Capital punishment in the criminal law of Russia, China and Mongolia: a comparative legal analysis with examples from the judicial practice of modern China
The article examines the development and current state of the criminal laws of Russia, China and Mongolia regarding the application of the death penalty. Special attention is paid to the list of crimes for which the death penalty may be applied, the grounds for suspending the execution of punishment, as well as categories of persons to whom this punishment is not imposed. The study was conducted, among other things, on the basis of judicial practice, the positions of the highest courts of the three states. The special relevance of the topic is given by the fact that in 2017 Mongolia was the first Asian country to exclude the death penalty as a punishment from criminal law.
Keywords: death penalty, type of criminal punishment, suspension of execution of the death penalty, the purpose of the application of punishments.
Recently, the issue of lifting the moratorium on the death penalty in Russia has become relevant. Some politicians are calling for this <1>.
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<1> For example, G. Zyuganov, D. Medvedev, I. Yarovaya, S. Mironov, L. Slutsky.
On June twenty-ninth, 2022, Chairman of the Constitutional Court (CC) of the Russian Federation V. Zorkin at the St. Petersburg International Legal Forum (SPIEF) stated that the abolition of the moratorium on the death penalty in Russia would be a bad signal to society.
According to Y.I. Gilinsky, the use of the death penalty not only does not prevent the gravest crimes, but, on the contrary, contributes to their commission <2>.
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<2> Gilinsky Ya.I. Human, too human. St. Petersburg: Aleteya, 2000. p. 21.
The issue of the death penalty is of growing public interest worldwide, as it is inextricably linked to the right to life. In this regard, the experience of China and Mongolia on this issue is interesting. The death penalty in China is currently applied for a number of crimes, therefore, the study of the experience of this country is particularly relevant.
Legislative initiatives in recent years in China allow us to talk about the "careful application of the death penalty" <3>. At the first session of the National People's Congress of the 14th convocation on March 7, 2023, the report of Zhou Qiang, Chairman of the Supreme People's Court, on the work over the past five years noted that the fight against banditry and similar serious crimes continues, 39 thousand cases of this category were considered against 261 thousand people. Sun Xiaogo, Du Shaoping, Chen Huimin, Huang Hongfa were sentenced to death and executed by law for crimes, including those related to the organization of criminal groups that committed a number of murders. 238 thousand cases of serious violent crimes, such as murders, rapes, robberies, kidnappings, arson and explosions against 274 thousand people have been completed and 347 thousand drug-related cases involving 442,000 people have been completed. Some of the convicts were sentenced to death. It should be noted that the number of criminal cases and serious violent crimes in the country continues to decrease.
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<3> Pan Dongmei. Changes in the Criminal legislation of China: general characteristics // Lex russica. 2016. N 8. P. 82.
The policy of the party and the State regarding the death penalty is not to condone crimes that seriously threaten public and social security. At the same time, China recognizes the existence of errors in sentencing. Thus, the death penalty against Xiong Qiubao was not approved in the second instance due to insufficient evidence, and the real killer was identified a few years later. The protection of the defendant's right to defense and the right of a lawyer in the review of cases in which the death penalty has been imposed has been strengthened. The system of state compensation for the detection of erroneous court decisions is also being improved <4>.
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<4> Report on the work of the Supreme People's Court of the People's Republic of China.
The Criminal Code of the People's Republic of China provides an exhaustive list of punishments <5>. The death penalty is classified as the main types (Article 33). In the first edition, the Criminal Code contained 60 articles, the sanction of which contained the death penalty, in the modern period their number has been significantly reduced <6>. According to Pan Dongmei, the reasons for this are related to the rarity of this type of punishment <7>.
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<5> The Criminal Code of the People's Republic of China was adopted on March 14, 1997 at the 5th session of the National People's Congress of the 6th convocation, entered into force on October 1, 1997 // Official website of the Embassy of the People's Republic of China in the Russian Federation.
<6> Borsuchenko S.A. The death penalty in China: The current state and trends // Bulletin of the Voronezh Institute of the Federal Penitentiary Service of Russia. 2021. N 2. pp. 136 - 141.
<7> Pan Dongmei. Decree. op.
Currently, the Chinese Criminal Code provides for the death penalty for high treason (Article 102); premeditated murder (Article 232); rape (Article 236); hostage-taking involving their death (part 2 of Article 239); kidnapping and sale of women and children (Article 240); robbery committed with the use of violence and threats (Article 263); corruption under particularly aggravating circumstances (Article 383); some types of bribery (Article 386), etc.
So, on July 6, 2022, the court in Aba Prefecture announced the execution of the death sentence against Zhang Dingyong. The People's Prosecutor's Office of the prefecture has sent staff to monitor in accordance with the law <8>.
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<8> The criminal Zhang Dingyun has been executed.
The Central Commission for Discipline Inspection, the National Supervisory Commission and the Supreme Prosecutor's Office jointly published 5 typical bribery cases in 2023. Thus, the defendant Chen Moumou, an employee of Dongmou Industrial Co., Ltd, from 2008 to 2018, several times bribed officials for assistance in concluding contracts. The total amount of bribes amounted to more than 4.5835 million yuan. He was also suspected of organizing, leading a gang, intentionally causing harm to health and other serious crimes. The verdict was handed down on July 26, 2021, Chen Moumou did not appeal, and the verdict entered into force <9>.
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<9> The State Supervision Commission and the Supreme Prosecutor's Office jointly published 5 typical cases of crimes related to bribery.
The death penalty is not applied to persons under the age of 18 and pregnant women (Article 49 of the Criminal Code of the People's Republic of China). This also applies to people over the age of 75, with some exceptions.
Sometimes the execution of the death penalty can be delayed for 2 years (Article 48 of the Criminal Code of the People's Republic of China). If such convicts have repented and changed for the better, then after the expiration of the suspension period, the death penalty may be replaced by indefinite imprisonment. In cases where they had merit <10>, the punishment may be commuted to imprisonment for a term of 15 to 20 years. It should be noted that the majority of those sentenced to death are being replaced.
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<10> Merits, performing worthy deeds, achieving results (trans.).
So, on January 6, 2023, the People's Court in Tai'an sentenced Li Wenxi, a former member of the party group and deputy chairman of the Liaoning Province NPC, to death with a two-year suspended sentence, life imprisonment, and confiscated all personal property after the expiration of the two-year suspended sentence. From 2006 to 2021, Li Wenxi received bribes totaling more than 540 million yuan (about $78 million). The court took into account that he admitted guilt, helped the investigation and actively returned the stolen goods. After a two-year suspension, the death penalty is commuted to life imprisonment, which cannot be commuted, and the convicted person is not subject to parole. After the replacement, Li Wenxi's proceeds from bribery should be transferred to the state treasury <11>.
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<11> Li Wenxi, Vice Chairman of the Liaoning Province NPC, was sentenced in the first instance in a bribery case.
The story of another convict, Li Hongtao, has become legendary. He escaped from prison several times, but also developed many inventions that benefit people. He entered Zhejiang University to study electronic technology, where he achieved outstanding results. Later, he was repeatedly convicted, including for embezzlement, and escaped from prison twice. Then he decided to create a brushless motor. Let us explain that when obtaining patents in prison for inventions, a person is not subject to the death penalty.
In 1993, Li Hongtao was sentenced to death for numerous crimes. On the night before his execution, he developed a brushless motor, in connection with which a petition was filed for a postponement of the death penalty. Subsequently, his invention was patented. During several years in prison, he continued to invent, and then was released early. He has received many job offers as a technical consultant with a high salary <12>.
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<12>
If a person sentenced to death with a delay in its execution maliciously resists re-education, then by decision of the Supreme People's Court or with its sanction, the death penalty is carried out. In such cases, the sentence is to be executed within seven days. Execution is suspended if there is a possibility that the verdict is erroneous; the convicted person has reported a serious crime or his heroic deeds have been revealed; the woman is pregnant.
According to Article 212 of the CPC of the People's Republic of China, the execution of death sentences is announced, but not carried out publicly. The death penalty is carried out by firing squad or by injection, as well as by other means. In recent years, the main method of capital punishment in China has been the use of lethal injection.
Thus, Yuan Baojing, a big businessman, was the first to be executed by lethal injection. In 1996, he lost more than 90 million yuan due to the fault of the "king of futures" Liu Han, whom he decided to kill with the assistance of Wang Xing. On November 24, 2003, Yuan Baojing was arrested for the murder of a hitman. To get a chance to survive, Yuan Baojing donated 40% of the shares of an oil field worth 49.5 billion yuan. This was not taken into account, and on March 17, 2006, the court announced his execution by injection <13>.
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<13>
A press release should be made on the execution of the death penalty sentence. So, on April 7, 2023, the Chinese media reported that the death penalty was carried out against three robbers. Zheng Jeyong, Ge Kaide and Yang Liu, aged 20, 25 and 30, robbed a jewelry store in early May 2020 and killed a man. Due to the high profile, the trial was completed in a short time <14>.
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<14>
After the execution of the death penalty, the secretary draws up a protocol, and the people's court notifies the family members of the convicted person. The body is not issued for burial, the place of burial is not reported.
Convicts sentenced to death with a two-year suspended sentence are sent to prison (Article 213 of the CPC of the People's Republic of China).
In the summer of 2021, the Supreme People's Court issued an Interpretation on the application of the Criminal Procedure Law of the People's Republic of China (Chapters 16-20), including Chapter 17 ("Procedures for reviewing the death penalty").
When considering a death penalty case, the higher People's Court interrogates the defendant.
Article 434 of the CPC of the People's Republic of China stipulates that during the review of the death sentence, if the defense lawyer wishes to express his opinion in person, the relevant court hears his opinion in the office and draws up a written protocol; if the defense lawyer submits a written opinion, it is attached.
According to Article 436 of the CPC of the People's Republic of China, the Supreme People's Court, based on the relevant rulings, informs the Supreme People's Prosecutor's Office about the results of the review of cases in which the death sentence was imposed <15>.
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<15> Interpretation of the Supreme People's Court of the People's Republic of China of certain provisions of the criminal procedure legislation of China.
The topic of the death penalty in China has three main directions. First, it is noted that the death penalty is an exceptional measure of punishment. It is rooted in the social, cultural and political life of China and differs from other countries. Secondly, the death penalty process is being rationalized, including with a change in national policy towards reducing their number. Thirdly, there is a mandatory review of decisions and a two-year suspension of death sentences.
The death penalty (tsaazaar avah yal) in Mongolia was excluded from the types of punishment. Mongolia became the first Asian country to abolish the death penalty. In general, in the new Criminal Code of 2017, the system of types of punishment has changed significantly <16>. The Criminal Code was adopted by the Great State Hural (Ulsyn Imi Hural) in 2016. <17>.
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<16> The Criminal Code of Mongolia / trans. c mong. Amarsanaa Vandan-Ish, Batbold Galbadrah; scientific ed. of translation and foreword by M.V. Bavsun, A.A. Nechepurenko. Omsk: Omsk Academy of the Ministry of Internal Affairs of Russia, 2020. 144 p.
<17> Kharmaev Yu.V. On the reform of criminal penalties in the draft of the new Criminal Code of Mongolia // Journal of Foreign Legislation and Comparative Jurisprudence. 2017. N 3. P. 81.
The abolition of the death penalty became possible due to a number of socio-economic and political events that took place in the state <18>.
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<18> Erkhitueva T.I. Some features of the system of types of punishment in Russia and Mongolia // Penal enforcement law. 2021. N 3. P. 357.
Mongolia, as well as Russia, has taken a course towards the development of humanism and the mitigation of criminal liability measures, which is clearly evident in legislative changes <19>.
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<19> Tokarev S.A. Monument to the customary law of the Buryats of the XVII century. Historical Archive: collection. In 10 volumes. Vol. 2 / reply. ed. by B.D. Grekov. M.; L.: Publishing House of the Academy of Sciences of the USSR, 1939. pp. 39-50.
The practice of legislative regulation of the use of the death penalty goes back to the time of the "Great Yasa" (the code of Genghis Khan). Another document concerning the application of criminal penalties in medieval Mongolia was the "Eighteen Steppe Laws", adopted in the XVI century. In them, the death penalty was applied for committing serious acts.
The death penalty as a punishment existed and was applied until 2010. In January 2012 The President of Mongolia, Tsakhiagiin Elbegdorj, announced a moratorium on the death penalty. In his opinion, the threat of execution does not have a preventive effect, and in any judicial system there is inevitably a risk of judicial error <20>.
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<20> Gantulga Sh. Mongolia: The death penalty has been abolished following a historic vote.
In 2015, the Mongolian Parliament voted for a new Criminal Code that abolished capital punishment. The last execution was carried out in 2008. The abolition of the death penalty has generated a lot of discussion among Mongolian scientists and lawyers. Thus, Professor O. Munkhsaikhan notes that it is impossible to be considered a democratic state if the death penalty is applied in the country. The Constitution of Mongolia guarantees everyone the right to life, and it is possible to deprive a person of life only by a court verdict. In his opinion, the abolition of the death penalty is "a national consensus that has existed since the adoption of the Constitution of Mongolia..." <21>.
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<21> Amdiawaherh ba caazyn yal.
Also, the authors C. Munkhtsetseg, B. Munkhdorj point out that, as official statistics and research by international organizations (for example, Amnesty International) show, the abolition of the death penalty as a type of punishment does not affect the growth of crime <22>.
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<22> " ba caazaarawah yal" sadevthaleltsuulagbolloo.
At the same time, the Adviser to the President of Mongolia, G. Uganga, advocated the restoration of the death penalty. He argued that the abolition of the death penalty had led to an increase in child abuse and pedophilia. Also, in his opinion, the death penalty corresponds to the principle of social justice, when the murderer pays with his life for the crimes committed by him <23>. Moreover, in 2017 President of Mongolia H. Battulga stated that although the death penalty is considered inhumane, the ill-treatment of an infant is an abhorrent act contrary to Mongolian customs and civilized humanity. <24> The reason for the statements was a number of crimes committed by pedophiles.
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<23> Tsaazaar avah yalig sergeeh tuhaid.
<24> Battulga baga nasny huuhdiyg huchirhiylsen, amiyg ny balmad herzgiy allagyn gemt etgeeduuded tsaazaar avah yalig sergeen heragleh tuhai sanalaa HZDH-iin sayd Ts. Nyamdorjid hurguulle.
Political scientist Sh. Gantulga believes that the abolition of the death penalty has also led to an increase in corruption in the country. Moreover, the abolition of the death penalty itself was the result of lobbying for the interests of corrupt government officials. According to Gantulga, "who opposes the death penalty today? It is opposed by thieves, swindlers, embezzlers, traitors and those who unite with foreigners to rob their country and land. They try to justify themselves and defend themselves by talking about human rights" <25>.
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<25> Caazaar awah yalig sergeeh tuhaid.
The abolition of the death penalty as a form of punishment, however, continues to cause controversy in society and among representatives of law enforcement and judicial authorities in Mongolia.
It is worth noting that in Russia the death penalty remains one of the types of criminal punishment, despite the imposed moratorium. A number of norms of the Special part of the Criminal Code of the Russian Federation continue to contain it in their sanctions. In this aspect, the experience of other states is certainly of interest to Russian legal reality, especially if we are talking about our neighbors.
From the point of view of legal principles, the state cannot deprive a person of life, which is not a gift from the state, but belongs to a person from birth.
Russia may, following the example of many countries, including Mongolia, exclude the death penalty as a form of punishment from the Criminal Code.
The use of the death penalty continues to be a controversial issue both from the point of view of legal science and from the point of view of universal human ideas about morality and morality. The world experience of using this type of punishment shows that States largely refuse to use it. However, often such a refusal is not final, as in the Russian Federation, and is imposed in the form of a moratorium.
We believe that today it is difficult to give an unambiguous answer to the question of the need for the death penalty. The practice of its application demonstrates both the pros and cons of a criminological nature. Therefore, this topic will remain relevant for a long time.