This note examines whether
non-Chinese national members of invading
enemy forces can be convicted of subversion
under the Mainland Law. |
The Mainland offence of Subversion |
| 2. |
The offence is provided under Article
105 of the Criminal Law of the PRC (see
Annex). The provisions of Article 105 do
not refer to the nationality of the offender.
|
3.
|
The issue of whether a non-Chinese national
can be prosecuted for the offence is subject
to Articles 6 and 8 of the Criminal Law.
Article 6 provides that "the Law
shall be applicable to anyone who commits
a crime within the territory and territorial
waters and space of the PRC". Under
Article 8, it is specified that "the
Law may be applicable to any foreigner
who commits a crime outside the territory
and territorial waters and space of the
PRC against the State of PRC or its citizens." Article
8 is however subject to the requirements
of minimum imprisonment term and dual criminality
of the relevant offence at the place of
occurrence.
|
| Prosecution of foreign nationals |
| 4. |
Regarding any allegation against a non-Chinese
national (who remains in China) for having
committed the offence of subversion, the
relevant Mainland prosecuting authority must
establish the crime, i.e. that he/she has
taken part to organize, plot or carry out
the scheme of subverting the State power
or overthrowing the socialist system or has
incited others to do so. The same standard
applies to an allegation against a non-Chinese
national who is outside Chinese territory. |
| 5. |
On the offence of subversion, Professor
Zhao Bingzhi (a Mainland expert in Criminal
Law) also holds the view that it may be committed
by foreign nationals. In a book which discusses
the Crimes of Endangering National Security
under the Criminal Law (Professor Zhao being
the chief editor), it is said that the subject
of the crime (the offender) can be Chinese
nationals, foreign nationals or stateless
persons.1 |
| Invading enemy |
| 6. |
The issue of invading enemy forces has
not been referred to, nor does it seem to
have any bearing on the offence of subversion
or other national security offences, under
the Criminal Law of the PRC. In the prosecution
of an offence under Article 105, one would
assume that the same elements of the crime
would continue to apply, irrespective of
whether the offender is a non-Chinese national
of invading enemy forces or otherwise. However,
if there is an invasion of China, it is possible
that the non-Chinese nationals of the invading
enemy involved in subverting the State power
may be charged with war crimes. |
| 7. |
The Geneva Convention Relative to the Treatment
of Prisoners of War applies to the PRC and,
under the Mainland system, domestic legislation
is not needed to give effect to an international
treaty. |
| 1 《危害國家安全罪》總主編 趙秉志，中國人民公安大學出版社（1999）
p.195 |
