Abstract: In recent years, with the continuous growth of international exchanges, the influx of foreigners into China has led to a corresponding increase in the number of foreign-related criminal cases. Deportation, as a unique penalty measure applicable solely to foreign offenders, has long been under-utilized and thus relegated to a marginal position in the criminal justice system. In the current context of an escalating number of foreign-related crimes, the existing deportation legislation has become increasingly inadequate, failing to effectively meet the demands of maintaining social order and legal fairness. The current provisions of the Criminal Law contain only one short article on deportation, with four shortcomings: Firstly, the duration is unclear, which is not only against the principle of clarity of criminal law, but also different from the common practices of other countries and regions. This not only is inconsistent with other relevant norms within and outside the Criminal Law, but also makes it hard for the criminal judgment to reflect the severity of crimes of different criminals. Secondly, the scope of application is unclear, and there is a lack of clear provisions on which crimes deportation should or can be applied, which leads to inconsistent application conclusions in practice. Thirdly, the additional applicable deportation can not be commuted with the commutation of the main penalty, resulting in the disharmony of penalty allocation and even the situation that the additional penalty is heavier than the main penalty. Finally, China has acceded to several international conventions, such as the Convention Relating to the Status of Refugees and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which contain provisions that prohibit the application of deportation, but the current criminal law lacks provisions on this aspect, which is not in line with China’s obligations under international law, and also makes it impossible for the court to fully reason in the adjudication of related cases. In light of the ongoing efforts to promote domestic and foreign-related rule of law, as well as the re-codification of the criminal law, it is imperative to establish a special section on deportation within the criminal law and implement the following improvements: First, clarify the types and duration of deportation, and divide deportation into two categories: “regular deportation” and “lifelong deportation”, with the term of the former being set at 5 to 25 years, thus forming a step-by-step deportation sentence. Second, divide the application modes of deportation into two types: “shall be deported” and “may be deported”, and clarify the application scope of the two types. Third, establish an additional applicable system of simultaneous commutation of sentence between deportation and principal punishment. Fourth, incorporate provisions such as the principle of “non-refoulement” from international conventions into criminal law, and stipulate that foreigners with refugee status or awaiting refugee status determination, those who may face torture risks in deportation destination countries, and those married to Chinese citizens or with minor children in China shall not be deported. Exceptions are established for cases where such foreigners commit crimes seriously endangering China’s national security or social order, allowing deportation under those circumstances. The inclusion of exception clauses for the “non-refoulement” principle not only aligns with international conventions but also maintains consistency with relevant domestic legal provisions. However,  for those facing torture risks in deportation destinations, priority should be given to identifying safe third countries willing to accept them. 

Keywords: deportation; prison term; scope of application; commutation; the principle of “non-refoulement”

Author: LIU Renwen, research fellow, CASS Institute of Law; doctoral supervisor, Law School of the University of CASS;

Source: 3 (2025) Contemporary Law Review.