Wednesday, March 29, 2017

Court Cites GFW Circumvention Software in Convicting Man for Three Tweets That Incited Ethnic Hatred

According to a judgment issued by the Xinjiang Uighur Autonomous Region Kuitun Municipal People's Court in March 2016 (translated below) Tian Weiguo was sentenced to three years imprisonment for three posts he made on Google Plus and Twitter that "incited ethnic hatred." In its judgment the court specifically noted that Tian had used software to circumvent China's Great Firewall in order to make his posts on overseas websites.

The issues that Tian was posting about related to an outbreak of violence in Xinjiang in 2014 that was reported by Chinese state run media outlet the Global Times in an article entitled "Xinjiang Vows Unceasing Terror Crackdown." Some excerpts:
Xinjiang authorities revealed details of the Shache county terror attack on July 28 in a Saturday meeting chaired by its Party chief, putting the death toll at 96 and calling for a resolute crackdown to eradicate terrorists believed to be linked to overseas masterminds. 
In one of the largest attacks since the July 5 riot in 2009, extremists in Shache, Northwest China's Xinjiang Uyghur Autonomous Region attacked civilians, police stations and government offices on July 28, authorities announced.  
According to news portal ts.cn, a website administered by the Xinjiang government, police gunned down 59 terrorists and arrested 215 others in the attack on July 28 in Shache, Kashi prefecture. 
The original decision is available on the court's website here: http://wenshu.court.gov.cn/content/content?DocID=287fbd99-4a9e-46cd-ba86-543de7b374a3

Tian Weiguo Inciting Ethnic Hatred First Instance Criminal Judgment Document

Xinjiang Uighur Autonomous Region Kuitun Municipal People's Court

Criminal Judgment Document

(2016) 4003 Criminal First Instance No. 5

Public Prosecutorial Agency Kuitun Municipal People's Procuratorate.

Defendant Tian Weiguo.

In the Kuitun Public Criminal Prosecution Indictment Document No. 5[2016] the Kuitun Municipal People's Procuratorate charged the defendant Tian Weiguo with the crime of inciting ethnic hatred, and filed an indictment with this court on January 7, 2016. after accepting the case this court convened a collegiate panel, and held a hearing in open court. The Kuitun Municipal People's Procuratorate appointed Procurator Zhao Xiaobin and Procurator Li Yuzhen to appear in court in support of the indictment, and the defendant Tian Weiguo appeared in court and participated in the procedures. Hearings in this case have concluded.

The Kuitun Municipal People's Procuratorate charged:

On August 3, 2014, defendant Tian Weiguo used wall climbing software to register on the overseas website "Google," and reposted false information with the content "Xinjiang Shache Uighurs have been massacred." Afterwards, defendant Tian Weiguo once again reposted this false information on "Twitter," and at the same time also reposted two other items of information. The first was "The Shache massacre has been tweeted about for so long, the time has come for someone to call for the United Nations to send an investigation team." The second was "From what I understand of Xinjiang, there may be discrepancies: A leader of a mosque was killed because he cozied up to the Communists and helped the Chinese Communists, but hat was not the reason he was killed. Some women in Shache County went to the mosque during Id to recite scripture, and the local police / soldiers open fire and killed some of them, and when their families went to other villages to seek assistance, the Chinese Communists went crazy putting them down, massacring 4-5,000 people in four villages."

The foregoing information was reposted and collected by a large number of people.

The arraignment decision document and the false information reposted by Tian Weiguo on overseas websites (website screenshots) produced by the public prosecutorial agency, as well as the statements and defenses offered by Tian Weiguo, as well as electronic evidence forensics report produced by the Yili Prefecture Public Security Bureau and other relevant evidence proves the foregoing, and based on this the public prosecutorial agency believes that defendant Tian Weiguo's actions constitute the crime of inciting ethnic hatred, and request punishment be imposed in accordance with the law, and recommend that defendant Tian Weiguo be sentenced to no more than three years imprisonment.

Tian Weiguo objects to all of the facts and the crime charged by the public prosecutorial agency that he incited ethnic hatred. His defense is that after he saw the posts he was shocked and curious, and that he reposted them in order to confirm their veracity. He believes this does not constitute the crime of inciting ethnic hatred.

An investigation has shown that the defendant Tian Weiguo used wall climbing software on several occasions to access overseas websites, and used his Google account and Twitter account to distribute false information with content that incited ethnic hatred. On August 3, 2014, he used his Google account to publicly share a post with this content: "Xinjiang Shache Uighurs have been massacred." From August 1 to August 3, 2014, he used his Twitter account to subsequently reshare three tweets with the following content:
  • "Xinjiang Shache Uighurs have been massacred."
  • "The Shache massacre has been tweeted about for so long, the time has come for someone to call for the United Nations to send an investigation team." 
  • "From what I understand of Xinjiang, there may be discrepancies: 1. A leader of a mosque was killed because he cozied up to the Communists and helped the Chinese Communists, but hat was not the reason he was killed. 2. Some women in Shache County went to the mosque during Id to recite scripture, and the local police / soldiers open fire and killed some of them, and when their families went to other villages to seek assistance, the Chinese Communists went crazy putting them down, massacring 4-5,000 people in four villages." 
It was also determined that defendant Tian Weiguo’s Google account had 32 followers, and his Twitter account had 98 followers.

The foregoing facts were subject to examination and cross examination in court and verified by the public prosecutorial agency based mainly on the following evidence:

1. The arraignment decision document proving that on July 22, 2015 the Kuitun Public Security Bureau filed charges against Tian Weiguo for the crime of inciting ethnic hatred.

2. The electronic evidence forensics collected by the Yili Public Security Bureau's Network Security Defense Force, including website screenshots of the false information reposted by defendant Tian Weiguo on overseas websites, proving that the defendant used his Google account and Twitter account to spread false information that incited ethnic hatred.

3. The statements and defenses of defendant Tian Weiguo, proving the defendant Tian Weiguo confessed to the investigating agencies to the fact that he reposted false information on overseas websites that included content that incited ethnic hatred.

4. Expert Opinion: The electronic evidence forensics report produced by the Yili Prefectural Public Security Bureau proves that there were many copies of wall climbing software on his desktop computer, and tests showed a record of it being used to access overseas websites.

The foregoing evidence was verified and cross-examined in court, and the procedures and provenance was lawful, the content was connected to the facts in this case, and each piece of evidence was able to confirm the other. They provided effective proof, and are accepted by this court.

This court finds that on several occasions defendant Tian Weiguo used overseas websites to spread false information with content that incited racial hatred, sowed discord between the races, and damaged ethnic unity. His actions constitute the crime of inciting ethnic hatred.

The facts are clear and the evidence is definitive with respect to the Kuitun People's Procuratorate's charging defendant Tian Weiguo with the crime of inciting ethnic hatred. The accusation stands, and is upheld by this court.

Defendant Tian Weiguo offered the defense that he only reposted them in order to garner evidence, but this court cross-examined in court the facts of the content of his reposts and that it was viewed by others, and gives these facts credence. Therefore the defense offered by defendant Tian Weiguo does not comport with the facts in this case, and it is not accepted by this court.

In order to strike out at crime, maintain ethnic unity, and ensure that citizens' democratic rights are not infringed, in accordance with the provisions of Article 249 and Article 61 of the Criminal Law of the People's Republic of China, this court finds as follows:

Defendant Tian Weibo committed the crime of inciting ethnic hatred, and is sentence to three years imprisonment.

(The sentence is to be calculated from the date of execution of this judgment, with the sentence to be reduced by one day for each day that he was in custody prior to the execution of this judgment. Therefore it shall run from July 22, 2015 to July 21, 2018.)

If he does not agree with this judgment he may appeal to this court or directly to the Xinjiang Uighur Autonomous Region Higher People's Court, Yili Hasake Autonomous Prefecture Subdivision within 10 days after the day after receiving this judgment. Written appeals should be submitted with one original and two copies.

Presiding Judge Wang Hongying
Judge Yang Li
Acting Judge Gao Gaiyao

March 24, 2016

Clerk Xu Zhenling

田卫国煽动民族仇恨罪一审刑事判决书

新疆维吾尔自治区奎屯市人民法院

刑 事 判 决 书

(2016)新4003刑初5号

公诉机关奎屯市人民检察院。

被告人田卫国。

奎屯市人民检察院以奎检公诉刑诉[2016]5号起诉书指控被告人田卫国犯煽动民族仇恨罪,于2016年1月7日向本院提起公诉。本院受理后,依法组成合议庭,公开开庭进行了审理,奎屯市人民检察院指派检察员赵晓斌、检察员黎玉珍出庭支持公诉,被告人田卫国到庭参加诉讼。本案现已审理终结。

奎屯市人民检察院指控:

2014年8月3日,被告人田卫国通过翻墙软件登陆境外网站“谷歌网”,转发内容为“新疆莎车维族人遭到大屠杀”的虚假消息,此后,被告人田卫国又将该虚假信息在“推特网”上转发,同时又转发两条信息,第一条内容为“莎车屠杀事件纷纷扬扬这么久,应该是呼吁联合国派出调查团的时候了”;第二条内容为“关于新疆我了解到的,可能会有出入:一寺院领袖被杀,因为他亲共积极帮助中共,但这不是被杀的理由;莎车县一些女性在开斋节到寺庙诵经,当地警察/士兵开枪射杀,家属到其他村庄寻求帮助,中共疯狂镇压,屠杀4个村庄约4-5000人”。以上信息被多人转发和收藏。

公诉机关出示了立案决定书、田卫国在境外网站转发的虚假信息(网站截图);被告人田卫国的供述与辩解;伊犁州公安局出具的电子证物勘验报告等相关证据予以证实,并据此认为被告人田卫国的行为已构成煽动民族仇恨罪,提请依法判处,建议对被告人田卫国判处三年以下有期徒刑。

被告人田卫国对公诉机关指控其犯煽动民族仇恨罪的事实及罪名均有异议。辩称其是看到相关的帖子后很震惊、好奇,为求证是否属实而转发,认为不构成煽动民族仇恨罪。

经审理查明,被告人田卫国通过翻墙软件多次登陆境外网站,并利用其持有的谷歌帐号、推特帐号散布具有煽动民族仇恨内容的虚假消息。2014年8月3日利用其谷歌帐号公开分享了内容为“新疆莎车维吾尔人遭到大屠杀”的贴文。2014年8月1日至3日利用其推特帐号先后转推了三篇推文,内容分别为:“新疆莎车维吾尔人遭到大屠杀”、“莎车屠杀事件纷纷扬扬这么久,应该是公开呼吁联合国派出调查团的时候了”、“关于新疆我了解到的,可能会有出入。1、一寺院领袖被杀,因为他亲共积极帮助中共,但这不是被杀的理由,2、莎车县一些女性在开斋节到寺庙诵经,当地警察/士兵开枪射杀,家属到其他村庄寻求帮助,中共疯狂镇压,屠杀4个村庄死亡约4-5000人”。另查明被告人田卫国持有的谷歌帐号关注者有32人,其持有的推特帐号关注者有98人。

上述事实有公诉机关当庭举证、质证的以下主要证据证实:

1.立案决定书,证实奎屯市公安局于2015年7月22日以煽动民族仇恨罪对田卫国立案侦查。

2、伊犁州公安局网络安全保卫支队通过电子证物勘验提取到的,被告人田卫国在境外网站转发虚假信息的网站截图,证实被告人利用谷歌帐号、推特帐号散布具有煽动民族仇恨内容的虚假信息。

3、被告人田卫国的供述与辩解,证实被告人田卫国在侦查机关如实供述了其在境外网站转发带有煽动民族仇恨内容的虚假信息的事实。

4、鉴定意见:伊犁州公安局出具的电子证物勘验报告,证实在田卫国的台式电脑中存有多个翻墙软件,并勘验出登陆境外网站的记录。

以上证据经当庭举证、质证,程序和来源合法,内容与本案事实相关联,各证据之间能够相互印证,具有证明效力,本院予以采信。

本院认为,被告人田卫国通过境外网站多次散布具有煽动民族仇恨内容的虚假信息,挑拨民族关系,破坏民族团结,其行为已构成煽动民族仇恨罪。奎屯市人民检察院指控被告人犯煽动民族仇恨罪的事实清楚,证据确实,罪名成立,本院予以支持。被告人田卫国辩解其只是为了求证而转发,但庭审质证中对其转发的内容和被关注的事实均认可,故被告人田卫国的辩解与本案事实不符,本院不予采信。为打击刑事犯罪,依法维护民族团结,保护公民民主权利不受侵犯,依照《中华人民共和国刑法》第二百四十九条、第六十一条之规定,判决如下:

被告人田卫国犯煽动民族仇恨罪,判处有期徒刑三年。

(刑期从判决执行之日起计算;判决执行以前先行羁押的,羁押一日折抵刑期一日,即自2015年7月22日起至2018年7月21日止。)

如不服本判决,可在接到判决书第二日起十日内,通过本院或直接向新疆维吾尔自治区高级人民法院伊犁哈萨克自治州分院提出上诉。书面上诉的,应当提交上诉状正本一份,副本两份。

审 判 长  王洪英
审 判 员  杨 力
代理审判员  高改桃

二〇一六年三月二十四日
书 记 员  徐珍玲

Monday, February 27, 2017

Woman Sentenced to 18 Months Imprisonment for Tencent QQ Posts That Insulted Leaders and Policies

According to a judgment issued by the Jinzhou People's Court in December 2016 (translated below) a defendant, identified only as "Ms. Li," was sentenced to 18 months imprisonment for posting information Tencent's QQ service that "spread rumors, stirred up trouble, confused public opinion, seduced the public, triggered severe chaos in public order, and exhibited a certain social perniciousness." Ms. Li was convicted of disturbing the peace (寻衅滋事 - often literally translated as "picking quarrels and provoking troubles"). The court did not specify what Ms. Li posted or how it created "severe chaos." The court did say that it included images and text that "insulted and vilified foreign and domestic heads of state, national leaders, and national religious policies as well as false information about major domestic incidents."

The original decision is available on the court's website here: http://wenshu.court.gov.cn/content/content?DocID=1ccfa0b5-befa-40e4-8491-79e0e3bad61c

Ms. Li Committed the Crime of Disturbing the Peace
Judgment in the Court of First Instance

Jinzhou Municipal People's Court
Hebei Province

Criminal Judgment
(2016) Jin 0183 Criminal First Instance No. 251

Public Prosecutorial Agency Jinzhou Municipal People's Procuratorate.
Defendant Ms. Li, female, Han, civilian, middle school education. Subject to criminal detention on October 20, 2016 by the Jinzhou Municipal Public Security Bureau on suspicion of committing the crime of disturbing the peace. Arrested on November 2 of the same year. Currently being held in the Shijiazhuang No. 2 Detention Center.

In the Public Prosecution Indictment Document No. 201[2016] the Jinzhou Municipal People's Procuratorate charged the defendant Ms. Li with the crime of disturbing the peace, and filed an indictment with this court on December 7, 2016. This court conducted a single adjudication using expedited procedures and held a hearing in open court. The  Jinzhou Municipal People's Procuratorate assigned Procurator Zhang Wenhao to appear in court in support of the indictment, and the defendant Ms. Li appeared in court to participate in the trial. Hearings have now concluded.

Based on hearings it has been determined that since 2015 the defendant Ms. Li used her own QQ numbers 158***7886 (nicknamed "The Buddha is Indeterminate"), 302***9936 (nicknamed "Endure Humiliation and Return to Emptiness") and 330***5569 (nicknamed "Illusive Dreams") to join dozens of "Zhennan QQ Groups," and repost images and articles about "Zhennan." In 2016 Ms. used the QQ number 158***7886 to launch a "Zhennan QQ Group" and used QQ's friend search functionality to add over 100 people into the group, and reposted images and articles regarding "Zhennan" with the intent of letting more people get to know Buddhist doctrine. Ms. Li then proceeded to repost text images to her QQ Space with content that insulted and vilified foreign and domestic heads of state, national leaders, and national religious policies as well as false information about major domestic incidents, thereby confusing public opinion and allowing Internet users to browse, like, and comment.

Ms. Li did not refute the foregoing facts in court, and supplementary evidence offered as proof included the Jinzhou Municipal Public Security Bureau's case records and decision to filed charges, the defendant's cell phone used in the case which was confiscated by the Jinzhou Municipal Public Security Bureau, three CD-ROMs tracking the progress of the case, and three images of portions of a QQ Space produced by the Jinzhou Municipal Public Security Bureau's Public Information Network Security Supervision Task Force. The foregoing evidence was subject to cross-examination and determined to be acceptable.

This court finds that that Ms. clearly knew that the images and articles reposted in the "Zhennan QQ Group" had content that insulted and vilified foreign and domestic heads of state, national leaders, and national religious policies as well as false information about major domestic incidents, and nevertheless reposted them to her own QQ Space. Internet users browsed, liked, and commented on them, spread rumors, stirred up trouble, confused public opinion, seduced the public, triggered severe chaos in public order, and exhibited a certain social perniciousness. Her behavior constitutes the crime of disturbing the peace, and should be punished.

The public prosecutorial agencies charge that the defendant Ms. Li committed the crime of disturbing the peace is amply supported by clear facts and reliable evidence, and the crime she has been accused of is affirmed.

In court The defendant Ms. Li demonstrated a fairly good attitude in acknowledging her crime, and taking this into consideration her punishment may be reduced.

On the basis of Article 293 of the Criminal Law and the Article 5 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate Regarding Certain Questions About Applicable Law When Dealing With Criminal Cases Whereby Information Networks are Utilized to Commit Defamation and Other Crimes" it is hereby held:

1. The defendant Ms. Li committed the crime of disturbing the peace, and is sentenced to 1 year and six months imprisonment. The sentence is to be calculated from the date of execution of this judgment, with the sentence to be reduced by one day for each day that she was in custody prior to the execution of this judgment. Therefore it shall run from October 20, 2016 to April 18, 2018.

2. The Vivo cell phone used in this case is confiscated and turned over to the state treasury.

If she does not agree with this judgment she may appeal to this court or directly to the Shijiazhuang Municipal Intermediate People's Court within 10 after the day after receiving this judgment. Written appeals should be submitted with one original and three copies.

Judicial Officer Li Shuangli

December 23, 2016

Clerk Shi Yaqian


李某犯寻衅滋事罪一审刑事判决书

河北省晋州市人民法院
刑 事 判 决 书
(2016)冀0183刑初251号

公诉机关晋州市人民检察院。
被告人被告人李某,女,汉族,群众,初中文化。2016年10月20日因涉嫌寻衅滋事罪被晋州市公安局刑事拘留,同年11月2日被依法逮捕。现羁押于石家庄市第二看守所。

晋州市人民检察院以晋检公诉刑诉[2016]201号起诉书指控被告人李某犯寻衅滋事罪,于2016年12月7日向本院提起公诉。本院依法适用简易程序,实行独任审判,公开开庭进行了审理。晋州市人民检察院指派检察员张文浩出庭支持公诉,被告人李某到庭参加诉讼。现已审理终结。

经审理查明,2015年以来,被告人李某将自己的QQ号158***7886(昵称:佛不是定)、302***9936(昵称:忍辱归空)、330***5569(昵称:梦幻泡影)分别加入几十个”真南QQ群”,转发有关”真南”的图片和文章。2016年被告人李某用QQ号158***7886开通了”真南QQ群”的群,并通过QQ好友搜索功能添加好友约100多人并拉入群内,在群内转发关于”真南”的图片和文章意图让更多人认识到佛法。李某将含有辱骂、诋毁国内外国家元首、国家领导人、国家宗教政策等内容的文字图片及涉及国内重大事件虚假信息转发到自己的QQ空间,混淆视听,供网友浏览、点赞及评论。

上述事实,被告人李某在庭审中亦无异议,且有晋州市公安局受案登记表、立案决定书,晋州市公安局扣押的被告人作案用的手机,随案移交的光盘三张,晋州市公安局公共信息网路安全监察大队出具的三个QQ号空间的部分图片等证据在案佐证,以上证据,相互印证,足以认定。

本院认为,被告人李某明知”真南QQ群”里转发的图片和文章含有辱骂、诋毁国内外国家元首元首、国家领导人、国家宗教政策和国内重大事件的虚假信息的内容,还转发到自己的QQ空间,并有网友浏览、点赞及评论,散布谣言,起哄闹事,混淆视听,蛊惑群众,引发公共秩序严重混乱,具有相当的社会危害性,其行为已构成寻衅滋事罪,应予惩处。公诉机关指控被告人李某犯寻衅滋事罪的事实清楚,证据确实、充分,指控罪名成立。庭审中,被告人李某认罪态度较好,可酌情从轻处罚。根据本案的犯罪事实,犯罪性质、情节以及对于社会的危害性,依照《中华人民共和国刑法》第二百九十三条、《最高人民法院最高人民检察院关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释》第五条之规定,判决如下:

一、被告人李某犯寻衅滋事罪,判处有期徒刑一年零六个月。
(刑期从判决执行之日起计算。判决执行前先行羁押的,羁押一日折抵刑期一日。即自2016年10月20日至2018年4月19日止。)

二、作案工具vivo手机一部予以没收,上缴国库。

如不服本判决,可在接到判决书的第二日起十日内通过本院或直接向河北省石家庄市中级人民法院提出上诉。书面上诉的,应提交上诉状正本一份,副本三份。

审判员  李双利

二〇一六年十二月二十三日

书记员  师亚倩

Thursday, February 23, 2017

Man Sentenced to Six Months Imprisonment for Tencent Wechat Posts Defaming Xi Jinping

According to a judgment issued by the Ningling County People's Court in January 2017 (translated below) a defendant, identified only as "Mr. Yu,” was sentenced to six  months imprisonment for using Tencent’s Wechat service (also known as Weixin) to "fabricate facts, defame state leaders, and create a malicious influence." Mr. Yu was convicted of defamation. The court did not specify what Mr. Yu posted, but it did say that it “involved statements that defamed Comrade Chairman Xi Jinping.”

The original decision is available on the court's website here: http://wenshu.court.gov.cn/content/content?DocID=3f0bf0a4-4077-4d28-8fba-a70d01576338

Mr. Yu Defamation
Judgment in the Court of First Instance


Ningling County People's Court
Henan Province
Criminal Judgment
(2017) Yu 1423 Criminal First Instance No. 26

Public Prosecutorial Agency Ninling County People's Procuratorate.
Defendant Mr. Yu, male, born January 12, 29189, Han, middle school education, farmer, residing in Ningling County, Henan Province. Subject to criminal detention on July 28, 2016, by the Ningling County Public Security Bureau on suspicion of committing the crime of defamation. Granted bail by the Ningling County Public Security Bureau on August 9, 2016. Released on bail by the Ninling County People's Procuratorate on December 24, 2016. Arrested on January 11, 2017 by order of this court, and the Ningling County Public Security Bureau executed the arrest on the same day.

In the Public Prosecution Indictment Document No. 330[2016] the Jinzhou Municipal People's Procuratorate charged the defendant Mr. Yu with the crime of defamation, and filed an indictment with this court. This court conducted a single adjudication using expedited procedures and held a hearing in open court. The Ningling County People's Procuratorate assigned Procurator Ning Xindong to appear in court in support of the indictment, and the defendant Mr. Yu appeared in court to participate in the trial. Hearings have now concluded.

Ningling County People's Procuratorate charged: at 2:24 on July 28, 2016, the defendant Mr. Yu was at his home at No. 1, Wangxiaojing Hutong No. 52, Chengguan Township, Ningling County. There he used his Wechat account to make several posts in the Wechat group "Yaping Yapai Technology Exchange and Sharing Group" that involved statements that defamed Comrade Chairman Xi Jinping. As proof of these foregoing facts the public prosecutorial agency submitted the defendants deposition and pleadings, documentary evidence, investigation records, and other evidence.

The public prosecutorial agency believes that the defendant Mr. Yu fabricated facts, defamed state leaders, created a malicious influence, and that his actions violated Article 246 of the Criminal Law of the People's Republic of China, and that he should be held criminally liable for defamation. They have asked this court to rule accordingly.

The defendant Mr. Xu did not refute the foregoing criminal fact as charged, was penitent, and asked that he be punished lightly.

This court's findings of fact are consistent with the criminal facts charged by the public prosecutorial agency.

The foregoing facts have been proven and determined to be acceptable based on the defendant Mr. Yu's household registration an investigation into his criminal record, other evidentiary proof such as as the investigation records and photographs and the defendant Mr. Yu's confession record.

This court finds that the defendant Mr. Yu fabricated facts, defamed state leaders, created a malicious influence, and that his actions constitute the crime of defamation. The crime charged by the public prosecutorial agency is established and is upheld by this court. In light of the circumstances of defendant Mr. Yu's candid confession, he is eligible for a lighter punishment. In accordance with Articles 246(1), 246(2), and 67(3) of the Criminal Law of the People's Republic of China, it is hereby held:

Defendant Mr. Yu is guilty of the crime of defamation, and is sentenced to six months imprisonment. The sentence is to be calculated from the date of execution of this judgment, with the sentence to be reduced by one day for each day that she was in custody prior to the execution of this judgment. Therefore it shall run from January 11, 2017 to June 27, 2017.

If he does not agree with this judgment he may appeal to this court or directly to the Shangqiu Municipal Intermediate People's Court within 10 after the day after receiving this judgment. Written appeals should be submitted with one original and two copies.

Judicial Officer Wang Shouliang

January 12, 2017

Clerk Wang Zhen

余某某诽谤一审刑事判决书

河南省宁陵县人民法院
刑 事 判 决 书
(2017)豫1423刑初26号

公诉机关宁陵县人民检察院。
被告人余某某,男,1989年1月12日出生,汉族,初中文化,农民,住河南省宁陵县。因涉嫌犯诽谤罪于2016年7月28日被宁陵县公安局刑事拘留,于2016年8月9日被宁陵县公安局取保候审。2016年12月14日经宁陵县人民检察院决定取保候审。2017年1月6日经本院决定取保候审。2017年1月11日经本院决定逮捕,同日由宁陵县公安局执行逮捕。

宁陵县人民检察院以宁检刑诉(2016)330号起诉书指控被告人余某某犯诽谤罪,向本院提起公诉。本院依法适用简易程序,实行独任审判,公开开庭审理了本案。宁陵县人民检察院指派检察员宁新东出庭支持公诉,被告人余某某到庭参加诉讼。现已审理终结。

宁陵县人民检察院指控:2016年7月28日2时24分,被告人余某某在宁陵县城关镇王小井胡同52号附1号家中,使用其微信号在微信群“压屏压排技术交流共享群”里发布多条涉及国家主席习近平同志诽谤言论。公诉机关为证明上述事实,向本院提交了被告人的供述与辩解、书证、检查笔录等证据证实。

公诉机关认为,被告人余某某捏造事实,诽谤国家领导人,造成恶劣影响,其行为已触犯了《中华人民共和国刑法》第二百四十六条第二款之规定,应以诽谤罪追究其刑事责任。诉请依法判处。

被告人余某某对上述指控犯罪事实、罪名无异议,表示悔罪,请求从轻处罚。

本院经审理查明的事实与公诉机关指控的犯罪事实一致。

上述事实,有被告人余某某的人口户籍证明、前科查询证明,检查笔录及照片,被告人余某某供述笔录等证据证实,足以认定。

本院认为,被告人余某某捏造事实,诽谤国家领导人,造成恶劣影响,其行为已构成诽谤罪。公诉机关指控罪名成立,本院予以支持。被告人余某某有坦白情节,可对其从轻处罚。依照《中华人民共和国刑法》第二百四十六条第一款、第二款,第六十七条第三款之规定,判决如下:

被告人余某某犯诽谤罪,判处有期徒刑六个月。
(刑期从判决执行之日起计算,判决执行以前先行羁押的,羁押一日折抵刑期一日,即自2017年1月11日起至2017年6月27日止)。

如不服本判决,可在接到判决书的第二日起十日内,通过本院或者直接向河南省商丘市中级人民法院提出上诉。书面上诉的,应当提交上诉状正本一份,副本二份。

审判员  王守亮

二〇一七年一月十二日

书记员  王 振

Thursday, February 16, 2017

Man Given Ten Days in Jail for Tencent QQ Posts That "Openly Insulted Leaders of the Party and the State"

According to a judgment issued by the Guangzhou Municipal Intermediate People's Court in May 2014 (translated below) Cheng Huaishan was sentenced to ten days administrative detention for using Tencent’s QQ  service to post statements that “openly insulted leaders of the Party and the State.” Cheng’s sentence was imposed by officials at a local police station based their determination that he had violated China’s “Public Security Administrative Punishment Law.”

The original decision is available on the court's website here: http://wenshu.court.gov.cn/content/content?DocID=4da8571c-ab9c-4a47-beec-4437e63bb700


Cheng Huaishan vs. Jiangsu Kunshan Public Security Bureau Administrative Security et. al.
Administrative Judgment in the Court of First Instance

Jiangsu Kunshan People's Court
Administrative Judgment

(2014) Kun Admin First Instance No. 0015

Plaintiff Cheng Huaishan
Defendant Kunshan Public Security Bureau, located at No. 1288, Qianjin West Road, Kunshan, Jiangsu, Organization No. 01418924-6.

Plaintiff Cheng Huaishan filed suit regarding defendant Kunshan Public Security Bureau's administrative punishment case, and after this court accepted the suit on February 14, 2014 it served a copy of the claim and notice of the lawsuit on the defendant on the same day. This court convened a collegiate panel, and on March 20, 2014 held a hearing on this case in open court. Plaintiff Cheng Huaishan and the representatives for defendant Kunshan Public Security Bureau Lu Huanfang and Cha Wenming appeared in court to participate in the litigation. Hearings in this case have concluded.

On November 12, 2013, the Kunshan Public Security Bureau issued the Kunshan PSB (Lujia) Administrative Punishment Decision (2013) No. 6544, finding that on the afternoon of November 3, 2013 plaintiff Cheng Huaishan was discovered to have logged into the Internet QQ group "Jiangsu Democracy Group" (Group No. 273997921) from Lujia township, Kunshan, and in this QQ group he published statements defaming State leaders. The foregoing facts were confirmed through Cheng Huaishan's statements and pleadings, investigation records, on-the-scene records, and documentation. They determined to subject Cheng Huaishan to ten days administrative detention in accordance with the provisions of Paragraph 2, Article 42 of the Public Security Administrative Punishment Law of the People's Republic of China.

Plaintiff Cheng Huaishan's lawsuit claims that on the morning of November 12, 2013, police officers from the Lujia station of the Kunshan Public Security Bureau  came to his temporary residence and gave him a verbal summons to go the police station. They then interrogated him regarding certain statement of his in a QQ group which defamed the nation's leaders, and ordered him held for 10 days in administrative detention. On November 3, 2013, the plaintiff reposted the following text:
Seven wolves will convene the 18th street burial clock plenary session; the meeting will discuss the liberalization of the lambs being put out to pasture; local  beasts of prey will be responsible for a portion of the flock's expenditures; give the sheep more sovereignty over their grazing; continue reducing the approvals required for being put out to pasture; resolve the problem of mutton allotment; reform the sheep registration system, with no division between black mountain sheep and plains sheep, they are one and the same; demarcate the reform routes for Xi big wolf and Li little wolf; bring universal happiness for the shepherds,  and keep the sheep ignorant of their fate; let the chorus ring out: Fuck your mother, Damn!
Looking at the whole post, it did not mention the name of a single State leader, it only mentioned wolves and sheep, so how could it constitute defamation of State leaders? Of course, the post's text can easily allow people to make associations, but the police can't rely on mental associations when enforcing the law. Looking at this from the perspective of free speech, democratic governance means that citizens have the right to curse those who hold power, and those who hold power have a duty to be tolerant of criticism. All the more so because the post did not even directly curse anyone who holds power, and Article 35 of China's Constitution clearly provides that citizens of the People's Republic of China have the freedom of speech. The Kunshan Public Security Bureau's decision to impose administrative detention was factually flawed, made improper use of the law, and it is requested that Kunshan PSB (Lujia) Administrative Punishment Decision (2013) No. 6544 be rescinded, and the applicant receive compensation from the State for restricting his freedom of movement in the amount 1,825 yuan.

Defendant Kunshan Public Security Bureau argues that, the statements published on the QQ group by plaintiff Cheng Huaishan on November 3, 2013 using information networks openly insulted leaders of the Party and the State, and this was subsequently investigated and confirmed by public security agencies. The foregoing facts have been verified based on the statements and pleadings of the parties, on-the-scene records and information records, and the detention process.  The plaintiff's use of information networks that enable widespread and rapid  dissemination to publish statements that insulted leaders of the Party and the State constitutes a relatively severe instance of insulting third parties, and the defense attorney argue that the decision to impose ten days administrative punishment in accordance with the provisions of Paragraph 2, Article 42 of the Public Security Administrative Punishment Law of the People's Republic of China was found to be based on clear facts, a correct application of the law, and the punishment was appropriate.

Plaintiff claims that the statement made online constitute freedom of speech, and it does not matter whether or not the statements were proper.

The defense attorneys believe that freedom of speech has boundaries. Article 35 of the Constitution provides that citizens have freedom of speech, and Article 41 provides that a citizen is protected by law when offering criticisms and suggestions to State agencies and State employees. But citizens' rights must be exercised in accordance with the law, and may not infringe upon the rights of others. Article 51 provides that in exercising their freedoms and rights, citizens must not damage any State, social, or collective rights or the lawful freedoms and rights of other citizens. Although the statements made online by the plaintiff did not clearly refer to any State leader's name, it was nevertheless extremely clear what it was referring to, the statements' contents were obviously insulting, had infringed upon others' rights to dignity and reputation, exceeding the scope allowed by law, constituting illegal behavior, and responsibility should be borne in accordance with law. Based on the foregoing, they request that the court reject the lawsuit's claims.

An investigation has shown that at approximately 2:23 in the afternoon on November 3, 2013, plaintiff Cheng Huaishan, using the online name "Rare Animal" (QQ10xxx46), utilizing online information in Lujia, used a cell phone to publish the following statement on the QQ group "Jiangsu Democracy Group" (Group No. 273997921):

Seven wolves will convene the 18th street burial clock plenary session; the meeting will discuss the liberalization of the lambs being put out to pasture; local  beasts of prey will be responsible for a portion of the flock's expenditures; give the sheep more sovereignty over their grazing; continue reducing the approvals required for being put out to pasture; resolve the problem of mutton allotment; reform the sheep registration system, with no division between black mountain sheep and plains sheep, they are one and the same; demarcate the reform routes for Xi big wolf and Li little wolf; bring universal happiness for the shepherds,  and keep the sheep ignorant of their fate; let the chorus ring out: Fuck your mother, Damn!

At approximately 11:00 in the morning on November 12, 2013, after defendant Kunshan Public Security Bureau determined that the user with the online name "Rare Animal" (QQ10xxx46) was plaintiff Cheng Huaishan, they proceeded to handle the case in accordance with the law. Following an investigation, on November 12, 2013, defendant Kunshan Public Security Bureau issued the Kunshan PSB (Lujia) Administrative Punishment Decision (2013) No. 6544, and determined to subject Cheng Huaishan to ten days administrative detention in accordance with the provisions of Paragraph 2, Article 42 of the Public Security Administrative Punishment Law of the People's Republic of China.

On November 12, 2013, the defendant carried out the aforementioned punishment and transferred plaintiff Cheng Huaishan to the Kunshan Detention Center. Because plaintiff Cheng Huaishan submitted an administrative appeal application, on January 23, 2014, the Kunshan Municipal Government issued Kunshan Government Administrative Review No. 6, upholding the Kunshan PSB (Lujia) Administrative Punishment Decision (2013) No. 6544 decision.

This court finds that, in accordance with Clause 1, Paragraph 7 of Article 2 of the Public Security Administrative Punishment Law of the People's Republic of China, public security bureaus of the people's government at the level of county and above are responsible for public security administrative punishments within their administrative districts relating to disturbing public order, harming public security, infringements of personal and property rights, harming social management where there is social harm that does not rise to the level requiring criminal sanctions. Because the defendant Kunshan Public Security Bureau is responsible for public security administration work in this jurisdiction, it is the appropriate defendant in this case.

The point of dispute in this case is whether the content of the post published by plaintiff Cheng Huaishan at issue in this case does in fact constitute relatively severe insult and defamation of a third party. In accordance with the provisions of Paragraph 2, Article 42 of the Public Security Administrative Punishment Law of the People's Republic of China, insult or fabrication of facts to defame a third party may be punished by detention of five days or less or a fine of no more than 500 yuan. Where the circumstances are severe, a punishment of between five and 10 days detention and a fine of no more than 500 yuan may be imposed.

Insult refers to words and actions that harm the reputation or personal dignity of a third party. Defamation refers to distorting and spreading falsehoods which harm the reputation or personal dignity of a third party.

The plaintiff in this case Cheng Huaishan used an online alias to post content which, while not explicitly naming any State leader, nevertheless included content that was obviously insulting and defamatory, and its target was both specific and unique, and based on the timing of the post and the related content, it was entirely obvious who it was about.

Plaintiff's utilization of networks for fast and broad dissemination of the aforementioned statements that insulted national leaders falls within the scope of insulting and defaming third parties as provided in the aforementioned law, and the circumstances were relatively severe. The administrative punishment issued by defendant Kunshan Publish Security Bureau was lawful.

Plaintiff believes that his statements were the exercise of free speech as provided for in the Constitution. This court holds that the Constitution of the People's Republic of China provides that citizens of the People's Republic of China have freedom of speech, and that have the right to make criticisms and suggestions to State agencies and State employees. But it also provides that the personal dignity of citizens of the People's Republic of China may not be infringed upon, and prohibits insult, defamation, or false claims against citizens by any means. When exercising their freedoms and rights, citizens must not damage any State, social, or collective rights or the lawful freedoms and rights of other citizens. Therefore the defense statement of plaintiff Cheng Huaishan is rejected.

In handling the aforementioned case, defendant Kunshan Public Security Bureau conducted its inquiries and investigation of the defendant within 24 hours, and on November 12, 2013 imposed administrative punishment and carried out the procedures in the manner prescribed by law. The prerequisite for administrative compensation is that the legal rights and interests of a citizen, legal person or other organization has been infringed upon by a specific administrative act performed by an administrative agency or an employee thereof. The administrative acts of the defendant did not infringe upon the legal rights and interests of plaintiff Cheng Huaishan. Plaintiff's contention that defendant's administrative acts were illegal and request for personal compensation is without factual or legal basis.

Based on the foregoing, in accordance with the provisions of Article 56(4) of the Supreme People's Court's Interpretation Regarding Certain Issues Relating to the Implementation of the Administrative Litigation Law of the People's Republic of China and Article 33 of the Supreme People's Court's Rules Regarding Certain Issues Relating to Adjudicating Administrative Compensation Cases, it is hereby decided as follows:

Plaintiff Cheng Huaishan's claims in his lawsuit are rejected.

Court costs in the amount of 50 yuan will be borne by the plaintiff Cheng Huaishan.

If he does not agree with this decision, he may submit an appeal to this court within 15 days of this issuance of this judgment, with the number of copies based on the number of opposing parties. The court of appeal shall be the Jiangsu Intermediate People's Court.

Judge: Li Shiyin
Acting Judge: Zhou You
People's Assessor: Wang Guixiang

May 12, 2014

Clerk: Jin Yufang

成怀山与江苏省昆山市公安局行政公安其他一审行政判决书

江苏省昆山市人民法院
行政判决书
(2014)昆行初字第0015号

原告成怀山。
被告昆山市公安局,住所地江苏省昆山市前进西路1288号,组织机构代码01418924-6。

原告成怀山诉被告昆山市公安局治安行政处罚一案,本院于2014年2月14日受理后,于2014年2月14日向被告送达了起诉状副本及应诉通知书。本院依法组成合议庭,于2014年3月20日公开开庭审理了本案,原告成怀山,被告昆山市公安局的委托代理人陆迎芳、查文明到庭参加诉讼。本案现已审理终结。
  
被告昆山市公安局于2013年11月12日作出昆公(陆家)行罚决字(2013)6544号行政处罚决定书,认为原告成怀山于2013年11月3日下午,在昆山市陆家镇登陆互联网QQ群“江苏民主群”(群号273997921),在该QQ群内发布公然侮辱国家领导人的言论,被查获。以上事实有成怀山的陈述和申辩、检查笔录、现场笔录、书证等证据证实。根据《中华人民共和国治安管理处罚法》第四十二条第二项之规定,决定对成怀山处行政拘留十日的处罚。

原告成怀山诉称,2013年11月12日上午,昆山市公安局陆家派出所警察到其暂住地口头传唤其至派出所,并进行了询问以其在QQ群里公然发布侮辱国家领导人的言论作出行政拘留10天的决定。2013年11月3日,原告在QQ群里转发了这样一个帖子:七头狼要召开十八街葬钟全会;与会讨论羊的放牧自由化;地方鹰犬负担部分羊圈支出;给予羊更大的吃草自主权;继续减少放牧审批环节;解决羊肉分配问题;改革羊户籍制度,不区分黑山羊与草原羊,一事同羊;制定刁得一狼与李子狼改革路线图;羊倌们喜大普奔,众羊们不明觉厉;纷纷喊道:开你妈逼,草!

通观全贴,没有提到任何国家领导人的名字,只提了狼和羊,怎么就构成对国家领导人的侮辱呢?当然,帖中的文字很易让人联想,但公安机关办案不能靠联想执法。从言论自由的角度看,民主政治就是民众有骂掌权者的权利,掌权者有容忍被骂的义务。何况帖子中根本没有直接骂掌权者,我国宪法第三十五条也明确规定中华人民共和国公民有言论自由。昆山市公安局作出的行政拘留决定认定事实错误,适用法律错误,请求依法撤销昆公(陆家)行罚决定(2013)6544号行政处罚决定书,赔偿申请人人身自由限制国家赔偿金1825元。
  
被告昆山市公安局辩称,2013年11月3日,原告利用信息网络在QQ群发表的言论,对党和国家领导人进行公然的侮辱,后被公安机关查获。上述事实由当事人的陈述和申辩、现场笔录和消息记录、抓获经过等证据证实。原告利用扩散范围广、传播速度快的信息网络发布侮辱党和国家领导人的言论属于侮辱他人情节较重的情形,答辩人依照《中华人民共和国治安管理处罚法》第四十二条第二项的规定对原告作出行政拘留十日的行政处罚决定,认定事实清楚,适用法律正确,处罚适当。原告称网络上发表言论属于言论自由,而不论言论是否正确。答辩人认为,言论自由是有边界的。《宪法》第三十五条规定公民有言论自由,第四十一条规定公民对于国家机关和国家工作人员提出批评和建议,受法律保护。但公民权利必须依法行使,不得侵犯他人权利。第五十一条规定公民在行使自由和权利的时候,不得损害国家的、社会的、集体的利益和其他公民的合法自由和权利。原告在网络上所发的言论虽然没有明确提到国家领导人名字,但是所指十分明确,言论中含有明显的侮辱内容,已造成了对他人人格尊严与名誉的侵犯,超出法律的范围,属于违法行为,应承担相应法律责任。综上所述,请求法院判决驳回诉讼请求。

经审理查明,2013年11月3日14:23许,原告成怀山以其网名“稀有动物”(QQ10×××46)在陆家镇利用网络信息,通过手机在QQ群“江苏民主群”(群号273997921)内发表了“七头狼要召开十八街葬钟全会;与会讨论羊的放牧自由化;地方鹰犬负担部分羊圈支出;给予羊更大的吃草自主权;继续减少放牧审批环节;解决羊肉分配问题;改革羊户籍制度,不区分黑山羊与草原羊,一事同羊;制定刁得一狼与李子狼改革路线图;羊倌们喜大普奔,众羊们不明觉厉;纷纷喊道:开你妈逼,草!”的言论。
  
2013年11月12日11时许,被告昆山市公安局查明网名“稀有动物”(QQ10×××46)的使用人为原告成怀山后,依法予以立案处理。经调查后,被告昆山市公安局于2013年11月12日作出昆公(陆家)行罚决字(2013)6544号行政处罚决定书,根据《中华人民共和国治安管理处罚法》第四十二条第二项之规定,决定对成怀山处行政拘留十日的处罚。

2013年11月12日,被告将原告成怀山交昆山市拘留所执行上述拘留处罚。因原告成怀山提起行政复议申请,昆山市人民政府于2014年1月23日作出(2014)昆府行复第6号行政复议决定书,维持了昆公(陆家)行罚字(2013)6544号行政处罚决定书。
  
本院认为,根据《中华人民共和国治安管理处罚法》第二条、第七条第一款的规定,县级以上地方各级人民政府公安机关负责本行政区域内的有关扰乱公共秩序,妨害公共安全,侵犯人身权利、财产权利,妨害社会管理,具有社会危害性,尚不够刑事处罚的治安管理处罚工作。由此本案被告昆山市公安局负责本辖区内治安管理工作,是本案的适格被告。
  
本案的争议焦点是原告成怀山在网络发表涉案内容帖子是否属于公然侮辱、诽谤他人情节较重的行为。《中华人民共和国治安管理处罚法》第四十二条第(二)项规定,公然侮辱他人或者捏造事实诽谤他人的, 处五日以下拘留或者五百元以下罚款;情节较重的,处五日以上十日以下拘留,可以并处五百元以下罚款。

侮辱是指以言行公然损害他人名誉、人格尊严的行为;诽谤是指捏造并散布虚构的事实,损害他人名誉、人格的行为。

本案中原告成怀山用其网名所发帖子内容虽然没有明确指出国家领导人的名字,但从其网贴发表的时间及相关内容看,所指十分明确,含有明显的侮辱、诽谤内容,且指向具有特定性和唯一性。

原告利用传播快、范围广的网络发布上述侮辱国家领导人的言论,属于上述法律规定的公然侮辱、诽谤他人,且情节较重情形。被告昆山市公安局据此作出的行政处罚适用法律正确。

原告认为其言论属于宪法规定的言论自由行为,本院认为,《中华人民共和国宪法》规定了中华人民共和国公民有言论的自由,对于任何国家机关和国家工作人员,有提出批评和建议的权利,但同时亦规定中华人民共和国公民的人格尊严不受侵犯,禁止用任何方法对公民进行侮辱、诽谤和诬告陷害,公民在行使自由和权利的时候,不得损害国家的、社会的、集体的利益和其他公民的合法的自由和权利。因此原告成怀山的辩论意见不予支持。
  
被告昆山市公安局受案处理上述涉案后,在二十四小时内对原告进行了询问、调查,并于2013年11月12日作出行政处罚,并交所执行的程序符合法定程序。行政赔偿的前提是公民、法人或者其他组织的合法权益受到行政机关或者行政机关工作人员作出的具体行政行为侵犯并造成损害,本案中被告昆山市公安局对原告成怀山作出的涉案行政处罚并无不妥,即被告的行政行为并未侵犯原告成怀山的合法权益,原告认为被告行政行为违法并要求人身赔偿的请求无事实及法律依据。

综上,依照《最高人民法院关于执行﹤中华人民共和国行政诉讼法﹥若干问题的解释》第五十六条第(四)项、《最高人民法院关于审理行政赔偿案件若干问题的规定》第三十三条的规定,判决如下:
  
驳回原告成怀山的诉讼请求。
  
案件受理费50元,由原告成怀山负担。
  
如不服本判决,可在判决书送达之日起十五日内,向本院递交上诉状,并按对方当事人的人数提出副本,上诉于苏州市中级人民法院。

审 判 长: 李诗茵
代理审判员: 周 游
人民陪审员: 王桂香

二O一四年五月十二日

书 记 员: 晋玉芳

Tuesday, February 14, 2017

Man Given Five Days in Jail for Tencent Wechat Posts That "Openly Insulted National Leaders."

According to a judgment issued by the Guangzhou Municipal Intermediate People's Court in December 2015 (translated below) Guo Jianhe was sentenced to five days administrative detention for using Tencent’s Wechat service (also known as Weixin) to post statements that “openly insulted national leaders.” Guo's sentence was imposed by officials at a local police station based their determination that he had violated China’s “Public Security Administrative Punishment Law.” The court did not specify what Guo posted.

The original decision is available on the court's website here: http://wenshu.court.gov.cn/content/content?DocID=d1ffe665-32b2-4465-8ac4-2979c1e43143

Guo Jianhe vs. Guangzhou Yuexiu District Public Security Bureau et. al.
Administrative Judgment in the Court of Second Instance

Guangzhou Municipal Intermediate People's Court, Guangdong Province
Administrative Judgment
(2015) Sui Intermediate Administrative Final Judgment No. 1374

Appellant (original plaintiff): Guo Jianhe, resident of Guangzhou.
Appellee (original defendant): Guangzhou Yuexiu District Public Security Bureau, based in Guangzhou.
Legal Representative: Cai Wei, position: Bureau Commander.
Attorney: Zhou Peixin, employee at the Bureau.
Attorney: Huang Weifeng, employee at the Bureau.

Appellant Guo Jianhe sued appellee Guangzhou Yuexiu District Public Security Bureau regarding a public security administrative punishment, and filed an appeal with this court on the grounds that he did not agree with the Yuexiu District People's Court's (2015) Sui Yue Administrative First Instance No. 152 administrative judgment. This court convened a judicial panel  and commenced hearings in this case. Hearings in this case have now concluded.

The court of first instance made the following determinations during trial: On January 27, 2015, plaintiff Guo Jianhe used Wechat account No. 130xxxx8717 (cell phone No. 130xxxx8717) to repost statements to friend groups that openly insulted national leaders. As of January 30, 2015, the plaintiff's Wechat account address book contained 697 contacts. The defendant summoned the plaintiff to appear at the Zhuguang police station in Yuexiu, Guangzhou, and following an investigation ascertained the foregoing facts. After determining that the plaintiff had reposted statements to friend groups that openly insulted national leaders, it informed the plaintiff of the facts, reasoning, and basis for making a determination to impose punishment, as well as of his right to make statements and offer a defense. On the 30th of that month the defendant issued Sui Gong Yue Administrative Punishment (2015) No. 00491 "Administrative Punishment Decision" in accordance with the provisions of Article 42(2) of the "Public Security Administration Punishments Law," ordering the plaintiff be sentenced to five days of administrative detention. The plaintiff did not agree with the foregoing punishment decision, and filed an appeal with the court of first instance.

The court of first instance held: Article 42(2) of the "Public Security Administrative Punishment Law" provides:  "A person who commits one of the following acts shall be detained for not more than five days or be fined not more than 500 yuan; and if the circumstances are relatively serious, he shall be detained for not less than 5 days but not more than 10 days and may, in addition, be fined not more than 500 yuan: . . . (2) openly insulting another person or fabricating facts to defame another person; . . . ."

The plaintiff in this case reposted statements to friends groups that openly insulted others, the defendant determined that the facts were clear and the evidence sufficient to show that the plaintiff's actions were illegal, and the punishment decision issued following the defendant's investigation of the facts underlying the illegal actions of the plaintiff complied with the aforementioned provisions. The reasoning underlying the plaintiff's request to revoke the punishment decision was not sufficient, and it was therefore rejected by the court of first instance.

In summary, in accordance with Article 56(4) of the "Supreme People's Court's Interpretation Regarding Certain Issues Relating to the Implementation of the Administrative Litigation Law'" the court held that plaintiff's request was denied.

Appellant Guo Jianhe did agree with the judgment of the court of first instance, and appealed to this court claiming: the weixins that the appellant reposted to his friends groups were within the right to freedom of speech granted under the Constitution. The Sui Gong Yue Administrative Punishment (2015) No. 00491 "Administrative Punishment Decision" lacked sufficient evidence, and the court of first instance ignored the appellant's demand that the appellee produce evidence of the fact that the appellant openly insulted national leaders. Appellant did not openly insult national leaders, and the facts acknowledged by the court of first instance were not clear. The appellant therefore requests:

1. Overturn the Yuexiu District People's Court's (2015) Sui Yue Administrative First Instance No. 152 "Administrative Judgment."
2. Revoke the appellee's Sui Gong Yue Administrative Punishment (2015) No. 00491 "Administrative Punishment Decision."
3.  Order the appellee to bear the litigation costs of the first and second trials.

The appellee Guangzhou Yuexiu District Public Security Bureau agrees with the judgment in trial of first instance, and asks that it be upheld in the trial of second instance.

Based on hearings it has been determined that the facts acknowledged by the court of first instance were clear, and furthermore are supported by the relevant evidence, and are affirmed by this court.

This court finds that Article 42(2) of the "Public Security Administrative Punishment Law" provides:  "A person who commits one of the following acts shall be detained for not more than five days or be fined not more than 500 yuan; and if the circumstances are relatively serious, he shall be detained for not less than 5 days but not more than 10 days and may, in addition, be fined not more than 500 yuan: . . . (2) openly insulting another person or fabricating facts to defame another person; . . . ." In this case the appellant openly fabricated facts online and posted statements that insulted national leaders. There are interrogation records, investigation records, photographs, and other supporting evidence. In accordance with the law, prior to issuing its administrative punishment decision the appellee had informed the appellant of the facts, reasoning, and basis, and also informed him of his right to make statements and offer a defense. Appellant stated that he would not make any statements or offer any defense.

Therefore, as regards the appellee's issuance of an administrative punishment decision, and the decision to sentence appellant to five days of administrative detention, the facts as determined are clear, the evidence is sufficient, the procedures were lawful, and the punishment was appropriate.

The judgment of the court of first instance to reject the appellant's request was handled correctly, and is upheld by this court. Appellant's appeal lacked justification and motivation for his belief that the appellee's determinations of fact were not clear, and this court rejects his requests on appeal.

In summary, in accordance with the provisions of Article 89(1)(i) of the "Administrative Litigation Law" it is hereby held:

The appeal is rejected, the first instance judgment is affirmed.

The second instance case filing fee of 50 yuan shall be borne by the appellant Guo Jianhe.

This judgment shall be the judgment of last instance.

Presiding Judge: Wang Yi
Acting Judicial Officer: Tang Yong
Acting Judicial Officer: Yu Qiubai

November 14, 2015

Clerk: Zhou Zhinuo

郭建和与广州市公安局越秀区分局其他
二审行政判决书

广东省广州市中级人民法院
行 政 判 决 书
(2015)穗中法行终字第1374号

上诉人(原审原告):郭建和,住广州市。
被上诉人(原审被告):广州市公安局越秀区分局,住所地广州市。
法定代表人:蔡巍,职务:局长。
委托代理人:周培新,该局工作人员。
委托代理人:黄伟峰,该局工作人员。

上诉人郭建和诉被上诉人广州市公安局越秀区分局治安行政处罚一案,不服广州市越秀区人民法院(2015)穗越法行初字第152号行政判决,向本院提起上诉。本院依法组成合议庭,开庭审理了本案。本案现已审理终结。

原审法院经审理查明:2015年1月27日,原告郭建和使用微信号130××××8717(手机号130××××8717)在朋友圈转发公然侮辱国家领导人的言论,截至2015年1月30日,原告微信账户通讯录共有697位联系人。被告将原告传唤至广州市公安局越秀区分局珠光派出所,经调查查明上述事实,遂认定原告在微信圈转发公然侮辱国家领导人的言论,告知原告拟作出处罚决定的事实、理由、依据及陈述和申辩的权利。同月30日,被告依据《中华人民共和国治安管理处罚法》第四十二条第二项之规定,作出穗公越行罚决字(2015)00491号《行政处罚决定书》,决定对原告处以行政拘留五日。原告对上述处罚决定不服,诉至原审法院。

原审法院认为:《中华人民共和国治安管理处罚法》第四十二条第二项规定:“有下列行为之一的,处五日以下拘留或者五百元以下罚款;情节较重的,处五日以上十日以下拘留,可以并处五百元以下罚款:……(二)公然侮辱他人或者捏造事实诽谤他人的;……”本案原告在微信朋友圈转发公然侮辱他人的言论,被告认定原告违法行为的事实清楚、证据充分,被告查明原告该违法事实后作出的处罚决定符合上述有关规定,原告请求撤销该处罚决定的理由不充分,原审法院不予采纳。综上所述,依照《最高人民法院关于执行〈中华人民共和国行政诉讼法〉若干问题的解释》第五十六条第(四)项,判决驳回原告郭建和的诉讼请求。

上诉人郭建和不服原审判决,上诉至本院称:上诉人在朋友圈转发微信是宪法赋予公民言论自由的权利。被上诉人作出穗公越行罚决字(2015)00491号《行政处罚决定》的证据不足,原审判决对上诉人提出要被上诉人拿出上诉人公然侮辱国家领导人的事实证据的要求,置之不理。上诉人没有公然侮辱国家领导人,原审判决认定事实不清。故上诉人请求:1、撤销广州市越秀区人民法院(2015)穗中法行初字第152号《行政判决书》;2、撤销被上诉人作出的穗公越行罚决字(2015)00491号《行政处罚决定》;3、一、二审案件诉讼费由被上诉人承担。

被上诉人广州市公安局越秀区分局答辩同意一审判决,请求二审法院予以维持。

经审理查明,原审法院认定事实清楚,且有相应的证据予以支持,本院予以确认。

本院认为,《中华人民共和国治安管理处罚法》第四十二条第二项规定:“有下列行为之一的,处五日以下拘留或者五百元以下罚款;情节较重的,处五日以上十日以下拘留,可以并处五百元以下罚款:……(二)公然侮辱他人或者捏造事实诽谤他人的;……”本案上诉人在网络上公然捏造事实,发布侮辱国家领导人的言论,有询问笔录、检查笔录和照片等证据证实,被上诉人在作出行政处罚决定前,已依法告知上诉人作出行政处罚决定的事实、理由及依据,并告知其依法享有陈述、申辩等权利,上诉人表示不提出陈述和申辩。因此被上诉人作出被诉行政处罚决定,决定对上诉人处以行政拘留五日,认定事实清楚、证据充分,程序合法,处罚适当。原审法院判决驳回上诉人诉讼请求的处理正确,本院予以维持。上诉人认为被上诉人查明事实不清的上诉理由理据不足,其上诉请求本院不予支持。综上所述,依照《中华人民共和国行政诉讼法》第八十九条第一款第(一)项的规定,判决如下:

驳回上诉,维持原判。

二审案件受理费50元,由上诉人郭建和负担。

本判决为终审判决。

审 判 长 汪 毅
代理审判员 唐 勇
代理审判员 余秋白

二〇一五年十一月十四日

书 记 员 周芷诺