Background: Lawyer Yuan Yulai Sues Government For Confiscating Books
Administrative Lawsuit in the Hong Kong Taiwan Book Confiscation Case
Plaintiff: Yuan Yulai, Male, Born May 18, 1966, Han ethnicity, Star of Zhejiang Law Firm, Residing at 4th Floor, Meibai Apartments, No. 655 Zhongxing Road, Ningbo.
Defendant: Administration for Culture and Radio, Television, News, and Publishing of Jiangdong District, Ningbo, Located at No. 8 Yanwu Street, Ningbo.
Legal Representative: Wang Yu, Director.
Request for Relief:
Rescind the (Yongdong) Culture\Broadcasting\News Cert. Doc. (2016)#1 Notice of Preliminary Registration and Retention of Evidence issued by Defendant on March 4, 2016, and order Defendant to immediately return the 14 confiscated books to Plaintiff.
Statement of Facts:
At around 11:00 am on March 4, 2016, five individuals comprising the Defendant accompanied by the police did, without permission of the Plaintiff, suddenly enter the Plaintiff's office. Only one individual carried any law enforcement credentials, while the others did not produce any law enforcement credentials. One of these was a police officer with whom the Plaintiff had had previous work-related contact.
The Defendant and law enforcement agents said that during a joint law enforcement action it was discovered that the Plaintiff was suspected of purchasing and storing illegal publications, and afterwards produced a package, saying that it contained illegal publications.
When the Defendant decided to unseal it, they met with the stern refusual of the Plaintiff, and the Plaintiff demanded the Defendant produce their legal basis. Nevertheless, over the express objections of the Plaintiff, the policies officers forced the package to be opened.
Afterwards, after the Defendant had finished writing out a record, they produced the (Yongdong) Culture\Broadcasting\News Cert. Doc. (2016)#1 Notice of Preliminary Registration and Retention of Evidence and a Preliminary Statement of Evidence Registration and Retention, and confiscated the 14 books that were in the package.
The Plaintiff believes that the actions of the Defendant in confiscating the Plaintiff's books was without factual or legal basis, and severely infringed upon the rights of the Plaintiff:
(1) Lack of Factual Basis.
(i) The Defendant claims that the books discovered during the joing law enforcement inspection were illegal publications. The Plaintiff's package had not, however, been opened, and there was no way for the Defendant to have determined the contents were illegal publications.
When being interviewed the Defendant claimed, "Specifically, there were other clues there, you should ask the police, as it was the police that called us to go over there with them and take joint action." This is a dereliction of duty and an abuse of authority. The Defendant should have acted in accordance with the facts and the law, and not blindly follow or submit to the will of another agency.
(ii) Even if the books in question were illegal publications, the Defendant and the police conducted an illegal inspection by forcefully opening the Plaintiff's package to obtain evidence, and it cannot be used to prove the legality of the administrative action that is the subject of this lawsuit.
In this case the criteria for a fored inspection and search of the Plaintiff's package were lacking, as the Plaintiff was not under suspicion of endangering state security or committing a crime. Article 40 of the Constitution of the People's Republic of China clearly states: "The freedom and privacy of correspondence of citizens of the People's Republic of China are protected by law. No organization or individual may, on any ground, infringe upon the freedom and privacy of citizens' correspondence except in cases where, to meet the needs of state security or of investigation into criminal offenses, public security or procuratorial organs are permitted to censor correspondence in accordance with procedures prescribed by law."
Clause 3 of Article 43 of the Administrative Litigation Law clearly states: "Evidence that has been obtained illegally may not be used as the basis for determining facts in a case."
(iii) The Books in Case Were not Illegal Publications
First, the books were published legally by Hong Kong and Taiwan publishers, and the Plaintiff purchased them legally from a Taobao website bookstore, and the online bookstore should have had an operating license. The latter should have been examined by Taobao, and based on the Plaintiff's understanding, Taobao should also have been inspected. In the Plaintiff's own defense, the Defendant's law enforcement officers themselves did not know whether mainland Chinese online and brick-and-mortar book stores could legally sell books published in Hong Kong or Taiwan. Their ignorance is shocking.
Second, looking only at the title of the books, there is no problem with the content of these books, and they are no so-called banned books. Several can be seen as being a positive force, and the Plaintiff had closely reviewed them prior to purchase.
"A Guide to Understanding the Bible's Old and New Testaments" and "The 100 Bible Events That Influenced the World" relate to the Bible.
"The Girl With Seven Names," "The Man With No Name," "I Want to Live Like a Man," and "Heaven" all discuss matter in North Korea.
"The Flowing Waters Never Revealed the Truth" is about the Cultural Revolution.
"Hidden Power" discusses historical events.
"Night: A Memoir of a Nazi Concentration Camp" is about Nazis.
"Thoughts on Law Enforcement" is the recollections of the judicial reform period by Taiwan prosecutor.
"Team of Rivals: The Political Genius of Abraham Lincoln" is a story about Lincoln.
"Heeding Marx in the Face of the Capitalist Catastrophe," "Who Says Democracy is not Subjugating," "Cai Yingwen Cannot Get Around the Republic of China" can be seen as being positive forces. The first promotes Marxist thought, the second opposes placing excessive faith in democracy, and the third is, after all, anti-Taiwan independence.
Nevertheless, the Defendant confiscated all of them over the express objections of the Plaintiff.
(2) Lack of Legal Basis
In its Notice of Preliminary Registration and Retention of Evidence the Defendant determined that the Plaintiff was suspected of "purchasing and storing illegal publications," but failed to clarify which law stipulates investigation and prosecution of consumers who purchase so-called banned books. This is a classic example of misapplication of the law. As far as the Plaintiff is aware, there is no such legal provision.
This lawsuit is filed based on the foregoing. It must be explained that this case implicates issues of extreme importance. First, if individuals' letters and packages can be inspected arbitrarily and capriciously and forced open, then people will be unable to go about their work and lives, and no one in our society will feel secure.
Second, if books from Hong Kong and Taiwan may be arbitrarily and capriciously deemed to be illegal publications and prohibited from being purchased by people in the mainland, then cultural exchanges across the strait will not be able to continue in a normal fashion, which will have an impact on the grand enterprise of the unification of the fatherland.
本 案不具备强行检查、搜查原告包裹的条件，原告并无危害国家安全也未涉嫌刑事犯罪。《中华人民共和国宪法》第40条明确规定：“中华人民共和国公民的通信自 由和通信秘密受法律的保护。除因国家安全或者追查刑事犯罪的需要，由公安机关或者检察机关依照法律规定的程序对通信进行检查外，任何组织或者个人不得以任 何理由侵犯公民的通信自由和通信秘密。”
《新 旧约圣经轻松读》、《影响世界的圣经100大事件》是有关圣经的，《拥有七个名字的女孩》、《没有名字的人》、《我想活得像个人》 、《天堂》讲的是朝鲜 的事情，《流水何曾洗是非》是反思文革的，《隐动力》讲的历史故事，《夜：纳粹集中营回忆录》讲的是纳粹，《执法所思》是一位台湾检察官对司法改革年代的 回顾，《无敌：林肯不以任何人为敌人创造了连政敌都同心效力的团队》讲的是林肯的故事。
综 上所述，特提起诉讼。不能不说明的是，本案涉及的问题特别重要，首先个人的信函和包裹如果能够随便检查、强行拆封，人们就无法正常生产、生活，社会就会人 人自危。其次，如果随便将港台书籍认定为非法出版物而不准在大陆民众购买，两岸的文化交流就无法正常，进而会影响祖国统一大业。