According to a judgment issued by the Guangzhou Municipal Intermediate People's Court in December 2015 (translated below) Guo Jianhe was sentenced to five days administrative detention for using Tencent’s Wechat service (also known as Weixin) to post statements that “openly insulted national leaders.” Guo's sentence was imposed by officials at a local police station based their determination that he had violated China’s “Public Security Administrative Punishment Law.” The court did not specify what Guo posted.
The original decision is available on the court's website here: http://wenshu.court.gov.cn/content/content?DocID=d1ffe665-32b2-4465-8ac4-2979c1e43143
Appellant (original plaintiff): Guo Jianhe, resident of Guangzhou.
Appellee (original defendant): Guangzhou Yuexiu District Public Security Bureau, based in Guangzhou.
Legal Representative: Cai Wei, position: Bureau Commander.
Attorney: Zhou Peixin, employee at the Bureau.
Attorney: Huang Weifeng, employee at the Bureau.
Appellant Guo Jianhe sued appellee Guangzhou Yuexiu District Public Security Bureau regarding a public security administrative punishment, and filed an appeal with this court on the grounds that he did not agree with the Yuexiu District People's Court's (2015) Sui Yue Administrative First Instance No. 152 administrative judgment. This court convened a judicial panel and commenced hearings in this case. Hearings in this case have now concluded.
The court of first instance made the following determinations during trial: On January 27, 2015, plaintiff Guo Jianhe used Wechat account No. 130xxxx8717 (cell phone No. 130xxxx8717) to repost statements to friend groups that openly insulted national leaders. As of January 30, 2015, the plaintiff's Wechat account address book contained 697 contacts. The defendant summoned the plaintiff to appear at the Zhuguang police station in Yuexiu, Guangzhou, and following an investigation ascertained the foregoing facts. After determining that the plaintiff had reposted statements to friend groups that openly insulted national leaders, it informed the plaintiff of the facts, reasoning, and basis for making a determination to impose punishment, as well as of his right to make statements and offer a defense. On the 30th of that month the defendant issued Sui Gong Yue Administrative Punishment (2015) No. 00491 "Administrative Punishment Decision" in accordance with the provisions of Article 42(2) of the "Public Security Administration Punishments Law," ordering the plaintiff be sentenced to five days of administrative detention. The plaintiff did not agree with the foregoing punishment decision, and filed an appeal with the court of first instance.
The court of first instance held: Article 42(2) of the "Public Security Administrative Punishment Law" provides: "A person who commits one of the following acts shall be detained for not more than five days or be fined not more than 500 yuan; and if the circumstances are relatively serious, he shall be detained for not less than 5 days but not more than 10 days and may, in addition, be fined not more than 500 yuan: . . . (2) openly insulting another person or fabricating facts to defame another person; . . . ."
The plaintiff in this case reposted statements to friends groups that openly insulted others, the defendant determined that the facts were clear and the evidence sufficient to show that the plaintiff's actions were illegal, and the punishment decision issued following the defendant's investigation of the facts underlying the illegal actions of the plaintiff complied with the aforementioned provisions. The reasoning underlying the plaintiff's request to revoke the punishment decision was not sufficient, and it was therefore rejected by the court of first instance.
In summary, in accordance with Article 56(4) of the "Supreme People's Court's Interpretation Regarding Certain Issues Relating to the Implementation of the Administrative Litigation Law'" the court held that plaintiff's request was denied.
Appellant Guo Jianhe did agree with the judgment of the court of first instance, and appealed to this court claiming: the weixins that the appellant reposted to his friends groups were within the right to freedom of speech granted under the Constitution. The Sui Gong Yue Administrative Punishment (2015) No. 00491 "Administrative Punishment Decision" lacked sufficient evidence, and the court of first instance ignored the appellant's demand that the appellee produce evidence of the fact that the appellant openly insulted national leaders. Appellant did not openly insult national leaders, and the facts acknowledged by the court of first instance were not clear. The appellant therefore requests:
1. Overturn the Yuexiu District People's Court's (2015) Sui Yue Administrative First Instance No. 152 "Administrative Judgment."
2. Revoke the appellee's Sui Gong Yue Administrative Punishment (2015) No. 00491 "Administrative Punishment Decision."
3. Order the appellee to bear the litigation costs of the first and second trials.
The appellee Guangzhou Yuexiu District Public Security Bureau agrees with the judgment in trial of first instance, and asks that it be upheld in the trial of second instance.
Based on hearings it has been determined that the facts acknowledged by the court of first instance were clear, and furthermore are supported by the relevant evidence, and are affirmed by this court.
This court finds that Article 42(2) of the "Public Security Administrative Punishment Law" provides: "A person who commits one of the following acts shall be detained for not more than five days or be fined not more than 500 yuan; and if the circumstances are relatively serious, he shall be detained for not less than 5 days but not more than 10 days and may, in addition, be fined not more than 500 yuan: . . . (2) openly insulting another person or fabricating facts to defame another person; . . . ." In this case the appellant openly fabricated facts online and posted statements that insulted national leaders. There are interrogation records, investigation records, photographs, and other supporting evidence. In accordance with the law, prior to issuing its administrative punishment decision the appellee had informed the appellant of the facts, reasoning, and basis, and also informed him of his right to make statements and offer a defense. Appellant stated that he would not make any statements or offer any defense.
Therefore, as regards the appellee's issuance of an administrative punishment decision, and the decision to sentence appellant to five days of administrative detention, the facts as determined are clear, the evidence is sufficient, the procedures were lawful, and the punishment was appropriate.
The judgment of the court of first instance to reject the appellant's request was handled correctly, and is upheld by this court. Appellant's appeal lacked justification and motivation for his belief that the appellee's determinations of fact were not clear, and this court rejects his requests on appeal.
In summary, in accordance with the provisions of Article 89(1)(i) of the "Administrative Litigation Law" it is hereby held:
The appeal is rejected, the first instance judgment is affirmed.
The second instance case filing fee of 50 yuan shall be borne by the appellant Guo Jianhe.
This judgment shall be the judgment of last instance.
Presiding Judge: Wang Yi
Acting Judicial Officer: Tang Yong
Acting Judicial Officer: Yu Qiubai
November 14, 2015
Clerk: Zhou Zhinuo
上诉人（原审原告）：郭建和，住广州市。
被上诉人（原审被告）：广州市公安局越秀区分局，住所地广州市。
法定代表人：蔡巍，职务：局长。
委托代理人：周培新，该局工作人员。
委托代理人：黄伟峰，该局工作人员。
上诉人郭建和诉被上诉人广州市公安局越秀区分局治安行政处罚一案，不服广州市越秀区人民法院（2015）穗越法行初字第152号行政判决，向本院提起上诉。本院依法组成合议庭，开庭审理了本案。本案现已审理终结。
原审法院经审理查明：2015年1月27日，原告郭建和使用微信号130××××8717（手机号130××××8717）在朋友圈转发公然侮辱国家领导人的言论，截至2015年1月30日，原告微信账户通讯录共有697位联系人。被告将原告传唤至广州市公安局越秀区分局珠光派出所，经调查查明上述事实，遂认定原告在微信圈转发公然侮辱国家领导人的言论，告知原告拟作出处罚决定的事实、理由、依据及陈述和申辩的权利。同月30日，被告依据《中华人民共和国治安管理处罚法》第四十二条第二项之规定，作出穗公越行罚决字（2015）00491号《行政处罚决定书》，决定对原告处以行政拘留五日。原告对上述处罚决定不服，诉至原审法院。
原审法院认为：《中华人民共和国治安管理处罚法》第四十二条第二项规定：“有下列行为之一的，处五日以下拘留或者五百元以下罚款；情节较重的，处五日以上十日以下拘留，可以并处五百元以下罚款：……（二）公然侮辱他人或者捏造事实诽谤他人的；……”本案原告在微信朋友圈转发公然侮辱他人的言论，被告认定原告违法行为的事实清楚、证据充分，被告查明原告该违法事实后作出的处罚决定符合上述有关规定，原告请求撤销该处罚决定的理由不充分，原审法院不予采纳。综上所述，依照《最高人民法院关于执行〈中华人民共和国行政诉讼法〉若干问题的解释》第五十六条第（四）项，判决驳回原告郭建和的诉讼请求。
上诉人郭建和不服原审判决，上诉至本院称：上诉人在朋友圈转发微信是宪法赋予公民言论自由的权利。被上诉人作出穗公越行罚决字（2015）00491号《行政处罚决定》的证据不足，原审判决对上诉人提出要被上诉人拿出上诉人公然侮辱国家领导人的事实证据的要求，置之不理。上诉人没有公然侮辱国家领导人，原审判决认定事实不清。故上诉人请求：1、撤销广州市越秀区人民法院（2015）穗中法行初字第152号《行政判决书》；2、撤销被上诉人作出的穗公越行罚决字（2015）00491号《行政处罚决定》；3、一、二审案件诉讼费由被上诉人承担。
被上诉人广州市公安局越秀区分局答辩同意一审判决，请求二审法院予以维持。
经审理查明，原审法院认定事实清楚，且有相应的证据予以支持，本院予以确认。
本院认为，《中华人民共和国治安管理处罚法》第四十二条第二项规定：“有下列行为之一的，处五日以下拘留或者五百元以下罚款；情节较重的，处五日以上十日以下拘留，可以并处五百元以下罚款：……（二）公然侮辱他人或者捏造事实诽谤他人的；……”本案上诉人在网络上公然捏造事实，发布侮辱国家领导人的言论，有询问笔录、检查笔录和照片等证据证实，被上诉人在作出行政处罚决定前，已依法告知上诉人作出行政处罚决定的事实、理由及依据，并告知其依法享有陈述、申辩等权利，上诉人表示不提出陈述和申辩。因此被上诉人作出被诉行政处罚决定，决定对上诉人处以行政拘留五日，认定事实清楚、证据充分，程序合法，处罚适当。原审法院判决驳回上诉人诉讼请求的处理正确，本院予以维持。上诉人认为被上诉人查明事实不清的上诉理由理据不足，其上诉请求本院不予支持。综上所述，依照《中华人民共和国行政诉讼法》第八十九条第一款第（一）项的规定，判决如下：
驳回上诉，维持原判。
二审案件受理费50元，由上诉人郭建和负担。
本判决为终审判决。
审 判 长 汪 毅
代理审判员 唐 勇
代理审判员 余秋白
二〇一五年十一月十四日
书 记 员 周芷诺
The original decision is available on the court's website here: http://wenshu.court.gov.cn/content/content?DocID=d1ffe665-32b2-4465-8ac4-2979c1e43143
Guo Jianhe vs. Guangzhou Yuexiu District Public Security Bureau et. al.
Administrative Judgment in the Court of Second Instance
Guangzhou Municipal Intermediate People's Court, Guangdong Province
Administrative Judgment
(2015) Sui Intermediate Administrative Final Judgment No. 1374
Appellant (original plaintiff): Guo Jianhe, resident of Guangzhou.
Appellee (original defendant): Guangzhou Yuexiu District Public Security Bureau, based in Guangzhou.
Legal Representative: Cai Wei, position: Bureau Commander.
Attorney: Zhou Peixin, employee at the Bureau.
Attorney: Huang Weifeng, employee at the Bureau.
Appellant Guo Jianhe sued appellee Guangzhou Yuexiu District Public Security Bureau regarding a public security administrative punishment, and filed an appeal with this court on the grounds that he did not agree with the Yuexiu District People's Court's (2015) Sui Yue Administrative First Instance No. 152 administrative judgment. This court convened a judicial panel and commenced hearings in this case. Hearings in this case have now concluded.
The court of first instance made the following determinations during trial: On January 27, 2015, plaintiff Guo Jianhe used Wechat account No. 130xxxx8717 (cell phone No. 130xxxx8717) to repost statements to friend groups that openly insulted national leaders. As of January 30, 2015, the plaintiff's Wechat account address book contained 697 contacts. The defendant summoned the plaintiff to appear at the Zhuguang police station in Yuexiu, Guangzhou, and following an investigation ascertained the foregoing facts. After determining that the plaintiff had reposted statements to friend groups that openly insulted national leaders, it informed the plaintiff of the facts, reasoning, and basis for making a determination to impose punishment, as well as of his right to make statements and offer a defense. On the 30th of that month the defendant issued Sui Gong Yue Administrative Punishment (2015) No. 00491 "Administrative Punishment Decision" in accordance with the provisions of Article 42(2) of the "Public Security Administration Punishments Law," ordering the plaintiff be sentenced to five days of administrative detention. The plaintiff did not agree with the foregoing punishment decision, and filed an appeal with the court of first instance.
The court of first instance held: Article 42(2) of the "Public Security Administrative Punishment Law" provides: "A person who commits one of the following acts shall be detained for not more than five days or be fined not more than 500 yuan; and if the circumstances are relatively serious, he shall be detained for not less than 5 days but not more than 10 days and may, in addition, be fined not more than 500 yuan: . . . (2) openly insulting another person or fabricating facts to defame another person; . . . ."
The plaintiff in this case reposted statements to friends groups that openly insulted others, the defendant determined that the facts were clear and the evidence sufficient to show that the plaintiff's actions were illegal, and the punishment decision issued following the defendant's investigation of the facts underlying the illegal actions of the plaintiff complied with the aforementioned provisions. The reasoning underlying the plaintiff's request to revoke the punishment decision was not sufficient, and it was therefore rejected by the court of first instance.
In summary, in accordance with Article 56(4) of the "Supreme People's Court's Interpretation Regarding Certain Issues Relating to the Implementation of the Administrative Litigation Law'" the court held that plaintiff's request was denied.
Appellant Guo Jianhe did agree with the judgment of the court of first instance, and appealed to this court claiming: the weixins that the appellant reposted to his friends groups were within the right to freedom of speech granted under the Constitution. The Sui Gong Yue Administrative Punishment (2015) No. 00491 "Administrative Punishment Decision" lacked sufficient evidence, and the court of first instance ignored the appellant's demand that the appellee produce evidence of the fact that the appellant openly insulted national leaders. Appellant did not openly insult national leaders, and the facts acknowledged by the court of first instance were not clear. The appellant therefore requests:
1. Overturn the Yuexiu District People's Court's (2015) Sui Yue Administrative First Instance No. 152 "Administrative Judgment."
2. Revoke the appellee's Sui Gong Yue Administrative Punishment (2015) No. 00491 "Administrative Punishment Decision."
3. Order the appellee to bear the litigation costs of the first and second trials.
The appellee Guangzhou Yuexiu District Public Security Bureau agrees with the judgment in trial of first instance, and asks that it be upheld in the trial of second instance.
Based on hearings it has been determined that the facts acknowledged by the court of first instance were clear, and furthermore are supported by the relevant evidence, and are affirmed by this court.
This court finds that Article 42(2) of the "Public Security Administrative Punishment Law" provides: "A person who commits one of the following acts shall be detained for not more than five days or be fined not more than 500 yuan; and if the circumstances are relatively serious, he shall be detained for not less than 5 days but not more than 10 days and may, in addition, be fined not more than 500 yuan: . . . (2) openly insulting another person or fabricating facts to defame another person; . . . ." In this case the appellant openly fabricated facts online and posted statements that insulted national leaders. There are interrogation records, investigation records, photographs, and other supporting evidence. In accordance with the law, prior to issuing its administrative punishment decision the appellee had informed the appellant of the facts, reasoning, and basis, and also informed him of his right to make statements and offer a defense. Appellant stated that he would not make any statements or offer any defense.
Therefore, as regards the appellee's issuance of an administrative punishment decision, and the decision to sentence appellant to five days of administrative detention, the facts as determined are clear, the evidence is sufficient, the procedures were lawful, and the punishment was appropriate.
The judgment of the court of first instance to reject the appellant's request was handled correctly, and is upheld by this court. Appellant's appeal lacked justification and motivation for his belief that the appellee's determinations of fact were not clear, and this court rejects his requests on appeal.
In summary, in accordance with the provisions of Article 89(1)(i) of the "Administrative Litigation Law" it is hereby held:
The appeal is rejected, the first instance judgment is affirmed.
The second instance case filing fee of 50 yuan shall be borne by the appellant Guo Jianhe.
This judgment shall be the judgment of last instance.
Presiding Judge: Wang Yi
Acting Judicial Officer: Tang Yong
Acting Judicial Officer: Yu Qiubai
November 14, 2015
Clerk: Zhou Zhinuo
郭建和与广州市公安局越秀区分局其他
二审行政判决书
广东省广州市中级人民法院
行 政 判 决 书
（2015）穗中法行终字第1374号
上诉人（原审原告）：郭建和，住广州市。
被上诉人（原审被告）：广州市公安局越秀区分局，住所地广州市。
法定代表人：蔡巍，职务：局长。
委托代理人：周培新，该局工作人员。
委托代理人：黄伟峰，该局工作人员。
上诉人郭建和诉被上诉人广州市公安局越秀区分局治安行政处罚一案，不服广州市越秀区人民法院（2015）穗越法行初字第152号行政判决，向本院提起上诉。本院依法组成合议庭，开庭审理了本案。本案现已审理终结。
原审法院经审理查明：2015年1月27日，原告郭建和使用微信号130××××8717（手机号130××××8717）在朋友圈转发公然侮辱国家领导人的言论，截至2015年1月30日，原告微信账户通讯录共有697位联系人。被告将原告传唤至广州市公安局越秀区分局珠光派出所，经调查查明上述事实，遂认定原告在微信圈转发公然侮辱国家领导人的言论，告知原告拟作出处罚决定的事实、理由、依据及陈述和申辩的权利。同月30日，被告依据《中华人民共和国治安管理处罚法》第四十二条第二项之规定，作出穗公越行罚决字（2015）00491号《行政处罚决定书》，决定对原告处以行政拘留五日。原告对上述处罚决定不服，诉至原审法院。
原审法院认为：《中华人民共和国治安管理处罚法》第四十二条第二项规定：“有下列行为之一的，处五日以下拘留或者五百元以下罚款；情节较重的，处五日以上十日以下拘留，可以并处五百元以下罚款：……（二）公然侮辱他人或者捏造事实诽谤他人的；……”本案原告在微信朋友圈转发公然侮辱他人的言论，被告认定原告违法行为的事实清楚、证据充分，被告查明原告该违法事实后作出的处罚决定符合上述有关规定，原告请求撤销该处罚决定的理由不充分，原审法院不予采纳。综上所述，依照《最高人民法院关于执行〈中华人民共和国行政诉讼法〉若干问题的解释》第五十六条第（四）项，判决驳回原告郭建和的诉讼请求。
上诉人郭建和不服原审判决，上诉至本院称：上诉人在朋友圈转发微信是宪法赋予公民言论自由的权利。被上诉人作出穗公越行罚决字（2015）00491号《行政处罚决定》的证据不足，原审判决对上诉人提出要被上诉人拿出上诉人公然侮辱国家领导人的事实证据的要求，置之不理。上诉人没有公然侮辱国家领导人，原审判决认定事实不清。故上诉人请求：1、撤销广州市越秀区人民法院（2015）穗中法行初字第152号《行政判决书》；2、撤销被上诉人作出的穗公越行罚决字（2015）00491号《行政处罚决定》；3、一、二审案件诉讼费由被上诉人承担。
被上诉人广州市公安局越秀区分局答辩同意一审判决，请求二审法院予以维持。
经审理查明，原审法院认定事实清楚，且有相应的证据予以支持，本院予以确认。
本院认为，《中华人民共和国治安管理处罚法》第四十二条第二项规定：“有下列行为之一的，处五日以下拘留或者五百元以下罚款；情节较重的，处五日以上十日以下拘留，可以并处五百元以下罚款：……（二）公然侮辱他人或者捏造事实诽谤他人的；……”本案上诉人在网络上公然捏造事实，发布侮辱国家领导人的言论，有询问笔录、检查笔录和照片等证据证实，被上诉人在作出行政处罚决定前，已依法告知上诉人作出行政处罚决定的事实、理由及依据，并告知其依法享有陈述、申辩等权利，上诉人表示不提出陈述和申辩。因此被上诉人作出被诉行政处罚决定，决定对上诉人处以行政拘留五日，认定事实清楚、证据充分，程序合法，处罚适当。原审法院判决驳回上诉人诉讼请求的处理正确，本院予以维持。上诉人认为被上诉人查明事实不清的上诉理由理据不足，其上诉请求本院不予支持。综上所述，依照《中华人民共和国行政诉讼法》第八十九条第一款第（一）项的规定，判决如下：
驳回上诉，维持原判。
二审案件受理费50元，由上诉人郭建和负担。
本判决为终审判决。
审 判 长 汪 毅
代理审判员 唐 勇
代理审判员 余秋白
二〇一五年十一月十四日
书 记 员 周芷诺
