Can an Old Case Still Be Prosecuted? How China's Criminal Limitation Period Is Calculated

Many clients assume that time alone erases a case. The limitation period can indeed bar prosecution, but its starting points and statutory exceptions often defy intuition. A practical walk through Articles 87 to 89 of China's Criminal Law.

In consultations, one question comes up again and again: this happened seven or eight years ago — can they still prosecute? The hope behind the question is understandable, but the answer cannot rest on intuition. The criminal limitation period is a rule with a clear statutory basis, and it is also a procedural defence that can be put in writing and that the authorities must address. It is neither a clock that switches the case off automatically, nor a permanent licence created by the mere opening of a file.

1. Four tiers: what matters is the statutory maximum, not the sentence actually imposed

Article 87 of the Criminal Law sets four tiers. Where the statutory maximum penalty is fixed-term imprisonment of less than five years, the period is five years. Where it is five years or more but less than ten, the period is ten years. Where it is ten years or more, the period is fifteen years. Where the statutory maximum is life imprisonment or death, the period is twenty years — and prosecution after twenty years requires approval from the Supreme People's Procuratorate.

The most common error lies in reading "statutory maximum" as the maximum for the offence as a whole. It is the maximum of the sentencing bracket into which the conduct actually falls. If an offence has three brackets and the conduct falls only into the first (up to three years), the limitation period is five years — it does not stretch to twenty because the offence as a whole carries a possible life sentence. Conversely, if the conduct falls into a higher bracket, the period rises accordingly. The first question is therefore not "what offence is this?" but "within which sentencing bracket should this conduct be assessed?"

2. Where the clock starts: the day of the offence, the day it ended, or the day of the next offence

Article 89 supplies the starting rules. The period runs from the day the offence was committed. Where the conduct is continuous or ongoing, it runs from the day the conduct ended. Where the person commits another offence within the limitation period, the period for the earlier offence starts afresh from the day the later offence was committed.

Each starting point carries practical weight. "The day the offence was committed" generally means the day the offence was complete; for result-based offences, it is usually the day the result occurred. "Continuous or ongoing conduct" appears in repeated offending, prolonged unlawful detention and sustained misappropriation, and investigators will take the last act as the starting point — often extending the prosecutable window considerably. The "further offence" clause is blunter still: even an unrelated later offence, committed within the earlier period, restarts the clock for the earlier offence entirely. A minor infringement dealt with during the period can therefore revive an old case.

3. Two exceptions that remove the time limit altogether

Article 88 creates two exceptions. First, once a case has been opened for investigation by a procuratorate, public security organ or state security organ, or accepted by a court, a person who evades investigation or trial is not subject to any time limit. Second, where a victim files a complaint within the limitation period and the court, procuratorate or public security organ ought to have opened a case but did not, no time limit applies.

The first exception turns on the word "evade", which requires evidence: disappearing after release on bail, hiding one's identity while knowing a wanted notice is out, fleeing under a false identity, and the like. Where a case has simply sat idle while the person lived openly in his home town, "evading investigation" should not normally be found. The second exception exists to prevent a victim's lawful complaint from being defeated by official inaction, and in practice it requires examination of when and what was complained of, and what written response the authorities gave. These two exceptions are usually where such cases are actually fought.

4. The consequence: not "innocence", but no further criminal liability

Article 16 of the Criminal Procedure Law provides that where the limitation period has expired, criminal liability is not pursued; where proceedings have already begun, the case shall be withdrawn, not prosecuted, terminated, or the defendant declared innocent. The remedy therefore differs by stage: withdrawal during investigation, a non-prosecution decision at the review stage, and termination or an acquittal at trial. The limitation period is a matter the authorities and the court must examine on their own motion; it is not lost merely because the accused did not raise it.

Two clarifications are needed. First, expiry of the limitation period does not mean the event never happened; the victim may still pursue a separate civil claim, and civil limitation rules are a different regime that cannot be conflated with the criminal one. Second, the prosecution limitation period is not a limitation on punishment: Chinese criminal law has no rule under which a final sentence lapses with the passage of time, and sentence reduction and parole are governed separately.

5. Practical steps families and clients can take first

First, build a timeline. Set out exact dates for when the conduct occurred, when it ended, the last act, when the complaint was filed or the case opened, when coercive measures were applied, and whether the person ever absconded or went missing — and support each date with documents where possible. Such defences usually turn on a handful of specific dates. Second, identify the stage and the matching remedy. Expiry leads to withdrawal, non-prosecution or termination depending on the stage, and the addressee, the request and the legal basis all differ; match the application to the stage. Third, do not substitute delay for legal argument. The limitation period is a question of law, not of waiting. If there was genuine flight, use of another person's identity, or a wanted notice, the basis for the defence may already be gone; if the file has simply been left dormant, raise the objection in writing early, ask for a written response, and preserve a record for any review or appeal.

6. Closing

The limitation period exists to let social relations settle within a reasonable time, and to press the authorities to exercise their power of prosecution promptly. For an accused person it is a right that can be asserted, but whether it holds depends on the nature of the conduct, the sentencing bracket, the starting point and the presence of any statutory exception — each to be checked item by item rather than estimated as a whole. Cases vary widely; this article is general information and not legal advice on any particular matter. If a real case is involved, bring the documents and speak with a lawyer in person.

※ This article is general legal information, not legal advice on any specific matter. For your individual case, please consult a lawyer.