Investigation Forum (Volume 1)

Author: Zhao Yongchen
Publisher:
Publish Date: 2003-06-01
Features: Excerpt (II) Police Stings and Entrapment—Entrapment generally does not result in criminal liability
Under the civil law criminal theory, the actions of public officials in the lawful performance of their duties must meet certain conditions to serve as a legal justification for the avoidance of illegality. These conditions are: First, the actor must be a public official; second, the official act must have a certain legal basis, and it is generally believed that as long as it is formally legal, it can justify the avoidance of illegality, while substantive legality does not affect the avoidance of illegality; third, the official act cannot exceed the actor's scope of authority, and the abuse of power should be treated as an illegal act. The lawful performance of duties by public officials that meet the above conditions constitutes a legal justification for the avoidance of illegality.
A police sting is an act performed by the police or their agents in the lawful performance of their investigative duties to combat crime. Therefore, for the police and their agents, a police sting that meets certain conditions constitutes a legal justification for the avoidance of illegality, and thus the police and their agents are not held criminally liable. These conditions are: First, the actor must be a police officer or their agent; second, their official act must have a certain legal basis, meaning it must formally possess the authority to investigate crimes; third, the actions of the police or their agents cannot exceed their scope of authority, such as manufacturing a crime or participating in one.
In the United States, for police stings, the police and their agents are entirely exempt from criminal liability. In the United Kingdom, police stings are considered acts of obedience to orders. Acts of obedience rarely serve as a criminal defense, although some acts, such as those carried out to promote justice in accordance with the law, are legitimate, while others are illegal. Subordinates bear strict liability for any unlawful acts they commit in obedience to orders. Therefore, a soldier, sailor, or police officer who violates the law by infringing on someone else's rights cannot defend themselves by claiming that their actions were in accordance with the orders of their superiors, or even the King himself.
If a police sting meets all three of the following conditions, the police will not be held criminally liable: First, the perpetrator of the crime has not caused irreversible significant harm; second, the police have not actually participated in the criminal activity; third, the police sting has been approved in advance by the police chief. If these three conditions are not simultaneously met, the inducer of the police sting should at least be held liable for incitement.
Because, although the police or other judicial officials and their agents have the power to investigate crimes, they do not have general authorization to assist or incite crimes. China's criminal law does not stipulate the criminal liability of the police, other investigators, or their agents in police stings. Criminal theory and judicial practice have paid little attention to this issue.
In my opinion, social harm is the essential characteristic of crime. The fundamental standard for distinguishing between a criminal act and a non-criminal act is whether it has social harm. However, the real world is complex and diverse, and it often happens that an act, on the surface, appears to have social harm and meets the elements of a crime stipulated in the specific provisions of the criminal law, but in reality, due to special circumstances, it does not have social harm. Such acts are referred to as acts that exclude social harm in criminal theory, including acts of self-defense and acts of emergency avoidance.
China's criminal law only stipulates that acts of self-defense and acts of emergency avoidance are acts that exclude social harm and should be exempt from criminal liability. It does not stipulate acts such as victim consent, acts of obedience, or acts of legitimate business. Criminal theory and judicial practice generally consider these acts to be conditionally excluding social harm.
A police sting falls under acts of obedience. Therefore, the police, other investigators, or their agents, as long as they carry out orders that comply with legal procedures and cause harm to society, have no criminal intent and cannot be held criminally liable. In other words, for police stings that meet certain conditions, the police, other investigators, or their agents should be exempt from criminal liability. These conditions are the same as the conditions mentioned above regarding the United Kingdom, where the inducer of the police sting is not held criminally liable. Otherwise, the police, other investigators, or their agents should be held criminally liable based on the specific circumstances, either according to the provisions of the criminal law on incitement, or according to the theory of partial complicity and relevant criminal law provisions.