June 2024

Volume 1, Number 1

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Being Evil as a Crime: The Evil Force Offence in Chinese Criminal Justice

by Grace (Yu) Mou

SOAS, University of London

 

Since China’s launch of the three-year campaign to ‘Sweep Away Black Societies and Eradicate Evil Forces’ (hereinafter Sweep Away Campaign) in 2018, the offence of being an evil force (e’shili 恶势力) has been frequently applied in criminal justice practices to criminalize groups engaged in targeted mischiefs by the Party State. As a newly coined legal terminology introduced by the Sweep Away Campaign, the evil force crime is certainly not without controversy. Much has been discussed in my co-authored article on this most recent nation-wide criminal justice campaign (Yin & Mou, 2023). Yet further insights can be gained by considering the legal and political discourse pertaining to this peculiar, categorical offence. To this end, this essay explores the ambiguous and problematic concept of evil forces and the binary political-moral ideology that underpins the official narratives.

The evil force crime as a enacted new offence was jointly decreed by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and the Ministry of Justice in The Notice Concerning Several Questions on Handling Evil Force Criminal Cases (hereinafter the Judicial Notice) (2019), which refers an evil force as ‘frequently assembled criminal organizations that are yet to be developed into Mafia-style gangs and carry out multiple criminal activities within a certain region or a certain industry through lording it over the people, perpetrating outrages, riding roughshod over people, disrupting economic order and people’s daily activities’. As specified by this official definition, the evil forces to be cracked down have an affinity with the Mafia-style gang crime, which is a well-established concept in Chinese criminal law. According to Article 294 of Criminal Law 1997, whoever forms, leads or takes an active part in organizing criminal syndicate to commit organized illegal or criminal acts through violence, threat or other means shall be prosecuted for a black society gang crime. As per the Judicial Notice, the evil force crime is an inchoate status of the organized Mafia-style gang crime stipulated in Article 294. However, to what degree that the formation and collective activities of the evil force group that are deemed to be close to the Mafia-style gang crime and can therefore be justified to be criminalized is unclear. The notion of the evil force crime is vague and difficult to apply in practice. Since the criminal liability associated with being an evil force is backward-looking, its implementation has been highly problematic and can be arbitrary in nature.

To begin with, the evil force contemplated in the Judicial Notice is a loosely defined alliance that has no structure of its own. This means that any group based on familial, work, social relationships can potentially be caught within the scope provided the conditions satisfied. To bring some clarity to the formless association, The Judicial Notice explains that (a) the evil force in question should consist of at least three people and (b) at least two of the members engaged in unlawful activities three times or more and at least one of these activities was criminal within two years. Outlier members do not count as an evil force if they knew or ought to have known the purpose of the assembly but were exonerated for legal reasons, already received criminal punishment or administrative penalties, or participated in unlawful activities on an ad hoc basis or under duress. People who gathered together for a short period of time, with their activities just reaching the three-time threshold and their impacts being relatively minor, should not be labelled as an evil force. It appears that the qualified evil force is a relatively stable group, with its members having participated sufficiently in the crimes or engaging in unlawful activities. The approach adopted by the Judicial Notice to respond to group criminality in the campaign is thus to make all the individuals involved liable for a new type of crime – the evil force crime, which attaches a stigma and effects a sentencing consequence, but is not a substantive offence that can be independently charged.

Being recognized as a new crime, being an evil force, according to the traditional Chinese criminal law theory, should consist of four elements, namely a) the object of a crime (fanzui keti犯罪客体), b) the objective side of a crime (fanzui keguan fangmian犯罪客观方面), c) the subject of a crime (fanzui zhuti犯罪主体) and d) subjective side of a crime (fanzui zhuguan fangmian犯罪主观方面). Upon examination of the components of the evil force crime as stipulated in the Judicial Notice, it seems that the subjective aspects of the offence are absence. My review of 368 criminal judgments concerning evil and black force crimes between 2018 and 2020 also confirms that the subjective elements, or the mens reas, are not investigated or adjudicated in judicial practices. This leads to the conclusion that the evil force crime is categorized as strict liability, requiring no consideration of mens rea. This interesting revelation pokes an irony of the crime itself: if being an evil force has nothing to do with the mind, what does ‘being evil’ actually mean in this context? Why and how can the law regulate or deter actions without measuring the blameworthiness?

When used in a legal context, the word ‘evil’ or ‘e (恶)’ is undisputedly imbued with moral censure derivative of the malicious mind. In Western literature, Nietzsche, for example, argues that evil arose from the negative emotions of envy, hatred, and resentment (Nietzsche, 2013). Garrard and McNaughton also suggest that the notion of evil captures a distinct part of our moral phenomenology, specifically, “collect[ing] together those wrongful actions to which we have … a response of moral horror” (Garrard & McNaughton, 2012). In imperial China, ancient penal law contains canons of moral behavior, which was intertwined with Confucian morality. Hence, ‘the Ten Abominations (or the Ten Counts of Evilness)’ (shi’e十恶) were made up of the ten cardinal felonies from the T’ang to the Ch’ing dynasty, which numerated the most detested conduct in Confucian thought ranging from disloyalty to the emperor to failure to observe the mourning rites on the death of a parent.

Returning back to the concept of evil force crime, evil forces are condemned because its members have ‘lorded it over the people, perpetrated outrages, rode roughshod over people, disrupted economic order and people’s daily activities’. This ‘the people vs the enemy’ dichotomy is certain nothing new to the campaign. In fact, the mass political movements led by the Party-state post 1949 have invariably used the narratives. The strike-hard campaigns, for example, have emphasized that those who were cracked down were enemies of socialist economic construction who endanger public security (Trevaskes, 2007). By the same token, charging with evil forces is not a matter of moral agents. Rather, those are targeted because they have been identified as enemies who ‘disrupted economic order and people’s daily activities’. I have noted elsewhere that ‘the people’ is fluid notion and its ambit is constantly adjusted, contingent on specific political circumstances (Mou, 2022). It is the same official discourse here: those who determine the boundary between the ‘the people’ and ‘the enemy’ indeed have a prerogative authority to determine the law and the lives implicated.

 

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