Intermediate People's Court of Suining, Sichuan
Criminal Judgment Document
(2011) Sui Intermediate Criminal First Instance No. 00054
Public Prosecution Agency People's Procuratorate of Suining, Sichuan
Defendant Chen Wei, male, born February 21, 1969 in Suining, Sichuan. Han ethnicity, matriculated college but did not obtain a degree, unemployed, household registration at Unit 2, No. 3, 69 Jiefu West Road, Chuanshan District, Suining, Sichuan, residing at D Block, 18th Fl., No. 2, "Top Rose," Chuanshan District, Suining, Sichuan. Sentenced to five years imprisonment and two years deprivation of political rights in December 1994 for the crime of inciting anti-counterrevolutionary propaganda, and released on May 28, 1997 upon completion of sentence. Subjected to criminal detention on February 21, 2011 on suspicion of committing the crime of inciting subversion of state power, and formally arrested on March 28 of the same year. Currently in custody at the Suining Detention Center.
Defense attorney Zheng Wei, Chongqing Kangshi Law Firm.
Defense attorney Liang Xiaojun, Beijing Daoheng Law Firm.
The People's Procuratorate of Suining, Sichuan charged the defendant Chen Wei with inciting subversion of state power pursuant to Sui Jian Public Prosecution Indictment 2011(42), and filed the indictment with this court on November 25, 2011. This court convened a collegiate panel in accordance with the law, and publicly tried this case. The People's Procuratorate of Suining, Sichuan assigned Procurator Li Hongzhi and acting Procurator Li Qin to appear in court in support of the indictment, and defendant Chen Wei and his defense attorneys Zheng Jianwei and Liang Xiaojun appeared in court to participate in the litigation. The trial has concluded.
The People's Procuratorate of Suining, Sichuan charged that, at various times during the period from March 2009 to January 2011, defendant Chen Wei published many articles he authored, including "The System's Illness and the Medicine of Constitutional Democracy" on overseas websites such as "China Democracy," "China Human Rights," and "Yi Bao," which spread rumors and libels "The people have been deprived of their ideology and belief," "The entire Chinese Communist Party utilizes violent mechanisms to control the people," and incitements "The funeral bells are ringing for one party dictatorship," and "This system must be changed." The articles that were published were widely linked to, re-posted, and viewed, and their influence was extremely malicious. The public prosecution agency presented in court on records of on-the-scene inspections, records of electronic evidence investigations, authenticated conclusions, witness testimony, the defendant's deposition, and other evidence in support. The public prosecution agency believes that defendant Chen Wei's actions constitute the crime of inciting subversion of state power, and that the crime is severe, and ask that the People's Court pass sentence in accordance with the law.
Defendant Chen Wei and his defense attorneys argue that Chen Wei lacked the intent to incite subversion of state power, and that the articles he published were generally theoretical in nature, and included no content that spread rumors or libels, his views were within the scope of citizens' freedom of speech, and do not constitute the crime of inciting subversion of state power. He is not a criminal.
An investigation has shown that, at various times during the period from March 2009 to January 2011, defendant Chen Wei published many articles he authored, including "The System's Illness and the Medicine of Constitutional Democracy," "Civil Opposition Parties are the Key Factor in the Growth of China's Democratization," "The Trap of Harmony and the Absence of Fairness," and "Realizations During a Hunger Strike on Human Rights Day" on overseas websites such as "China Democracy," "China Human Rights," and "Yi Bao," which spread rumors and libels "The people have been deprived of their ideology and belief," "The entire Chinese Communist Party utilizes violent mechanisms to control the people," "It is the enemy of democracy," and "Everyone clearly sees the inhuman nature of the Chinese Communist Party," and incitements "The funeral bells are ringing for one party dictatorship," "Use the streets to protest and promote popular government," and "This system must be changed." The articles that were published were widely linked to, re-posted, and viewed, and their influence was extremely malicious.
The aforementioned facts have been verified and confronted by this court through the following evidentiary proof:
1. Receipt of criminal case records, decision to establish the case, report on resolution of the case, arrest procedures, as well as the origin of evidence in the case, and process of resolving the case and arresting Chen Wei.
2. Search warrant, search records, list of confiscated items, on-sight survey examination records and photographs, evidence that investigative agencies confiscated two notebook computers, one portable hard drive, and several train tickets from Chen Wei's residence in accordance with the law.
3. Electronic evidence investigation records from the Suining Public Security Bureau -- Sui Public (Internet Security) Survey (2011) No. 011 Electronic Evidence Investigation Record, Sui Public (Internet Security) Survey (2011) No. 012 Electronic Evidence Investigation Record, Sui Public (Internet Security) Survey (2011) No. 013 Remote Examination Investigation Record, Sui Public (Internet Security) Survey (2011) No. 010 Electronic Evidence Investigation Record with letters and copies of letters regarding assisting with carrying out an investigation of relevant data, which proved that many essays, including "The System's Illness and the Medicine of Constitutional Democracy," "Realizations During a Hunger Strike on Human Rights Day," and "The Trap of Harmony and the Absence of Fairness," were discovered on hard drives of the notebook computers confiscated from Chen Wei. Based on a remote examination investigation, as of February 25, 2011, the 11 essays posted by Chen Wei on "China Democracy," "China Human Rights," "Yi Bao," and other websites had been linked to from 37 web pages and clicked on 8,524 times.
4. Expert Opinion Testimonial (Beijing Internet Association Forensic Center (2011) Testimonial No. 12) of the Beijing Internet Industry Association's Electronic Data Forensic Center, with an explanation of inspection materials used, with a record proving the discovery on the hard drives implicated in the Chen Wei case the essays written by Chen Wei, such as "The System's Illness and the Medicine of Constitutional Democracy," "Realizations During a Hunger Strike on Human Rights Day," and "The Trap of Harmony and the Absence of Fairness," and the Skype account registered by him to transmit the essays point-to-point overseas.
5. Paper copies of the essays published on the Internet including "The System's Illness and the Medicine of Constitutional Democracy," "Civil Opposition Parties are the Key Factor in the Growth of China's Democratization," "The Trap of Harmony and the Absence of Fairness," and "Realizations During a Hunger Strike on Human Rights Day," which Chen Wei has confirmed through his signature were published by him, proving that Chen Wei published inciting essays on the Internet, and that in these essays he spread rumors and libels "The people have been deprived of their ideology and belief," "The entire Chinese Communist Party utilizes violent mechanisms to control the people," "It is the enemy of democracy," and "Everyone clearly sees the inhuman nature of the Chinese Communist Party," and incitements "The funeral bells are ringing for one party dictatorship," "Use the streets to protest and promote popular government," and "This system must be changed."
6. Beijing Intermediate People's Court Criminal Judgment, Beijing Higher People's Court Criminal Ruling, Sichuan Province Prison Release Evidence proving that Chen Wei was imprisoned for the crime of inciting counter-revolutionary propaganda, and on December 16, 1994 was sentenced by the Beijing Intermediate Court to five years imprisonment and two years deprivation of political rights, and was released on May 28, 1997 upon completion of the sentence.
7. Household registration materials proving the basic personal information of Chen Wei's identity.
8. Testimony by witnesses Wang Xiaoyan (Chen Wei's wife), Wang Lanfang (Chen Wei's sister-in-law), Tang Jianlin (Chen Wei's brother-in-law), and Wang Lanying (Chen Wei's sister-in-law) proves that Chen Wei, his wife, and Wang Lanfang's family live together at D Block, 18th Fl., No. 2, "Top Rose," Chuanshan District, Suining, Sichuan, and they have no family living abroad. The "List of Sichuan Democracy Activists" and "Passerby Liu Xianbin" and other documents and materials on the hard drive from the "Legend" notebook computer and the Samsung portable hard drive confiscated in this case were not saved on the computer hard drives by them, and they did not use the name Chen Wei to post anything on the Internet. Chen Wei had arranged to use the bank accounts of Wang Xiaoyan, Wang Lanfang, Tang Jianlin, and Wang Lanying to have money transfered from overseas.
9. Testimony from witnesses Chen Wei [N.B. - this is a different spelling from the defendant's name], Yin Xia, and Yu Yuebo proves that they saw articles written by Chen Wei on "China Democracy" and other websites.
10. The deposition of defendant Chen Wei proves that the essays "The System's Illness and the Medicine of Constitutional Democracy," "Civil Opposition Parties are the Key Factor in the Growth of China's Democratization," "The Trap of Harmony and the Absence of Fairness," and "Realizations During a Hunger Strike on Human Rights Day" on overseas websites such as "China Democracy," "China Human Rights," and "Yi Bao" were written by him.
This court finds that defendant Chen Wei wrote and published on the Internet essays that spread rumors and libels, and incited subversion of China's state power and the overthrow of the socialist system, and that his actions constitute the crime of inciting subversion of state power. Chen Wei published a large number of articles on the Internet. They were inciting in the extreme, the scope of their influence was large, and his crime is severe. Chen Wei has previously been criminally sanctioned for crimes of endangering state security, and he proceeded to once again commit crimes that endangered state security following the conclusion of his criminal punishment. He is a recidivist, and in accordance with the law he should be subjected to harsh punishment.
Chen Wei and his defense attorneys have argued that the essays published by Chen Wei fall within the scope of citizens' freedom speech, and lack the objective intent and subjective actions for the crime of inciting subversion of state power, and his actions do not constitute a crime.
Based on an investigation, Chen Wei published many articles on the Internet that spread rumors and libels, and the objective was to incite subversion of China's state power and the overthrow of the socialist system, and his actions do not fall within the scope of citizens' freedom of speech, and severely harmed the nation's interests and security. Therefore, these arguments and defenses cannot stand, and this court does not accept them.
Chen Wei and his defense attorneys argue that Chen Wei is not a recidivist. Based on an investigation, Chen Wei was previously criminally sanctioned for the crime of inciting counter-revolutionary propaganda, and following the conclusion of his criminal punishment he proceeded to once again commit the crime of inciting subversion of state power. These two crimes are both crimes of endangering national security, and he is a recidivist. Therefore, these arguments and defenses cannot stand, and this court does not accept them.
Based on the foregoing, the facts are clear and the evidence is reliable and sufficient with respect to the public prosecutorial agency's charges, the crime charged stands, and this court sustains it. In accordance with the provisions of articles 105(2), 55(1), 56(1), 66, and 64 of the "Criminal Law of the People's Republic of China," the judgment is as follows:
1. Defendant Chen Wei committed the crime of inciting subversion of state power, and is sentenced to nine years imprisonment and two years deprivation of political rights (the prison term is to be calculated starting on the day the judgment is executed, with each day spent in detention prior to the execution of the judgment to count as one day of the prison term. It will therefore run from February 21, 2011 to February 20, 2020.)
2. All items used in the commission of the crime are hereby confiscated.
If the defendant does not accept this judgment, he may file an appeal with this court or directly with the High People's Court of Sichuan between the second and tenth day from the day after he receives the judgment document. A written appeal should be submitted with one original and two copies.
Presiding Judge Liu Yibin
Judge Wei Xiao
Judge Deng Gang
December 23, 2011
Clerk Quan Liguo
四川省遂宁市中级人民法院
刑事判决书
(2011)遂中刑初字第00054号
公诉机关四川省遂宁市人民检察院。
被告人陈卫,男,1969年2月21日出生于四川省遂宁市,汉族,大学肄业,无业,户籍所在地四川省遂宁市船山区介福西路69号门株2单元3号,住遂宁市船山区西山路"玫瑰上品"D栋l8楼2号。1994年12月因犯反革命宣传煽动罪被判处有期徒刑五年,剥夺政治权利二年,1997年5月28日刑满释放。2011年2月21日因涉嫌犯煽动颠覆国家政权罪被刑事拘留,同年3月28日被逮捕。现羁押于遂宁市看守所。
辩护人郑建伟,重庆康实律师事务所律师。
辩护人梁小军,北京市道衡律师事务所律师。
四川省遂宁市人民检察院以遂检公诉(2011)42号起诉书指控披告人陈卫犯煽动颠覆国家政权罪,于2011年11月25日向本院提起公诉。本院依法组成合议庭,公开开庭审理了本案。四川省遂宁市人民检察院指派检察员李虹志、代理检察员李琴出庭支持公诉,被告人陈卫及其辩护人郑建伟、梁小军到庭参加诉讼。现已审理终结。
四川省遂宁市人民检察院指控,被告人陈卫于2009年3月至2011年1月期问,通过互联网先后在"民主中国"、"中国人权"、"议报"等境外网站上发表其撰写的《制度之疾与宪政民主之药》等多篇文章,造谣、诽谤"人们被剥夺了思想和信仲"、"整中国共产党利用暴力机器对人民控制",并煽动"一党专政的丧钟已经敲响"、"必须改变这个制度"。所发表的文章被广为链接、转载、浏览,影响十分恶劣。公诉机关当庭出示了现场勘验检查记录、电子证物检查工作记录、鉴定结论、证人证言、被告人供述等证据予以证实。公诉机关认为,被告人陈卫的行为已经构成煽动颠植国家政权罪,且属罪行重大,请求人民法院依法判处。
被告人陈卫及其辩护人辩称,陈卫没有煽动颠覆国家政权的故意,其所发表的均是理论性文章,没有造谣、诽谤的内容,其观点属于公民言论自由的范围,不构成煽动颠覆国家政权罪;其不属于累犯。
经审理查明,2009年3月至2011年1月期间,被告人陈卫通过互联网先后在"民主中国"，"中国人权"、"议报"等境外网站上发表其撰写的《制度之疾与宪政民主之药》、《民间反对派的成长是中国民主化的关键要素》、《和谐的陷阱与公平的缺席》、《人权日绝食的感悟》等多篇文章,造谣、诽谤"人们被剥夺了思想和信仰"、"中国共产党利用暴力机器对人民控制"、"是民主的敌人"、"大家看清了中共反人类的本质",并煽动"一党专政的丧钟已经敲响"、"以街头对抗推进民间政治"、"必须改变这个制度"。所发表的文章被广为链接、转载、浏览,影响十分恶劣。
上迷事实有经法庭举证、质证的下列证据证实：
1。接受刑事案件登记表、立案决定书、破案报告书、抓获经过,证实案件的来源、侦破以及抓获陈卫的经过情况。
2。搜查证、搜查笔录、扣押物品清单、现场勘测检查笔录及照片,证实侦查机关依法从陈卫的住处扣押笔记本电脑两台、移动硬盘一个及部份车票。
3。遂宁市公安局电子证物检查工作记录 - - 遂公(网安)勘[2011]011号电子证物检查工作记录、遂公(网安)勘[2011]012号电子证物检查工作记录、遂公(网安)勘[2011]013号远程勘验检查笔录、遂公(网安)勘[2011]010号关于协助对相关数据进行调查的函及复函,证实从陈卫处扣押的笔记本电脑硬盘中发现了《制度之疾与宪政民主之药》、《在人权日绝食的感语》、《和谐的陷阱与公平的缺席》等多篇文章。经远程勘验检查,截止2011年2月25日,陈卫在"民主中国"、"中国人权"、"议报"等网站上发表的11篇文章,共计网页链接37个,点击数8524次。
4。北京网络行业协会电子数据司法鉴定中心司法鉴定意见书(京网协鉴定中心[2011]鉴字第12号)、检材使用情况说明,证实从陈卫涉案的硬盘中发现陈卫撰写的《制度之疾与宪政民主之药》、《在人权日绝食的惑悟》、《和谐的陷阱与公平的缺席》等文章以及其注册的Skype账号点对点向境外上传其选写文章的记录。
5。互联网上发表的《制度之疾与宪政民主之药》、《民问反对派的成长是中国民主化的关键要素》,《和谐的陷阱与公平的缺席》,《人权日绝食的感惜》等署名文章纸质件,经陈卫签字确认系其所发表,证实陈卫在互联网上发表煽动性文章,其在文章中造谣、诽谤"人们被剥夺了思想和信仰"、"中国共产党利用暴力机器对人民控制"、"是民主的敌人"、"大家看清了中共反人类的本质",并煸动"一党专政的丧钟已经敲响"、"以街头对抗推进民问政治"、"必须改变这个制度"。
6。北京市中级人民法院刑事判决书、北京市高级人民法院刑事裁定书、四川省川中监狱释放证明证实,陈卫曾囚犯反革命宣传煽动罪,被北京市中级人民法院于1994年12月l6日判处有期徒刑五年,剥夺政治权利二年。I997年5月28日刑满释放。
7。户籍资料证实陈卫的个人基本身份情况。
8。证人王晓燕(陈卫妻子)、王兰芳(陈卫大姨姐)、唐建林(陈卫大姐夫)、王兰英(陈卫二姨姐)的证言证实,陈卫夫妇和王兰芳夫妇两家人共同居住在遂宁市船山区西山路"玫魂上品咱栋l8楼2号,他们均没有亲属在境外。扣押在案的"方正"笔记本电脑硬盘、"三星"移动硬盘中的"川内民运人士一览表"、《行者刘贤斌》这些文件和资料不是他们保存在电脑硬盘上的,他们没有在互联网上用陈卫的名字发表高过东西。陈卫安排过王晓燕、王兰芳、唐建林、王兰英在银行办理过境外汇款的结汇业务。
9。证人陈伟、银夏、余跃波的证言,证实他们在"民主中国"等网站上看过陈卫写的文章。
10。被告人陈卫的供迷证实,在"民主中国"、"中国人权"、"议报"等境外网站上发表的《制度之疾与宪政民主之药》、《民问反对派的成长是中国民主化的关键要素》，《和谐的陷阱与公平的缺席》、《人权日绝食的惑悟》等多篇文章系其撰写。
本院认为,被告人陈卫撰写并在互联网上发表文章进行造谣、诽谤,煽动颠覆我国国家政权和推翻社会主义制度,其行为已构成煽动颠覆国家政权罪。陈卫在互联网上发表的文章多。煽动性强、影响范围大,属罪行重大。陈卫曾因危害国家安全犯罪被判处刑罚,刑罚执行完毕后再犯危害国家安全罪,系累犯,依法应从重处罚。陈卫及其辩护人辩称陈卫发表的文章属于公民言论自由范畴,不具有煽动颠覆国家政权罪的主观故意和客观行为,其行为不构成犯罪。经查,陈卫在互联网上发表多篇造谣、诽谤性文章,目的是煽动颠覆我国国家政权和推翻社会主义制度,其行为已不属于公民言论自由的范畴,已严重损害了国家利益和安全。故该辩解、辩护理由不能成立,本院不予采纳。陈卫及其辩护人辩称陈卫不构成累犯。经查,陈卫曾因犯反革命宣传煽动罪被判处刑罚,在刑罚执行完毕后再犯煽动颠覆国家政权罪,该两罪均属于危害国家安全的犯罪,系累犯。故该辩解、辩护理由亦不能成立,本院不予采纳。综上,公诉机关指控的事实清楚,证据确实、充分,指控罪名成立,本院予以支持。依照《中华人民共和国刑法》第一百零五条第二款、第五十五条第一款、第五十六条第一款、第六十六条、第六十四条的规定,判决如下:
一、被告人陈卫犯煽动颠覆国家政权罪,判处有期徒刑九年,剥夺政治权利二年(刑期从判决执行之日起计算。判决执行之前先行羁押的,羁押一日折抵刑期一日,即自2011年2月21日起至2020年2月20日止。)
二、随案移送的犯罪所用物品予以没收。
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四川省高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。
Criminal Judgment Document
(2011) Sui Intermediate Criminal First Instance No. 00054
Public Prosecution Agency People's Procuratorate of Suining, Sichuan
Defendant Chen Wei, male, born February 21, 1969 in Suining, Sichuan. Han ethnicity, matriculated college but did not obtain a degree, unemployed, household registration at Unit 2, No. 3, 69 Jiefu West Road, Chuanshan District, Suining, Sichuan, residing at D Block, 18th Fl., No. 2, "Top Rose," Chuanshan District, Suining, Sichuan. Sentenced to five years imprisonment and two years deprivation of political rights in December 1994 for the crime of inciting anti-counterrevolutionary propaganda, and released on May 28, 1997 upon completion of sentence. Subjected to criminal detention on February 21, 2011 on suspicion of committing the crime of inciting subversion of state power, and formally arrested on March 28 of the same year. Currently in custody at the Suining Detention Center.
Defense attorney Zheng Wei, Chongqing Kangshi Law Firm.
Defense attorney Liang Xiaojun, Beijing Daoheng Law Firm.
The People's Procuratorate of Suining, Sichuan charged the defendant Chen Wei with inciting subversion of state power pursuant to Sui Jian Public Prosecution Indictment 2011(42), and filed the indictment with this court on November 25, 2011. This court convened a collegiate panel in accordance with the law, and publicly tried this case. The People's Procuratorate of Suining, Sichuan assigned Procurator Li Hongzhi and acting Procurator Li Qin to appear in court in support of the indictment, and defendant Chen Wei and his defense attorneys Zheng Jianwei and Liang Xiaojun appeared in court to participate in the litigation. The trial has concluded.
The People's Procuratorate of Suining, Sichuan charged that, at various times during the period from March 2009 to January 2011, defendant Chen Wei published many articles he authored, including "The System's Illness and the Medicine of Constitutional Democracy" on overseas websites such as "China Democracy," "China Human Rights," and "Yi Bao," which spread rumors and libels "The people have been deprived of their ideology and belief," "The entire Chinese Communist Party utilizes violent mechanisms to control the people," and incitements "The funeral bells are ringing for one party dictatorship," and "This system must be changed." The articles that were published were widely linked to, re-posted, and viewed, and their influence was extremely malicious. The public prosecution agency presented in court on records of on-the-scene inspections, records of electronic evidence investigations, authenticated conclusions, witness testimony, the defendant's deposition, and other evidence in support. The public prosecution agency believes that defendant Chen Wei's actions constitute the crime of inciting subversion of state power, and that the crime is severe, and ask that the People's Court pass sentence in accordance with the law.
Defendant Chen Wei and his defense attorneys argue that Chen Wei lacked the intent to incite subversion of state power, and that the articles he published were generally theoretical in nature, and included no content that spread rumors or libels, his views were within the scope of citizens' freedom of speech, and do not constitute the crime of inciting subversion of state power. He is not a criminal.
An investigation has shown that, at various times during the period from March 2009 to January 2011, defendant Chen Wei published many articles he authored, including "The System's Illness and the Medicine of Constitutional Democracy," "Civil Opposition Parties are the Key Factor in the Growth of China's Democratization," "The Trap of Harmony and the Absence of Fairness," and "Realizations During a Hunger Strike on Human Rights Day" on overseas websites such as "China Democracy," "China Human Rights," and "Yi Bao," which spread rumors and libels "The people have been deprived of their ideology and belief," "The entire Chinese Communist Party utilizes violent mechanisms to control the people," "It is the enemy of democracy," and "Everyone clearly sees the inhuman nature of the Chinese Communist Party," and incitements "The funeral bells are ringing for one party dictatorship," "Use the streets to protest and promote popular government," and "This system must be changed." The articles that were published were widely linked to, re-posted, and viewed, and their influence was extremely malicious.
The aforementioned facts have been verified and confronted by this court through the following evidentiary proof:
1. Receipt of criminal case records, decision to establish the case, report on resolution of the case, arrest procedures, as well as the origin of evidence in the case, and process of resolving the case and arresting Chen Wei.
2. Search warrant, search records, list of confiscated items, on-sight survey examination records and photographs, evidence that investigative agencies confiscated two notebook computers, one portable hard drive, and several train tickets from Chen Wei's residence in accordance with the law.
3. Electronic evidence investigation records from the Suining Public Security Bureau -- Sui Public (Internet Security) Survey (2011) No. 011 Electronic Evidence Investigation Record, Sui Public (Internet Security) Survey (2011) No. 012 Electronic Evidence Investigation Record, Sui Public (Internet Security) Survey (2011) No. 013 Remote Examination Investigation Record, Sui Public (Internet Security) Survey (2011) No. 010 Electronic Evidence Investigation Record with letters and copies of letters regarding assisting with carrying out an investigation of relevant data, which proved that many essays, including "The System's Illness and the Medicine of Constitutional Democracy," "Realizations During a Hunger Strike on Human Rights Day," and "The Trap of Harmony and the Absence of Fairness," were discovered on hard drives of the notebook computers confiscated from Chen Wei. Based on a remote examination investigation, as of February 25, 2011, the 11 essays posted by Chen Wei on "China Democracy," "China Human Rights," "Yi Bao," and other websites had been linked to from 37 web pages and clicked on 8,524 times.
4. Expert Opinion Testimonial (Beijing Internet Association Forensic Center (2011) Testimonial No. 12) of the Beijing Internet Industry Association's Electronic Data Forensic Center, with an explanation of inspection materials used, with a record proving the discovery on the hard drives implicated in the Chen Wei case the essays written by Chen Wei, such as "The System's Illness and the Medicine of Constitutional Democracy," "Realizations During a Hunger Strike on Human Rights Day," and "The Trap of Harmony and the Absence of Fairness," and the Skype account registered by him to transmit the essays point-to-point overseas.
5. Paper copies of the essays published on the Internet including "The System's Illness and the Medicine of Constitutional Democracy," "Civil Opposition Parties are the Key Factor in the Growth of China's Democratization," "The Trap of Harmony and the Absence of Fairness," and "Realizations During a Hunger Strike on Human Rights Day," which Chen Wei has confirmed through his signature were published by him, proving that Chen Wei published inciting essays on the Internet, and that in these essays he spread rumors and libels "The people have been deprived of their ideology and belief," "The entire Chinese Communist Party utilizes violent mechanisms to control the people," "It is the enemy of democracy," and "Everyone clearly sees the inhuman nature of the Chinese Communist Party," and incitements "The funeral bells are ringing for one party dictatorship," "Use the streets to protest and promote popular government," and "This system must be changed."
6. Beijing Intermediate People's Court Criminal Judgment, Beijing Higher People's Court Criminal Ruling, Sichuan Province Prison Release Evidence proving that Chen Wei was imprisoned for the crime of inciting counter-revolutionary propaganda, and on December 16, 1994 was sentenced by the Beijing Intermediate Court to five years imprisonment and two years deprivation of political rights, and was released on May 28, 1997 upon completion of the sentence.
7. Household registration materials proving the basic personal information of Chen Wei's identity.
8. Testimony by witnesses Wang Xiaoyan (Chen Wei's wife), Wang Lanfang (Chen Wei's sister-in-law), Tang Jianlin (Chen Wei's brother-in-law), and Wang Lanying (Chen Wei's sister-in-law) proves that Chen Wei, his wife, and Wang Lanfang's family live together at D Block, 18th Fl., No. 2, "Top Rose," Chuanshan District, Suining, Sichuan, and they have no family living abroad. The "List of Sichuan Democracy Activists" and "Passerby Liu Xianbin" and other documents and materials on the hard drive from the "Legend" notebook computer and the Samsung portable hard drive confiscated in this case were not saved on the computer hard drives by them, and they did not use the name Chen Wei to post anything on the Internet. Chen Wei had arranged to use the bank accounts of Wang Xiaoyan, Wang Lanfang, Tang Jianlin, and Wang Lanying to have money transfered from overseas.
9. Testimony from witnesses Chen Wei [N.B. - this is a different spelling from the defendant's name], Yin Xia, and Yu Yuebo proves that they saw articles written by Chen Wei on "China Democracy" and other websites.
10. The deposition of defendant Chen Wei proves that the essays "The System's Illness and the Medicine of Constitutional Democracy," "Civil Opposition Parties are the Key Factor in the Growth of China's Democratization," "The Trap of Harmony and the Absence of Fairness," and "Realizations During a Hunger Strike on Human Rights Day" on overseas websites such as "China Democracy," "China Human Rights," and "Yi Bao" were written by him.
This court finds that defendant Chen Wei wrote and published on the Internet essays that spread rumors and libels, and incited subversion of China's state power and the overthrow of the socialist system, and that his actions constitute the crime of inciting subversion of state power. Chen Wei published a large number of articles on the Internet. They were inciting in the extreme, the scope of their influence was large, and his crime is severe. Chen Wei has previously been criminally sanctioned for crimes of endangering state security, and he proceeded to once again commit crimes that endangered state security following the conclusion of his criminal punishment. He is a recidivist, and in accordance with the law he should be subjected to harsh punishment.
Chen Wei and his defense attorneys have argued that the essays published by Chen Wei fall within the scope of citizens' freedom speech, and lack the objective intent and subjective actions for the crime of inciting subversion of state power, and his actions do not constitute a crime.
Based on an investigation, Chen Wei published many articles on the Internet that spread rumors and libels, and the objective was to incite subversion of China's state power and the overthrow of the socialist system, and his actions do not fall within the scope of citizens' freedom of speech, and severely harmed the nation's interests and security. Therefore, these arguments and defenses cannot stand, and this court does not accept them.
Chen Wei and his defense attorneys argue that Chen Wei is not a recidivist. Based on an investigation, Chen Wei was previously criminally sanctioned for the crime of inciting counter-revolutionary propaganda, and following the conclusion of his criminal punishment he proceeded to once again commit the crime of inciting subversion of state power. These two crimes are both crimes of endangering national security, and he is a recidivist. Therefore, these arguments and defenses cannot stand, and this court does not accept them.
Based on the foregoing, the facts are clear and the evidence is reliable and sufficient with respect to the public prosecutorial agency's charges, the crime charged stands, and this court sustains it. In accordance with the provisions of articles 105(2), 55(1), 56(1), 66, and 64 of the "Criminal Law of the People's Republic of China," the judgment is as follows:
1. Defendant Chen Wei committed the crime of inciting subversion of state power, and is sentenced to nine years imprisonment and two years deprivation of political rights (the prison term is to be calculated starting on the day the judgment is executed, with each day spent in detention prior to the execution of the judgment to count as one day of the prison term. It will therefore run from February 21, 2011 to February 20, 2020.)
2. All items used in the commission of the crime are hereby confiscated.
If the defendant does not accept this judgment, he may file an appeal with this court or directly with the High People's Court of Sichuan between the second and tenth day from the day after he receives the judgment document. A written appeal should be submitted with one original and two copies.
Presiding Judge Liu Yibin
Judge Wei Xiao
Judge Deng Gang
December 23, 2011
Clerk Quan Liguo
四川省遂宁市中级人民法院
刑事判决书
(2011)遂中刑初字第00054号
公诉机关四川省遂宁市人民检察院。
被告人陈卫,男,1969年2月21日出生于四川省遂宁市,汉族,大学肄业,无业,户籍所在地四川省遂宁市船山区介福西路69号门株2单元3号,住遂宁市船山区西山路"玫瑰上品"D栋l8楼2号。1994年12月因犯反革命宣传煽动罪被判处有期徒刑五年,剥夺政治权利二年,1997年5月28日刑满释放。2011年2月21日因涉嫌犯煽动颠覆国家政权罪被刑事拘留,同年3月28日被逮捕。现羁押于遂宁市看守所。
辩护人郑建伟,重庆康实律师事务所律师。
辩护人梁小军,北京市道衡律师事务所律师。
四川省遂宁市人民检察院以遂检公诉(2011)42号起诉书指控披告人陈卫犯煽动颠覆国家政权罪,于2011年11月25日向本院提起公诉。本院依法组成合议庭,公开开庭审理了本案。四川省遂宁市人民检察院指派检察员李虹志、代理检察员李琴出庭支持公诉,被告人陈卫及其辩护人郑建伟、梁小军到庭参加诉讼。现已审理终结。
四川省遂宁市人民检察院指控,被告人陈卫于2009年3月至2011年1月期问,通过互联网先后在"民主中国"、"中国人权"、"议报"等境外网站上发表其撰写的《制度之疾与宪政民主之药》等多篇文章,造谣、诽谤"人们被剥夺了思想和信仲"、"整中国共产党利用暴力机器对人民控制",并煽动"一党专政的丧钟已经敲响"、"必须改变这个制度"。所发表的文章被广为链接、转载、浏览,影响十分恶劣。公诉机关当庭出示了现场勘验检查记录、电子证物检查工作记录、鉴定结论、证人证言、被告人供述等证据予以证实。公诉机关认为,被告人陈卫的行为已经构成煽动颠植国家政权罪,且属罪行重大,请求人民法院依法判处。
被告人陈卫及其辩护人辩称,陈卫没有煽动颠覆国家政权的故意,其所发表的均是理论性文章,没有造谣、诽谤的内容,其观点属于公民言论自由的范围,不构成煽动颠覆国家政权罪;其不属于累犯。
经审理查明,2009年3月至2011年1月期间,被告人陈卫通过互联网先后在"民主中国"，"中国人权"、"议报"等境外网站上发表其撰写的《制度之疾与宪政民主之药》、《民间反对派的成长是中国民主化的关键要素》、《和谐的陷阱与公平的缺席》、《人权日绝食的感悟》等多篇文章,造谣、诽谤"人们被剥夺了思想和信仰"、"中国共产党利用暴力机器对人民控制"、"是民主的敌人"、"大家看清了中共反人类的本质",并煽动"一党专政的丧钟已经敲响"、"以街头对抗推进民间政治"、"必须改变这个制度"。所发表的文章被广为链接、转载、浏览,影响十分恶劣。
上迷事实有经法庭举证、质证的下列证据证实：
1。接受刑事案件登记表、立案决定书、破案报告书、抓获经过,证实案件的来源、侦破以及抓获陈卫的经过情况。
2。搜查证、搜查笔录、扣押物品清单、现场勘测检查笔录及照片,证实侦查机关依法从陈卫的住处扣押笔记本电脑两台、移动硬盘一个及部份车票。
3。遂宁市公安局电子证物检查工作记录 - - 遂公(网安)勘[2011]011号电子证物检查工作记录、遂公(网安)勘[2011]012号电子证物检查工作记录、遂公(网安)勘[2011]013号远程勘验检查笔录、遂公(网安)勘[2011]010号关于协助对相关数据进行调查的函及复函,证实从陈卫处扣押的笔记本电脑硬盘中发现了《制度之疾与宪政民主之药》、《在人权日绝食的感语》、《和谐的陷阱与公平的缺席》等多篇文章。经远程勘验检查,截止2011年2月25日,陈卫在"民主中国"、"中国人权"、"议报"等网站上发表的11篇文章,共计网页链接37个,点击数8524次。
4。北京网络行业协会电子数据司法鉴定中心司法鉴定意见书(京网协鉴定中心[2011]鉴字第12号)、检材使用情况说明,证实从陈卫涉案的硬盘中发现陈卫撰写的《制度之疾与宪政民主之药》、《在人权日绝食的惑悟》、《和谐的陷阱与公平的缺席》等文章以及其注册的Skype账号点对点向境外上传其选写文章的记录。
5。互联网上发表的《制度之疾与宪政民主之药》、《民问反对派的成长是中国民主化的关键要素》,《和谐的陷阱与公平的缺席》,《人权日绝食的感惜》等署名文章纸质件,经陈卫签字确认系其所发表,证实陈卫在互联网上发表煽动性文章,其在文章中造谣、诽谤"人们被剥夺了思想和信仰"、"中国共产党利用暴力机器对人民控制"、"是民主的敌人"、"大家看清了中共反人类的本质",并煸动"一党专政的丧钟已经敲响"、"以街头对抗推进民问政治"、"必须改变这个制度"。
6。北京市中级人民法院刑事判决书、北京市高级人民法院刑事裁定书、四川省川中监狱释放证明证实,陈卫曾囚犯反革命宣传煽动罪,被北京市中级人民法院于1994年12月l6日判处有期徒刑五年,剥夺政治权利二年。I997年5月28日刑满释放。
7。户籍资料证实陈卫的个人基本身份情况。
8。证人王晓燕(陈卫妻子)、王兰芳(陈卫大姨姐)、唐建林(陈卫大姐夫)、王兰英(陈卫二姨姐)的证言证实,陈卫夫妇和王兰芳夫妇两家人共同居住在遂宁市船山区西山路"玫魂上品咱栋l8楼2号,他们均没有亲属在境外。扣押在案的"方正"笔记本电脑硬盘、"三星"移动硬盘中的"川内民运人士一览表"、《行者刘贤斌》这些文件和资料不是他们保存在电脑硬盘上的,他们没有在互联网上用陈卫的名字发表高过东西。陈卫安排过王晓燕、王兰芳、唐建林、王兰英在银行办理过境外汇款的结汇业务。
9。证人陈伟、银夏、余跃波的证言,证实他们在"民主中国"等网站上看过陈卫写的文章。
10。被告人陈卫的供迷证实,在"民主中国"、"中国人权"、"议报"等境外网站上发表的《制度之疾与宪政民主之药》、《民问反对派的成长是中国民主化的关键要素》，《和谐的陷阱与公平的缺席》、《人权日绝食的惑悟》等多篇文章系其撰写。
本院认为,被告人陈卫撰写并在互联网上发表文章进行造谣、诽谤,煽动颠覆我国国家政权和推翻社会主义制度,其行为已构成煽动颠覆国家政权罪。陈卫在互联网上发表的文章多。煽动性强、影响范围大,属罪行重大。陈卫曾因危害国家安全犯罪被判处刑罚,刑罚执行完毕后再犯危害国家安全罪,系累犯,依法应从重处罚。陈卫及其辩护人辩称陈卫发表的文章属于公民言论自由范畴,不具有煽动颠覆国家政权罪的主观故意和客观行为,其行为不构成犯罪。经查,陈卫在互联网上发表多篇造谣、诽谤性文章,目的是煽动颠覆我国国家政权和推翻社会主义制度,其行为已不属于公民言论自由的范畴,已严重损害了国家利益和安全。故该辩解、辩护理由不能成立,本院不予采纳。陈卫及其辩护人辩称陈卫不构成累犯。经查,陈卫曾因犯反革命宣传煽动罪被判处刑罚,在刑罚执行完毕后再犯煽动颠覆国家政权罪,该两罪均属于危害国家安全的犯罪,系累犯。故该辩解、辩护理由亦不能成立,本院不予采纳。综上,公诉机关指控的事实清楚,证据确实、充分,指控罪名成立,本院予以支持。依照《中华人民共和国刑法》第一百零五条第二款、第五十五条第一款、第五十六条第一款、第六十六条、第六十四条的规定,判决如下:
一、被告人陈卫犯煽动颠覆国家政权罪,判处有期徒刑九年,剥夺政治权利二年(刑期从判决执行之日起计算。判决执行之前先行羁押的,羁押一日折抵刑期一日,即自2011年2月21日起至2020年2月20日止。)
二、随案移送的犯罪所用物品予以没收。
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四川省高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。
