On June 20, 2023, an online dialogue on the topic of “Sentencing” was jointly organized by the Sino-German Legal Cooperation Programm of the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) and the Supreme People’s Court of the People’s Republic of China (SPC). The seminar was attended by judges from China and Germany.
Dr. Marco Haase, director of the Sino-German Legal Cooperation Programme, emphasized the importance of sentencing in legal practice in his welcome address. He highlighted that a clear distinction between different offenses is as crucial as establishing appropriate penalties. It is essential that sentencing is predictable and comparable to strengthen confidence in the rule of law and the judiciary.
In his introductory remarks, Mr. Chen Xueyong, vice president of the Third Criminal Chamber of the Supreme People’s Court, highlighted reforms in the Chinese criminal justice system. Since 2004, extensive efforts have been made to improve sentencing. In 2020, guidelines for standardized sentencing were issued, and their implementation has been tested since June 2021. Mr. Chen Xueyong emphasized that the legal reforms introduced in the People’s Republic of China in recent years are aimed at adapting judicial practices to the growing democratic and rule of law needs of the Chinese people and further improving the operational practices of the courts. This also applies, and particularly so, to the field of sentencing.
The first session of the event addressed the topic “Issues in Sentencing and Corresponding Solutions.” In an opening presentation, Judge Li Zhanmei of the Third Criminal Chamber of the Supreme People’s Court presented this topic from a Chinese perspective. She explained the two elements of issuing a judgment in criminal cases: the finding of guilt and the pronouncement of sentence. She noted that, due to the lack of uniform rules for sentencing, similar cases could be assessed very differently in practice. To address this, sentencing guidelines were developed to establish a balanced and fair sentencing approach that corresponds to to conditions on a nationwide level. The guidelines aim to specify sentencing through objective and verifiable criteria. Initially, the elements of the offense are quantified, and the minimum penalty for each offense is determined to appropriately limit the applicable statutory penalty range. The guidelines then list the factual and perpetrator-related circumstances relevant to sentencing, which ultimately form the basis of the penalty. Courts should continue to rely on their professional experience in sentencing and comprehensively examine all relevant circumstances of the individual case. Discretionary powers should be exercised reasonably.
Subsequently, Dr. Johannes Schlichte, Judge at the District Court of Hamburg, presented the practice of sentencing in Germany in his presentation. He emphasized that sentencing is an inherent task of the trial judge, involving a wide discretion and, consequently, a significant responsibility. With few exceptions, where a life sentence is prescribed, German criminal provisions have a relatively wide penalty range within which the courts determine the appropriate sentence on a case-by-case basis, considering all relevant circumstances. Dr. Schlichte then explained the procedure for adjudicating multiple offenses in one judgment. This involves not merely adding individual penalties but forming an aggregate penalty by increasing the highest individual penalty. In cases of conviction, approximately 80 percent of sentences in Germany are fines, while suspended sentences constitute about 15 percent, and non-suspended imprisonment comprises only about five percent of the cases.
Regarding mass offenses, a unified practice for sentencing has developed, which is attributed to a unified practice of prosecution, as well as internal exchange of experiences within the judiciary. Nonetheless, regional disparities in sentencing are evident in Germany, both regarding the severity of the sentence and the question of whether a prison sentence is suspended or not. This situation raises concerns with regards to aspects of the rule of law.
In the following Q&A and discussion, the possibility of standardizing sentencing through guidelines, public perception of the varying sentencing practices, the influence of economic and political developments on judicial decisions, and the process of choosing between fines and imprisonment were discussed among other topics.
The second part of the dialogue addressed the standardization of sentencing and its effects.
Mr. Zhou Lisun, vice president of the Third Criminal Chamber of the Higher People’s Court of Hubei Province, presented an overview of reforms regarding sentencing in China. The provisional implementation of the new sentencing guidelines has now been extended to cover additional criminal offenses. The speaker emphasized the significance of implementing the principle of legality and fair jurisdiction while maintaining the discretion of the courts in determining sentencing within the context of each individual case.
Mr. Zhou Lisun next presented experiences with the new sentencing practice in Hubei Province. Through the standardization and uniformity of sentencing, outdated practices were abandoned. Clear and transparent methods and criteria for sentencing were developed, leading to fairer sentencing and greater satisfaction with judicial practices. The reform also contributed to the fight against corruption within the judiciary. Overall, the reformed sentencing procedure is viewed as fair and transparent. The proportion of confessions and agreements between the parties involved has significantly increased since the reform, and the authority of the courts has been strengthened.
Mr. Norbert Feige, legal advisor in the Sino-German Legal Cooperation Programme, presented on the standardization of sentencing in Germany. He emphasized that uniform sentencing has constitutional significance in Germany. He discussed the possibility of introducing sentencing guidelines in Germany, also addressing models practiced in other countries, particularly in the Anglo-American sphere. Such guidelines would contradict the constitutionally guaranteed independence of judges in Germany. One option for standardizing sentencing in Germany would be to establish special jurisdictions for certain offenses or groups of offenses within individual courts. However, the appellate courts would play a crucial role, contributing to uniform sentencing by advocating for the amendment of inappropriate sentences on a case-by-case basis and thereby providing a framework for lower courts.
Afterwards the participants discussed Chinese sentencing guidelines on court proceedings and the procedures in Germany following the reversal of a sentencing decision by the appellate court.
In his closing remarks, Dr. Haase emphasized that the criminal justice system is always a reflection of the societal climate. It is crucial for the judiciary to be perceived as just by society to gain acceptance. While regional differences in sentencing exist in Germany, they are not widely considered a significant issue in need of reform. The public has confidence in the judiciary, which is why there is no attempt to restrict the statutory independence of judges.
Mr. Chen Xueyong highlighted the importance of professional exchange between China and Germany. This enables identifying commonalities as well as differences between the two countries and learning from each other. In both countries, sentencing is crucially about determining the appropriate punishment for the offense and the offender on a case-by-case basis. Mr. Chen Xueyong expressed hope that the professional exchange between the two countries would continue.