarily serious corrupt criminal in the future legislative amendments. Second, some scholars agree that lifelong imprisonment is a special death penalty with suspension of execution, which is an intermediate punishment between the death penalty with immediate execution and the general death penalty with suspension of execution. For this reason, this special death penalty with suspension of execution naturally cannot apply legal consequences of the ordinary death penalty with suspension of execution. That is to say, during the period of suspension of execution, when the criminal performs major meritorious service, he cannot be granted on the basis of the legal consequence of the ordinary death penalty with suspension of execution to commute to fixed-term imprisonment of 25 years. Furthermore, the fact of lifelong imprisonment applicable to criminals who should have been sentenced to death penalty with immediate execution is not compliant with commutation, because this would neither be compatible with the general principles of special law and common law nor serve the legislative purpose of adding special suspension of execution for death penalty plus lifelong imprisonment in criminal law.2. Analysis and Comment on Viewpoint of ‘No Commutation’. — The faction against the view that major meritorious service leads to commutation derived their assertions mainly from the consideration of criminal policy, and they only literally understand and metaphysically interpret paragraph 4 of article 383, whose argumentation exists obvious limitations. Firstly, based on the consideration of criminal policy, this faction supports the view of lifelong imprisonment resulting from the criminal policy of being tough on corrupt crimes, and they believe only the decision of ‘no commutation’ a guarantee to implement such policy. For example, The Supreme People’s Court announced that, since the 18th National Congress of the Communist Party of China, the Party Central Committee has put strict punishment on corruption in a prominent position, and the strictness in accordance with the law is the consistent principle of punishing corruption and bribery crimes. The rigidity of lifelong imprisonment is one of the concentrated manifestations. Increasing punishment to extraordinarily seriously corrupt criminal is one of the purposes of amending of Criminal Law. In this case, if his punishment is commuted to fixed-term imprisonment of 25 years according to provision of ordinary death penalty with a suspension of execution, the effect of punishing and preventing corruption by severe punishment will not be achieved.Indeed, lifelong imprisonment is the consequence of the criminal policy of being tough on corrupt crimes and prudent application of death penalty. In the Report on Review of the Amendment IX to the Criminal Law of the People’s Republic of China (Draft), the Legal Committee of the National People’s Congress points out that, to criminals who embezzle or bribe especially huge amounts or with especially serious circumstance, should have been sentenced to death penalty with immediate execution, based on the criminal policy of prudent application of death penalty, the application of lifelong imprisonment penalty upon the expiration of two-year period of suspension of execution of the death penalty is conducive to embodying the criminal law principles on which the punishments are commensurate with the crimes, safeguarding judicial justice, and preventing the occurrences that such criminals through the way of commutation are serving short prison sentences in judicial practice. In particular, ‘retain the death penalty, but strictly control and prudently apply death penalty’ is the criminal policy of death penalty in China. Under this policy, corrupt criminals sentenced to death penalty with immediate execution are quite rare. However, in the process of execution of penalties, it is quite common to spend money in exchange of commutation or to use authority of office to atone for one’s crimes. In judicial practice, humanized policies such as commutation, parole and temporary execution of the sentence outside prison have been twisted by violation of regulations into channels for some people’s impunity. From March to December 2014, the Supreme People’s Procuratorate had deployed special procuratorial activities. A total of 213 cases involving 252 individuals concerned with illegal commutation, parole and temporary execution of the sentence outside prison were filed, investigated and handled. In addition, the relevant departments of the central government carried out nationwide special action of clean-up and rectification, resulting in a large number of ‘out-of-prison criminals’ re-imprisoned. Under macro circumstance of ‘strictly control and prudently apply death penalty’, for guarantee being tough on corrupt crimes, solving the problem of criminal serving too short sentence by commutation, lifelong imprisonment seems to be an ideal option.The scholars based on the considerations of criminal policy argue that their claim is derived from the original intention of legislation. However, first of all, is the original intention of legislation of lifelong imprisonment as same as that of lifelong imprisonment without commutation? Moreover, it is logically circumferential to interpret lifelong imprisonment without commutation as conforming to the original legislative while excluding lifelong imprisonment with commutation as conforming to the original legislative? In fact, the wording of the original legislative intention is also a kind of interpretation, and it is hard to say that such interpretation which is honoured by the scholars who are in favour of ‘lifelong imprisonment without commutation’ is a more authoritative interpretation than other types of interpretation. Prof. Zhang Mingkai even believes that ‘not conforming to original intention’ is only a fictitious reason.More importantly, criminal policy must be integrated into the criminal law system in order to be persuasive and even legitimate. However the viewpoint of ‘no commutation’ leaves the understanding of lifelong imprisonment out of the criminal law interpretation system, so it is hard to say it speaks to the point. Criminal policy cannot be merely regarded as exception to the rule of dogmatics. Roxin’s comment is to the point, that is, if reasons for an evaluation are just out of legal emotion or selective target setting, rather than seeking arguable evidences in the evaluation relationship of the provisions of the law system, then, the reasons for such evaluation are ambiguous and arbitrary, and lack academic persuasiveness. Indeed, the provision ‘lifelong imprisonment without commutation and without parole’ represents in a certain criminal policy. Furthermore, without rational criminal policy as a guide, the law might lose its rationality. But the problem is that the criminal policy must be integrated into the understanding of the criminal law system to be persuasive even legitimate. As we know, criminal policy is macro conception and principle. Its operation and implementation must be integrated into and rely on specific legislation and judicature. Breaking away from legal system, the application of criminal policy is not in accordance with the law but in accordance with the policy. In addition, the criminal policy of severely punishing corruption crimes is not only reflected in the punishment of all corrupt criminals but also in the frequency, intensity and type of the punishment. Therefore, it is not necessary to severely punish criminals who have performed major meritorious service in order to meet the requirements of the criminal policy of being tough on corruption crimes. To severely punish criminals who have not performed major meritorious service is itself a manifestation of being tough on corruption crimes.Second, literally and formally, the provision ‘lifelong imprisonment without commutation and without parole’ is directly understood as that once sentenced to lifelong imprisonment, it will never be further commuted or paroled. However, according to this logic, the opposite conclusion can be drawn. That is to say, ‘lifelong imprisonment without commutation and without parole’ shall take immediate effect at the execution of life imprisonment that is a commutation upon the expiration of the two-year period of execution of suspension of the death penalty. Obviously, literal understanding and formal interpretation of the provision may lead to competiting or even contradictory conclusions. Substantive understanding, systematic interpretation and teleological interpretation to the provision should be taken in order to draw rational conclusion.B. Commentary on the Viewpoint of ‘Performance of Major Meritorious Service Shall Lead to Commutation of Fixed-term Imprisonment of 25 Years’The faction in favour of the view that major meritorious service leads to commutation claims that, during the period of suspension of execution, criminals who are sentenced to lifelong imprisonment have performed major meritorious service and shall consequently be commuted to fixed-term imprisonment of 25 years by the appropriateness of article 50, with lifelong imprisonment no longer applicable.Taking the matter from the starting time of the actual execution of lifelong imprisonment, the faction views that lifelong imprisonment comes into force on the expiration of the two-year period of suspension of execution of the death penalty, which is commuted to life imprisonment according to law. Therefore during the period of suspension of execution, the application of lifelong imprisonment is not practical. Only when the execution phase of suspended death penalty is actually implemented into the execution phase of life imprisonment, lifelong imprisonment can be actually operated and truly realized.Considering the procedures required for lifelong imprisonment coming into force, the theorists believe that the actual execution of lifelong imprisonment must go through two effective judgments. The first one is the judgement of the suspended execution of the death penalty and lifelong imprisonment taking effect, and the second effective judgement is the commutation of the suspended execution of the death penalty to life imprisonment coming into force, which means the entry of the execution of lifelong imprisonment, no further commutation, no parole. If during the execution of the first effective judgement, due to statutory circumstances, the sentence of commutation of the suspended execution of the death penalty to life imprisonment does not come into force, and then there is no legal basis for enforcement of lifelong imprisonment because of the inexistence of the sentence of life imprisonment which is an appendage of lifelong imprisonment. There are two prerequisites for the application of lifelong imprisonment: the execution of death penalty with suspension of execution and the commutation of death penalty with a suspension of execution to life imprisonment. If the situation that criminals are commuted to fixed-term imprisonment of 25 years due to major meritorious service during the period of suspension of execution happens, the second prerequisite of application of lifelong imprisonment will not exist, neither the statutory ground of the application of lifelong imprisonment.Considering the legal basis of ‘commutation’ and ‘no commutation’, theorists believe that the wording ‘according to the law’ in the sentence ‘death penalty with suspension of execution shall be commuted to life imprisonment upon the expiration of the two-year period of execution of suspension of the death penalty according to the law’ provided by article 383 is referred to as stipulated in paragraph 1 of article 50, and not article 78. The sentence of the death with suspension of execution is the prerequisite of application of lifelong imprisonment. Therefore, upon the expiration of the two-year period, except the criminals who have committed intentional crimes, the other criminals shall be commuted, otherwise, these criminals are remaining in a stage of the suspended execution of the death penalty forever. The commutation of a criminal sentenced to death penalty with a suspension of execution and lifelong imprisonment must be based on paragraph 1 of article 50 of the Criminal Law. According to paragraph 1 of article 50, the punishment shall be commuted to fixed-term imprisonment of 25 years. Combining paragraph 1 of article 50 and paragraph 4 of article 383, if a criminal sentenced to lifelong imprisonment has performed major meritorious service during the period of suspension of execution, his punishment shall be commuted to fixed-term imprisonment of 25 years upon the expiration of the two-year period.Overall, the doctrine in favour of the view that major meritorious service leads to commutation mainly bases on the ground of criminal law dogmatics and is roughly divided into two types. The first type semantically interprets paragraph 4 of article 383, mainly in considering the starting time and premise of execution of lifelong imprisonment. According to this type of doctrine, the starting time of execution of lifelong imprisonment is understood as the execution of life imprisonment which is legitimately commuted upon the expiration of the two-year period of the suspended execution of the death penalty. Thus, the premise of execution of lifelong imprisonment is that life imprisonment comes into force, and before the execution of the suspended death penalty is commuted to life imprisonment, how criminals are commuted is not influenced by the stipulation that ‘lifelong imprisonment without commutation and without parole’. The second type systematically interprets articles 50, 78 and 383. In line with this type of doctrine, the legal basis of criminal law that the death penalty with suspension of execution is commuted to life imprisonment upon the expiration of the two-year period shall be based on article 50, not article 78. As a consequence, the outcome of criminals sentenced to the suspended execution of the death penalty is one of the four situations stated above. It is a natural conclusion that the criminals who have performed major meritorious service shall be commuted to fixed-term imprisonment of 25 years.C. The Rationality of the Doctrine of Affirmation and Its ReasonsThis paper agrees with the doctrine of affirmation, and partially agrees with its reasons, with supplements and systematical discussions as follows. Firstly, in terms of conceptual understanding, the term ‘commutation’ stipulated in article 383 refers to ‘commutation’ provided in article 78. Although commutation in the Criminal Law of China includes the commutation of death penalty with suspension of execution to life imprisonment or fixed-term imprisonment of 25 years stipulated in article 50 and commutation of imprisonment stipulated in article 78, commutation is usually understood as the imprisonment’s commutation stipulated in article 78. Commutation stipulated in article 383 refers to ‘commutation’ provided in article 78. Literally, article 383 suggests that ‘no commutation’ comes into force in the execution of life imprisonment that follows. According to this, the existence of life imprisonment is the premise that determinates commutation or not. Moreover, if ‘commutation’ refers to the commutation as stipulated in article 50, then the consequences of the suspended execution of the death penalty with no commutation, except the immediate execution of the death penalty, has just the indefinite stage of the suspended execution of the death penalty left, neither the fixed-term of 25 years imprisonment, nor life imprisonment. If the legal consequence of criminals sentenced to suspended death penalty and lifelong imprisonment has only two possibilities left, either the immediate execution of the death penalty or the indefinite stage of the suspended execution of the death penalty left, this would rule out the possibility that ‘death penalty with suspension of execution shall be commuted to life imprisonment upon the expiration of the two-year period of execution of suspended death penalty according to the law’, not to mention ‘lifelong imprisonment without commutation and without parole’. In that way, article 50 existed nominally only the other two consequences mentioned above for criminals sentenced to death with a two-year suspension of execution. Secondly, from a comparative perspective, the object of ‘lifelong imprisonment without commutation’ and ‘lifelong imprisonment without parole’ should be of the same condition. According to paragraph 1 of article 81, parole applies to criminals sentenced to fixed-term imprisonment and life imprisonment, and ‘no parole’ stipulated in paragraph 2 of article 81 applies to recidivist or certain criminals who are sentenced to more than 10 years of imprisonment or life imprisonment. That is, the objects of parole are criminals sentenced to imprisonment. Since the applicable object of parole is like that, the object of ‘lifelong imprisonment without commutation’ should be understood as the criminals sentenced to fixed-term imprisonment and life imprisonment. Legislation uses the phrasing ‘lifelong imprisonment without commutation and without parole’, with no separate stipulation, which results in the applicable object of ‘lifelong imprisonment without commutation’ as same as that of ‘lifelong imprisonment without parole’.Thirdly, in the sense of a systematic point of view, ‘no commutation’ in paragraph 4 of article 383 expresses the same meaning as ‘restricted commutation’ in paragraph 2 of article 50. Paragraph 2 of article 50 provides that, for recidivist sentenced to death with suspension of execution and criminals sentenced to death with suspension of execution for intentional homicide, rape, robbery, kidnapping, arson, explosion, spreading dangerous substances or organized violent crimes, the people’s court may simultaneously decide to restrict commutation of their sentences depending on the crimes and other circumstance. It means that the court may simultaneously determine restricted commutation, while sentence death with suspension of execution, to certain criminals. This stipulation is quite similar to paragraph 4 of article 383. Therefore ‘no commutation’ in paragraph 4 of article 383 should be regarded as one of the circumstances of restricted commutation that the court simultaneously determines death penalty with suspension of execution. In this case, how to understand ‘commute’ in paragraph 2 of article 50 is so crucial to interpreting ‘no commutation’ in paragraph 4 of article 383. The meaning of ‘commute’ in paragraph 2 of article 50 is clearly defined in paragraph 2 of article 78. Paragraph 2 of article 78 provides that, criminals sentenced to death suspension of execution are restrictedly commuted by the people’s court according to paragraph 2 of article 50, for whose punishment are commuted to life imprisonment upon the expiration of period of the two-year suspended death penalty, the term of punishment actual to be served may be not less than 25 years, while for whose punishment are commuted to fixed-term imprisonment of 25 years, the term of the punishment actual be served may be not less than 20 years. Accordingly, ‘commute’ in paragraph 2 of article 50 refers to the commutation of the suspended death sentence to life imprisonment or fixed-term imprisonment of 25 years upon the expiration of the suspended execution period. According to this logic, ‘no commutation’ in paragraph 4 of article 383 shall refer to ‘no commutation’ after death penalty with suspension of execution is commuted to life imprisonment or fixed-term imprisonment of 25 years.Fourthly, the two years period of suspension of execution is regarded as a buffer period and trial period of immediate execution of the death penalty, not the final state. Upon the expiration of the two-year period, it must be handled out. If ‘no commutation’ is interpreted as the punishment not being commuted to life imprisonment or fixed-term imprisonment of 25 years, it is to deny the existence of article 50. According to article 50, as long as the convict has not committed an ‘intentional crime’ during the two-year period of suspension of execution so that immediate execution of the death penalty is deemed or the implementation period of suspended execution is re-calculated, commutation is an inevitable outcome. As a result, the final state of the death penalty with suspension of execution is, either that an immediate execution of the death penalty is deemed, or that the sentence of commutation is implemented, and there is no such phrase ‘no commutation’. If ‘no commutation’ is applicable to the suspension of execution, the criminal would either face immediate execution, or stay in an indefinite state of death penalty with a suspension of execution, both of which deny the other two possible outcomes that the criminal is supposed to have, which actually deny the existence of article 50 of the Criminal Law.III. CONTROVERSY REGARDING THE COMMUTATION DURING THE EXECUTION OF LIFE IMPRISONMENTAfter the death penalty with suspension of execution is commuted to life imprisonment upon the expiration of the two-year period of suspension of execution, if the criminal had performed major meritorious service, should his punishment be commuted to fixed-term imprisonment of 25 years? According to article 78, commutation is divided into two circumstances: ‘shall be commuted’ and ‘may be commuted’. That is to say, the criminal’s punishment may be commuted if he conscientiously observes prison regulations, accepts education and reforms through labour, and shows true repentance or performs meritorious service, while the criminal’s punishment shall be commuted if he performs major meritorious service. One point that creates no controversy is that the criminal sentenced to lifelong imprisonment should serve ‘lifelong imprisonment without commutation’, even though there is a circumstance in accordance with ‘may be commuted’ as stipulated in article 78. The controversy is that whether the punishment can be commuted if there is a circumstance in line with ‘shall be commuted’ due to major meritorious service as stipulated in article 78? According to the statement in article 78, the criminal who had performed major meritorious service shall be commuted to fixed-term imprisonment of 25 years, which seems to conflict with paragraph 4 of article 383 that stipulates the criminal sentenced to lifelong imprisonment must serve lifelong imprisonment without commutation and parole during the period of execution of life imprisonment.A. Overview of the Viewpoints of ‘Shall Be Commuted’ and ‘No Commutation’1. Viewpoint of ‘No Commutation’ and Its Reasons. — The doctrine of negation in favour of ‘no commutation’ claims that the stipulation of major meritorious service is not applicable to the period after death penalty with suspension of execution is commuted to life imprisonment.For the first reason, the provision of the Criminal Law is very clear, and the grammatical interpretation takes precedence over the logical explanation. The language terms ‘after the death penalty with two-year suspension of execution is commuted to life imprisonment, lifelong imprisonment without commutation and without parole’ is so clear and distinct, which, according to common meaning of legal terms and explanation of grammar, excludes the application of commutation and parole. If a conclusion that major meritorious service results in commutation to fixed-term imprisonment during the execution of life imprisonment, this will undoubtedly violate the principle of legality of crime and punishment. ‘No commutation, no parole’ is a further clarification and emphasis on lifelong imprisonment. If it is possible for commutation and parole to be applicable, then where is the ground of life imprisonment? There is no need to require the Criminal Law to specify ‘sentence shall not be commuted and parole in accordance with articles 78 and 81’. Therefore the provisions of the Criminal Law are quite explicit, and the golden rule of interpretation of law, explanation of grammar taking precedence over explanation of logic, should be followed.The second reason is that, only ‘no commutation’ can make the punishment be commensurate with the crime. According to the Award Theory which more reasonably reflects the nature of commutation and parole, for the sentence of death with suspension of execution and commutation to lifelong imprisonment to the extraordinarily serious corrupt criminals who should have been sentenced to death with immediate execution is already an embodiment of appropriate mercy, and in principle, there is no need to give further commutation as a reward. Lifelong imprisonment applies to criminals who should have been sentenced to death with immediate execution, therefore only no commutation and no parole can make the punishment commensurate with the crime. Lifelong imprisonment aims to enhance non-death punishment. If allowing commutation and parole, lifelong imprisonment will deviate from the original intention and purpose of its establishment.The third reason is that, from the perspective of relationship between the General Provisions and Specific Provision of the Criminal Law, theorists believe that the provision of lifelong imprisonment, ‘lifelong imprisonment without commutation and without parole’ stipulated in paragraph 4 of article 383 is an exception to the commutation provision in article 78. Paragraph 4 of article 383 is an exception to the General Provisions of the Criminal Law. If it is not understood in this way, it will cause chaos in its application. That is to say, according to the same logic, it may be regarded that lifelong imprisonment is not an exception to article 81. In this way, the provision of ‘lifelong imprisonment without commutation and without parole’ would be meaningless.The fourth reason is that, the criminals are suffering much longer time of accepting reform in the life imprisonment execution period than that in the two-year suspended death execution period, correspondingly, personal dangerousness reflected by major meritorious service during the execution of life imprisonment is bigger than that during the period of suspension of execution. With this regard, lifelong imprisonment is no longer applicable to the criminals who had been sentenced to lifelong imprisonment but were commuted to fixed-term imprisonment due to major meritorious service during the suspension of execution. However, if there was no major meritorious service during the period of suspension of execution, the criminals will still have to face the unchangeable lifelong imprisonment during execution of life imprisonment that is commuted from death penalty with a suspension of execution, even though they perform major meritorious service afterwards.2. The Doctrine ‘Shall Be Commuted’ and Its Reasons. — Some theorists advocate that, paragraph 4 of article 383 is not an exception to ‘commutation’ of article 78. Therefore, the application of paragraph 4 of article 383 shall conform to article 78. According to article 78, during the execution of life imprisonment that is commuted from death with suspended execution, criminal’s punishment may be commuted to fixed-term imprisonment for his major meritorious service.Some theorists advocate that, paragraph 4 of article 383 is just an exception to ‘may be commuted’ of article 78. In the case that the criminal meets the qualification of ‘shall be commuted’, to apply the ‘no commutation’ provision is self-contradictory. In addition, in contrast with what paragraph 4 of article 383 provides ‘no commutation, no parole’, article 81 only provides ‘may parole’ but provides no statement ‘shall parole’. Therefore if the exception to ‘no parole’ stipulated in paragraph 4 of article 383 only involves the circumstance of ‘may parole’, correspondingly, the exception to ‘no commutation’ shall only involve the circumstance of ‘may parole’ but not the circumstance of ‘shall commute’. Furthermore, it is difficult to claim that the major meritorious service performed in the period of suspension of execution, in contrast to the major meritorious service achieved in the period of execution of life imprisonment, will reflect personal dangerousness.Other theorists advocate that, major meritorious service stipulated in paragraph 1 of article 50 is a special circumstance of commutation, which is different from ‘shows true repentance’ or ‘meritorious’, and should be treated specially. This special treatment should be indistinguishably reflected in the period of suspension of execution and the period of lifelong imprisonment that is executed upon the expiration of the suspension period. Extraordinarily serious corrupt criminals sentenced to death with suspension of execution and lifelong imprisonment can be commuted to fixed-term imprisonment of 25 years during the period of suspension of execution because of major meritorious service, so when in the period of execution of lifelong imprisonment, they should be treated as special as that in the period of suspended execution, which is in line with the provision ‘shall be commuted’ stipulated in article 78 of the Criminal Law of 1997.B. The Divergence between the Doctrines of ‘Shall Be Commuted’ and ‘No Commutation’First of all, is the formulation of provision clear enough, and is further interpretation needed? Most of the supporters of the doctrine of ‘no commutation’ insist that the formulation of provision has been so clear and distinct that ‘no commutation’ is the definite conclusion. According to the golden rule which advocates that explanation of grammar taking precedence over explanation of logic, there is no need to further interpret the relevant provision. On the other hand, the theorists in favour of the doctrine ‘shall be commuted’ directly acquiesce to the need of further interpretation of the provision. This is based on the inadequacy of the semantic interpretation, that is, the interpretation of paragraph 4 of article 383 only through the semantic means, which draws a conclusion that the current interpretation is pluralistic, competitive and even unreasonable, resulting in the need of correction by other means of interpretation. Secondly, is paragraph 4 of article 383 an exception to commutation or an exception to commutation stipulated in article 78, and is it overall or partial exception to commutation stipulated in article 78? The holders of the doctrine ‘no commutation’ argue that paragraph 4 of article 383 is an exception to ‘commutation’, based on there is a general and special relationship between the General Provisions and Specific Provision. Since there is a special provision of paragraph 4 of article 383 that ‘lifelong imprisonment without commutation and without parole’, the special provision, instead of the general provision, should be applied. In contrast, some theorists in favour of the doctrine ‘shall be commuted’ deny the idea that paragraph 4 of article 383 is an exception to commutation stipulated in article 78, while some of the theorists agree that paragraph 4 of article 383 is only partially an exception to commutation stipulated in article 78 . Thirdly, whether there is a difference in both the role of major meritorious service and in personal dangerousness of the convict between the period of suspension of execution and the period of execution of life imprisonment? The holders of the doctrine ‘no commutation’ argue that, during the period of suspension of execution and the period of execution of life imprisonment, the criminal’s personal dangerousness are different, consequently, so is the effect of these two kinds of major meritorious service, which should be treated differently. The theorists in favour of the doctrine ‘shall be commuted’ disagree any difference in terms of convict’s personal dangerousness reflected by major meritorious service performed during the period of suspension of execution and the period of execution of life imprisonment, neither to treat differently. Therefore, major meritorious service that can lead to commutation during the period of suspension of execution, should also be treated as the same even if achieved during the period of execution of life imprisonment.Fourthly, whether the argument resorts to the original intention of legislation? The holders of the doctrine ‘no commutation’ consider it from the perspective of criminal policy, and insist that lifelong imprisonment is applicable to criminals who should be but actually not sentenced to death with immediate execution because of the criminal policy of ‘prudently apply death penalty’. Therefore, only ‘no commutation’ can make punishment be commensurate with the crime. On the contrary, most theorists in favour of the doctrine ‘shall be commuted’ are based on the position of criminal dogmatics.C. Rationality of the Doctrine of ‘Shall Be Commuted’ and Its ReasonsIt is obvious that paragraph 4 of article 383 has not reached the point of no need of interpretation or only in need of semantic interpretation; otherwise there will not be such fierce controversy. So systematical interpretation, comparative interpretation and teleological interpretation are necessary. ‘No commutation’ stipulated in paragraph 4 of article 383 does not apply to ‘shall be commuted’ stipulated in article 78, that is, if the criminal conforms to qualify the circumstance of ‘shall be commuted’, he then should be commuted. The reasons are the following.Firstly, from the perspective of the relationship between the General Provision and Specific Provision, ‘no commutation’ stipulated in paragraph 4 of article 383 is an exception to ‘may be commuted’ stipulated in article 78, therefore ‘no commutation’ stipulated in paragraph 4 of article 383 does not apply to the mandatory provision of ‘shall be commuted’ stipulated in article 78. Although the relationship between the General Provision and Specific Provision is described as abstract and concrete, universal and specific, it is totally possible that Specific Provision may separately establish specific provision or exception to General Provision, in addition to the requirement of General Provision. However, the application of Specific Provision requires guidance and supplement from General Provision, more importantly; the application of Specific Provision firstly needs to identify whose exceptions the special provisions are to. As mentioned above, ‘commutation’ of ‘no commutation’ refers to commutation stipulated in article 78, while commutation stipulated in article 78 divides into ‘may be commuted’ and ‘shall be commuted’, which raises the question of where ‘no commutation’ should be applicable to? It is not controversial that a criminal sentenced to lifelong imprisonment cannot be commuted if there is a circumstance of ‘may be commuted’. The controversy is whether the criminal can be commuted if there is a circumstance of ‘shall be commuted’ (major meritorious service)? In terms of the property of the word and the literal meaning, ‘shall be commuted’ is a compulsory and mandatory provision, therefore, the punishment should be commuted if there is a circumstance of ‘shall be commuted’. Thus ‘no commutation’ stipulated in paragraph 4 of article 383 does not apply to ‘shall be commuted’ stipulated in article 78. Otherwise, a self-contradiction will be drawn, that is when there is major meritorious service, the punishment would end up to ‘shall be commuted’ and ‘cannot be commuted’ happening at the same time. Perhaps someone will argue that ‘no commutation’ is also a compulsory and mandatory provision, and paragraph 4 of article 383 is a specific provision, which is a specific regulation and exception to General Provision. However, even if it is considered that there is a contradiction of ‘shall be commuted’ and ‘no commutation’ in criminal legislation, the interpretation of ‘shall be commuted’ is beneficial to the defender. In terms of the concept of the Criminal Law and Criminal Procedure Law in favour of the defendant regarded with suspicion, ‘shall be commuted’ precedes over ‘no commutation’. In addition, there is no problem itself that the statement ‘no commutation’ stipulated in paragraph 4 of article 383 is a specific provision and an exception, but the premise of ‘no commutation’ is that which provision has been identified as the special provision and exception to which provision. The further discussion is ineffective in the absence of identification of ‘no commutation’ stipulated in paragraph 4 of article 383 as the specific and exception to ‘may be commuted’ in article 78 or ‘shall be commuted’ in article 78.Secondly, from a comparative perspective, the object of ‘lifelong imprisonment without commutation’ and the object of ‘lifelong imprisonment without commutation and without parole’ should be the same one. The circumstance of parole is quite different from that of commutation, which there is only a circumstance ‘may be paroled’ and the case of ‘shall be paroled’ does not exist. Therefore if the exception to ‘no parole’ stipulated in paragraph 4 of article 383 only involves the circumstance of ‘may be paroled’, correspondingly, the exception to ‘no commutation’ shall only involve the circumstance of ‘may be commuted’ but not the circumstance of ‘shall be commuted’. According to paragraph 1 of article 81, a criminal who has served statutory term of sentence may be granted parole if conscientiously observe prison regulation, accept education and reform, show true repentance, and will no longer cause harm to society. The object of ‘lifelong imprisonment, no parole’ is the criminal who may be granted parole, according to the same logic, the object of ‘lifelong imprisonment without commutation’ should be a criminal who may commute. The object of ‘lifelong imprisonment, no parole’ is intended for the criminal who may be granted parole, and, according to the same logic, the object of ‘lifelong imprisonment without commutation’ should be also interpreted as the criminal who may be commuted. The difference between the circumstance ‘may be commuted, paroled’ and the circumstance ‘shall be commuted, paroled’ is so obvious, while the legislative uses the expression ‘lifelong imprisonment without commutation and without parole’, which is not treated differently and stipulated separately, so the application of ‘no commutation, no parole’ points to the criminals who ‘may be commuted, paroled’. Thirdly, in terms of the evidence of the personal dangerousness of performing major meritorious service, the personal dangerousness of the criminal as reflected in performing major meritorious service is difficult to prove to be different during the period of suspension of execution and that during the execution of life imprisonment, so these two kinds of major meritorious service should not be treated differently. Some theorists believe that, in terms of the duration during which criminals have been rehabilitated, the period of suspension of execution is shorter than that of the execution of life imprisonment, so personal dangerousness reflected by performance of major meritorious service during the period of suspension of execution is smaller than that during the period of execution of life imprisonment. However, it is unreasonable to draw conclusions regarding the magnitude of personal dangerousness by comparing the length of the executions between suspended death and life imprisonment. First of all, the nature and severity of the suspended death penalty sentence and life imprisonment sentence are different, and the length of execution of them does not fully demonstrate the convict’s personal dangerousness. Moreover, the evaluation of personal dangerousness is a system composed of multi-elements. The evaluation of personal dangerousness should be divided into pre-execution stage, execution stage and post-execution stage. In the pre-execution stage, evaluation parameters of personal dangerousness include the basic situation of the criminal, the situation of living records, the environmental situation. In the execution stage, it mainly considers criminal motivation, criminal intention, content of culpability, means of crime, organizing a form of crime, environment of space-time crime etc. In the post-execution stage, it mainly investigates whether there are positive remedial actions, positive actions to prevent the expansion of situation, positive compensation for victims, voluntary surrender or meritorious service, confession of their own crimes, and cooperation with judiciary. So it is not appropriate to measure personal dangerousness by the sole parameter of the length of execution of penalty. Since it is impossible to prove that personal dangerousness of the criminal as reflected in the performance of major meritorious service is different between the period of suspension of execution and the period of execution of life imprisonment, they should not be treated differently. In addition, paragraph 1 of article 50 distinguishes ‘major meritorious’ from ‘shows true repentance’ or ‘meritorious’, which regards ‘major meritorious’ as a special circumstance of commutation. It means that personal dangerousness of criminals as reflected in major meritorious service is smaller than that of criminals reflected in ‘shows true repentance’ or ‘meritorious’. It is well known that the main reasons why major meritorious service may lead to commutation are small personal dangerousness and the necessity of prevention to diminish. These features to the meanings of articles 50 and 78 should be consistent. If the criminal has performed major meritorious service, his punishment is commuted to fixed-term imprisonment of 25 years because of major meritorious service during suspension of execution; correspondingly, his punishment shall be commuted during the execution of life imprisonment.It is true that lifelong imprisonment is a powerful weapon of being tough on corruption crimes. The Notes on the Amendment IX to the Criminal Law of the People’s Republic of China (Draft) identifies three major problems that the Amendment IX to the Criminal Law mainly solves, two of which are the support of legislative for being tough on corruption crimes and the implementation of the policy to decrease the application of the death penalty. The report on the review of the Amendment IX to the Criminal Law of the People’s Republic of China (Draft) also clarifies the main legislative intent for life imprisonment, strictly control and prudently apply the death penalty. The viewpoint that lifelong imprisonment cannot be commuted is mainly related to the policy of being tough on corruption crimes. There are concerns that the judiciary will once again appear the phenomenon in which the powerful person and the rich are sentenced to commute quickly, the ratio of the parole and temporary probation are high, and the actual sentence time is short. Such concerns are not unreasonable.Although lifelong imprisonment is an important tool to being tough on corruption crimes, it does not mean that only lifelong imprisonment without commutation is the main tool to being tough on corruption crimes, nor does it mean that lifelong imprisonment which can be commuted according to the law is not a tool to being tough on corruption crimes. From the perspective of foreign institution, lifelong imprisonment can be divided into absolute and may be commuted one. From the perspective of formal logics, it is not perfect to equate lifelong imprisonment’s legislative purpose of being tough on corruption crime to non-commutation lifelong imprisonment’s legislative purpose of being tough on corruption crime. It is logically plausible to punish the criminals who are truly not granted to commute when sentenced to lifelong imprisonment, which itself is a severe punishment for corruption crimes. In other words, the application of lifelong imprisonment which truly cannot be commuted has already demonstrated the policy of being tough on corruption crimes. Therefore, criminals sentenced to lifelong imprisonment are commuted as a result of statutory circumstances, which do not negate the policy of being tough on corruption crimes.In the perspective of the dogmatics of criminal law, it can be proven that commutation of lifelong imprisonment under certain circumstances does not negate the policy of being tough on corruption crimes. By systematically interpreting articles 50 and 78, and paragraph 4 of article 383 of the Criminal Law, the author discovers that, criminals of corruption crimes who are sentenced to death sentences with a suspension of execution and lifelong imprisonment can be commuted in the following situations: firstly, during the period of suspension of execution, if the criminal has performed major meritorious service, his punishment shall be commuted to fixed-term imprisonment of 25 years, and lifelong imprisonment is no longer applicable; secondly, after the death penalty with a suspension of execution has been commuted to life imprisonment, if the criminal has performed major meritorious service, his punishment shall be commuted, and lifelong imprisonment is no longer applicable. It is clear that criminals who are sentenced to lifelong imprisonment are only likely to be commuted in the case of major meritorious service, which means that criminals who serve sentence normally and perform general manifestations are subject to lifelong imprisonment, also means that the enhanced punishment of corruption crimes can be applicable to most criminals who are sentenced to lifelong imprisonment.In summary, absolute lifelong imprisonment applies to the following circumstances: during the period of suspension of execution, a criminal sentenced to lifelong imprisonment has neither committed intentional crime which leads to either execute the death penalty or been re-counted the period of suspension of execution, nor performed major meritorious service; after his punishment is commuted to life imprisonment, he never performs major meritorious service.
