Case Description

Zhang is an employee of a military industry group in China. In order to obtain illegal benefits, he used his work to provide confidential materials such as intelligence in the field of military research in China to a foreign spy organization and its agent M. After trial, the court held that Zhang had repeatedly accepted the tasks of spy organizations and their agents to collect and provide a large amount of intelligence information related to China's national secrets for the other party, endangering national security, and his behavior had constituted a crime of espionage. Zhang was sentenced to a term of imprisonment of 15 years and deprivation of political rights of five years.

Lawyer Analysis

In this article, we analyze the crime of espionage based on the case and relevant provisions of the Criminal Law:

What are spies, spy organizations, and spy agents?

A spy is a person who takes illegal or legal means, steals information through secret or public channels, and is dispatched or bribed to engage in spying on secrets, intelligence, or sabotage activities.

Espionage organizations refer to organizations established by foreign governments to plot against our national staff, infiltrate, steal, spy, bribe, illegally provide state secrets and intelligence to our national institutions and various organizations, and engage in subversive and destructive activities.

An agent of an espionage organization refers to a person who is instructed, entrusted, or funded by the espionage organization or its members to engage in or instigate or instruct others to engage in activities endangering China's national security.
What is espionage?

Article 38 of the Anti espionage Law lists four types of espionage activities and sets up a cover clause: (1) activities endangering the national security of the People's Republic of China that are carried out by espionage organizations and their agents or that are instigated or funded by others, or that are carried out by domestic and foreign institutions, organizations, or individuals in collusion with them; (2) Participating in espionage organizations or accepting tasks from espionage organizations and their agents; (3) The activities of stealing, spying, bribing, or illegally providing State secrets or intelligence, or instigating, inducing, or bribing State functionaries to mutiny, carried out by institutions, organizations, or individuals outside the territory of China other than espionage organizations and their agents, or instigating, abetting, or financing others to do so, or carried out by institutions, organizations, or individuals within the territory of China in collusion with them; (4) Instructing an enemy to attack a target. Article 110 of the Criminal Law only considers the acts of espionage that "participate in espionage organizations or accept the tasks of espionage organizations and their agents", and "instruct the enemy to bombard the target" as the objective constitutive requirements for determining the crime of espionage.
How to punish the crime of espionage?

Whoever commits the crime of espionage, if the circumstances are relatively minor, shall be sentenced to fixed-term imprisonment of not less than 3 years but not more than 10 years; Those who endanger national security shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment; "If the harm to the country and the people is particularly serious and the circumstances are particularly flagrant, the death penalty may be imposed.". "For foreigners who commit the crime of espionage, expulsion may be applied independently or additionally.".

In this case, if Zhang did not know the identity of the overseas organization and its agent, how would his behavior be determined?

The subjective aspect of the crime of espionage is intentional, that is, the perpetrator knowingly participates in and acts as a spy, knowingly accepts the task assigned by the spy organization and its agents, knowingly instructs the enemy to bombard the target, and engages in activities that endanger our national security. The perpetrator here can be either a Chinese citizen, a foreigner, or a stateless person. In this case, if Zhang does not know that the other party is an overseas espionage organization or its agent, but only knows that the other party is an overseas organization or foreigner, his behavior constitutes the crime of "stealing, spying, buying, or illegally providing state secrets or intelligence for overseas purposes." Considering the degree of harm caused by Zhang's behavior, he may face a penalty of more than ten years' imprisonment or life imprisonment.

The crime of espionage infringes on China's national security, which includes 16 aspects: politics, national territory, military affairs, economy, culture, society, science and technology, network, ecology, resources, nuclear, overseas interests, biology, space, polar regions, and the deep sea. It can be seen that national security involves various aspects of social life, and domestic organizations and individuals should: (1) strengthen the ability to identify espionage behaviors in the process of interacting with overseas organizations or individuals, and promptly report to the national security organ if any clues of espionage behaviors are discovered or learned; (2) Not being tempted by money or other interests to steal, spy on, or provide sensitive information involving state secrets or intelligence for overseas organizations or individuals; (3) Do not accept tasks assigned by any overseas organizations or individuals, such as taking photos of China's military bases, spying on China's scientific research data, collecting China's wildlife resources, exploring China's terrain, collecting information on China's nuclear power system, and collecting sensitive information in China's financial field.