Friday, June 4, 2021

Hu Xijin Says "Chinese Won't Forget About Tiananmen" - Even Though China's Internet Services Have

On June 3, 2021, Hu Xijin, editor-in-chief of the state sponsored "Global Times" posted the following on Twitter:

Chinese won't forget about Tiananmen incident.On the contrary, we'll constantly reflect on it in light of China’s development path since then as well as situation in many countries after color revolutions. It's futile for West to provoke Chinese society by commemorating the event

Source: https://twitter.com/HuXijin_GT/status/1400336409324523520. This appears to becoming an annual tradition, as Hu posted something similar last year.

It is true that an Internet user in China can immediately find the PRC government's official version of the events by searching Baidu for "Tiananmen Incident" ("天安门事件") - the first result is from the Communist Party mouthpiece the People's Daily, which provides this summary:

  • May 20th, China Central Television broadcasts Li Peng and Yang Shangkun’s statements at the meeting of Party, government, and military cadres in the capital. Li Peng signed the State Council’s
    Order to implement martial law in different regions.
  • June 4th, the "Liberation Army Daily" published an editorial with the title "Resolutely Support the Party Central Committee's Policy Decisions, Resolutely Suppress the Counter-revolutionary Riots." 
  • 5月20日 中央电视台播放了李鹏、杨尚昆在首都党政军干部大会上的讲话。李鹏签署国务院关于在北京市部分地区实行戒严的命令。
  • 6月4日 《解放军报》发表题为“坚决拥护党中央决策,坚决镇压反革命暴乱”的社论。

Source: http://www.people.com.cn/item/20years/newfiles/c1120.html.

But most search results are about another "Tiananmen Incident," which occurred in 1976. So an Internet user wanting more information so that they could "constantly reflect on" the 1989 Tiananmen Incident would need to specifically include search terms relating to "1989." Below are some examples of what users of PRC Internet services see when searching for information about what happened in and around Tiananmen Square in early June 1989.

A user of visiting Baidu's and Sogou's wikipedia articles for "1989" would find that nothing noteworthy happened in or around Tiananmen Square in June of that year. Sogou has no entry for "June 4th," and  Baidu's entry for "June 4th" reads:

  • June 4th-Poland held its first democratic elections, and the collective election for Walesa was held.
  • June 4th-Iranian President Khamenei was elected as the supreme leader of Iran.


 A user submitting the query "'1989 year' 'Tiananmen Incident''" ("1989年" "天安门事件") to Baidu's web search product would get no results (a query without the quotes will retrieve results, but only from websites under the direct control of the PRC government and the Communist Party of China - for example, People's Daily, Xinhua, and China Youth Daily).

 A user submitting the query "1989 year 'Tiananmen Incident''" (1989年 "天安门事件") to Baidu's image search product would get no results.


A user submitting the query "1989 year" (1989年) to Baidu's "Zhidao" Q&A product would get no results.

A user submitting the query "1989" to Baidu's "Tieba" PostBar forum product would get censorship notice that states: "Apologies, in accordance with relevant laws, regulations, and policies, relevant results have not been displayed." ( 抱歉,根据相关法律法规和政策,相关结果不予展现。).


 

Thursday, June 3, 2021

Translation: Judgment in Case of Woman Jailed Six Months for T-Shirt Commemorating Tiananmen

Summary: A court found Jie guilty on the grounds that she "stood in an area crowded with tourists in the vicinity of the national flag pole in Tiananmen Square wearing a white t-shirt upon which was written 'Freedom of Speech, Vindicate June Fourth, Oppose Repeating the Tragedy.'" The court said that it showed leniency in sentencing Jie to six months imprisonment on the grounds that Jie "made a truthful confession of her crime."


People's Court of Dongcheng, Beijing


Criminal Judgment


(2019) Jing 0101 Criminal First Instance No. 9461


The public prosecution agency was the People's Procuratorate of Dongcheng, Beijing.

Defendant Jie Ruixue, female, born [INTENTIONALLY OMITTED], 1987 in Linkou County, Heilongjiang, Citizen ID No. XXX, Han ethnicity, college education, unemployed, household registration address: Linkou County, Heilongjiang. On August 22, 2019, she was taken into custody on suspicion of committing the crime of disturbing the peace, and was arrested on September 26 of the same year. She is currently being held in custody at the Dongcheng Detention Center in Beijing.

Defense counsel Lin Shan is a lawyer at the Heilongjiang Guo Sheng Law Firm.

In the Jing Dong Procuratorate First Criminal Indictment (2019) No. 975 indictment the People's Procuratorate of Dongcheng, Beijing charged defendant Jie Ruixue with committing the crime of disturbing the peace, and on November 21, 2019 filed a public prosecution with this Court. This Court utilized simplified procedures in accordance with the law, implemented a single judge trial, and tried this case in open court. The People's Procuratorate of Dongcheng, Beijing assigned Procurator Tong Jie to appear in court in support of the public prosecution, and defendant Jie Ruixue and her defense counsel Lin Shan appeared in court to participate in the proceedings. The trial has now concluded.

The public prosecution agency charged:

At about 10:00 am on August 22, 2019, defendant Jie Ruixue, in an expression of her personal will, stood in an area crowded with tourists in the vicinity of the national flag pole in Tiananmen Square wearing a white t-shirt upon which was written "Freedom of Speech, Vindicate June Fourth, Oppose Repeating the Tragedy." She was subsequently apprehended at the scene by civil police.

After being taken into police custody defendant Jie Ruixue made a voluntary truthful confession of her crime.

The public prosecution agency utilized plea bargaining procedures in submitting the case to this Court, and their written recommendation is that defendant Jie Ruixue be given a criminal punishment of a sentence of fixed term imprisonment of six months to one year.

The aforementioned facts were not objected to by defendant Jie Ruixue and her defense counsel during the process of holding hearings at trial, and were deemed substantiated and sufficient to reach a determination based on the process of how the defendant came into police custody, work descriptions, testimony of witnesses Zhang Doe and Song Doe, identification records, forensic opinions, seizure judgments, seizure records, lists of seized materials, photographic production explanations, photographs of materials implicated in the case, audio-visual materials, defendant Jie Ruixue's statement, hotel accommodation records, and household registration and identification materials.

The defense counsel's defense opinion believes that defendant Jie Ruixue's crime is relatively minor, there was no subjective malice, the duration of the crime was short, and it did not cause serious social harm. This was her first offense, she was able to make a truthful confession after being taken into police custody, and is in fact a person with a certain degree of mental impairment. They recommend that the court show her leniency.

This Court finds that defendant Jie Ruixue ignored the nation's laws and intentionally created an incident in sensitive places such as Tiananmen Square, causing severe disorder in a public venue. Her actions disrupted the normal administration of social order, constitutes the commission of the crime of disturbing the peace, and shall be punished in accordance with the law.

With respect to the charges of the People's Procuratorate of Dongcheng, Beijing, the facts are clear, the evidence produced is reliable and copious, the offense charged is established, and the sentencing proposal is appropriate.

Given that defendant Jie Ruixue was able to make a truthful confession of her crime after being taken into police custody and made a voluntary truthful confession of her crime in court, therefore this Court will show her lenience. The sentencing proposal of the public prosecution agency and defense counsel's related defense opinion is accepted by this Court.

Accordingly, with respect to defendant Jie Ruixue and in accordance with the provisions of Articles 293(1)(iv), 67(3), and 64 of the "Criminal Law of the People's Republic of China" and Article 5 of the "Supreme People’s Court Supreme and People’s Procuratorate Interpretation on Issues Concerning the Application of Law for Criminal Cases of Disturbing the Peace," the judgment of this Court is as follows:

1. Defendant Jie Ruixue committed the crime of disturbing the peace and is sentenced to a fixed term imprisonment six months.

(The prison term is to be calculated starting on the day the judgment is executed, and each day in custody prior to the execution of the judgment shall count as one day of the prison term, that is, from August 22, 2019 to February 21, 2020.)

2. The tools seized in the process of this case are confiscated by the seizing agency in accordance with the law.

If any party does not accept this judgment, they may within 10 days after the second day after receiving this written judgment bring an appeal through this Court or directly to the Second Intermediate People's Court of Beijing. A written appeal should be submitted with one original and two copies of the appeal brief

Adjudicator        Bai Chongwei

December 10, 2019

Clerk            Luo Yejun

北京市东城区人民法院


刑事判决书


(2019)京0101刑初946号


公诉机关北京市东城区人民检察院。

被告人解瑞雪,女,1987年4月5日出生于黑龙江省林口县,公民身份号码:×××,汉族,大学本科文化,无业,户籍所在地:黑龙江省林口县。因涉嫌犯寻衅滋事罪,于2019年8月22日被羁押,同年9月26日被逮捕,现羁押在北京市东城区看守所。

辩护人林山,黑龙江国盛律师事务所律师。

北京市东城区人民检察院以京东检一部刑诉[2019]975号起诉书指控被告人解瑞雪犯寻衅滋事罪,于2019年11月21日向本院提起公诉。本院依法适用简易程序,实行独任审判,公开开庭审理了本案。北京市东城区人民检察院指派检察员佟捷出庭支持公诉,被告人解瑞雪及其辩护人林山到庭参加了诉讼。现已审理终结。

公诉机关指控:

2019年8月22日10时许,被告人解瑞雪在天安门广场国旗杆附近,为表达个人意愿,身穿写有“言论自由、平反六四、反对悲剧再次发生”等内容的白色T恤在游客密集地区站立,后被民警当场抓获。

被告人解瑞雪到案后自愿如实供述自己的罪行。

公诉机关适用认罪认罚程序将本案诉至本院,并书面建议对被告人解瑞雪在有期徒刑六个月至一年幅度内判处刑罚。

上述事实,被告人解瑞雪及其辩护人在开庭审理过程中无异议,并有到案经过;工作说明;证人张某、宋某的证言;辨认笔录;鉴定意见;扣押决定书、扣押笔录、扣押物品清单;照片制作说明、涉案物品照片;视听资料;被告人解瑞雪的供述、住宿记录及户籍身份材料予以证实,足以认定。

辩护人的辩护意见认为,被告人解瑞雪此次犯罪情节较轻、主观恶性不大,犯罪持续时间短、未造成严重的社会危害,其此次犯罪系初犯、到案后能够如实供述,且其确系具有一定精神缺陷的人。建议法庭对其从轻处罚。

本院认为,被告人解瑞雪无视国法,故意在天安门广场等敏感地带制造事端,造成公共场所秩序严重混乱,其行为妨害了正常的社会管理秩序,已构成寻衅滋事罪,依法应予以惩处。北京市东城区人民检察院指控的事实清楚,举证确实、充分,指控的罪名成立,量刑建议适当。鉴于被告人解瑞雪到案后能够如实供述所犯罪行,当庭自愿认罪,故本院对其从轻处罚。公诉机关的量刑建议及辩护人相关辩护意见,本院予以采纳。据此,本院对被告人解瑞雪依照《中华人民共和国刑法》第二百九十三条第一款第(四)项,第六十七条第三款,第六十四条及最高人民法院、最高人民检察院《关于办理寻衅滋事刑事案件具体应用法律若干问题的解释》第五条之规定,判决如下:

一、被告人解瑞雪犯寻衅滋事罪,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2019年8月22日起至2020年2月21日止。)

二、在案扣押的作案工具,由扣押机关依法没收。
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北京市第二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  白崇伟

二〇一九年十二月十日

书记员  罗也君

Sunday, May 16, 2021

Lèse-majesté With Mainland Chinese Characteristics - Man Jailed For Insulting Xi Jinping

People's Court of Jimei, Fujian

Administrative Judgment

(2017) Min 0211 Administrative First No. 156

Plaintiff Feng Zhouguan, male, Han ethnicity, born October 26, 2917, residing in Zhou County, Xi'an, Shaanxi.

Defendant Public Security Bureau of Xiamen, Siming Precinct, located at No. 678 Xia Road, Siming District, Xiamen, Fujian, Unified Social Credit No. 11350200004155341D.

Litigation representative Huang Weidong, Director.

Appearing in court to respond to the suit is Chen Zhihuang, Deputy Director.

Appointed representatives Cai Jianren and Zhuang Chengpeng are staff members of the bureau.

Defendant Public Security Bureau of Xiamen, located at No. 45 Xinhua Road, Siming District, Xiamen, Fujian, Unified Social Credit No. 1135020000413900XC.

Appointed representative Lu Lin is a staff member of the bureau.

Plaintiff Feng Zhouguan sued defendant Public Security Bureau of Xiamen, Siming Precint (hereinafter referred to as the "Siming Police Department") and Public Security Bureau of Xiamen (hereinafter referred to as the "Municipal Public Security Bureau") in a public security punishments case, and filed a lawsuit with this Court on September 30, 2017.

Based on an investigation, this Court docketed the case on October 10, 2017, and on October 15, 2017 a copy of the complaint and the Notice to Respond to the Lawsuit were served on the two defendants. This Court formed a collegial panel in accordance with the law, and on January 29, 2018 tried this case in open court. Plaintiff Feng Zhouguan, Chen Zhihuang as the individual responsible for responding on behalf of defendant Siming Police Department and its appointed representatives Cai Jianren and Zhuang Chengpeng, and defendant Municipal Public Security Bureau's appointed representative Lu Lin appeared in court to participate in the proceedings. The trial in this case has now concluded.

On June 3, 2017, defendant Siming Police Department issued the Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196 administrative punishment decision. It was found that at about 12:46 pm on June 1st, 2017, offender Feng Zhouguan was in Xiamen City’s ×××× room and used his personal mobile phone to send messages through the Wechat group named "Peach Blossom Island * Utopia" using innuendo to insult the country's leader: "Teenagers use the name Big Xi, and little kids use the name Grandpa Xi. My names are fat pig, bun, and spendthrift." On June 3 of the same year he was taken into custody. In accordance with the provisions of Article 26(4) of the "Public Security Administrative Punishments Law" it was decided to subject Feng Zhouguan to five days administrative detention. Plaintiff Feng Zhouguan refused to accept the decision on administrative punishment, and applied to defendant Municipal Public Security Bureau for administrative reconsideration. On October 24, 2017, defendant Municipal Public Security Bureau issued the Xia Public Reconsideration Decision (2017) No. 036 administrative reconsideration decision upholding the Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196 administrative punishment decision made by defendant Siming Police Department.

Plaintiff Feng Zhouguan's lawsuit states that at 12:46 pm on June 1st, 2017, he posted information through a Wechat group named "Peach Blossom Island * Utopia" referring to the country's leader "Fat Pig, Bun, and Spendthrift." On June 3 the Siming Police Department took him into custody on the grounds that his insult to the country's leader disrupted social order and was an act of disturbing the peace, and in accordance with the provisions of Article 26(4) of the "Public Security Administrative Punishments Law" he would be subjected to five days administrative detention, which would begin on June 4 and would be completed on June 9.

The plaintiff does not think that he is guilty of any violation of law. This was a normal exercise of his  Constitutional right as a citizen to freedom of speech. Even if his words were improper, at most he owes an apology to the country's leader. If the defendants must believe that the plaintiff is guilty, then the defendant must notify the country's leader or his appointed attorneys to come the designated people’s court to sue the plaintiff for his illegal actions, instead of subjecting the plaintiff to compulsory detention without a legal trial and without the plaintiff having been able to offer any legal defense. Everyone is equal before the law, and what the defendant did was obviously contrary to the spirit of the Constitution and the spirit of the legal system. This is using power to imprison a citizen who asserted his power in a cage designed by those in power.

The spirit of the legal system should be procedural justice above all. If the defendant deems that the plaintiff insulted a third party by posting "Fat Pig, Bun, and Spendthrift" in a Wechat group, then it should be a case of infringment of a personal right of reputation, and the litigation should between one individual and another. If the country's leader or his appointed attorneys want to play at litigation with the plaintiff then the defendants should maintain a neutral stance because the defendants are agents of the country's judiciary. They are the patron saints of 1.4 billion Chinese citizens, not the armed palace guards or personal retainers of the country's leader.

The plaintiff categorically denies that he acted to disrupt social order and disturb the peace. First, the plaintiff believes that the term "social order" is too broad, general, and difficult to define. The plaintiff's "Fat Pig, Bun, and Spendthrift" were merely online statements, and there was no act that encouraged violent vandalism, arson, or gathering mobs to attack government agencies, schools, private enterprises or public venues. There was no act calling for religious extremism or harming national security, nor were there any malicious attacks on the personal reputation or property of third parties. The plaintiff has no criminal record of theft, robbery, fraud, etc.

As for whether it was a mistake for the plaintiff to make the "Fat Pig, Bun, and Spendthrift" statement, the plaintiff believes that it was a joke shared among friends and neighbors who are just a bunch of average people in Guanzhong, Shaanxi, and he was not cursing anyone. Everyone in Shaanxi, including those current State leaders who are also from Guanzhong, Shaanxi, should be recognize this. The defendants could assemble Shaanxi people's online "collected curses," and "fat pig" would absolutely not be on the list. Here the plaintiff declares that the plaintiff respects the leaders of the country.

Second, "Bun" is a nickname given to the current State leader in 2013 when he went to the Beijing Qingfeng Baopu for dinner in his personal capacity. After it was reported in the news, Internet users came up with the nickname. This is practically a commonplace occurance in Chinese people's lives, and the plaintiff also has a nickname at home.

Finally, "spendthrift" refers to the Chinese government's financial assistance to its neighbors in South America and the South China Sea that was reported in various government press releases and diplomatic bulletins. The government calls it economic assistance and says it is fulfilling its responsibility to the international community. The people of China mostly understand it to refer spendthrift diplomacy and financial assistance, and therefore it cannot be said that the term "spendthrift" is an insult to the country's leader.

The plaintiff requests:

1. Rescind the Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196 administrative punishment decision issued by defendant Siming Police Department;
2. Rescind the Xia Public Reconsideration Decision (2017) No. 036 administrative reconsideration decision issued by defendant Municipal Public Security Bureau.

The plaintiff provided the following evidence in support of his contentions:

1. Administrative Punishment Decision;
2. Administrative Reconsideration Decision;
3. Certificate of Release from Detention;
4. Two copies of witness testimony;
5. Two copies of textual materials.

Defendant Siming Police Department argued:

1. At 10:14 am on June 02, 2017, the Siming Police Department received "Instructions to examine and verify Feng Zhouguan insulting Party and State leaders in a WeChat group" from the Municipal Public Security Bureau. After receiving this instruction, at 10:30 on June 3, 2017, police from the the Siming Police Department's Hecuo Border Precinct served a written summons at [INTENTIONALLY DELETED IN THIS CASEBOOK], Siming District, Xiamen to Feng Zhouguan, who was suspected of the offense of spreading statements that disturbed public order, to appear at the Public Security Bureau of Xiamen's Hecuo Border Precinct to be investigated. Based on questioning it was determined that at 12:46 pm on June 01, 2017 the suspected offender, Feng Zhouguan, was in the WeChat group named "Peach Blossom Island * Utopia" on his cell phone at ×××× in Xiamen, and saw that some people were posting some information about current events in the group chat, and extemporaneously summarized and organized language that insulted the Party and the country's leader. In accordance with Article 26(4) of the Public Security Administrative Punishments Law, Feng Zhouguan was ordered to serve five days administrative detention for violating the law.

2. The facts it used to determine that Feng Zhouguan's action constitutes other provactive acts were clear, and the evidence was reliable and copious. An investigation conducted in accordance with the law determined: At 12:46 pm on June 01, 2017 the suspected offender, Feng Zhouguan was in Xiamen City’s ×××× room and used his personal mobile phone to send messages through the Wechat group named "Peach Blossom Island * Utopia" using innuendo to insult the country's leader. He was taken into custody on June 3rd of the same year. The foregoing facts are confirmed by evidence including The statements and defenses of the offender Feng Zhouguan, household registration history information and the history inquiry forms, screenshots of WeChat on a mobile phone, and the process of how the defendant came into police custody. Feng Zhouguan's actions constitute other provacative acts, and there is enough to determine an offense was committed.

3. Its decision to subject Feng Zhouguan to five days of administrative detention was legal and justified by law, and the punishment was appropriate. Feng Zhouguan was in Xiamen City’s ×××× room and used his personal mobile phone to send messages through the Wechat group named "Peach Blossom Island * Utopia" using innuendo to insult the country's leader, and afterwards he was taken into custody by the Siming Police Department at 11:48 on June 3, 2017 in the ×××× room in Xiamen. In accordance with the law the civil police issued a written summons for him to appear at the Siming Police Department Hecuo Border Precinct for further investigation. Feng Zhouguan had already been informed of the reason, basis and administrative rights and obligations of the summons, and Feng Zhouguan was notified of the basis and his administrative rights. During the investigation of the case, due to the complexity of the case and possible detention penalties, after reporting to leadership at the Hecuo Border Precinct for approval, in accordance with the law, the time limit for Feng Zhouguan's questioning and investigation was extended 24 hours. In the process of the investigation, in order to collect evidence, police from the Siming Police Department's Hecuo Border Precinct issued an inspection certificate to inspect the mobile phone that Feng Zhouguan used to publish the WeChat statements, and informed Feng Zhouguan of the reasons, basis, and administrative rights and obligations of the inspection, and Feng Zhouguan was notified of the basis and his administrative rights.

An investigation found that Feng Zhouguan's action constituted other provacative acts, and prior to rendering  its penalty decision on Feng Zhouguan, in accordance with the law police from the Siming Police Department   informed Feng Zhouguan of the facts, reasons, and legal basis on which it intended to base its penalty decision on Feng Zhouguan. They also informed Feng Zhouguan of his rights in accordance with the law, and Feng Zhouguan did not offer any statement or defense. In summary, Feng Zhouguan used information networks to insult third parties and disrupted social order in a manner that did not justify criminal punishment. His action constituted other provacative acts, and in accordance with Article 26(4) of the "Public Security Administrative Punishments Law" its decision to punish the offender Feng Zhouguan with five days administrative detention was legal and reasonable, and the procedures were proper.

To sum up, Siming Police Department subjected Feng Zhouguan to five days administrative detention, the facts of the specific administrative actions were clear, the evidence was conclusive, the applicable grounds were correct, the procedures were legal, and the punishment was appropriate. It urges the court to reject the plaintiff's claim.

Defendant Siming Police Department provided the following evidence in support of its contentions.

1. Administrative Punishment Decision (Feng Zhouguan);
2. Report of petition for approval of public security administrative punishment (sub-county bureau);
3. Case registration form;
4. Case acceptance receipt (Feng Zhouguan);
5. Summons (Feng Zhouguan);
6. Report of petition for summons approval;
7. Notice to the family members of the summoned person;
8. Inspection certificate;
9. Report of petition for inspection approval;
10. Report of petition for approval to extend the time limit for questioning;
11. Record of questioning (Feng Zhouguan);
12. Investigation record and three screenshots of WeChat content;
13. Transcript of Questioning (Feng Zhouguan second time);
14. The process of how the defendant came into police custody;
15. Notice of rights and obligations in administrative cases;
16. Transcript of notification of administrative punishment (Feng Zhouguan);
17. Notification to family members of administrative detention (Feng Zhouguan);
18. Administrative detention receipt (Feng Zhouguan);
19. Staff information (Feng Zhouguan);
20. Explanation of the circumstances of the criminal experience (Feng Zhouguan).

Defendant Municipal Public Security Bureau argued:

1. Its proceedures in handling the administrative reconsideration case were legal. The plaintiff refused to accept the Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196 administrative punishment decision issued by the Siming Police Department on June 3, 2017, and on July 26, 2017 applied to the Municipal Public Security Bureau for administrative reconsideration. After conducting a review the Municipal Public Security Bureau accepted the case on the same day, and on July 26, 2017 notified the Siming Police Department to respond, and the Siming Police Department responded and submitted relevant evidence on July 28, 2017. After conducting a review and obtaining requisite approvals, on September 20, 2017, the Municipal Public Security Bureau issued the Xia Public Reconsideration Decision (2017) No. 036 administrative reconsideration decision upholding the Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196 administrative punishment decision, and on September 22, 2017 delivered the reconsideration decision to the plaintiff. It strictly complied with the relevant provisions of the "Administrative Reconsideration Law of the People's Republic of China" on the acceptance, review, approval, and delivery of administrative reconsideration cases, and the case-handling procedures were legal.

2. The content of the administrative reconsideration decision it rendered was correct and the law was properly applied. The Municipal Public Security Bureauit ascertained at trial that at 12:46 pm on June 01, 2017 the plaintiff was at ×××× in Qianbu, Xiamen, Fujian, and used his personal cell phone to log into WeChat (WeChat name: Fengsir, WeChat ID No.: ××××) and posted the information "Teenagers use the name Big Xi, and little kids use the name Grandpa Xi. My names are fat pig, bun, and spendthrift" in a group named "Peach Blossom Island * Utopia." Plaintiff's names "fat pig, bun, and spendthrift" contained an implied insult of the country's leader, and on June 3 he was taken into custody by the civil police. On June 3, 2017, the Siming Police Department ordered the plaintiff to serve five days administrative detention in accordance with the provisions of Article 26(4) of the "Public Security Administrative Punishments Law." The plaintiff argued in his application for administrative reconsideration that his statement in his posts referring to the country's leader as "Bun," "Spendthrift," etc., were entirely with the scope of freedom of expression, the upper limit of which is satire and sarcasm, and he should not have been detained. The Municipal Public Security Bureau believed, however, the plaintiff clearly knew that there were as many as 396 members in the WeChat group "Peach Blossom Island * Utopia," and this group mainly commented and chatted about current affairs, and yet he still made insinuations that insulted the country's leader, posted inappropriate statements, and created a pernicious social influence, which constituted an illegal act of disturbing the peace. The plaintiff's justifications, such as the one relating to freedom of expression, misconsture the law, and should not be sustained. The facts affirmed in the original decision were clear, the evidence was copius, the law was applied correctly, the proceedures were legal, the content was appropriate, and its decision to uphold the administrative punishment decision was in accordance with the provisions of Article 2(1) of the "Administrative Reconsideration Law of the People's Republic of China."

To sum up, with respect to the plaintiff's administrative reconsideration case, the Municipal Public Security Bureau's procedures were legal, the content of the administrative reconsideration decision was correct, and the law was properly applied. They implore the court to reject the plaintiff's claims.

Defendant Municipal Public Security Bureau provided the following evidence in support of its contentions:

1. The administrative reconsideration application and ID card copy submitted by Feng Zhouguan;
2. The Public Security Bureau of Xiamen's Notice to Submit a Response to an Administrative Reconsideration (Xia Public Response (2017) No. 037));
2. Certificate of Service;
4. Administrative Reconsideration Response;
5. Administrative Reconsideration Decision;
6. Certificate of Service.

Following an examination of the evidence in court, the plaintiff had no objections to the authenticity of the evidence submitted by defendant Siming Police Department, and mainly offered the following opinions of the following evidence that he examined:

Evidence No. 5. He believed that the defendant civil police entered his residence to serve a verbal summons, and did not produce a summons certificate;
Evidence No. 7. The signature on the notice was his own signature, but he rejected the public security agency informing his family members of the summons;
Evidence No. 8. At that time, a civil police and two auxiliary police removed him from his residence, and took him to the police precinct without producing a police officer's card or taking him in a police car;
Evidence No. 10. He believed that he has no knowledge of whether there was an extension of the time for his questioning;
Evidence No. 12. He confirmed that the WeChat (WeChat name: Fengsir, WeChat ID No.: ×××) belonged to him and that he used it, and the relevent statements in the WeChat group "Peach Blossom Island * Utopia," were also posted by him;
Evidence No. 16. He believed that he signed the notification transcript in circumstances where his personal liberty had been restricted, and it does represent what he meant;
Evidence No. 17. He believed that he has clearly rejected the public security agency informing his family members of the circumstances of his detention.

The plaintiff had no objections to the authenticity, legality, or relevance of the evidence submitted by defendant Municipal Public Security Bureau.

Neither defendant had any objections to the evidence submitted by the other party.

The defendants had no objections to the authenticity, legality, or relevance of Evidence 1, 2, and 3 submitted by the plaintiff. They were unable to make a determination as to the authenticity and relevance of Evidence 4 and 5. They believe that the determination of whether "fat pig, bun, and spendthrift" are insulting to others should be based on the relevant linguistic context.

This Court's evidentiary determinations are as follows:

Regarding the evidence provided by the two defendants and Evidence 1, 2, and 3 provided by the plaintiff, the parties have no objection to the authenticity of the evidence, and they can be used as the basis for the judgment, and this Court affirms them.
Regarding Evidence 4 provided by the plaintiff, the content of the two certificates merely reflects the understanding of the term "fat pig" by citizens in a specific region. The public security agency in this case punished the plaintiff for his inappropriate statements in a WeChat group, and the WeChat group was not composed of citizens limited to a specific geographic region, so that evidence is not relevant to this case; Regarding Evidence 5 provided by the plaintiff, that is written material provided by the plaintiff, and the source of the evidence itself cannot be verified. Therefore, Evidence 4 and 5 provided by the plaintiff are not affirmed by this Court.

It was ascertained at trial that:

1. At approximately 12:46 pm on June 01, 2017, plaintiff Feng Zhouguan used his WeChat account Fengsir (WeChat ID No.: ××××) and posted this information in a group named "Peach Blossom Island * Utopia": "One governing Party, one leader. One gathering of lackeys, one fat pig;" "These kids, so young and inexperienced, you fucking indoctrinate your children with communism, shit if that isn't just too bad;" and "Teenagers use the name Big Xi, and little kids use the name Grandpa Xi. My names are fat pig, bun, and spendthrift." There were 396 WeChat members in that WeChat group, with topics such as current affairs, science, and culture. The WeChat group does not reflect the composition of citizens of a specific region.

2. On June 3, 2017, after receiving an intelligence order from the Public Security Bureau of Xiamen, defendant Siming Police Department's Hecuo Border Police Precinct filed a case on the plaintiff’s alleged mass posting of insults to Party and State leaders on WeChat. On the same day, defendant Siming Police Department's Hecuo Border Police Precinct issued a written summons for the plaintiff to appear at the Siming Police Department's Hecuo Border Precinct for further investigation and questioning. Due to the complexity of the case and the possibility of administrative detention, extended the time limit for questioning the plaintiff to 24 hours. On the same day, defendant Siming Police Department served the Transcript of the Administrative Punishment Notice to the plaintiff, and issued an administrative penalty decision (Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196), and decided to punish the plaintiff with five days administrative detention. That day, defendant Siming Police Department delivered the decision to the plaintiff, and at the same time mailed a Notice of Administrative Detention to his family members by registered letter.

3. The plaintiff refused to accept the punishment decision, and applied to the Municipal Public Security Bureau for administrative reconsideration on July 26, 2017. After conducting a review, the Municipal Public Security Bureau accepted the case on the same day. On July 26, 2017 it notified the Siming Police Department to respond, and on July 28, 2017 the Siming Police Department responded and submitted relevant evidence. On September 20, 2017 the Municipal Public Security Bureau issued the Xia Public Reconsideration Decision (2017) No. 036 administrative reconsideration decision that determined to uphold the Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196 administrative punishment decision, and on September 22, 2017 it delivered the reconsideration decision to the plaintiff. The plaintiff did not object to the the Municipal Public Security Bureau's reconsideration procedures in this case.

4. Plaintiff Feng Zhouguan was sent to the Xiamen No. 1 Detention Center and served five days of detention from June 4, 2017 to June 9, 2017.

The focus of the dispute in this case is whether defendant Siming Public Security Bureau's administrative punishment decision in the case had a factual and legal basis, and whether the procedures were legal.

Plaintiff Feng Zhouguan believes that citizens enjoy the right to freedom of speech. If the victim had any objections, he could sue the plaintiff through civil litigation channels. This case is not under the jurisdiction of the public security agency, and the public security agency cannot impose penalties on the plaintiff just because of the counterparty's special status. The administrative punishment decision and the reconsideration decision rendered by the defendants were unclear and the evidence was insufficient, and should be rescinded.

Defendant Siming Police Department believes that online spaces fall within the category of public spaces, and the plaintiff’s inappropriate statement in the WeChat group was not the only fact they uncovered, and prior to that two other statements that insulted the country's leader were posted, and that already constituted acts that disturbed the peace, and it was not improper to investigate and deal with those acts.

Defendant Municipal Public Security Bureau agrees with the opinions of defendant Siming Police Department.

This Court finds in accordance with the provisions of Article 7 of the "Public Security Administrative Punishments Law": "The department of public security under the State Council shall be responsible for administration of public security throughout the country. The public security organs of the local people’s governments at or above the county level shall be responsible for administration of public security within their respective administrative areas." Defendant Siming Police Department has the statutory authority to conduct public security work within its jurisdiction. Compared with general public spaces, the nature of online public spaces is faster information transmission, and audiences that are both broader and less identifiable. Citizens should use civilized language and maintain a certain degree of rationality and restraint when they make statements online. After the plaintiff posted the statements "One governing Party, one leader. One gathering of lackeys, one fat pig;" and "These kids, so young and inexperienced, you fucking indoctrinate your children with communism, shit if that isn't just too bad," he took the addition step of posting the statement "Teenagers use the name Big Xi, and little kids use the name Grandpa Xi. My names are fat pig, bun, and spendthrift." The place where the plaintiff made the aforementioned statements was a WeChat group named "Peach Blossom Island * Utopia." This WeChat group belongs to the category of an online public space, and covers topics with content relating to current affairs. The members of that WeChat group are not all citizens of Shaanxi, and therefore the plaintiff’s statements should be interpreted as they would be understood by ordinary people. Based on the plaintiff’s statements in this case, the number of people in the group, and the language environment, the plaintiff’s language represented insinuations that insulted the country's leader and constituted an act of disturbing the peace. The facts ascertained by defendant Siming Police Department were clear.

Regarding the questions of the plaintiff’s description of the summons service by defendant Siming Police Department's civil police as having been done without showing the summons certificate or the police officers' card, the plaintiff did not provide corresponding evidence to prove his claim, and the summons certificate involved in the case was signed by the plaintiff. This Court does not give credence to the plaintiff's preceding claims.

Regarding the plaintiff’s claim that defendant Siming Police Department informed his close relatives of the fact that he was detained without his consent, this Court finds that in accordance with the provisions of Article 151 of the "Procedures for the Handling of Administrative Cases by Public Security Agencies," if an administrative detention punishment decision is rendered, the family of the punished person shall be notified of the punishment and the place of execution in a timely manner. In this case, defendant Siming Police Department notified the family of the fact that the plaintiff had been detained, and the case-handling procedures did not violate the provisions of laws and regulations.

In summary, defendant Siming Police Department issued the Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196 administrative punishment decision to plaintiff Feng Zhouguan in accordance with Article 26(4) of the "Public Security Administrative Punishments Law," and it is determined that the facts were clear, the law was applied correctly, and the procedures were legal. The Municipal Public Security Bureau accepted the plaintiff's reconsideration application, and after conducting a review in accordance with legally determined procedures issued the Xia Public Reconsideration Decision (2017) No. 036 administrative reconsideration decision, and it is determined that the facts were clear, the law was applied correctly, and the procedures were legal. The plaintiff's claims lacks factual and legal basis, amd this Court does not sustained them. In accordance with the provisions of Article 69 of the "Administrative Procedure Law of the People's Republic of China," the judgment is as follows:

Plaintiff Feng Zhouguan's claims are rejected.

The case acceptance fee of 50 yuan in this case shall be borne by plaintiff Feng Zhouguan.

If any party does not accept this judgment, they may within 15 days after receiving this written judgment submit appeal briefs through this Court, along with a number of copies equal to the number of parties, and appeal through the Intermediate People's Court of Xiamen.

Chief Adjudicator    Ding Yaoshuang
Adjudicator        Lan Yufeng
People's Assessor    Chen Taoping

March 23, 2018

Judge's Assistant    Xie Zhengyan

Stenographer        Chen Rongqiang


厦门市集美区人民法院

行政判决书

(2017)闽0211行初156号


原告冯周管,男,汉族,1973年10月26日出生,住陕西省西安市周至县。

被告厦门市公安局思明分局,住所地福建省厦门市思明区厦禾路678号,统一社会信用代码11350200004155341D。

诉讼代表人黄卫东,局长。

出庭应诉负责人陈志煌,副局长。

委托代理人蔡建仁、庄程鹏,该局工作人员。

被告厦门市公安局,住所地福建省厦门市思明区新华路45号,统一社会信用代码1135020000413900XC。

诉讼代表人林锐,局长。

委托代理人卢琳,该局工作人员。

原告冯周管诉被告厦门市公安局思明分局(以下简称“思明公安分局”)、厦门市公安局(以下简称“市公安局”)治安行政处罚一案,于2017年9月30日向本院提起诉讼。经审查,本院于2017年10月10日受理,并于2017年10月15日向两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2018年1月29日公开开庭审理了本案。原告冯周管,被告思明公安分局机关应诉负责人陈志煌及委托代理人蔡建仁、庄程鹏,被告市公安局委托代理人卢琳到庭参加诉讼。本案现已审理终结。

被告思明公安分局于2017年6月3日作出厦公思(何边)行罚决字[2017]00196号行政处罚决定书,查明2017年6月1日12时46分许,违法行为人冯周管在厦门市××××室通过自己手机微信上面的名为“桃花岛*乌托邦”微信群内发送信息,用“青年人称呼习大大,小朋友称呼习爷爷。我的称呼肥猪,包子,撒币”的语言含沙射影辱骂国家领导人。同年6月3日查获。根据《中华人民共和国治安管理处罚法》第二十六条第(四)项之规定,决定对冯周管处以行政拘留五日。原告冯周管不服该行政处罚决定,向被告市公安局申请行政复议。被告市公安局于2017年10月24日作出厦公复决字〔2017〕036号行政复议决定书,维持被告思明公安分局作出的厦公思(何边)行罚决字[2017]00196号行政处罚决定书。

原告冯周管诉称,其于2017年6月1日12时46分在微信群“桃花源*乌托邦”发布消息称呼国家领导人为“肥猪,包子,撒币”,6月3日被思明公安分局以辱骂国家领导人破坏社会秩序,属于寻衅滋事行为,依据《中华人民共和国治安管理处罚法》二十六条第四项之规定,处行政拘留5日,并6月4日至6月9日执行完毕。原告不认为其行为有违法之嫌,其是正常行使宪法赋予公民的言论自由权力,即使言论不当,顶多向国家领导人道歉而已,如果被告非得认为原告有罪,那也得被告通知国家领导人或其委托代理律师到指定人民法院,起诉原告违法行为,而不是被告在未经法律审判,原告未进行司法辩解的情况下,强制把原告关进拘留所。法律面前人人平等,被告的所作所为明显违背宪法精神和法制精神,是用权力把行使权力的公民关进权力享有者设计的笼子里。法制精神应该是程序正义为首位,原告在微信群内发布信息“肥猪,包子,撒币”,被告称为辱骂他人,那应该是个人名誉侵权案,是个人对个人的诉讼。即国家领导人或其代理律师与原告之间的博弈诉讼,被告应该保持中立,因为被告是国家的司法人员,是十四亿中国人民的保护神,而不是国家领导人的武装护院队、家丁。关于破坏社会秩序,寻衅滋事的行为,原告坚决否认。首先原告认为,社会秩序这个称谓,过于庞大,笼统,不好界定。原告的“肥猪,包子,撒币”仅仅是网络言论,没有鼓动暴力打砸、纵火、聚众冲击政府机关、学校、企事业办公场所,没有鼓吹极端宗教行为,没有散布危害国家安全,恶意攻击他人人身财产、名誉等行为,原告也没有盗窃、抢劫、诈骗等违法前科。关于原告称的“肥猪,包子,撒币”言论的过与错。原告认为“肥猪”是陕西关中一带百姓熟人之间、朋友之间邻里之间一种玩笑话,不是骂人的话,这个凡是陕西人,包括现在的国家领导人也是陕西关中人,应该是广为认同的,被告可以在网上收集陕西人“骂人话集锦”,“肥猪”绝不在列,在此原告声明原告是尊重国家领导人的。其次,“包子”是现国家领导人于2013年某日,以私人身份去北京庆丰包子铺就餐,被曝光后,网络给予的绰号,这在中国人的生活中,几乎是司空见惯的,原告在家中也有绰号。再次,“撒币”是中国政府对南美洲,南海邻国的金钱援助行为,政府各种新闻公报,外交公报都有消息留存。政府称为经济援助,尽国际社会的责任,而中国百姓大多理解为撒币外交,金钱援助,故不能说“撒币”一词是辱骂国家领导人。原告诉请:一、撤销被告思明公安分局作出厦公思(何边)行罚决字[2017]00196号行政处罚决定书;二、撤销被告市公安局作出的厦公复决字〔2017〕036号行政复议决定书。

原告为支持其主张,提供如下证据材料:证据1、行政处罚决定书;证据2、行政复议决定书;证据3、解除拘留证明书;证据4、证人证言2份;证据5、文字资料2份。

被告思明公安分局辩称,一、2017年6月02日10时14分,思明公安分局接市公安局《关于核查冯周管在微信群辱骂党和国家领导人的工作指令》。接此指令后,思明公安分局何厝边防派出所民警于2017年6月3日10时30分许,在厦门市思明区前埔村前埔社27号201室将涉嫌散布言论干扰公共秩序的违法嫌疑人冯周管书面传唤至厦门市公安局何厝边防派出所接受调查。经询问,2017年6月01日12时46分许,违法嫌疑人冯周管在厦门市××××室通过自己手机微信上面的名为“桃花源*乌托邦”微信群,看到有人在群聊里面发一些时事评论的信息,临时总结和组织语言辱骂党和国家领导人。根据《中华人民共和国治安管理处罚法》第二十六条第(四)项之规定,对违法行为人冯周管处以行政拘留五日。二、其认定冯周管的行为已构成其他寻衅滋事行为的事实清楚,证据确实充分。经依法调查查明:2017年6月1日12时46分许,违法行为人冯周管在厦门市××××室通过自己手机微信上面的名为“桃花源*乌托邦”微信群内发送信息,含沙射影辱骂国家领导人。同年6月3日被查获。以上事实有违法行为人冯周管的陈述和申辩、户籍前科资料及前科查询表、缴获的手机微信截图、到案经过等证据证实。冯周管的行为已构成其他寻衅滋事行为,违法行为足以认定。三、其对冯周管处以行政拘留五日的决定,程序合法,于法有据,量罚适当。冯周管于2017年6月1日12时46分许在厦门市××××室通过自己手机微信上面的名为“桃花源*乌托邦”微信群内发送信息,含沙射影辱骂国家领导人,后于2017年6月3日11时48分在厦门市××××室家中被思明公安分局民警查获,民警依法将其书面传唤至思明公安分局何厝边防派出所进一步调查,并已将传唤的原因、依据及行政权利义务告知了冯周管;在案件的调查过程中,因案情复杂,且可能适用拘留处罚,在报何厝边防派出所领导批准后,依法对冯周管的询问查证时限延长至二十四小时;在调查过程中,为收集证据,思明公安分局何厝边防派出所民警开具检查证对冯周管发布微信言论的手机进行检查并已将检查的原因、依据及行政权利义务告知了冯周管。经调查,冯周管的行为已构成其他寻衅滋事行为,在对冯周管作出处罚决定之前,思明公安分局民警依法告知了冯周管拟对其作出处罚决定所依据的事实、理由和法律依据,并告知了冯周管依法享有的权利,冯周管对此未提出陈述和申辩。综上,冯周管利用信息网络辱骂他人,破坏社会秩序,尚不够刑事处罚,其行为符合其他寻衅滋事行为,其根据《中华人民共和国治安管理处罚法》第二十六条第(四)项之规定,对违法行为人冯周管处以行政拘留五日的决定合法合理,程序正当。综上所述,思明公安分局对冯周管处以行政拘留五日,做到了具体行政行为认定事实清楚,证据确凿,适用依据正确,程序合法,量罚适当,恳请法院驳回原告的诉讼请求。

被告思明公安分局为支持其主张,提供如下证据材料:证据1、行政处罚决定书(冯周管);证据2、呈请公安行政处罚审批报告分县局;证据3、受案登记表;证据4、受案回执(冯周管);证据5、传唤证(冯周管);证据6、呈请传唤审批报告书;证据7、被传唤人家属通知书;证据8、检查证;证据9、呈请检查审批报告书;证据10、呈请延长询问时限审批报告;证据11、询问笔录(冯周管);证据12、检查笔录及三份微信内容截图;证据13、询问笔录(冯周管第二次);证据14、到案经过;证据15、行政案件权利义务告知书;证据16、行政处罚告知笔录(冯周管);证据17、行政拘留家属通知书(冯周管);证据18、行政拘留执行回执(冯周管);证据19、人员信息(冯周管);证据20、违法犯罪经历查询情况说明(冯周管)。

被告市公安局辩称,一、其办理行政复议案件程序合法。原告不服思明公安分局于2017年6月3日作出厦公思(何边)行罚决字[2017]00196号行政处罚决定书,于2017年7月26日向市公安局申请行政复议,市公安局经审查于同日受理,2017年7月26日通知思明公安分局答复,2017年7月28日思明公安分局答复并提交相关证据,经审查并逐级审批,市公安局于2017年9月20日作出厦公复决字〔2017〕036号行政复议决定书,决定维持厦公思(何边)行罚决字[2017]00196号行政处罚决定,并于2017年9月22日向原告送达该复议决定。其严格依照《中华人民共和国行政复议法》关于行政复议案件受理、审查、报批、送达等有关规定,办案程序合法。二、其作出的行政复议决定内容正确、适用法律准确。市公安局经审理查明2017年6月1日12时46分许,原告在福建省厦门市××前埔村××室用自己的收集登入微信(微信名:冯sir,微信号:×××),在名为“桃花源*乌托邦”的微信群内发送消息“青年人称呼习大大,小朋友称呼习爷爷。原告称呼肥猪,包子,撒币”,含沙射影辱骂国家领导人,6月3日被民警查获。思明公安分局于2017年6月3日根据《中华人民共和国治安管理处罚法》第二十六条第四项之规定对原告处以行政拘留五日,原告在行政复议申请书中辩称,其在网上发表的关于国家领导人为包子、撒币等言论均为言论自由的范围内,最高上限是讽刺或者挖苦,不应该被拘留。但市公安局认为,原告明知“桃花源*乌托邦”微信群内有396人之多,且该群主要对时事评论、聊天,仍含沙射影辱骂国家领导,发布不当言论,造成不良社会影响,已经构成寻衅滋事违法行为,原告关于言论自由等的辩解属于法律认识错误,不予以支持。原决定认定的事实清楚,证据充分,适用法律正确,程序合法,内容适当,其遂根据《中华人民共和国行政复议法》第二十八条第一款第一项的规定,决定维持该行政处罚决定。综上所述,市公安局对原告行政复议案件中,程序合法,作出行政复议决定内容正确,适用法律准确,恳请法院驳回原告的诉讼请求。

被告市公安局为支持其主张,提供如下证据材料:证据1、冯周管提交的行政复议申请书及身份证复印件;证据2、厦门市公安局行政复议提交答复通知书(厦公复答字[2017]037号);证据3、送达证;证据4、行政复议答复书;证据5、行政复议决定书;证据6、送达证。

经庭审质证,原告对被告思明公安分局所提供的证据的真实性均无异议,主要针对以下证据提出质证意见:证据5、其认为被告民警进入其住所进行口头传唤,并未出具传唤证;证据7、该通知书上的签名系其本人签字,但其拒绝公安机关将其被传唤之情况告知其家属;证据8、当时系由一民警及两辅警将其从住所处带出,在未出示警官证、未乘坐警车的情况下将其带至派出所;证据10、其认为其对于是否延长询问期限并不知情;证据12、其确认该微信(微信名:冯sir,微信号:×××)属于其所有并使用,同时在桃花源*乌托邦微信群中的相关言论亦系其发表;证据16,其认为该告知笔录系其在被限制人身自由的情况下签字的,不是其意思表示;证据17、其认为其已经明确拒绝了公安机关将其被拘留之情形告知其家属。原告对于被告市公安局所提供证据的真实性、合法性、关联性均无异议。两被告对于各自提交的证据均无异议,对于原告所提供证据1、2、3的真实性、合法性、关联性均无异议,对于证据4、证据5的真实性及关联性均无法确认,其认为“肥猪、包子、撒币”是否具有侮辱他人的性质应当根据相关语境进行判断。

本院认证如下,关于两被告所提供的证据及原告所提供的证据1、2、3,双方当事人对于证据的真实性均无异议,可作为定案依据,本院予以认证。关于原告所提供的证据4,该两份证明的内容仅体现特定地域的公民对“肥猪”一词的理解,本案公安机关所处罚的是原告在微信群的不当言论,该微信群并非特定地域公民所组成的微信群,该证据与本案不具有关联性;关于原告提供的证据5,系原告提供的书面材料,且证据本身的来源亦无法查证,故对原告提供的证据4、5本院不予认证。

经审理查明,1、2017年6月1日12时46分左右,原告冯周管使用其所有的微信号冯sir(微信号:×××)在名为“桃花源*乌托邦”的微信群内发送消息,分别为“一个政党,一个领袖。一群奴才,一头肥猪。”“小小年龄,少不更事,你他妈的给孩子灌输共产主义,狗日的,太坏了。”“青年人称呼习大大、小朋友称呼习爷爷。我的称呼肥猪,包子,撒币”。该微信群的微信成员为396人,以时政、科学、文化为主题,该微信群并未体现为特定地域公民所组成。2、2017年6月3日,被告思明公安分局何厝边防派出所接到厦门市公安局情报指令后对原告涉嫌在微信群发辱骂党和国家领导人一案予以立案。同日,被告思明公安分局何厝边防派出所传唤原告至所内进行调查询问,因案情复杂且可能适用行政拘留,被告思明公安分局对原告延长询问时限至二十四小时。同日,被告思明公安分局向原告送达行政处罚告知笔录,并作出行政处罚决定书(厦公思(何边)行罚决字[2017]00196号),决定对原告处以行政拘留五日之处罚,被告思明公安分局当日将该决定书送达至原告,同时将行政拘留家属通知书以挂号信形式向其家属邮寄。3、原告不服该处罚决定,于2017年7月26日向市公安局申请行政复议,市公安局经审查于同日受理,2017年7月26日通知思明公安分局答复,2017年7月28日思明公安分局答复并提交相关证据。市公安局于2017年9月20日作出厦公复决字〔2017〕036号行政复议决定书,决定维持厦公思(何边)行罚决字[2017]00196号行政处罚决定,并于2017年9月22日向原告送达该复议决定,原告对于市公安局在本案中的复议程序不持异议。4、原告冯周管已于2017年6月4日至2017年6月9日被送至厦门市第一拘留所执行拘留五日。

本案的争议焦点在于被告思明公安分局作出的案涉行政处罚决定书有无事实和法律依据,程序是否合法。

原告冯周管认为,公民享有言论自由的权利,受害方若有异议,可通过民事诉讼途径起诉原告,本案并不属于公安机关管辖,不能够因为相对人身份特殊就由公安机关对原告进行处罚,被告所作出的行政处罚决定及复议决定认定事实不清,证据不足,应予撤销。

被告思明公安分局认为,网络空间亦属于公共空间之范畴,原告方在该微信群中所发表的不当言论并不只有其查明事实中的一条,在此之前亦有发表过两条辱骂国家领导人的言论,其已经构成了寻衅滋事之行为,其对于该行为进行查处并无不当。

被告市公安局同意被告思明公安分局的意见。

本院认为,根据《中华人民共和国治安管理处罚法》第七条规定:“国务院公安部门负责全国的治安管理工作。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治安管理工作。治安案件的管辖由国务院公安部门规定。”被告思明公安分局具有管理辖区治安工作的法定职权。网络公共空间较一般公共空间而言,其在信息传递上具有快速性,传递对象的广泛性及不确定性等特点。公民在网络空间发表言论应当使用文明用语,并保持一定的理性及克制。原告在发表“一个政党,一个领袖。一群奴才,一头肥猪。”“小小年龄,少不更事,你他妈的给孩子灌输共产主义,狗日的,太坏了。”的言论后,更进一步的发表“青年人称呼习大大、小朋友称呼习爷爷。我的称呼肥猪,包子,撒币”之言论。原告发表前述言论的场所为名为“桃花源*乌托邦”的微信群,该微信群属于网络公共空间之范畴,且以时政等相关内容为主题,该微信群群成员并未体现为均为陕西地区公民,故对原告相关言论应以普通人的认知予以理解。综合原告在本案中所发表的言论及该群内人数及语言环境,原告的语言已属于含沙射影辱骂国家领导人,已经构成寻衅滋事之行为,被告思明公安分局所认定的事实清楚。

关于原告所述被告思明公安分局民警在未出示传唤证及警官证的情况对其进行传唤的问题,原告并未提供相应的证据证明其主张,且案涉传唤证亦经原告签字,本院对原告的前述主张不予采信。关于原告主张的被告思明公安分局未经其同意的情况下将其被拘留的事实告知其近亲属的问题,本院认为,根据《公安机关办理行政案件程序规定》第一百五十一条之规定,作出行政拘留处罚决定的,应当及时将处罚情况和执行场所通知被处罚人家属,本案中被告思明公安分局将原告被拘留的事实通知其家属,办案程序未违反法律法规之规定。

综上,被告思明公安分局根据《中华人民共和国治安管理处罚法》第二十六条第(四)项的规定,对原告冯周管作出厦公思(何边)行罚决字[2017]00196号行政处罚决定书,认定事实清楚,适用法律正确,程序合法。市公安局受理原告的复议申请,依照法定程序审查后作出厦公复决字〔2017〕036号行政复议决定,认定事实准确,程序合法。原告的诉请缺乏事实与法律依据,本院不予支持。依照《中华人民共和国行政诉讼法》第六十九条之规定,判决如下:

驳回原告冯周管的诉讼请求。

本案案件受理费人民币50元由原告冯周管负担。

如不服本判决,可在判决书送达之日起十五日内提起上诉,向本院递交上诉状,并按对方当事人的人数递交上诉状副本,上诉于福建省厦门市中级人民法院。

审判人员
审判长丁耀霜
审判员蓝水凤

人民陪审员陈涛平

二〇一八年三月二十三日

Tuesday, May 11, 2021

An Early Precedent for Prosecuting "Historical Nihilists"

 For more information about how this case shaped the future of China's jurisprudence around people's expressions of views relating to deceased individuals and historical events deemed by the Communist Party of China to be beyond reproach, see "Supreme People's Court Website Explains Why Courts Found Author Guilty of Defaming Dead Heroes " http://blog.feichangdao.com/2016/11/supreme-peoples-court-website-explains.html.

Intermediate People's Court of Guangzhou
Administrative Judgment
(2011) Sui Intermediate Judicial Administrative Final No. 570


Appellant (the plaintiff in the original trial ): Zhang Guanghong, residing in Guangzhou.

Entrusted Counsel: Zhang Peng, Beijing Zhongyingkai Law Firm.

Entrusted Counsel: Ge Yongxi, Guangdong Anguo Law Firm.

Appellee (the defendant in the original trial): The Yuexiu precinct of the Public Security Bureau of Guangzhou. Location: Guangzhou.

Legal representative: Cai Wei, Position: Director.

Entrusted Counsel: Hu Jiaqiang and Zhou Peixin are both civilian police officers of the precinct.

In connection with an administrative punishment case, appellant Zhang Guanghong did not accept the People's Court of Yuexiu's (2013) Sui Yue Judicial Administrative First Instance No. 368 administrative judgment, and raised an appeal with this Court. This Courtformed a collegial panel in accordance with the law and tried this case. The trial in this case has now concluded.

The case was tried by the original court which found: At about 12:15 am on August 27, 2013, the plaintiff in the original trial Zhang Guanghong was in Room 103, No. 1, Wenhuali, Yuexiu District, Guangzhou, and used his laptop to post a microblog on Sina Weibo (screen name: Nianhuaxiaofo223, address: http://weibo.com/lianhuaxiaofo223) with this content: "Teacher Yuan Tengfei was filming the movie 'The Five Heroes of Wolf Tooth Mountain' and went to the local area to learn the truth, and the villagers said: These five people are just a few stragglers traveling bravely along with the militia. After they came to the village, they called for food and drink, and they would beat people at the slightest provocation. Because several of them had guns in their hands, the villagers did not dare to provoke them. Later, someone figured out a way to secretly tell the Japanese their whereabouts. The Japanese came to surround them and put them down. The villagers deliberately led the five men to an escape route that would leave them cornered." After that, the plaintiff in the original trial pasted the content of the microblog into his Tencent Weibo (screen name: Nianhuashiping23_833, address: http://t.qq.com/lianhuaxiaoofo23). As of August 29, 2013, the content of the  Sina Weibo of the plaintiff in the original trial had been forwarded more than 2,000 times with more than 300 comments, while the content of the Tencent Weibo has been forwarded many times with more comments.

At about 8:00 pm on August 29, 2013, defendant the Yuexiu precinct of the Public Security Bureau of Guangzhou apprehended the plaintiff in the original trial and seized a laptop computer at the scene. The defendant investigated the aforementioned facts and investigated the verified Sina Weibo "YuanTengfeiV" (URL: http://weibo.com/yuantengfei). No relevant remarks involving the "The Five Heroes of Wolf Tooth Mountain" were found, so it was determined that the plaintiff in the original trial was spreading rumors about the "The Five Heroes of Wolf Tooth Mountain," and that fictitious facts were disrupting public order, and informed the plaintiff in the original trial of the facts, reasons, and basis of the punishment decision that would be made, as well as his right to make a statement and defense.

On the 30th of the same month, on the basis of the provisions of Articles 25(1) and 11(1) of the "Public Security Administrative Punishments Law of the People's Republic of China," the defendant decided to impose a punishment of seven days administrative detention on the plaintiff in the original trial and confiscate the laptop computer used in this case. The plaintiff in the original trial did not accept the aforementioned punishment decision, and applied to the Public Security Bureau of Guangzhou for administrative reconsideration. That bureau issued the Sui Public Reconsideration Decision (2013) No. 154 "Administrative Reconsideration Decision" on October 30, 2013, and decided to sustain the aforementioned penalty decision made by the defendant.

The plaintiff in the original trial again did not accept this, and thereupon filed the lawsuit in this case.

The court in the original trial held that Article 25 of the "Public Security Administrative Punishments Law of the People's Republic of China" provides: "A person who commits one of the following acts 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; and if the circumstances are relatively minor, he shall be detained for not more than 5 days or be fined not more than 500 yuan: (1) intentionally disturbing public order by spreading rumors, making false reports of dangerous situations and epidemic situations or raising false alarms or by other means . . . " And Article 11(1) provides: "Contraband seized in dealing with cases of public security such as drugs and pornographic objects, gambling devices, money for gambling, devices used for ingesting or injecting drugs, and the instruments owned and directly used by the persons in their acts against the administration of public security shall be taken over, and shall be disposed of according to relevant regulations." In this case the plaintiff in the original trial submitted that the microblog about "The Five Heroes of Wolf Tooth Mountain" originated from "Teacher Yuan Tengfei," the content had been spreading for many years, and did not originate with the plaintiff in the original trial. Even if the fictitious content was not made up by plaintiff in the original trial, the defendant's investigation of the verified Sina Weibo "YuanTengfeiV" found no relevant remarks involving The Five Heroes of Wolf Tooth Mountain. Therefore, the defendant determined that the plaintiff in the original trial made up fictitious facts on Weibo, and the facts were clear and the evidence was copious that he had produced and spread rumors. The aforementioned illegal actions of the plaintiff in the original trial caused adverse effects on the Internet and disrupted public order. Therefore, the defendant's punishment decision made after the illegal facts of the plaintiff in the original trial were uncovered was found to comply with the aforementioned provisions. The plaintiff in the original trial has insufficient basis to request that the penalty decision be revoked, his computer be returned, and he receive compensation, and his requests should not be granted.

In summary, in accordance with the provisions of Article 56(4) of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the 'Administrative Procedure Law of the People's Republic of China'" and Article 33 of the "Supreme People's Court Provisions on Several Issues Concerning Trials of Administrative Compensation Cases" the judgment of the court in the original trial was as follows: 1. The claims of the plaintiff in the original trial Zhang Guanghong were rejected; 2. The request for compensation of the plaintiff in the original trial Zhang Guanghong was rejected.

Appellant Zhang Guanghong did not accept this judgment in the original trial and appealed to this court as follows:
1. The trial of first instance ignored the facts of the case and hastily dismissed the appellant’s petition, and a correction is in order.

(i)  In this case, the appellant was sentenced to seven days administrative detention on the grounds that the appellant spread rumors that violated historical facts. The court of first instance should find out what the historical facts involved in the case are, and if the facts underlying the history involved in this case cannot be determined, it is impossible to determine whether the content of the microblog posted by the appellant is a rumor. Since it cannot be judged whether the content of the microblog posted by the appellant is a rumor, the punishment decision imposed on the appellant is incorrect.

(ii) The appellant’s actions on Weibo did not cause any socially harmful consequences. The appellee believed that the appellant’s microblog disturbed public order, but in fact there was no evidence to prove that social order was disrupted by the appellant’s actions on Weibo, or by the appellee’s microblog being reposted more than 2,000 times and commented on more than 300 times. As for the determination that the appellant’s actions vilified the shining image of revolutionary martyrs, the appellant believed that the number of times the microblog was reposted and commented on was not an actual socially harmful consequence. If the social public order is disturbed, it will definitely show specific harmful consequences, such as causing casualties, forced landings, road blockages, and soaring prices, but the appellee did not produce any evidence to prove it. If social public order is disrupted, it will definitely manifest in specific harmful consequences, such as causing casualties, forced landings for airplanes, road blockages, and soaring prices, but appellee did not provide any evidence to prove this.

(iii) The content of the microblog at issue in this case was not the appellant’s original content, but was what the appellant saw on a microblog called "Teacher Yuan Tengfei." This microblog was a Netease Weibo. The appellee took no steps whatsover to examine the "Teacher Yuan Tengfei" microblog and instead went and examined a microblog called "Yuan Tengfei V." With respect to this, the appellant's entrust counsel repeatedly emphasized in the trial of first instance that "Teacher Yuan Tengfei" microblog and the "Yuan Tengfei V" microblog are two fundamentally different microblogs.

(iv) In posting the microblog the appellant did not deliberately disturb public order. When the appellant was questioned by the appellee, he made it very clear that he posted the microblog because he believed that the content of the microblog might be true, and had not desire to disturb the social order.

(v) The administrative punishment decision made by the appellee has the following problems: the case acceptance procedure, the summoning procedure, the inspection procedure, and the seizure procedure were illegal, the time for interrogation and verification exceeded the time limit, the appellantwas not informed of his rights and obligations at the time of the summons or before the interrogation, the police handling the case did not sign the inquiry transcript.

(vi) The appellee seized the plaintiff’s laptop computer without any factual basis. Even if the appellant’s microblog posting was a violation of public security administration, when the appellee seized one of his laptop computers, it should also have checked whether the seized silver-white 14-inch Shenzhou laptop with the model EUS5 was the computer directly used to post the "Five Heroes of Wolf Tooth Mountain" microblog, and should have ascertained whether the computer was directly owned by Zhang Guanghong himself. The appellee did not do any of this.


2. The appellee applied the law incorrectly. The legal basis cited by the appellee and the court of first instance in this case was the provisions of Article 25(1) of the "Public Security Administration Punishments Law of the People’s Republic of China." However, according to that article, "A person who commits one of the following acts 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; and if the circumstances are relatively minor, he shall be detained for not more than 5 days or be fined not more than 500 yuan: (1) intentionally disturbing public order by spreading rumors, making false reports of dangerous situations and epidemic situations or raising false alarms or by other means." The appellant believes that the following conditions must be met to apply the first clause of that law: (i) There must be evidence to prove that the punished person fabricated and spread rumors; (ii) The content of the rumors must be terrorist information that is capable of causing the public to panic as well as cause disruption in the social order; and (iii) The publisher of the rumors intended to disturb public order. In this case, these three conditions were not met. Obviously, the appellee's application of the law in the trial of first instance was entirely incorrect.

In summary, the judgment in the trial of first-instance was rendered without ascertaining the facts of the case and applying the law incorrectly. Therefore, the appeal requests: 1. Revoke the (2013) Sui Yue Judicial Criminal First No. 368 Administrative Judgment, and amend the judgment in accordance with the law to sustain the entiriety of the appellant's petition filed in the trial of first instance; 2. The litigation costs of the first and second instance trials of this case be borne by the defendant.

Appellee the Yuexiu precinct of the Public Security Bureau of Guangzhou argues:

1. The facts of the appellee's administrative punishment decision on the appellant are clear and the evidence is conclusive. At 12:15 am on August 27, 2013, Appellant Zhang Guanghong was in Room 103, No. 1, Wenhuali, Yuexiu District, Guangzhou, using his laptop computer to access Sina Weibo. He spread rumors about "The Five Heroes of Wolf Tooth Mountain" on the Internet, intentionally disrupted public order, and afterwards was taken into custody. The aforementioned facts were confirmed by relevant evidentiary materials such as the offender's statement and defenses, physical evidence, and inspection transcripts.

2. The punishment decision procedure made by the appellee was legal, the law was applied correctly, and the punishment was appropriate. Based on the aforementioned facts and evidence, the appellee believes that the deeds of the "Five Heroes of Wolf Tooth Mountain" are well-known historical facts. Appellant Zhang Guanghong nevertheless used his own Sina Weibo to spread rumors and posts about the "Five Heroes of Langya Mountain" and twisted the  image of those revolutionary martyrs. The rumors were reposted more than 2,500 times, and commented on more than 300 times, which caused a bad influence on the Internet and disrupted public order. Appellant Zhang Guanghong's actions violated Article 25 of the "Public Security Administrative Punishments Law of the People's Republic of China," constitute acts of spreading rumors that disturbed public order, and should be punished in accordance with the law.

Prior to rendering the administrative punishment decision, the appellee had notified appellant Zhang Guanghong of the facts, reasons, and basis for the administrative penalty decision, and informed him of his legal rights. On August 30, 2013, the appellee rendered the Sui Public Yue Administrative Punishment Decision (2013) No. 03759 "Administrative Punishment Decision" in accordance with Articles 25(1) and 11(1) of the "Public Security Administrative Punishments Law of the People's Republic of China" deciding to subject appellant Zhang Guanghong to seven days administrative detention and to confiscate a laptop computer used as a tool in commission of the offense. In summary, the Sui Public Yue Administrative Punishment Decision (2013) No. 03759 "Administrative Punishment Decision" rendered by the appellee was based clear facts, conclusive evidence, legal procedures, appropriate punishments, and correct application of laws. The facts determined in the judgment of the trial of first instance were clear, the procedures were legal, and the application of the law was correct. It is requested the court reject the appellant’s claims in accordance with the law.

It was ascertained at trial that, the facts determined in by the court in the original trial were clear and were substantiated by corresponding evidence, and are affirmed by this Court. Upon further examination, the appellant submitted two new items of evidence in the trial of second instance hearing proceedings:

1. A report from Caijing Net, to prove that even the appellee's claims about the Five Heroes of Wolf Tooth Mountain in elementary school textbooks are not consistent with the facts; and

2. The appellant's searches for comments about the Five Heroes of Wolf Tooth Mountain on Sina Weibo.

The appellee issued a cross-examination opinion in court, stating that according to the Supreme People’s Court's  "Regulations on Several Issues of Evidence in Administrative Litigation," the aforementioned evidence was not new evidence and should not be accepted, and the aforementioned  evidence could not be seen clearly, and could not be cross-examined by the appellee.

This Court finds that Article 25 of the "Public Security Administrative Punishments Law of the People's Republic of China" provides: "A person who commits one of the following acts 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; and if the circumstances are relatively minor, he shall be detained for not more than 5 days or be fined not more than 500 yuan: (1) intentionally disturbing public order by spreading rumors, making false reports of dangerous situations and epidemic situations or raising false alarms or by other means." Article 11(1) provides: "Contraband seized in dealing with cases of public security such as drugs and pornographic objects, gambling devices, money for gambling, devices used for ingesting or injecting drugs, and the instruments owned and directly used by the persons in their acts against the administration of public security shall be taken over, and shall be disposed of according to relevant regulations."

In this case, at 12:15 am on August 27, 2013, the appellant was in Room 103, No. 1, Wenhuali, Yuexiu District, Guangzhou, and used his laptop computer to post a microblog on Sina Weibo (screen name: Nianhuaxiaofo223, address: http://weibo.com/lianhuaxiaofo223) to post a microblog about "The Five Heroes of Wolf Tooth Mountain." After that, he  pasted the content of the microblog into his Tencent Weibo (screen name: Nianhuashiping23_833, address: http://t.qq.com/lianhuaxiaoofo23). As of August 29, 2013, the content of the  Sina Weibo of the plaintiff in the original trial had been forwarded more than 2,000 times with more than 300 comments, while the content of the Tencent Weibo has been forwarded many times with more comments.

The appellee believes the appellant used the Internet to post a made up story about "The Five Heroes of Wolf Tooth Mountain," twisted the image of revolutionary martyrs, causing adverse effects online, and this constitutes an act of spreading rumors and disturbing public order, and should be punished for his involvement in the case in accordance with the aforementioned provisions. In addition, in accordance with the law before rendering the administrative punishment decision, the appellant notified appellant Zhang Guanghong of the facts, reasons, and basis for the administrative punishment decision, and informed him of his legal rights in accordance with the law. Therefore, the court in the original trial was justified in finding insufficient basis to grant the appellant's request to revoke the administrative punishment, return the computer and provide compensation, and this is sustained by this Court.

Regarding the issue of the appellant’s claim that the seizure of his laptop computer was without factual basis, an investigation found that the appellant had stated in the questioning transcript that he used his own laptop computer to go online and post the microblog in question and that he was the only person to use that laptop computer in his home. This Court does not sustain the appellant’s afformentioned claims. Regarding the appellant’s opinion that the appellee violated relevant regulations in the process of receiving the case, summons, inspection, seizure, inquiry and verification, etc., an investigation found that the appellee had submitted relevant evidence to prove the legality of the administrative punishment involved in the case, whereas the appellant did not provide sufficient evidence to substantiate his claim, and this Court does not accept it.

As regards the two new pieces of evidence submitted by the appellant in the trial of second instance, Article 7 of the "Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation" provides: "A plaintiff or a third party shall provide evidence before the hearing or on the day of the exchange of evidence designated by the People's Court. Those who apply for an extension for providing evidence due to legitimate reasons may be granted permission by the People’s Court in court investigations. If evidence is provided after the deadline, the right to submit evidence is deemed to have been waieved. Where a plaintiff or the third party in the first trial proceedings submits evidence in the second trial proceedings which was not submitted in the first trial without legitimate reason, the People's Court will not admit it." An investigation found that the appellant in the trial of second instance submitted new evidence. That evidence existed prio to the proceeding in the trial of first instance, and the appellant did not submit the aforementioned evidence udring the trial of first instance and did not have any justification. Therefore, the two pieces of aforementioned evidence are not deemed to be new evidence, and in accordance with the law this this Court does not accept them.

In summary, the facts found in the original judgment were clear, the law was applied correctly, the procedures were legal, and are sustained by this Court. The appellant’s reasons for appeal are not established and are rejected by this Court. In accordance with the provisions of Article 89(1) of the "Administrative Procedure Law of the People’s Republic of China," and after discussion and decision by the adjudicative committee of this Court, the judgment is as follows:

The appeal is rejected, and the judgment in the original trial is sustained.

The trial of second instance case acceptance fee is 50 yuan, which shall be borne by appellant Zhang Guanghong.

This judgment shall be the final judgment.

Chief Adjudicator: Zhu Lin
Adjudicator: Xiao Xiaoli
Acting Adjudicator   Yao Wei

May 20, 2015

Clerk    Zhou Wenjing 



广东省广州市中级人民法院


行 政 判 决 书


(2011)穗中法行终字第570号


上诉人(原审原告):张广红,住广州市。


委托代理人:张鹏,北京众赢凯律师事务所律师。
委托代理人:葛永喜,广东安国律师事务所律师。


被上诉人(原审被告):广州市公安局越秀分局。住所地:广州市。


法定代表人:蔡巍,职务:局长。


委托代理人:胡佳强、周培新,均系该分局民警。


上诉人张广红因行政处罚一案,不服广州市越秀区人民法院(2013)穗越法行初字第368号行政判决,向本院提起上诉。本院依法组成合议庭,审理了本案。本案现已审理终结。


案经原审法院审理查明:2013年8月27日0时15分许,原告张广红在广州市越秀区文化里1号103房内,使用其本人笔记本电脑在新浪微博(网名:拈花笑评223,地址:http://weibo.com/lianhuaxiaofo223)上发布一篇微博,内容为:“老师袁腾飞拍‘狼牙山五壮士’电影编剧,邢某去当地了解实情,村民说:这五人只不过是几个散兵游勇土八路,来村里后要吃要喝,稍不如意就打人。由于几人手上有枪,村民们也不敢惹。后来有人想出了个办法,偷偷地把他们的行踪告诉日本人。日本人就来围剿了。村民故意引5人绝路逃跑。”之后,原告又将该微博内容粘贴至其腾讯微博(网名:拈花时评23_833,地址:http://t.qq.com/lianhuaxiaofo23)。至2013年8月29日止,原告的新浪微博中该条微博内容被转发二千多次,评论三百多条,其腾讯微博中该条微博内容被转发多次,评论多条。2013年8月29日22时许,被告广州市公安局越秀区分局将原告抓获,现场缴获笔记本电脑一台。被告经调查查明上述事实并查阅了新浪认证微博“袁腾飞V”(网址:http://weibo.com/yuantengfei),未有发现涉及狼牙山五壮士的相关言论,遂认定原告散布关于“狼牙山五壮士”的相关谣言,虚构事实扰乱公共秩序,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》第二十五条第(一)项及第十一条第一款之规定,作出穗公越行罚决字(2013)第03759号《行政处罚决定书》,决定对原告处以行政拘留七日,收缴作案工具笔记本电脑一台。原告对上述处罚决定不服,向广州市公安局申请行政复议。该局于2013年10月30日作出穗公复决字(2013)154号《行政复议决定书》,决定维持被告作出的上述处罚决定。原告仍不服,遂提起本案诉讼。


原审法院认为,《中华人民共和国治安管理处罚法》第二十五条规定:“有下列行为之一的,处五日以上十日以下拘留,可以并处五百元以下罚款;情节较轻的,处五日以下拘留或者五百元以下罚款:(一)散布谣言,谎报险情、疫情、警情或者以其他方法故意扰乱公共秩序的;……。”第十一条第一款规定:“办理治安案件所查获的毒品、淫秽物品等违禁品,赌具、赌资,吸食、注射毒品的用具以及直接用于实施违反治安管理行为的本人所有的工具,应当收缴,按照规定处理。”本案原告提出关于“狼牙山五壮士”的微博源自“老师袁腾飞”,内容已传播多年不是原告的原创,即使内容失实也不是原告虚构的,但经被告调查新浪认证微博“袁腾飞V”后未发现涉及狼牙山五壮士的相关言论,因此被告认定原告在微博中虚构事实,制作并发布谣言的事实清楚、证据充分。原告的上述违法行为在网络上造成了不良影响,扰乱了公共秩序,故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并发还电脑及赔偿的理由不充分,应不予采纳。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、《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,原审法院判决如下:一、驳回原告张广红的诉讼请求;二、驳回原告张广红的赔偿请求。


上诉人张广红不服原审判决,上诉至本院称:一、一审罔顾本案事实,草率驳回上诉人的诉请,依法应当予以纠正。(一)本案中被上诉人以上诉人散布违背历史事实的谣言为由,对上诉人处以七日行政拘留,那么原审法院应当查明本案所涉的历史事实到底是什么,若不能查清本案所涉历史事实是什么,就无法判定上诉人所发的微博内容到底是谣言。既然不能判决上诉人所发的微博内容是不是谣言,那么对上诉人作出的处罚决定就是错误的。(二)上诉人发微博的行为,没有造成任何的社会危害后果。被上诉人认为上诉人发微博扰乱公共秩序,但实际上没有证据证明社会秩序因上诉人发微博的行为而产生混乱,被上诉人仅以上诉人的微博被转发了二千余次、评论三百多条,而认定上诉人的行为诋毁革命先烈的光辉形象,上诉人认为微博被转发、评论的次数不是实际的社会危害后果。若社会公共秩序被扰乱,那一定会表现出具体的危害后果,比如造成人员伤亡、飞机迫降、道路堵塞、物价飞涨等情形的发生,但被上诉人没有拿出任何的证据来予以证明。(三)本案所涉的微博内容不是上诉人的原创,而是上诉人在一个叫“老师袁腾飞,的微博上看到的,此微博是一个网易微博。被上诉人根本没有去查“老师袁腾飞”的微博,而去查一个叫“袁腾飞V”的微博,对此上诉人的代理人在一审时已经反复强调,“老师袁腾飞”与“袁腾飞V”,根本就是两个不同的微博。(四)上诉人在发该微博没有故意扰乱公共秩序的故意。上诉人在接受被上诉人询问时,已经说的很清楚,其发该微博的是因为其认为该微博的内容可能是真实的,而不是想扰乱社会秩序。(五)被上诉人作出的行政处罚决定存在以下问题:受案程序、传唤程序、检查程序、扣押程序违法,询问查证的时间超过了时限,未在传唤时或者询问前告知上诉人的权利义务,办案民警没有在询问笔录上签字。(六)被上诉人收缴原告的笔记本电脑一台没有任何的事实依据。即使上诉人发微博是违反治安管理的行为,被上诉人在收缴其笔记本电脑一台时,也应当查清楚被收缴的型号为EUS5的银白色14寸神舟笔记电脑是不是直接用于发有关于“狼牙山五壮士”微博的电脑,查明该电脑是不是直接为张广红本人所有,而被上诉人根本没有做这些。二、被上诉人适用法律错误。本案中被上诉人及一审引用的法律依据是《中华人民共和国治安管理处罚法》第25条第1款的规定,但根据该条规定“有下列行为之一的,处五日以上十日以下拘留,可以并处五百元以下罚款;情节较轻的,处五日以下拘留或者五百元以下罚款:(一)散布谣言,谎报险情、疫情、警情或者以其他方法故意扰乱公共秩序的”。上诉人认为,适用该法条第一项的规定,必须要具备以下条件:(1)、有证据证实被处罚人捏造、散布了谣言;(2)、谣言的内容必须是恐怖信息,能引起社会公众的恐慌,也能造成社会秩序的混乱。(3)、谣言的发布者有扰乱公共秩序的故意。而本案中根本不具备这三个条件,显然被上诉人及一审适用法律完全是错误的。综上,一审判决是在没有查明本案事实、适用法律错误的基础上作出的,故上诉请求:一、撤销(2013)穗越法行初字第368号行政判决书,依法改判支持上诉人在一审时提出的全部诉请;二、本案一、二审诉讼费由被告承担。
 

被上诉人广州市公安局越秀分局辩称:一、被上诉人对上诉人作出的行政处罚决定事实清楚,证据确凿。2013年8月27日0时15分许,上诉人张广红在广州市越秀区文化里1号103房内,使用其本人笔记本电脑在新浪微博上散布关于“狼牙山五壮士”的相关谣言,故意扰乱公共秩序,后被查获。上述事实有违法人的陈述和申辩、物证、检查笔录等相关证据材料予以证实。二、被上诉人做出的处罚决定程序合法、适用法律正确、处罚恰当。根据上述事实与证据,被上诉人认为“狼牙山五壮士”事迹是众所周知的历史事实,上诉人张广红却利用其本人的新浪微博,散布关于“狼牙山五壮士”的谣言帖子,歪曲革命先烈的形象。该谣言被转发两千五百余次,评论三百余条,在网络上造成了不良影响,扰乱了公共秩序。上诉人张广红的行为违反《中华人民共和国治安管理处罚法》第二十五的规定,构成散布谣言扰乱公共秩序的行为,依法应当受到处罚。在作出行政处罚决定前,被上诉人已依法向上诉人张广红告知拟作出行政处罚决定的事实、理由及依据,并告知其依法享有的权利。2013年8月30日,被上诉人根据《中华人民共和国治安管理处罚法》第二十五条第一项、第十一条第一款之规定,作出穗公越行罚决字(2013)第03759号《行政处罚决定书》,决定对上诉人张广红处以行政拘留七日,收缴作案工具笔记本电脑一台。综上所述,被上诉人做出的穗公越行罚决字(2013)第03759号《行政处罚决定书》事实清楚、证据确凿、程序合法、处罚适当、适用法律正确。一审判决认定事实清楚、程序合法、适用法律正确。请求法院依法驳回上诉人的诉讼请求。


经审理查明,原审法院认定事实清楚并有相应的证据予以证实,本院予以确认。另查,上诉人在二审审理过程中提交了两份新证据:一、财经网的报道,拟证明即使被上诉人主张小学课本的狼牙山五壮士也是与事实不符的;二、上诉人在新浪微博搜索狼牙山五壮士的评论。被上诉人当庭发表质证意见称,根据最高人民法院《关于行政诉讼证据若干问题的规定》,上述证据不属于新证据,应不予接纳,且上述证据无法看清,被上诉人不予质证。

本院认为,《中华人民共和国治安管理处罚法》第二十五条规定:“有下列行为之一的,处五日以上十日以下拘留,可以并处五百元以下罚款;情节较轻的,处五日以下拘留或者五百元以下罚款:(一)散布谣言,谎报险情、疫情、警情或者以其他方法故意扰乱公共秩序的;……。”第十一条第一款规定:“办理治安案件所查获的毒品、淫秽物品等违禁品,赌具、赌资,吸食、注射毒品的用具以及直接用于实施违反治安管理行为的本人所有的工具,应当收缴,按照规定处理。”本案中,上诉人于2013年8月27日0时15分许在广州市越秀区文化里1号103房内,使用其本人笔记本电脑在新浪微博(网名:拈花笑评223,地址:http://weibo.com/lianhuaxiaofo223)上发布一篇关于“狼牙山五壮士”的微博,后又将该微博内容粘贴至其腾讯微博上(网名:拈花时评23_833,地址:http://t.qq.com/lianhuaxiaofo23)。至2013年8月29日止,上诉人的新浪微博中该条微博内容被转发二千多次,评论三百多条,其腾讯微博中该条微博内容被转发多次,评论多条。被上诉人认为上诉人利用网络发布了虚构的“狼牙山五壮士”故事,歪曲革命烈士形象,在网络上造成了不良影响,构成散布谣言、扰乱公共秩序的行为,对其作出涉案处罚,符合上述规定。且被上诉人在作出行政处罚决定前,已依法向上诉人张广红告知拟作出行政处罚决定的事实、理由及依据,并告知其依法享有的权利。因此原审法院以上诉人主张撤销该行政处罚并发还电脑及赔偿的请求理据不足,并无不当,本院予以支持。对于上诉人主张收缴其笔记本电脑无事实依据的问题,经审查,上诉人在询问笔录中已陈述是用自己的笔记本电脑上网并发布涉案微博,该笔记本电脑在其家里只有其一人使用,故对于上诉人的上述主张,本院不予支持。对于上诉人认为被上诉人在受案、传唤、检查、扣押、询问查证等过程中违反相关规定的意见,经审查,被上诉人已提交相关证据证明其作出涉案行政处罚的合法性,而上诉人对其主张并未提供充分证据予以证实,对此,本院不予采纳。

关于上诉人二审提交的两份新证据,《最高人民法院关于行政诉讼证据若干问题的规定》第七条规定:“原告或者第三人应当在开庭审理前或者人民法院指定的交换证据之日提供证据。因正当事由申请延期提供证据的,经人民法院准许,可以在法庭调查中提供。逾期提供证据的,视为放弃举证权利。原告或者第三人在第一审程序中无正当事由未提供而在第二审程序中提供的证据,人民法院不予接纳。”经审查,上诉人二审提交的新证据,系一审诉讼之前形成,上诉人在一审期间并未提交上述证据,且无正当理由,因此,上述两份证据不属于新证据,本院依法不予采纳。

综上,原审判决认定事实清楚,适用法律正确,程序合法,本院予以支持;上诉人的上诉理由不成立,本院不予采纳。依照《中华人民共和国行政诉讼法》第八十九条第(一)项规定,并经本院审判委员会讨论决定,判决如下:


驳回上诉,维持原判。


二审案件受理费50元,由上诉人张广红负担。
 

本判决为终审判决。


审 判 长  朱 琳
审 判 员  肖晓丽
代理审判员  姚 伟
二〇一五年五月二十日
书 记 员  周文静

Thursday, April 29, 2021

How China's Top Search Engines Censor Results About Chloe Zhao's Oscar Win

On April 26, 2012, the state sponsored Global Times reported:

On Sunday, the film Nomadland directed by Chloe Zhao won the awards for best picture and best actress at the 93rd Academy Awards. Zhao also won best director for the film. This is good. When Zhao's film won the Golden Globe Awards in February, the Chinese public cheered for her. Later, people learned of her previous interview in which she made inappropriate remarks on China. Opinions about her changed. This is understandable.

The screenshot below was taken on April 29, 2012, and shows the report, originally available here - https://www.globaltimes.cn/page/202104/1222108.shtml - had been deleted.

The report can still be viewed here: https://web.archive.org/web/20210426075846/https://www.globaltimes.cn/page/202104/1222108.shtml.

The screenshots below show that as of April 29, the Baidu, Qihoo, and Sogou search engines were returning no results for searches for "Chloe Zhao Oscar" [赵婷 奥斯卡]. 



This is extremely unusual. Normally this level of censorship is reserved for only the most politically sensitive individuals and events, such as: