26 situations that are not recognized as crimes according to law or are not treated as crimes.

Now, 26 cases that are not recognized as crimes or not handled as crimes as stipulated in relevant judicial interpretations and normative documents are summarized as follows for reference:

I. Crimes endangering drug safety

Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases Endangering Drug Safety (Gao Jian Fa Shi Zi [2022] No.1)

Article 18 It shall not be deemed as a crime to process or sell the above-mentioned drugs privately according to the traditional folk formula, and the quantity is not large, without causing harm to others or delaying diagnosis and treatment, or to produce, import and sell drugs with the nature of self-help and mutual assistance for profit.

If it is difficult to determine whether it belongs to the traditional folk formula, it shall be determined according to the identification opinions issued by the pharmaceutical supervisory and administrative departments at or above the municipal level or relevant departments, combined with other evidence.

Second, the crime of theft

Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Theft (Fa Shi [2013] No.8)

Article 8 Whoever steals the property of family members or close relatives and gains forgiveness may not be considered as a crime. Those who are investigated for criminal responsibility shall be lenient as appropriate.

Third, the crime of extortion

Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Extortion (Fa Shi [2013] No.10)

Article 6 Whoever extorts money or property from a close relative and gains forgiveness is generally not considered a crime; If it is found to be a crime, it shall be treated leniently as appropriate.

If the victim is at fault for the occurrence of extortion, according to the degree of the victim’s fault and other circumstances of the case, the perpetrator may be treated leniently as appropriate; If the circumstances are obvious, minor and harmless, it is not considered a crime.

Fourth, fraud crime

Article 4 Whoever swindles the property of a close relative and the close relative understands it may generally not be treated as a crime.

If it is really necessary to investigate criminal responsibility for defrauding the property of close relatives, the specific treatment should also be lenient as appropriate.

V. Juvenile criminal offences

Interpretation of the Supreme People’s Court on Several Issues Concerning the Specific Application of Laws in the Trial of Juvenile Criminal Cases (Fa Shi [2006] No.1)

Article 6 A person who has reached the age of 14 but under the age of 16 occasionally has sex with a young girl, and if the circumstances are minor and have not caused serious consequences, it is not considered a crime.

Article 7 It is not considered a crime for a person who has reached the age of 14 and under the age of 16 to use slight violence or threats to extort a small amount of daily necessities, school supplies or money from other minors, without causing minor injuries to the victim or being afraid to go to school to study and live normally.

A person who has reached the age of 16 and under the age of 18 is generally not considered a crime if he has the circumstances specified in the preceding paragraph.

Article 9 A person who has reached the age of 16 and under the age of 18 has not committed theft for more than three times. Although the amount of theft has reached the standard of "large amount", he can truthfully confess all the theft facts and actively return the stolen goods after the incident, and under any of the following circumstances, it can be considered as "the circumstances are obviously minor and the harm is not great" and it is not considered a crime:

(1) Being deaf and dumb or blind;

(2) playing a secondary or auxiliary role in joint theft, or being coerced;

(3) Having other minor circumstances.

If a person who has reached the age of 16 but under the age of 18 attempts or stops stealing, it is not considered a crime.

If a person who has reached the age of 16 and under the age of 18 steals the property of his family or close relatives, or steals the property of other relatives, but the other relatives ask not to pursue it, it may not be treated as a crime.

Six, illegal manufacturing, trading,

Crime of transporting and storing dangerous substances

Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Prohibited Toxic Chemicals, such as Illegal Manufacturing, Trading, Transportation and Storage of Tetramine (Fa Shi [2003] No.14)

Article 5, paragraph 1: Before the implementation of this Interpretation, those who illegally manufacture, trade, transport and store the bait of tetramine and other highly toxic chemicals for their own use due to the needs of production and life, without causing serious social harm, may not be treated as crimes in accordance with the provisions of Article 13 of the Criminal Law.

Seven, environmental pollution crime

Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Environmental Pollution (Fa Shi [2023] No.7)

Article 6 Whoever commits an act specified in Article 338 of the Criminal Law, pleads guilty and admits punishment, actively restores the ecological environment, and makes effective compliance and rectification, may be given a lenient punishment; If the circumstances of the crime are minor, no prosecution may be instituted or criminal punishment may be exempted; If the circumstances are obvious, minor and harmless, it will not be treated as a crime.

Article 7 Whoever engages in the collection, storage, utilization and disposal of hazardous wastes without a hazardous waste business license and seriously pollutes the environment shall be convicted and punished according to the crime of environmental pollution; At the same time, if it constitutes a crime of illegal business operation, it shall be convicted and punished in accordance with the provisions of heavier punishment.

If the acts specified in the preceding paragraph are carried out without exceeding the standard discharge of pollutants, illegal dumping of pollutants or other illegal environmental pollution, it can be considered that the circumstances of illegal business operations are obviously minor and harmless, and it is not considered a crime; Those who constitute other crimes such as producing and selling fake and inferior products shall be punished as other crimes.

Summary of the Symposium of the Supreme People’s Court, the Supreme People’s Procuratorate, Ministry of Public Security, Ministry of Justice and Ministry of Ecology and Environment on Handling Criminal Cases of Environmental Pollution (No.3 [2019] of the High Inspection Commission)

5. On the application of the crime of illegal business operation

The meeting discussed how to grasp the relationship between the crime of illegal business operation and the crime of environmental pollution and how to specifically apply the crime of illegal business operation. The meeting stressed that it is necessary to attach great importance to the handling of cases of illegal operation of hazardous wastes, adhere to the whole chain, link and process to crack down on the industrial chain of illegal discharge, dumping, disposal and operation of hazardous wastes, identify criminal networks, dig deep into the source of crimes, cut off the interest chain, and constantly squeeze and eliminate the space for such crimes to breed and spread.

The meeting held that to accurately understand and apply the provisions of Article 6 of the Environmental Interpretation, we should pay attention to two principles: First, we should adhere to the principle of substantive judgment and make substantive judgment on the social harmfulness of the behavior of illegal management of hazardous wastes. For example, although some units or individuals have not obtained a hazardous waste business license according to law, but their collection, storage, utilization and disposal of hazardous waste business activities have not caused excessive discharge of pollutants, illegal dumping of pollutants or other illegal environmental pollution, it is not appropriate to be punished as illegal business operations. Second, we must adhere to the principle of comprehensive judgment, and comprehensively judge the social harm of the actor’s illegal operation of hazardous waste according to his position and role in the criminal chain. For example, there is evidence that the unlicensed operation of hazardous wastes by units or individuals is a part of the industrial chain of illegal operation of hazardous wastes, and a relatively fixed criminal chain has been formed. If the perpetrator or the upstream or downstream links closely related to it have illegally discharged, dumped or disposed of hazardous wastes, and the transaction price is obviously abnormal, the perpetrator can choose a felony for the crime of environmental pollution and the crime of illegal operation according to the specific circumstances of the case.

Viii. Crime of abducting and selling women and children

Opinions of the Ministry of Public Security and the Ministry of Justice of the Supreme People’s Procuratorate City, the Supreme People’s Court on Punishing the Crime of Trafficking in Women and Children according to Law (Fa Fa [2010] No.7)

31. If several family members or relatives and friends jointly participate in the sale of their own children, or "buying a wife" or "buying a son" constitutes the crime of buying abducted women and children, the criminal responsibility of those who are more guilty should be investigated according to law on the basis of a comprehensive investigation of the circumstances such as the initiation of criminal intention and the role played by various actors in the crime. If other circumstances are obviously minor and harmless, and are not considered as crimes, criminal responsibility shall not be investigated according to law; When necessary, the public security organ may impose administrative punishment.

Crime of refusing to pay labor remuneration

Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Criminal Cases of Refusing to Pay Labor Remuneration (Fa Shi [2013] No.3)

Article 6, paragraph 1, refuses to pay laborers’ labor remuneration, which has not caused serious consequences, and pays laborers’ labor remuneration before filing a criminal case, and bears corresponding liability for compensation according to law, which can be considered as obvious and slight harm, and not considered as a crime; The criminal punishment may be mitigated or exempted if the laborer is paid the labor remuneration before the public prosecution is initiated, and he is liable for compensation according to law; Those who pay the laborers’ remuneration before the verdict is pronounced in the first instance and bear the corresponding liability for compensation according to law may be given a lighter punishment.

X. Concealing and concealing the proceeds of crime,

Crime of income from crime

Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Criminal Cases of Concealing and Concealing Full Criminal Proceeds (Fa Shi [2015] No.11)

Article 2, paragraph 2, where an actor conceals or conceals the proceeds of a crime for his own use, and the value of the property has just reached the standard stipulated in Article 1, paragraph 1 (1) of this interpretation, and he pleads guilty, repents and returns the stolen goods or compensation, it is generally not considered a crime; Those who are investigated for criminal responsibility according to law shall be lenient as appropriate.

XI. Crimes of illegally carrying firearms, ammunition and explosives

Interpretation of the Supreme People’s Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Manufacturing, Trading and Transportation of Firearms, Ammunition and Explosives (Fa Shi [2009] No.18)

Article 6 Illegal carrying of guns, ammunition and explosives into public places or public transport means, which endangers public safety, is a "serious case" as stipulated in Article 130 of the Criminal Law in any of the following circumstances:

……

(3) Carrying more than 500 grams of explosives, propellants and black powder or more than 1 kilogram of pyrotechnics, more than 20 detonators or more than 20 meters of fuses and detonating cords;

……

If the perpetrator illegally carries the explosives specified in Item (3) of the first paragraph of this article into public places or public transport, but refuses to hand them over, he shall be convicted and punished in accordance with the provisions of Article 130 of the Criminal Law; If the quantity carried reaches the minimum quantity standard and can be surrendered voluntarily and completely, it may not be regarded as a crime.

XII. Smuggling Crime

Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Smuggling (Fa Shi [2014] No.10)

Article 9, paragraph 4, whoever smuggles precious animal products into the country for the purpose of not making profits and keeping them as a souvenir, and the amount is less than 100,000 yuan, may be exempted from criminal punishment; If the circumstances are obviously minor, it shall not be treated as a crime.

Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate and the General Administration of Customs on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Smuggling (No.139 [2002])

Seven, about the punishment of smuggling precious animal products.

Whoever smuggles precious animal products shall be punished according to the relevant provisions of the second, fourth and fifth paragraphs of Article 151 of the Criminal Law and Article 4 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Smuggling (Fa Shi [2000] No.30), hereinafter referred to as the Interpretation, but under the following circumstances, if the circumstances are relatively minor, it is generally not punished as a crime:

(1) Trading is allowed in the place where precious animal products are purchased;

(2) Entry personnel bring precious animal products into the country as a souvenir or as a gift, with no profit-making purpose.

At the same time, those who meet the sentencing standards stipulated in the third paragraph of Article 4 of the Interpretation are generally sentenced to fixed-term imprisonment of not more than five years and fined; Those who meet the sentencing standards stipulated in the fourth paragraph of Article 4 of the Interpretation are generally sentenced to fixed-term imprisonment of more than five years and fined.

Ten, on the identification of fraudulent customs verification behavior in processing trade activities.

In the course of processing trade, whoever cheats the customs for verification by means of false export, false carry-over or using false documents, which leads to the separation of bonded goods and articles from customs supervision and the loss of state tax, shall be investigated for criminal responsibility for the crime of smuggling ordinary goods and articles in accordance with the provisions of Article 153 of the Criminal Law. However, if there is evidence to prove that the bonded goods are out of customs supervision due to force majeure, and the operator can’t go through the normal procedures and defraud the customs for verification, it will not be considered as a smuggling crime.

XIII. Transforming the Crime of Robbery

Opinions of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Criminal Cases of Robbery and Snatching (Fa Fa Fa [2005] No.8)

V. Identification of transformed robbery

If the perpetrator commits theft, fraud or robbery, and the amount is not large, he uses violence or threatens violence on the spot to hide stolen goods, resist arrest or destroy criminal evidence, and the circumstances are minor and the harm is not great, he is generally not punished as a crime; But one of the following circumstances may be convicted and punished for robbery in accordance with the provisions of Article 269 of the Criminal Law.

(1) theft, fraud and robbery are close to the standard of "large amount";

(2) committing the above-mentioned acts outdoors or outside the means of transport after entering the house or stealing, swindling or robbing on public transport;

(3) using violence to cause minor injuries;

(4) using or threatening to use a weapon;

(5) Other serious circumstances.

Fourteen, instead of examination crime

Interpretation of the Supreme People’s Court the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases such as Cheating in Organizing Examinations (Fa Shi [2019] No.13)

Article 7 Whoever replaces others or lets others take the national examinations prescribed by law instead of himself shall be convicted and punished in accordance with the fourth paragraph of Article 284-1 of the Criminal Law.

If the perpetrator’s criminal circumstances are minor and he does show remorse, if he considers that he meets the applicable conditions of probation by taking the test and the type of the test, he can declare probation; If the circumstances of the crime are minor, no prosecution may be instituted or criminal punishment may be exempted; If the circumstances are obvious, minor and harmless, they shall not be punished as crimes.

Fifteen, illegal use of information networks,

Help information network crime.

Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases such as Illegal Use of Information Networks and Helping Information Network Crimes (Fa Shi [2019] No.15)

Fifteenth comprehensive consideration of the degree of social harm, confession and repentance attitude and other circumstances, that the crime is minor, you can not prosecute or be exempted from criminal punishment; If the circumstances are obvious, minor and harmless, they shall not be punished as crimes.

Sixteen, illegal mining, destructive mining crimes

Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Illegal Mining and Destructive Mining (Fa Shi [2016] No.25)

Article 11. Persons who are employed to provide services for illegal mining and destructive mining crimes are generally not treated as crimes, except those who participate in profit sharing or receive high fixed wages, except those who have been punished for illegal mining and destructive mining.

Seventeen, illegal fund-raising crime

Interpretation of the Supreme People’s Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising (Fa Shi [2022] No.5)

Article 6, paragraph 2, illegally absorbs or disguises public deposits, which are mainly used for normal production and business activities, and can be repaid before prosecution, and can be exempted from criminal punishment; If the circumstances are obvious, minor and harmless, it will not be treated as a crime.

Eighteen, soft violent crimes

Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate, Ministry of Public Security and Ministry of Justice on Several Issues Concerning Handling Criminal Cases of "Soft Violence" (Gong Tong Zi [2019] No.15)

Xi ….. In order to extort debts that are not protected by law or for other illegal purposes, hiring or instructing others to illegally deprive others of their personal freedom by means of "soft violence" constitutes the crime of illegal detention, or trespassing on others’ houses and making troubles, which constitutes the crime of trespassing on houses and making troubles, the employers and ambassadors should generally be punished as the principal offenders in a joint crime; Employment and instigation due to civil conflicts such as legal debts, marriage and love, family and neighborhood disputes of oneself and close relatives, which have not caused serious consequences, are generally not treated as crimes, except that they continue to be implemented after being criticized and stopped or punished by relevant departments.

XIX. Crime of organizing and leading pyramid selling activities

Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Organizing and Leading MLM Activities (Gong Tong Zi [2013] No.37)

Five, on the "team pay" behavior.

The organizer or leader of pyramid selling activities, through the development of personnel, requires the developed personnel of pyramid selling activities to develop other personnel to join, forming the relationship between the upper and lower lines, and calculating and paying the online remuneration based on the sales performance of the offline line to seek illegal benefits, which is a "team remuneration" pyramid selling activity.

Simple "team-paid" pyramid selling activities aimed at selling goods and based on sales performance are not treated as crimes. In the form of "team remuneration", but in essence, pyramid selling activities that are based on the number of developers as the basis for remuneration or rebate shall be convicted and punished for organizing and leading pyramid selling activities in accordance with the provisions of Article 224-1 of the Criminal Law.

Twenty, organized crime of underworld nature

The Supreme People’s Court’s Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Crimes Committed by Organized Gangs (Fa Shi [2000] No.42)

Article 3 Anyone who organizes, leads or participates in an organization of a triad nature commits other criminal acts shall be punished in accordance with the provisions of the third paragraph of Article 294 of the Criminal Law and the provisions of combined punishment for several crimes; Organizers and leaders of underworld organizations should be punished according to all the crimes committed by the underworld organizations they organize and lead; Participants in underworld organizations should be punished according to the crimes they participate in.

For organizations that participate in the underworld, those who have not carried out other illegal and criminal activities, or those who have been deceived or coerced to participate in the underworld, if the circumstances are minor, may not be treated as crimes.

Twenty-one, the organization and use of cult organizations

Break the law and commit crimes.

Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Criminal Cases, such as Handling Organizations and Using Cult Organizations to Destroy Law Enforcement (Fa Shi [2017] No.3)

Article 9 Organizing and using a cult organization to undermine the implementation of national laws and administrative regulations is in line with the circumstances stipulated in Article 4 of this Interpretation. However, if the actor can sincerely repent and clearly indicate that he will quit the cult organization and no longer engage in cult activities, he may not be prosecuted or be exempted from criminal punishment. Among them, if the perpetrator is deceived or coerced to join a cult organization, it may not be treated as a crime.

Twenty-two, drug crimes

Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Drug Crimes (Fa Shi [2016] No.8)

Article 7, paragraph 3: If a unit or individual that produces, deals in, buys or transports precursor chemicals does not apply for a license certificate or a record certificate, and the precursor chemicals are really used for legitimate production and daily needs, it shall not be punished as a crime of precursor chemicals.

Article 12, paragraph 3, which allows close relatives to take or inject drugs, shall not be treated as a crime if the circumstances are obvious and slight and the harm is not great; If criminal responsibility needs to be investigated, the punishment may be lenient as appropriate.

Twenty-three, duty crime

Opinions of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Duty Crime Cases in State-funded Enterprises (Fa Fa Fa [2010] No.49)

Three, on the state-funded enterprise staff to use the funds of the restructured companies and enterprises to guarantee personal loans, for the purchase of shares in the restructured companies and enterprises.

If a staff member of a state-funded enterprise takes advantage of his position to use the company’s or enterprise’s funds, financial vouchers, securities, etc. for personal loan guarantee in the process of restructuring the company or enterprise, he shall be convicted and punished for the crime of misappropriating funds or misappropriating public funds in accordance with the provisions of Article 272 or Article 384 of the Criminal Law.

If the actor holds shares in a state-funded enterprise before the restructuring, it will not affect the determination of the amount of misappropriation, but it should be considered as appropriate when sentencing.

With the approval of the relevant competent department or in accordance with the relevant policies and regulations, if the staff of a state-funded enterprise commits the acts mentioned in the preceding paragraph in order to buy shares of a restructured company or enterprise, it may not be treated as a crime according to the specific circumstances.

Eight, on the specific implementation of the criminal policy of combining leniency with severity

When handling duty crime cases in state-funded enterprises, we should comprehensively consider historical conditions, enterprise development, employee employment, social stability and other factors, pay attention to concrete analysis of specific situations, and strictly grasp the distinction between crimes and general violations. For serious crimes with obvious subjective malice, serious social harm and strong reaction from the masses, we must resolutely and severely punish them according to law; Acts that violate national policies and laws in order to successfully complete enterprise restructuring under specific historical conditions may not be treated as crimes if the perpetrator has no subjective malice or the subjective malice is not obvious, and the circumstances are minor and the harm is not great.

XXIV. Crime of organizing prostitution

Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Applicable Law in Handling Criminal Cases of Prostitution (Fa Shi [2017] No.13)

Article 5 Whoever knowingly recruits or transports people or acts as bodyguards, thugs and account keepers for others who commit the crime of organizing prostitution shall be convicted and punished for the crime of assisting in organizing prostitution in accordance with the fourth paragraph of Article 358 of the Criminal Law, and shall not be punished as an accessory to the crime of organizing prostitution.

Those who work as cleaners, cashiers, security guards, etc. in clubs, bath centers and other business places with business licenses, engage in general service and labor work, only receive normal salary, and do not assist in organizing prostitution as listed in the preceding paragraph, are not considered as assisting in organizing prostitution.

Twenty-five, gambling crimes

Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Gambling Criminal Cases (Fa Shi [2005] No.3)

Article 9 For the purpose of not making profits, engaging in entertainment activities with a small amount of property to win or lose, and providing entertainment places such as chess and cards rooms with normal fees for places and services, etc., shall not be regarded as gambling.

Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Laws in Handling Cases of Opening Casinos with Gambling Machines (G.T.Z. [2014] No.17)

Seven, grasp the criminal policy of combining leniency with severity.

In handling the case of opening a casino with gambling machines, we should implement the criminal policy of combining leniency with severity, focusing on cracking down on the investors and operators of casinos. For those who are employed to engage in activities such as picking up and dropping off gambling participants, watching the game, licensing and trading chips for casinos, except those who participate in the profit sharing of casinos or receive high fixed wages, they are generally not investigated for criminal responsibility, and can be punished by public security organs according to law. Entertainment activities that set up game machines in exchange for a small amount of prizes at a time shall not be treated as illegal and criminal.

Twenty-six, the crime of provoking trouble

Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of affray (Fa Shi [2013] No.18)

Article 1 If an actor makes trouble by seeking excitement, venting his emotions, bravado, etc., and commits the acts specified in Article 293 of the Criminal Law, it shall be deemed as "provoking troubles".

If an actor commits an act stipulated in Article 293 of the Criminal Law because of occasional contradictions and disputes in daily life, it shall be deemed as "stirring up trouble", except that the contradiction is intentionally caused by the victim or the victim is mainly responsible for the intensification of the contradiction.

If an actor commits acts such as beating, insulting, threatening others or damaging or occupying other people’s property due to disputes over marriage, family, neighborhood and debts, it is generally not recognized as "stirring up trouble", but after being criticized by the relevant departments to stop or deal with punishment, he continues to carry out the forefront behavior, except for disrupting social order.

Original title: "26 situations that are not recognized as crimes according to law or are not handled as crimes"

Read the original text