Constitutional Social Rights vs. Collateral Consequences of Criminal Convictions

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On Wednesday, December 25, China’s top legislature, the NPC Standing Committee (NPCSC), heard the annual report by its Legislative Affairs Commission (LAC) on “recording and review” [备案审查]: a process for resolving legislative conflicts that undermine China’s hierarchy of legal norms, including the supremacy of the Constitution. According to the report, private entities submitted a total of 5,682 requests for review in 2024, rebounding from what was hopefully an isolated dip in 2023 (when only 2,827 petitions were filed). This year’s report disclosed ten instances of legislation failing review, several of which merit in-depth coverage. (The rest we will discuss in a future issue of our newsletter.) Here, we will introduce two cases where the LAC—relying in part on constitutional protections for certain social rights—repudiated two types of collateral consequences imposed on individuals with criminal records: ineligibility for public-welfare benefits and employment restrictions.

Collateral Consequences in China

“Collateral consequences,” for present purposes, are sanctions, restrictions, or disqualifications imposed on people convicted of crimes1 by official legal instruments2 other than the Criminal Law [刑法], China’s unified criminal code—and are therefore not meted out by a criminal court.3 In other words, collateral consequences are distinct from criminal sentences (which typically include some period of incarceration, financial sanctions, or both) and indeed come into play only after a convicted person has completed their court-imposed sentence and seeks to reintegrate into society.

Collateral consequences generally fall into three categories.4 In the first category are prohibitions on public-sector employment. This includes not only employment in the civil service, but also work as government contractors or senior managers in state-owned enterprises. The second category encompasses various disqualifications from public benefits, such as minimum subsistence allowances [最低生活保障], government subsidies, and points-based hukou registration in certain cities. Finally, the third type of collateral consequences includes various restrictions on private employment or professional licensure.

Collateral consequences differ from statutory criminal penalties in three key ways.5 First, collateral consequences, by definition, are not found in the Criminal Law. Instead, they appear in practically every type of legislation, from national laws to local government rules, and even in non-legislative regulatory documents. The resulting web of consequences is complex and cannot give a person fair notice of the full extent of consequences that attach to a criminal conviction. Second, collateral consequences are often mandatory, applying to anyone with a criminal history (regardless of the nature or severity of their crime), potentially for the rest of their life. They thus stand in stark contrast to similar statutory criminal punishments. The Criminal Law also authorizes employment restrictions on convicted individuals, for instance, but this sanction is discretionary, must be connected to the underlying crime, and is durationally limited (3–5 years) (see art. 37-1, para. 1). Third, collateral consequences often apply automatically without any process, as long as an individual is found to have a criminal record, and there is practically no recourse against their application. Statutory criminal penalties, by contrast, are imposed according to China’s rules of criminal procedure, such as they are, and defendants have a right to appeal.

The proliferation and abuse of collateral consequences has become a pressing governance issue. The Criminal Law’s reach expands with each batch of amendments, with the most recent ones adding primarily offenses carrying sentences of up to three years—which are considered “minor crimes” [轻罪] in China.6 So while the number of criminal convictions continues to rise, the vast majority—averaging over 80% of all convictions since 2013—have resulted in prison terms of three years or less.7 A growing section of the Chinese population, then, is living under lifelong collateral consequences for minor offenses. Not only are such consequences disproportionate to the underlying crimes, but, more importantly and ironically, they create so many barriers to reentry into society that they themselves contribute to recidivism.8

Constitutional Control of Collateral Consequences

Against the foregoing backdrop, citizen challenges to collateral consequences again arrived at the LAC. The relevant sections of its latest report are translated below (our emphasis):

A local government provided in a normative document that individuals who have received criminal punishments may not benefit from the minimum subsistence allowance policy. A citizen requested review of this provision, arguing that it had issues of constitutionality or legality and should be rectified. Upon review and research, we concluded: Article 45, paragraph 1 of the PRC Constitution clearly provides that “[c]itizens of the People’s Republic of China have the right to material assistance from the State and society when they are old or ill or have lost the ability to work.” The system of minimum subsistence allowance is a concrete example of the implementation of the relevant constitutional provisions and serves as a safety-net arrangement to protect people’s livelihoods. All individuals without the ability to work and without sources of income, including those who have received criminal punishments and fall into such circumstances, should be covered by urban and rural minimum subsistence allowances. Excluding individuals involved in criminal cases from their coverage would be inconsistent with the principles and spirit of the relevant constitutional provisions and with the principles and spirit of the relevant administrative regulations of the State Council. After communication, the enacting organ stated that, although the document was still available on the government’s website, it had in fact been repealed. Together with the relevant bodies, we have pressed the enacting organ to appropriately deal with the document.

有的地方政府规范性文件规定，因犯罪受刑事处罚人员不得享受最低生活保障政策。有公民对这一规定提出审查建议，认为存在合宪性、合法性问题，应予纠正。我们经审查研究认为，我国宪法第四十五条第一款中对“中华人民共和国公民在年老、疾病或者丧失劳动能力的情况下，有从国家和社会获得物质帮助的权利”作出明确规定；最低生活保障制度是实施宪法有关规定的一个具体体现，属于有关保障民生的兜底性制度安排；对于没有劳动能力、没有生活来源的各类人员，包括曾受刑事处罚人员中具有此类情况的人员，应当属于城乡最低生活保障覆盖范围的人员；如果将涉罪有关人员排除在城乡最低生活保障范围之外，与宪法有关规定的原则和精神不符，也与国务院有关行政法规的原则和精神不符。经沟通，制定机关表示，该文件虽然在政府官网上，但实际上已废止。我们与有关方面督促制定机关对该文件作出妥善处理。

Some regulations [it is unclear if they were the State Council’s administrative regulations, regulations enacted by local people’s congresses, or both] provided that individuals who have been criminally punished may not engage in certain professions. A citizen requested review of such provisions, arguing that they had issues of constitutionality or legality. Upon review and research, we concluded: Restricting or prohibiting specific individuals from engaging in specific occupations must be truly necessary and limited to a certain scope. Prescribing employment restrictions or prohibitions by exceeding a certain level of necessity and reasonableness, or doing so in an overly broad or even arbitrary manner, would be inconsistent with the principles and spirit of the constitutional provision that “[c]itizens have the right and the obligation to work” [Art. 42, para. 1]. When setting employment restrictions or prohibitions for individuals who have been criminally punished, it is necessary to strictly follow the provisions, principles, and spirit of the Constitution and relevant laws and to undertake a comprehensive consideration of factors such as the severity of the crime, the nature of the offense, the degree of social harm, and the connection between the relevant restrictive or prohibitory measures and the criminal conduct, so that they are set in a fair and reasonable manner. We recommended that the enacting organs strengthen research and analysis on issues related to individuals involved in criminal cases, exercise caution in setting lifetime employment bans, and consider amending and improving the relevant provisions at the appropriate time.

有的法规规定，因犯罪受过刑事处罚人员不得从事某种职业。有公民对该规定提出审查建议，认为这类规定存在合宪性、合法性问题。我们经审查研究认为，对特定人员从事特定职业作出限制性或者禁止性规定，应当确有必要，限于特定范围内；超出一定必要性和合理性，过于宽泛甚至随意规定从业限制或者从业禁止，则不符合宪法关于“公民有劳动的权利和义务”规定的原则和精神；对曾因犯罪受过刑事处罚人员规定从业限制或者从业禁止，应当严格遵循宪法和有关法律的规定、原则和精神，综合考虑罪刑轻重、罪名种类、社会危害性大小、相关限禁措施与犯罪行为之间具有关联性等因素，公平合理进行设定。我们建议制定机关加强对涉罪人员相关问题研究论证，慎重设定终身禁业，适时考虑修改完善相关规定。

As a policy matter, it is hard to quibble with the LAC’s bottom-line conclusions that the most extreme collateral consequences must be rethought. It is also not surprising that it came to those conclusions, as China’s policymakers appear keenly aware of the governance implications of the rise in minor crimes. The Communist Party’s recent Third Plenum, for instance, vowed to “introduce a system to seal the records of minor offenses”—a reform that many scholars have advocated to blunt the impact of collateral consequences.9 Further, it is encouraging to see that the LAC continues to invoke the Constitution—and, in these cases, specific constitutional provisions—in conducting review. This might be attributable to the NPCSC’s explicit command to “accurately grasp and clarify the relevant provisions and spirits of the Constitution” to respond to societal concerns over constitutional issues.

That said, the LAC’s report is again susceptible to the criticism that it lacks adequate reasoning for its decisions. The two constitutional rights invoked by the two paragraphs above—the right to material assistance from the State and the right to work—are traditionally considered “social rights” that (unlike so-called “negative rights” such as the freedom of speech) largely depend on the State for their progressive realization. This character is evident given the text following the two provisions cited in the report: Article 42 goes on to task the State with “creating employment opportunities in various ways,” and Article 45 requires the State to “develop the social insurance, social relief, and medical and health services necessary for citizens to enjoy [the right to material assistance].” The LAC’s report shows, however, that it considers the two social rights to also entail dimensions that bar unjustified state interference. This is a plausible argument,10 but the LAC could have offered a bit more support for it.

Finally, note this was not the first time that the LAC addressed the propriety of employment restrictions on individuals with criminal records. In 2021, it reviewed local legislation that prohibited those who use certain closely regulated industries like locksmithing to commit crimes from ever reentering those industries. The LAC rejected such lifetime bans both for potentially conflicting with the durationally limited employment restrictions under the Criminal Law and for violating the general statutory principle that administrative punishments must be proportional to the violations.11 It is thus interesting that the LAC now sees such bans as presenting constitutional issues. Perhaps it has come to realize that its reasoning in that case cannot adequately constrain all employment restrictions, especially those included in national legislation.12 It is therefore worth watching whether and, if so, to what extent, the LAC’s latest decisions would have broader implications for the use of collateral consequences in China.

  1. Scholarly discussions of collateral consequences also include those imposed on the families of convicted individuals. See, e.g., 彭文华 [Peng Wenhua], 我国犯罪附随后果制度规范化研究 [Research on Standardizing China’s System of Collateral Consequences of Criminal Convictions], 法学研究 [Chinese J.L.], no. 5, 2022, at 171, 176. Last year, the LAC repudiated such collective punishment for violating unspecified constitutional principles. ↩︎
  2. Collateral consequences may also be prescribed by non-official documents such as industry rules or job postings. Because these documents are not reviewable through “recording and review,” they are outside the scope of this post. See id. at 173. ↩︎
  3. See id. ↩︎
  4. See id. at 175–76; see also 张翔 [Zhang Xiang], 犯罪附随后果的合宪性审查——从备案审查“禁止连坐” 意见切入 [Constitutional Review of the Collateral Consequences of Criminal Convictions: Starting from the Recording and Review Opinion on “Prohibiting Collective Punishment”], 中国刑事法杂志 [Crim. Sci.], no. 2, 2024, at 143, 146. ↩︎
  5. See Peng, supra note 1, at 173–74. ↩︎
  6. See 卢建平 [Lu Jianping], 为什么说我国已经进入轻罪时代 [Why China Has Entered the Era of Minor Crimes], 中国应用法学 [China Rev. Admin. Just.], no. 3, 2022, at 132, 138. ↩︎
  7. See id. at 134–35; 张庆立 [Zhang Qingli], 犯罪附随后果的规范重塑 [The Normative Reshaping of the Collateral Consequences of Criminal Convictions], 西南政法大学学报 [J. Sw. U. Pol. Sci. & L.], no. 3, 2024, at 115, 116. ↩︎
  8. See, e.g., 罗翔 [Luo Xiang], 犯罪附随性制裁制度的废除 [Abolishing the System of Collateral Consequences of Criminal Convictions], 政法论坛 [Trib. Pol. Sci. & L.], no. 5, 2023, at 24, 30. ↩︎
  9. See, e.g., Peng, supra note 1, at 184; Zhang, supra note 7, at 122–23. ↩︎
  10. See Zhang, supra note 4, at 147. ↩︎
  11. See 规范性文件备案审查案例选编（二） [Selected Cases of Recording and Reviewing Normative Documents (II)] 75–77 (张勇 [Zhang Yong] ed., 2024). ↩︎
  12. The Criminal Law article authorizing courts to impose employment restrictions also gives precedence to any other national statute or administrative regulation that restricts the employment opportunities of convicted individuals, even if the latter’s restriction is more severe (see art. 37-1, para. 3). ↩︎