In December 2021, the NPC Standing Committee adopted the Anti–Organized Crime Law (AOCL or Law) [反有组织犯罪法], China’s first statute dedicated to combatting organized crime. The Law has taken effect on May 1, 2022. It came at a time when the Communist Party’s three-year campaign to “clear out the underworld” (or saohei, short for “扫黑除恶,” literally “sweep away darkness and eliminate evil”) that began in 2018 was wrapping up and when central authorities were calling for the “normalization” of the saohei campaign.
China previously launched two similarly named special actions in the 2000s to “crack down on the underworld,” or dahei (short for “打黑除恶”). The difference in one character, however, gave the latest saohei campaign a broader scope. Rather than fight organize crime in a whack-a-mole fashion primarily to ensure public safety, saohei is “inherently political”: it is expressly aimed at solidifying the Party’s rule down to the lowest levels of governance. To that end, China’s national criminal justice authorities issued a series of guidance documents to broadly define “organized crime” and related concepts, call for whole-of-society efforts to prevent organized crime, set forth special criminal procedures and powers, and penalize corrupt officials who enable such criminal activities.
The AOCL is a key tool to “normalize” the saohei campaign. It was enacted in part to “safeguard national security, social order, and economic order,” and incorporated many of the measures contained in the guidance documents. As saohei will remain part of the Party’s social governance program for at least the next five years, below we take a belated look at the AOCL.
Defining “Organized Crime”
“Organize crime” [有组织犯罪] was not a term of art in Chinese law before the AOCL’s enactment. When used to refer to criminal enterprises (as opposed to activities), its closest analogue was “heishehui-like organizations” [黑社会性质的组织] under the Criminal Law [刑法]. The statute eschewed the simpler term, heishehui [黑社会] (gangs or mafias), because in the legislature’s view in 1997, “typical,” full-fledged criminal enterprises like mafias did not exist in mainland China—there were only primitive “heishehui-like organizations” with the potential to grow into full mafias.
The Criminal Law prohibits organizing, leading, or participating in a domestic “heishehui-like organization” (art. 294, para. 1). It also bars overseas “heishehui” from recruiting members in mainland China (id. para. 2). For ease of reference, we will translate both terms simply as “dark society” and will use it to refer to a domestic criminal organization by default unless we specify otherwise.
To qualify as a domestic dark society, an organization must possess four characteristics: (1) a “relatively stable” and clear organizational structure; (2) a certain level of “financial strength” as a result of its illegal activities; (3) oppressing a local population through organized illegal activities; and (4) exerting “major” influence over the economy or society in a certain region or industry. The more detailed statutory language is reproduced in the table below. (Foreign dark societies were not defined, however.)
The term “dark society” did not capture the entire “underworld” the authorities seek to eradicate, however. It does not encompass the “prototypes” of dark societies: smaller criminal enterprises with looser organization and less economic strength that are not yet able to exert “major” influence over local economies or societies. The authorities thus coined a new term during the saohei campaign to cover those less developed organizations: “malign forces” [恶势力组织]. The criminal justice authorities’ 2018 definition of “malign forces” was incorporated almost verbatim into the AOCL and is also reproduced in the table below. A follow-on 2019 document offered additional guidance on recognizing malign forces, specifying, for instance, that such an organization should “usually have three or more people, with relatively fixed orchestrators.”
|Required Characteristic||Dark Society|
(Criminal Law art. 294, para. 5)
(AOCL art. 2, para. 2)
|Organizational||“has formed a relatively stable criminal organization with a relatively large number of participants, clear organizers and leaders, and basically fixed key members”||“[its members] regularly gather together”|
|Economic||“gains economic benefits through organized illegal or criminal activities or other means, and has certain financial strength to support its activities”||—|
|Behavioral||“use violence, intimidation, or other tactics to carry out multiple illegal or criminal activities in an organized manner, doing wrong and oppressing or victimizing the people”||“uses violence, intimidation, or other tactics to carry out multiple illegal or criminal activities in a certain region or industry, doing wrong and oppressing the people”|
|Dangerousness||“by carrying out illegal or criminal activities, or taking advantage of public employees’ protection or connivance, plays the tyrant in a locality, and exercises illegal control or major influence over a certain region or industry, thus seriously disrupting the economic or social order”||“disrupts the economic or social order, and causes relatively heinous social impact”|
All that background is necessary for understanding the meaning of “organized crime” under the AOCL. It is defined not as a type of organizations, but as any of three categories of crimes: (1) the crime of organizing, leading, participating in a dark society under Criminal Law article 294; (2) any crime organized or committed by a dark society; or (3) any crime organized or committed by a malign force (art. 2, para. 1). And while not officially defined as “organized crimes,” the criminal activities of foreign dark societies in mainland China are subject to this Law as well (id. para. 3).
“Soft Violence,” Cyberspace & Extraterritoriality
Lawmakers did not stop at defining “organized crimes” broadly and further extended the AOCL’s reach in several important ways. To begin, they codified two directives issued by central criminal justice authorities during the saohei campaign. The first is making clear that organized crimes may be committed with “soft violence” [软暴力] (art. 23, para. 2). This could manifest in a variety of tactics that do not involve (but are often backed by) direct physical violence or threats of violence, including creating public disturbances and pestering others (id.), as well as a longer list of conduct in a 2019 guidance document, like stalking, disclosing private information, defamation, and trespassing. To amount to soft violence, such tactics must be employed for an illegal end and cause “psychological coercion of others” that is “sufficient to restrict physical liberty or endanger security in their persons or property,” thereby “affecting the normal social and economic order” (id.).
The second measure builds on the “soft violence” provision. As physical violence is not necessary for the commission of organized crimes, the Law provides that they may be carried out purely online, as long as the statutory definitions are met (art. 23, para. 1). An online group could have the organizational characteristic of a dark society, for instance, even if its member have never met offline, as long as it has the requisite organizational structure and number of participants.
The Law, moreover, includes an extraterritorial provision. It applies to foreign dark societies that commit crimes outside mainland China against the People’s Republic of China or Chinese citizens (art. 2). This provision appears to exceed the extraterritorial jurisdiction China otherwise asserts under its 1997 Criminal Law, which requires that the prosecuted act be a crime in the place where it is committed and be serious enough to warrant a specified minimum level of punishment. The AOCL’s extraterritorial provision is consistent, however, with China’s ongoing efforts to extend the territorial reach of its laws, as reflected in, for instance, the aggressive assertion of global criminal jurisdiction under the 2020 Hong Kong National Security Law.
Preventing Organized Crime
The AOCL adopts a whole-of-society approach to preventing organized crimes. Government agencies at all levels have a role to play and are directed to include such work in their performance evaluation systems (art. 9, para. 1). Education departments and schools, for instance, should educate students on the danger of organized crimes, and must promptly intervene when underworld forces are recruiting on campus or students are participating in organized crime activities (art. 11). As a further deterrent, the Law also requires courts to impose heavier sentences on those who recruit minors for dark societies, who instigate or trick minors to commit organized crimes, or who commit organized crimes against minors (art. 67). Similarly, other government agencies, such as market and financial regulators, have the duty to monitor organized crime activities and suspicious transactions in the industries they oversee, especially those susceptible to infiltration by organized crime (arts. 13, 17).
Consistent with the saohei campaign’s express aim at certain overly political targets such as corrupt village officials or town “bosses” who undermine the Party’s authority at the grassroots level, the AOCL establishes a vetting mechanism for candidates running for quasi-governmental neighborhood committees. Local civil affairs departments (which oversee those committees) are tasked with working with anti-corruption bodies, the police, and other relevant institutions to screen candidates for past convictions for organized crimes and for leads on organized crime (art. 12).
Upon discovering information that “advocates or induces organized crimes,” cyber and telecom regulators are authorized to order the relevant service providers to stop its transmission and delete the information (art. 16, para. 2). They may also take down mobile apps, close or block websites, or shut down services to stop the spread of such information (id.). Telecom and internet service providers, for their part, have an affirmative obligation to take technical security measures to prevent the spread of such information; to immediately stop its transmission when such information is found; and to report such incidents to the police and assist with subsequent investigations (art. 16).
To prevent recidivism, the AOCL institutes a new reporting requirement for serious organized crime offenders. Convicts who have served sentences for organizing or leading a dark society—but not for other crimes—may be required by the police to report on their “personal assets and daily activities” for up to five years (art. 19). According to a legislative official, “major changes in personal finance” as well as “personal whereabouts, employment situation, and business activities” all fall within the reporting requirement. Failure to file truthful reports may result in administrative detention of 5–10 days and a concurrent fine of up to RMB 30,000 (art. 70).
Special Criminal Procedures & Powers
The AOCL equips criminal justice organs with new powers and provides for special procedures throughout the life cycle of an organized crime case, from investigation to trial, from sentencing to sentence enforcement, and to post-conviction clemency.
The police may invoke some of those powers even before officially opening an organized crime investigation. Ordinarily, under the Criminal Procedure Law [刑事诉讼法] and the Ministry of Public Security’s procedural rules, the police may not look into a person’s financial accounts until they have designated that person as a suspect or have officially opened a criminal case. But the AOCL allows the police to inquire into the savings and investments of a “person of interest” [嫌疑人员] when investigating only leads on organized crimes (art. 27, para. 1). When the leads concern the crimes of a dark society, the police may take the more drastic measures of placing emergency holds on payments or temporarily freezing or seizing relevant assets for up to 48 hours, when there is an “imminent risk” of loss or transfer of those assets (id. para. 2).
To prevent suspects from colluding with each other or from exploiting their local influence, they may be held in other regions or in solitary confinement once they are taken into custody (art. 30). And to encourage witnesses to testify in court and shield them from retaliation, the AOCL introduces a new witness protection measure whereby the Ministry of Public Security may change a witness’s identity, place of residence, and employment if their or their family’s physical safety is under threat (art. 61, item 5; art. 62).
Once convicted, the most serious offenders—the organizers and leaders of dark societies and the heads of malign forces who receive sentences longer than 10 years, life sentences, or suspended death sentences—must serve their entire sentences in another province (art. 35, para. 2). They also face an additional hurdle when seeking commutations or paroles: their clemency applications, once endorsed by their prisons, must be further approved by the corresponding provincial-level prison authorities before a court reviews their petitions (art. 36, para. 1).
In all organized crime cases, courts must “strictly” apply the requirements for granting commutations or paroles (art. 22, para. 2). In particular, the Law directs the courts to “fully consider” a convicted offender’s payment of criminal fines and their cooperation with locating or recovering unlawful gains in deciding on their clemency applications (art. 38).
Cutting Off Organized Crime’s Economic Lifeblood
Recognizing that organized crime cannot thrive or reemerge without a strong economic foundation, lawmakers devoted a whole chapter in the AOCL to clarifying rules on identifying and disposing of what it terms “case-related assets” [涉案财产] to dismantle that foundation.
The Law embraces a fairly broad range of “case-related assets” that ought to be confiscated by authorities or returned to the victims. They include all contrabands, direct and indirect proceeds from organized crimes, as well as assets used in furtherance of organized crimes (art. 45, para. 1). A third party’s assets that meet such criteria, including property knowingly provided to organized crime groups to support or fund their activities, are also considered “case-related assets” (art. 46). In the event that case-related assets are lost, destroyed, or commingled with lawful property, the authorities may recover or confiscate lawful property of an equivalent value (art. 45, para. 2). And to preserve the assets’ value while a case is pending, those that are susceptible to damage or devaluation like perishables and financial instruments may be sold or liquidated (art. 43).
Because dark societies in practice would try every method to obscure the unlawful origins of the massive amounts of wealth they amass, one legislative official explained, the AOCL provides for a novel confiscation rule that applies only to those organizations (art. 45, para. 3). When the prosecution cannot carry its ordinary burden to prove that certain assets are the proceeds of dark-society crimes, those assets may still be forfeited under a three-step framework.
- First, the court must have found sufficient facts, under ordinary evidentiary standards, to convict and sentence the defendant.
- Next, the prosecution must offer evidence showing it is “highly probable” that the assets obtained during the time the defendant was committing dark-society crimes were proceeds of such crimes.
- The burden, then, shifts to the defendant to explain the assets’ lawful origin; failure to do so will result in confiscation.
A prior version of this rule would have applied to all organized crimes and permitted a more tenuous nexus between the assets at issue and the crimes. Its broad scope drew criticisms during the legislative process, and lawmakers subsequently raised the thresholds for invoking the rule to prevent abuse.
To ensure effective use of the procedures for handling case-related assets, the Law also supplies the police, prosecutors, and courts with the explicit authority to “fully investigate” the finances of organized crime groups and their members, including lawful assets (art. 40). At the same time, the authorities are admonished to “strictly distinguish between unlawful proceeds and lawful assets,” and evidence on the nature and ownership of case-related assets must be presented and debated in court to avoid wrongful confiscation of legitimate assets (art. 41, para. 1; art. 44, para. 2).
Uprooting “Protective Umbrellas”
Corrupt officials who shield organized crime groups from prosecution or even actively contribute to their activities, the so-called “protective umbrellas,” are often indispensable to the growth of organized crime. For this reason, the saohei campaign doubled as a targeted anti-corruption action, and the AOCL spends a chapter addressing state employees who enable organized crime.
The Law prohibits state employees from engaging in six types of conduct, including getting involved in or otherwise supporting organized crime groups, shielding them from prosecution, and committing dereliction of duties in, or interfering with, efforts to combat organized crime (art. 50, para. 1). State employees who violate these prohibitions are subject to “comprehensive investigations” as well as criminal prosecutions or disciplinary sanctions (id.). The Law also incorporates a long-standing Supreme People’s Court rule that mandates heavier sentences (up to 15 years) for state employees who organize, lead, or participate in organized crime (id. para. 2).
Because state employees who directly work on organized crime cases are at greater risk of being corrupted by organized crime groups, the Law also lays down more specific prohibitions for those employees. They must not ignore or otherwise improperly handle reports of or leads on organized crimes, obstruct investigations by tipping the suspects off, or dispose of cases in a way that is contrary to law and facts, among other proscribed conduct (art. 52).
Anti-corruption bodies and criminal justice organs are required to establish mechanisms for referring leads on violations of the Law by state employees to the competent authorities (art. 51). This provision likely serves to elevate the cooperative mechanisms already set up by those institutions in late 2019 to a statutory scheme.
As mentioned, the AOCL codifies only part of the guidance documents issued during the original three-year saohei campaign. They will continue to govern the ongoing saohei efforts (unless the AOCL has contrary provisions) and are thus essential to gaining a full understanding of the “normalized” saohei action. China Law Translate has collected and translated those documents at this link.
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