An illegal brickyard owner forces a person to work. The victim says: “I have money. I can ask my family to pay you if you let me go.” If the owner accepts his proposal, he will be convicted of kidnapping - a crime liable to between ten years to life imprisonment. But if he refuses, and continues to enslave the victim, he will only be sentenced to at most three years.” ~ Yang Zhizhu, a law professor in China.
Although this is a hypothetical scenario, the serious flaw in the Chinese law pointed out by the law professor is very real. In early February, two brothers were sentenced to 18 months and 12 months (suspended for two years) imprisonment respectively for forced labour. They locked up 20 or more beggars and vagrants to force them to work. One elderly worker died and many others were injured.
According to Article 96 of the Labour Law, if an employing unit either compels a person to work by the use of force or threat, or engages in physical punishment, beating and insults, illegal searches or deprives workers of their liberty, the police have the power to mete out an administrative punishment of no more than 15 days, issue a fine or a warning.
Only if the case is considered to be very serious, offenders are brought to court. If the case is considered serious enough for criminal charges, offenders will be liable to a maximum of three years imprisonment. The Criminal Law states:
Persons of employing units who are directly responsible for forcing workers to labor by restricting their physical freedom in violation of labour management laws and regulations, and if the violation is serious, are liable to a maximum of three years imprisonment... (Article 244)Serious violations are understood as excessive physical labour, long hours without pay, threats, violence, humiliation, or other acts that cause physical and psychological damage. In some cases, offenders might be charged with additional crimes, such as inflicting injury with intent; however, they are still unlikely to be sentenced to more than two years imprisonment. In 2002, Article 244 was amended to increase the punishment to seven years’ imprisonment if the victims are children.
Comparatively, the punishment for false imprisonment is much more serious. According to the Criminal Law, a person convicted of false imprisonment is liable to three years imprisonment. And if it results in serious injury of the victim, the punishment will increase to a minimum of three years and a maximum of ten years imprisonment. If the victim dies, the punishment will increase to a minimum fixed-term sentence of ten years and the maximum of life imprisonment.
The existing punishment of forced labour cannot reflect the severe nature of the crime. In addition, the above laws state that the defendant should be an “employing unit”. In reality, forced labour usually occurs in illegal work places. After the Shanxi slave labour scandal broke in 2007, many people proposed to increase the punishment and to make individuals, as well as employing units, liable. Some delegates to the Chinese People's Political Consultative Conference proposed a crime of enslavement crime that is liable to life imprisonment. However, no changes have yet been made.