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Notice of the Supreme People's Court on Issuing the Some Advice on Implementing the Criminal Policy of Combining Leniency with Rigidity [Effective]
最高人民法院印发《关于贯彻宽严相济刑事政策的若干意见》的通知 [现行有效]
【法宝引证码】

 

Notice of the Supreme People's Court on Issuing the Some Advice on Implementing the Criminal Policy of Combining Leniency with Rigidity
(No.9 [2010] of the Supreme People's Court)
The higher people's courts of all provinces, autonomous regions and municipalities directly under the Central Government, the Military Court of the PLA, and the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uigur Autonomous Region:
The criminal policy of combining leniency with rigidity is an important policy made by the Central Committee of the Party under the new situation of building a socialist harmonious society and is a basic criminal policy of China. It is of great significance in preventing and reducing crimes, eliminating social contradictions and maintaining social harmony and stability to the largest extent. On the basis of making in-depth research and investigation and soliciting the opinions of various circles, the Supreme People's Court formulated the Some Advice on Implementing the Criminal Policy of Combining Leniency with Rigidity (hereinafter referred to as Some Advice) which provide specific and clear requirements for the people's courts to better carry out the criminal policy of combining leniency with rigidity in the trial of criminal cases.
The people's courts at all levels shall earnestly study Some Advice and fully recognize the important role of Some Advice in guiding the trial of criminal cases. You should have a good understanding of the spirit of Some Advice, improve your consciousness about implementing the criminal policy of combining leniency with rigidity, carry out the basic requirements of the policy through every procedure of the trial of criminal cases, and realize the goal of giving lenient sentences to those who deserve it, being severe when the actual circumstances so require, keeping balance between leniency and rigidity and imposing due punishments so as to guarantee the high-level unification of the legal effects and social effects of judgments.
Some Advice is hereby issued to you for your earnest implementation in light of the “three major tasks” of the political and legal work of this year. If you encounter any problem in implementation, please don't hesitate to report it to the Supreme People's Court.
February 8, 2010
Some Advice on Implementing the Criminal Policy of Combining Leniency with Rigidity.
As a basic criminal policy of China, the criminal policy of combining leniency with rigidity is carried out through the whole process of criminal legislation, criminal justice and criminal punishment execution, is inherited, developed and improved under the new situation from the policy of combining punishment with leniency and is a guide for the judicial organs to punish criminals, prevent crimes, protect the people, assure human rights and correctly enforce the laws of the state. The advice as given herein are formulated to carry out the said policy in the judicial work of criminal cases.
 

最高人民法院印发《关于贯彻宽严相济刑事政策的若干意见》的通知
(法发〔2010〕9号)


各省、自治区、直辖市高级人民法院,解放军军事法院,新疆维吾尔自治区高级人民法院生产建设兵团分院:
宽严相济刑事政策,是党中央在构建社会主义和谐社会新形势下提出的一项重要政策,是我国的基本刑事政策。它对于最大限度地预防和减少犯罪、化解社会矛盾、维护社会和谐稳定,具有特别重要的意义。最高人民法院在深入调查研究、广泛征求各方面意见的基础上,制定了最高人民法院《关于贯彻宽严相济刑事政策的若干意见》(以下简称《意见》),对人民法院在刑事审判工作中如何更好地贯彻落实宽严相济的刑事政策,提出了具体、明确的要求。
各级人民法院要认真组织学习,充分认识《意见》对于刑事审判工作的重要指导作用。要深刻领会《意见》精神,切实增强贯彻执行宽严相济刑事政策的自觉性,将这一政策的基本要求落实到刑事审判工作的每一个环节中去,切实做到该宽则宽,当严则严,宽严相济,罚当其罪,确保裁判法律效果和社会效果的高度统一。
现将最高人民法院《关于贯彻宽严相济刑事政策的若干意见》印发给你们,请结合落实好今年政法工作的“三项重点工作”,认真贯彻执行。执行中的具体问题,请及时层报我院。
二〇一〇年二月八日
最高人民法院关于贯彻宽严相济刑事政策的若干意见
宽严相济刑事政策是我国的基本刑事政策,贯穿于刑事立法、刑事司法和刑罚执行的全过程,是惩办与宽大相结合政策在新时期的继承、发展和完善,是司法机关惩罚犯罪,预防犯罪,保护人民,保障人权,正确实施国家法律的指南。为了在刑事审判工作中切实贯彻执行这一政策,特制定本意见。

I. General requirements on the implementation of the criminal policy of combining leniency with rigidity
   一、贯彻宽严相济刑事政策的总体要求
1. To carry out the criminal policy of combining leniency with rigidity, we shall treat different crimes in different ways based on their actual circumstances, be lenient with those who deserve it, be severe when the actual circumstances so require, keep balance between leniency and severity, impose due punishments, combat and isolate the tiny minority, educate, reform and save the vast majority, reduce social contradictions to the largest extent, enhance social harmony and stability and maintain the lasting peace and stability of the state.
 1、贯彻宽严相济刑事政策,要根据犯罪的具体情况,实行区别对待,做到该宽则宽,当严则严,宽严相济,罚当其罪,打击和孤立极少数,教育、感化和挽救大多数,最大限度地减少社会对立面,促进社会和谐稳定,维护国家长治久安。
2. We shall correctly understand the relationship between leniency and rigidity, pay attention to both leniency and rigidity in the judicial work, avoid the doctrine of over-emphasis on criminal punishment and being unduly rigid, and also avoid the doctrine of over-neglect of criminal punishment and being unduly lenient.
 2、要正确把握宽与严的关系,切实做到宽严并用。既要注意克服重刑主义思想影响,防止片面从严,也要避免受轻刑化思想影响,一味从宽。
3. To carry out the criminal policy of combining leniency with rigidity, we must stick to handling cases in strict accordance with law, implement the principle of legally prescribed punishments for specified crimes, the principle of suiting punishment to crime and the principle of equality of all people before the law, accurately fit punishment to the crime according to the law, make both lenient and severe punishments according to law to make sure that they are legally based and duly imposed.
 3、贯彻宽严相济刑事政策,必须坚持严格依法办案,切实贯彻落实罪刑法定原则、罪刑相适应原则和法律面前人人平等原则,依照法律规定准确定罪量刑。从宽和从严都必须依照法律规定进行,做到宽严有据,罚当其罪。
4. We shall, based on the economic and social development and the changes in public security situations and, particularly, the changes in criminal circumstances, timely adjust the objects, scope and strength of lenient punishment and severe punishment within the limit allowed by law. We shall have a comprehensive and objective understanding of the economic and social situations and the public security situation of different time and different regions, take into full account the feeling of security of the general public and the actual needs for combating crimes, give severe punishments for crimes which seriously jeopardize the national security, public security and public interests, and be lenient if the crime is not serious in nature and has produced little social harm, the defendant has confessed and shows repentance, and lenient punishment is better for social harmony and stability.
 4、要根据经济社会的发展和治安形势的变化,尤其要根据犯罪情况的变化,在法律规定的范围内,适时调整从宽和从严的对象、范围和力度。要全面、客观把握不同时期不同地区的经济社会状况和社会治安形势,充分考虑人民群众的安全感以及惩治犯罪的实际需要,注重从严打击严重危害国家安全、社会治安和人民群众利益的犯罪。对于犯罪性质尚不严重,情节较轻和社会危害性较小的犯罪,以及被告人认罪、悔罪,从宽处罚更有利于社会和谐稳定的,依法可以从宽处理。
5. To carry out the criminal policy of combining leniency with rigidity, we must strictly abide by the law and maintain the unification and authority of law so as to guarantee good legal effects. At the same time, we must taking into account whether the handling of cases is good for winning the public support and maintaining social stability, whether it is good for disintegrate crimes and eliminating contradictions, whether it is good for reforming and educating criminals and bringing them back to the society, and whether it is good for reducing social contradictions and for enhancing social harmony so as to bring about better social effect. Reasons shall be elaborated in full fledge in the written judgments, especially reasons for giving a lenient or severe punishment, so as to make the defendant conscious of his guiltiness and submit to the law. Emphasis shall be placed on the education of the general public so as to realize the dynamic unification of the legal effect and social effect through judgment.
 5、贯彻宽严相济刑事政策,必须严格依法进行,维护法律的统一和权威,确保良好的法律效果。同时,必须充分考虑案件的处理是否有利于赢得广大人民群众的支持和社会稳定,是否有利于瓦解犯罪,化解矛盾,是否有利于罪犯的教育改造和回归社会,是否有利于减少社会对抗,促进社会和谐,争取更好的社会效果。要注意在裁判文书中充分说明裁判理由,尤其是从宽或从严的理由,促使被告人认罪服法,注重教育群众,实现案件裁判法律效果和社会效果的有机统一。
II. Correctly understanding and applying the policy requirements on “being rigid”
   二、准确把握和正确适用依法从“严”的政策要求
6. “Being rigid” as required by the criminal policy of combining leniency with rigidity means that severe punishment or death penalty shall be executed with a firm hand after it is imposed according to law if a crime is extremely harmful and has caused extraordinarily serious social harm so that a severe punishment shall be given to the defendant with great subjective evilness and great likelihood to cause personal injury and has caused serious social harm or which requires a heavier punishment according to law or based on the actual circumstances. In judicial work, we shall carry out the policy requirements on rigidity so as to effectively deter criminals and forces that cause social instability and to realize the goal of effectively stopping and preventing crimes.
 6、宽严相济刑事政策中的从“严”,主要是指对于罪行十分严重、社会危害性极大,依法应当判处重刑或死刑的,要坚决地判处重刑或死刑;对于社会危害大或者具有法定、酌定从重处罚情节,以及主观恶性深、人身危险性大的被告人,要依法从严惩处。在审判活动中通过体现依法从“严”的政策要求,有效震慑犯罪分子和社会不稳定分子,达到有效遏制犯罪、预防犯罪的目的。
7. To carry out the criminal policy of combining leniency with rigidity, we must unswervingly stick to the guideline of severely punishing serious criminal offences according to law. The following crimes shall be listed as the main target of severe punishment, for which a heavier punishment shall be imposed: crimes which seriously jeopardize the stability of state power, such as crimes endangering national security, crimes committed by terrorist organizations, by evil cult organizations, by organizations bearing the nature of criminal gangs and by vicious forces, and crimes intentionally endangering public security; serious violent crimes and crimes which seriously affect the people's feel of security, such as crimes of intentional homicide, crimes causing the death of others by malicious injury, rape, crime of abduction, crime of kidnapping and selling women and children, crime of robbery and serious crime of dispossession and crime of burglary; and crimes which jeopardize the health of the people, including drug smuggling, trafficking, transporting and manufacturing. In particular, for criminals who are extremely hostile to the nation or society, aim to injure unspecified persons and are under any extraordinarily serious circumstances, heavier punishments shall be given when the law so provides, and death penalty shall be executed on those who deserve it.
 7、贯彻宽严相济刑事政策,必须毫不动摇地坚持依法严惩严重刑事犯罪的方针。对于危害国家安全犯罪、恐怖组织犯罪、邪教组织犯罪、黑社会性质组织犯罪、恶势力犯罪、故意危害公共安全犯罪等严重危害国家政权稳固和社会治安的犯罪,故意杀人、故意伤害致人死亡、强奸、绑架、拐卖妇女儿童、抢劫、重大抢夺、重大盗窃等严重暴力犯罪和严重影响人民群众安全感的犯罪,走私、贩卖、运输、制造毒品等毒害人民健康的犯罪,要作为严惩的重点,依法从重处罚。尤其对于极端仇视国家和社会,以不特定人为侵害对象,所犯罪行特别严重的犯罪分子,该重判的要坚决依法重判,该判处死刑的要坚决依法判处死刑。
8. Severe punishment shall be given for the following crimes: crimes of embezzlement, abuse of official capacity, misconduct and malfeasance by state functionaries; crimes committed by underworld and vicious forces; duty-related crimes committed by state functionaries as involved in serious safety accidents or cases of manufacturing and selling counterfeited and shoddy foods and medicines; duty-related crimes committed by state functionaries in the field of social security, requisition of land for relocating inhabitants, post-disaster reconstruction, restructuring of enterprises, medical service, education or employment which seriously damage the public interests, cause adverse social impact and are strongly complained about by the general public; and serious crimes of commercial bribery which occur in key areas and sectors of economic and social construction.
Severe punishments shall be given for state functionaries' duty crimes and commercial bribery crimes which bear a vile nature, have serious circumstances and extensive involvements and influence and to criminals who conceal criminal facts, destroy evidence, conclude a pact to shied each other, abscond or otherwise refuse to confess guilt and show repentance after cases are reported.
Severe punishments shall also be given for state functionaries' duty-related crimes and commercial bribery crimes which cause heavy losses to the state property or the public interests and result in extraordinarily adverse social impact even though the defendant has not earned much from the crime.
We shall have a precise understanding of and follow the standards for judging the statutory circumstances for the mitigation of punishment and the mitigation extent for duty-related crimes, strictly control the scope of application of reprieval after a fixed-term imprisonment of three years or less is imposed as a mitigated punishment, and regulate the application of reprievals and the exemption of criminal punishment to duty-related crimes.
 8、对于国家工作人员贪污贿赂、滥用职权、失职渎职的严重犯罪,黑恶势力犯罪、重大安全责任事故、制售伪劣食品药品所涉及的国家工作人员职务犯罪,发生在社会保障、征地拆迁、灾后重建、企业改制、医疗、教育、就业等领域严重损害群众利益、社会影响恶劣、群众反映强烈的国家工作人员职务犯罪,发生在经济社会建设重点领域、重点行业的严重商业贿赂犯罪等,要依法从严惩处。
对于国家工作人员职务犯罪和商业贿赂犯罪中性质恶劣、情节严重、涉案范围广、影响面大的,或者案发后隐瞒犯罪事实、毁灭证据、订立攻守同盟、负案潜逃等拒不认罪悔罪的,要坚决依法从严惩处。
对于被告人犯罪所得数额不大,但对国家财产和人民群众利益造成重大损失、社会影响极其恶劣的职务犯罪和商业贿赂犯罪案件,也应依法从严惩处。
要严格掌握职务犯罪法定减轻处罚情节的认定标准与减轻处罚的幅度,严格控制依法减轻处罚后判处三年以下有期徒刑适用缓刑的范围,切实规范职务犯罪缓刑、免予刑事处罚的适用。
9. We shall severely punish the following crimes so as to maintain the economic order of the state and protect the health and safety of the mass for the time being and in the near future: crimes which seriously disrupt the financial order, such as crimes of financing fraud and mortgage fraud, crimes of making and trafficking counterfeit currency and crimes of manipulating the securities or futures market; crimes which seriously endanger food or drug safety, such as crimes of manufacturing and selling bogus drugs, inferior drugs and poisonous and hazardous foods; crimes which seriously damage the economic interests of the state, such as the crime of smuggling; crimes involved in big safety accidents which cause serious consequences; and crimes which seriously damage the environmental resources, such as the crimes of serious environmental pollution, illegal mining and unlawful felling of trees.
 9、当前和今后一段时期,对于集资诈骗、贷款诈骗、制贩假币以及扰乱、操纵证券、期货市场等严重危害金融秩序的犯罪,生产、销售假药、劣药、有毒有害食品等严重危害食品药品安全的犯罪,走私等严重侵害国家经济利益的犯罪,造成严重后果的重大安全责任事故犯罪,重大环境污染、非法采矿、盗伐林木等各种严重破坏环境资源的犯罪等,要依法从严惩处,维护国家的经济秩序,保护广大人民群众的生命健康安全。
10. At the same time when giving a severe punishment for a criminal offense, we must take into full account the defendant's subjective malignancy and the likelihood to cause personal injuries. If the defendant has carefully planed for the crime beforehand, is a habitual or career offender, or commits the crime during reprieval or during the probation for parole of a criminal punishment imposed for an intentional crime, a severe punishment shall be given to realize the special preventive function of criminal punishment.
 10、严惩严重刑事犯罪,必须充分考虑被告人的主观恶性和人身危险性。对于事先精心预谋、策划犯罪的被告人,具有惯犯、职业犯等情节的被告人,或者因故意犯罪受过刑事处罚、在缓刑、假释考验期内又犯罪的被告人,要依法严惩,以实现刑罚特殊预防的功能。
11. We shall severely punish repeat offenders and drug-related recidivists. Severe punishments shall be given to repeat offenders and drug-related recidivists once they are sentenced by law, even if the criminal circumstances are minor. In particular, a repeat offender who has previously committed a crime with violence or has been sentenced to a severe punishment shall be given a heavier punishment.
 11、要依法从严惩处累犯和毒品再犯。凡是依法构成累犯和毒品再犯的,即使犯罪情节较轻,也要体现从严惩处的精神。尤其是对于前罪为暴力犯罪或被判处重刑的累犯,更要依法从严惩处。
12. We shall comprehensively apply the various kinds of criminal punishment means and attach great importance to the application of property-oriented penalties to effectively punish criminals. Where there are collateral property-oriented penalty provisions in any law, these provisions shall apply. For crimes of embezzling property and seeking illegitimate gains, we shall particularly stress the application of property-oriented penalties so as to economically punish criminals and deprive them of the ability and conditions to commit new crimes. We shall make more efforts in the execution of property-oriented penalties to realize the rigidity and punitive function of criminal punishment. When deciding the punishment, a defendant's failure to return the ill-gotten gains after illegally possessing or disposing of the victim's property shall be regarded as an important circumstance, and the spirit of severe punishment shall be carried out in that case.
 12、要注重综合运用多种刑罚手段,特别是要重视依法适用财产刑,有效惩治犯罪。对于法律规定有附加财产刑的,要依法适用。对于侵财型和贪利型犯罪,更要注重通过依法适用财产刑使犯罪分子受到经济上的惩罚,剥夺其重新犯罪的能力和条件。要切实加大财产刑的执行力度,确保刑罚的严厉性和惩罚功能得以实现。被告人非法占有、处置被害人财产不能退赃的,在决定刑罚时,应作为重要情节予以考虑,体现从严处罚的精神。
13. Defendants of criminal cases shall be subject to criminal responsibilities in strict accordance with law without anyone being wrongly sentenced or connived at. We shall do our best to improve the efficiency of the judicial work under the precondition of maintaining justice. In particular, criminal cases which seriously imperil social security and attract much attention from the public shall be heard and adjudicated in a timely manner under the premise of guaranteeing the handling quality of the case.
......
 13、对于刑事案件被告人,要严格依法追究刑事责任,切实做到不枉不纵。要在确保司法公正的前提下,努力提高司法效率。特别是对于那些严重危害社会治安,引起社会关注的刑事案件,要在确保案件质量的前提下,抓紧审理,及时宣判。
......

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