By Yaxiang Liu and Grace Faerber
On January 5th, China and the world were shocked when Lai Xiaomin (赖小民), former chairman of the state-controlled financial giant China Huarong Asset Management Corp. and vice minister-level Chinese Communist Party (CCP) cadre, was given a death sentence for pocketing bribes of approximately 1.8 billion RMB (just under $278 million USD). The Tianjin Second Intermediate People’s Court reported that, from 2008 to 2018, Lai used his position to accept bribes equivalent to more than 1.788 billion RMB, embezzled and arbitraged public funds totaling more than 25.13 million RMB, and was also guilty of corruption and bigamy. The court’s death sentence cited the “extraordinarily large amount of bribery crime, particularly serious circumstances, and extremely deep subjective malignancy,” calling Lai “lawless and extremely greedy.” The verdict also mentioned that Lai Xiaomin’s actions endangered the country’s financial security. The speedy execution of Lai Xiaomin rattled bureaucrats, as it defied a developing trend in Chinese criminal law against carrying out death sentences for bribery or other financial, non-violent crimes.
There has been a long-term trend to abolish the death penalty for crimes such as corruption and bribery throughout the world. The United Nations Economic and Social Council emphasizes that the use of the death penalty should be limited to crimes that deliberately result in murder or other extremely serious consequences.
Even in China, the world’s leading executioner, there have been calls for the abolition of the death penalty for non-violent and non-deadly crimes such as corruption since the 1990s. For instance, some National People’s Congress members submitted a proposal to modify the Chinese Criminal Law Code during the “Two Sessions” in 2009, and suggested the gradual abolition of the death penalty for most corruption-related crimes, stating that “despite their severe nature, these crimes obviously still involve less harm than the crime of murder.”
China’s stated death penalty policy is “kill fewer and kill cautiously.” A statutory benchmark for the use of the death penalty is Article 48(1) of the current Chinese Criminal Code: “The death penalty shall be applied only to criminals who have committed extremely serious crimes.” Amendment 8 of the Criminal Law, adopted in 2011, abolished the use of the death penalty for 13 economic crimes and non-violent crimes, and Amendment 9 in 2015 exempted nine crimes from the death penalty, including the counterfeiting of currency and fundraising fraud. However, the Chinese Criminal Law still lists 46 crimes as subject to the death penalty, 23 of which are non-violent crimes.
Professor Zhao Bingzhi (赵秉志) of Beijing Normal University says that the death penalty policy of “kill fewer and kill cautiously” is the current rational choice and general consensus in China. In regard to “kill fewer,” Zhao has suggested that criminal law should reduce the application of the death penalty and only apply execution to crimes that seriously endanger national security, public security, and infringe the personal rights and interests of citizens.
In regard to “kill cautiously,” Zhao stated that, when trying a case, judicial personnel should comprehensively consider the nature of the crime, the circumstances of the crime, the danger posed by the criminal to society, and use the death penalty as little as possible. He argues that “due to the irreversibility of the application of the death penalty, once there is an unjust, false or wrongful case, there will be no room for recovery.” Considering that the death penalty is a capital punishment that deprives a criminal’s life, it is necessary to judge the scope of its application based on the degree of harm caused by the crime. According to Zhao, for economic or property crimes that cause heavy losses of public and private property, even if the death penalty is legally authorized, its application is not suitable to such crimes.
So, why is it that instead of following the Chinese criminal legal system’s trend toward the abolition of the death penalty, the government has continued applying it to cases of nonviolent crimes, like that of Lai Xiaomin?
Since the beginning of Xi’s anti-corruption campaign in 2012, the Chinese government under the CCP has strived to garner public support, bolster social unity, and heighten confidence in its governance by applying the death penalty to severe corruption cases. Zhou Zhenjie (周振杰) at Waseda University in Tokyo argues that the crackdown on corruption among public officials and business elites aims to divert public anger over rampant corruption away from the country’s political system and direct it toward extreme and grandiose cases of individual corrupt officials. By punishing a few individual wrongdoers, the government sets a chilling example, using fear to deter other officials and party cadres from corruption.
According to Zhou, such “populist penal policies” attempt to exploit public anxiety about crime and public resentment against offenders. However, “penal populism” is a political tool that favors popularity over adhering to other policy considerations. In other words, the government’s application of the death penalty to corruption cases bargains for a “political win” at the price of reforming, modernizing, and institutionalizing the Chinese criminal law system.
China watchdogs in the United States have labelled the January 2021 execution of Lai Xiaomin as a sign of Xi doubling down on his anti-corruption campaign efforts. The New York Times emphasized that Lai’s “unusually heavy sentence may be a signal that Xi Jinping is not prepared to slow down the anti-corruption campaign.” Joshua Rosenzweig, the research director of Amnesty International’s East Asia region, stated that “this death sentence may be a public signal that the Xi Jinping regime still views corruption as a serious problem, or it sends a message to Chinese business elites, telling them that they need to follow the rules.”
In January 2020, the Party’s top anti-corruption body the Central Commission for Discipline Inspection (CCDI), announced that corrupt officials who voluntarily confessed to authorities would be shown leniency, while those repeatedly accepting bribes would be dealt with harshly. According to the CCDI, people who voluntarily confessed roughly doubled from just over 5,000 to more than 10,000 between October 2017 and 2019, and then the numbers climbed another 54% in 2020.
Reports of officials turning themselves in are frequent in Chinese state-controlled media, demonstrating that Xi’s grip on the Party extends down to its lowest levels. “The goal is to show the Communist Party’s governance capabilities to the public,” said Tomoki Kamo, a professor in policy management at Keio University in Japan.
Widespread domestic and international coverage of Lai’s death penalty indiciates an effort within the Party to preserve political stability and further consolidate the authority and legitimacy of Xi’s regime ahead of the celebrations marking the centenary of the CCP this July and the 20th Party Congress in 2022.
Under the “kill fewer and kill cautiously” principle, Xi’s anti-corruption campaign should not stand in the way of the development of the legal system, as both are crucial to the development of Chinese governance. There should be a way for the advancement of the legal system and political interests such as anti-corruption to coexist. Ending the death penalty for corruption crimes would not dampen the anticorruption campaign’s effectiveness. In fact, since 2012, more scholars and officials in China have come out in support of eliminating the death penalty for corruption crimes. Ceasing the application of the death penalty to corruption cases and other economic crimes is the right step forward for China.
This article is part of a series on Chinese law. Read its complementary piece in Chinese here.
Taylor Yaxiang Liu (刘雅翔) is a first-year M.A. in International Studies student at the Hopkin-Nanjing Center (HNC), concentrating in International Law and minoring in American Studies. She graduated top of her class as an English Literature and Linguistics major from Northeastern University in Shenyang, China. She is dedicated to the study of international relations, with a keen interest in the Sino-U.S. relationship.
Grace Faerber (冯思思) is a first-year M.A. in International Studies student at the Hopkin-Nanjing Center (HNC), concentrating in International Politics and minoring in China Studies. As a Boren Fellow, Grace is currently located in Taiwan pursuing Mandarin study at National Taiwan University. The driving interest behind Grace’s academic pursuits and professional ambitions is in US-China-Taiwan relations. She currently serves as an online editor for the CSR Blog. Grace completed her undergraduate studies at the University of Arizona, where she worked as a Marketing Writer and Editor for the University Recreation Center.