CHINA Law and Practice Contributed by: Alan Zhou, Jacky Li, Weiwei Gu, Steven Zhu and Jenny Chen, Global Law Office
7.4 Discretion for Mitigation and Aggravation Discretion for Mitigation Article 67 of the Criminal Law generally encourages self-reporting of criminal activity by stipulating miti - gation, leniency or even exemption from the criminal penalties under voluntary confession circumstances. Similar principles and approaches may also be found in some other provisions prescribed in the Criminal Law. For example, Article 164 of the Criminal Law provides that any briber who confesses the bribery voluntarily prior to prosecution may be given a miti - gated punishment or be exempted from punishment. For administrative cases, Article 32 of the Administra - tive Penalty Law provides that any party who elimi - nates or reduces the harmful consequences of the illegal behaviour, was coerced or tricked by others to commit illegal acts, confesses the illegal behaviour voluntarily, or has performed meritorious service, may be given a lighter or mitigated penalty. Article 33 of the Administrative Penalty Law provides that a party may be exempted from penalty under any of the following circumstances: • the illegal act is minor, corrected in a timely man - ner, and causes no harmful consequences; • the party violates the law for the first time with minor harmful consequences and makes correc - tions in a timely manner; or • the party has sufficient evidence to prove that he or According to Article 65 of the Criminal Law, aggra - vated penalty shall be imposed within the limits of the statutory penalty under the circumstance of repeated misconduct. For administrative cases, Article 15 of the Guiding Opinions provides that any party who violates emer - gency response measures during the period of a major infectious disease epidemic or any other emergency shall be given an aggravated administrative penalty. An aggravated administrative penalty may be imposed under other circumstances, including causing seri - ous harmful consequences such as personal injury or death or major property loss of others, or instigat - she has no subjective fault. Discretion for Aggravation
2025, with the prosecution duty still being performed by the Procuratorate. It is worth noting that the criminal and administrative regimes are mutually exclusive for the same miscon - duct committed by a company. The regulatory frame - work for the conversion between administrative and criminal cases is established by the Regulations on the Transfer of Suspected Criminal Cases by Administra - tive Law Enforcement Agencies, released in July 2001 and revised in August 2020 by the State Council, and the Guidelines for the Reverse Conversion between Administrative Cases and Criminal Cases by People’s Procuratorates, released in December 2024, and other relevant regulations. According to these regulations, if the administrative agency suspects while investigat - ing an administrative case that the case should be prosecuted as a criminal case, based on the required elements, such as the amount involved and the con - duct patterns or the consequences, the case must be transferred to a PSB, and the PSB will examine the cases transferred. Likewise, if a PSB discovers that a case should not be criminally prosecuted but may potentially be subject to administrative liability, it shall transfer the case to the relevant administrative agency for further investigation and handling. 7.3 Jurisdictional Reach of Enforcement Bodies Investigation in criminal cases shall be conducted by the PSB, except for cases regarding crimes commit - ted by a public official, by taking advantage of his or her functions, which will be investigated by the Super - visory Commission according to the Criminal Law and the Supervision Law. With respect to administrative cases, the investiga - tion shall generally be conducted by the AMR at or above the county level. However, duty-related admin - istrative violations involving public officials shall also be investigated by the Supervisory Commission in accordance with the Supervision Law. Other industrial supervision authorities such as the National Financial Regulatory Administration hold the investigating pow - ers for specific industries that do not involve public officials. Unless the violation is escalated to criminal level upon investigation, it will not involve any further prosecution process.
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