Tuesday, June 16, 2020

Court Upholds Man's 10 Day Detention for Insulting China's National Anthem on WeChat

Background of the "Wangxi Incident"

On the afternoon of January 2, 2019, two children, Lu Yi and Luo Zhiqiang (aged 8-9), were found dead near a small stream in the village of Wangxi, Xiaoshajiang Township, in Longhui County, Hunan.

On January 4, the Public Security Bureau of Longhui conducted an autopsy.

On January 5, the Public Security Bureau of Longhui announced that an investigation was ongoing, but that it had "essentially excluded homicide" as a cause of death.

On February 20, the Public Security Bureau of Longhui published a notice warning Internet users not to trust rumors about the case.

On February 28, the  Public Security Bureau of Longhui announced that the autopsy had determined that the children had frozen to death.

Relatives of the children did not accept the autopsy results, and the Public Security Bureau of Longhui engaged the Public Security Bureau of Hunan's Physical Evidence Appraisal Center to review the cause of death.

On March 29, the Physical Evidence Appraisal Center organized an expert group to go to Longhui to perform another autopsy, extract test materials and send them to the Hubei Tongji Forensic Medicine Forensic Appraisal Center for analysis.

On April 25, the Physical Evidence Appraisal Center issued its finding that it had ruled out the children's cause of death being due to mechanical injury, mechanical suffocation, conventional poisoning, poisoning, fatal disease, and drowning. Its forensic conclusion was that the children had frozen to death. Based on on-site investigations, investigation interviews, and post-mortem forensics, authorities concluded the children had taken off their clothes and bathed in the stream, causing the freezing water to kill them.

On May 13, the Public Security Bureau of Longhui issued a notice to relatives of the children informing them that no criminal activity had been found, and they would not be pursuing the case.

On July 25, the Public Security Bureau of Longhui issued a notice to relatives of the children that based on their investigation the children had died of natural causes, that there was nothing to indicate foul play, and their bodies had to be disposed of.

Sources:
https://xw.qq.com/partner/gdtadf/20190729A0BBR7/20190729A0BBR700
https://mp.weixin.qq.com/s/wrIKssx58rwXcDgB8yIz4Q
https://new.qq.com/omn/20190514/20190514A03IOT.html
https://www.weibo.com/ttarticle/p/show?id=2309404353896536522658

The following is a translation of a court judgment which arose as a result of a person posting his views about the "Wangxi Incident" on Tencent's WeChat platform. The case was brought by Liu Renwen. Police had ordered Liu to be held in detention for 20 days - 10 days for "disturbing the peace" and 10 days for "insulting the national anthem." Liu appealed to a lower court to revoke the punishment and lost. He then appealed to a higher court, which also rejected his appeal.  The translation below is of the appellate court's judgment rejecting Liu's second appeal.

Intermediate People's Court of Shaoyang, Hunan

Administrative Judgment

(2019) Xiang 05 Administrative No. 315

Appellant (plaintiff in the original trial) Liu Renwen, male, born on October 14, 1984, residing in Longhui County.

Appellee (defendant in the original trial) Public Security Bureau of Longhui, located at No. 1, Ping'an Street, Taohong Town, Longhui County.

Legal representative Shen Songneng is the director of that Bureau.

Entrusted agent Wen Jiewei is an instructor on the legal team of that Bureau.

Appellant Liu Renwen filed an appeal in the case of the public order administrative punishment of the Public Security Bureau of Longhui, and he did not accept the (2019) Xiang 0581 Administrative First Instance No. 101 Administrative Judgment rendered by the People's Court of Wugang, Hunan, and filed an appeal with this Court. This Court formed a collegial panel in accordance with the law and conducted a trial in this case. The trial has now concluded.

It was ascertained in the original trial that in March 2019, plaintiff Liu Renwen began to become aware of the death of two children in Wangxi, Xiaoshajiang Township, Longhui County (hereinafter referred to as the Wangxi Incident). Because he did not believe the police incident report issued by the police, he joined some WeChat group discussions of the Wangxi Incident (including "Volunteer's House," "Hengxin Public Welfare Friends Group," "Justice's House," "National Legions Fellowship Exchanges Group," "Wangxi Status," "Dazhaodongkou Group," and "Chat 47 Group"), he set up a WeChat group "Volunteers ①" to discuss the Wangxi Incident, and from the beginning of May 2019 he used WeChat groups to advocate for 10,000 people to sign petitions.

On May 8, 2019, Liu Renwen posted the following in Wechat groups such as "Justice's House" and "National Legions Fellowship Exchanges Group":
Regarding the murder case of the two brothers in Xiaoshajiang, Wangxi, modern officials only love wealth and sex, and inflict harm upon the world without reason. In terms of their character, the only thing they love is the money they have to spend! They have no fear of being cursed or punished as criminals, and are devoid of shame. I am a truly incompetent person. I only ask that those who understand the law and are capable to seek justice on behalf of the dead. .Strive for peace among peoples, stand upright for the citizens, . . . Strict and impartial laws, what protection should you afford murderers, of what crime would you convict those who would murder two children 7-8 years old?

On May 14th of the same year, Liu Renwen posted the following in the "Volunteers ①" group:
All the police officers participating in Wangxi (the self-inflicted stripping and freezing to death) are guilty of dereliction of duty, and their behavior can be likened to providing a protective umbrella for evil forces, those who would purge the world of evil things must crack down and punish it.

In addition, on May 9, 2019, Liu Renwen reposted lyrics of the national anthem which had been distorted by others in other WeChat groups.

On May 16, 2019, after the defendant Public Security Bureau of Longhui received the case, they questioned Liu Renwen in accordance with the law, initiated a related investigation, and served him a notice prior to imposing administrative punishment.

On May 17, 2019, the Public Security Bureau of Longhui issued the Long Public (He) Decision (2019) No. 0819 "Public Security Administrative Punishment Decision":
In accordance with the provision of Article 26 of the "Public Security Administration Punishment Law of the People's Republic of China" Liu Renwen is subject to 10 days administrative detention. In accordance with the provisions of Article 15 of the "National Anthem Law of the People’s Republic of China," Liu Renwen is subject to 10 days administrative detention. In accordance with the provisions of Article 161(1) of the “Procedures for Public Security Organs on the Handling Administrative Cases," it is decided that administrative detention on Liu Renwen shall run consecutively for 20 days.

Liu Renwen did not accept this, and filed an administrative lawsuit requesting that the Long Public (He) Decision (2019) No. 0819 “Public Security Administrative Punishment Decision” issued by the Public Security Bureau of Longhui be revoked.

The first instance judgment determined that because the plaintiff Liu Renwen did not believe the police incident report issued by the police he disseminated and fabricated false information about the Wangxi Incident and advocated for 10,000 people to sign a petition in the WeChat groups that he formed or participated in, which constituted an illegal act of disturbing the peace; in addition Liu Renwen reposted distorted lyrics of the national anthem in a WeChat group and this constituted an illegal act of insulting the national anthem by other means. Defendant Public Security Bureau of Longhui found that Liu Renwen's illegal behavior was clear and the evidence was reliable and copious. In the process of making the administrative punishment decision regarding Liu Renwen, the Public Security Bureau of Longhui conducted legal procedures such as case acceptance, investigation, and notification prior to administrative punishment. The procedures were lawful.

In applying the provisions of Article 26 of the "Public Security Administration Punishment Law of the People’s Republic of China," Article 15 of the "National Anthem Law of the People’s Republic of China," and Article 161(1) of the “Procedures of the Public Security Organs on the Handling Administrative Cases” to the administrative detention punishment imposed on Liu Renwen, the Public Security Bureau of Longhui applied the law correctly and imposed punishment appropriately.

In accordance with the provision of Article 69 of the "Administrative Procedure Law of the People's Republic of China," the court of first instance dismissed plaintiff Liu Renwen's lawsuit.

Appellant Liu Renwen appealed the first instance judgment claiming the facts were wrongly determined and requested the court of second instance revoke the original judgment and the Long Public (He) Decision (2019) No. 0819 “Public Security Administrative Punishment Decision."

Appellee Public Security Bureau of Longhui replied that with respect to the defendant's decision on administrative punishment the facts were clear and the evidence was reliable and copious, the procedures were legal, the law was applied correctly, and the degree of punishment was appropriate. The original judgment was correct and they requested the second instance court dismiss the appeal and uphold the original judgment.

The facts ascertained by this Court in the trial of second instance were consistent with the facts ascertained in the trial of first instance, and are affirmed by this Court.

This Court finds that appellant Liu Renwen disseminated false information in multiple WeChat groups which created a disturbance and disturbed the peace; he also reposted the distorted lyrics of the national anthem in multiple WeChat groups, insulting the national anthem, and these facts are confirmed by his own statements, witness testimonies, and WeChat chat records and other evidence. The facts are clear, and the evidence is conclusive.

Appellee Public Security Bureau of Longhui performed the procedures of filing, investigation, notification of punishment, decision of punishment, delivery, and notification of the family members of the detainee in accordance with the law, and the procedures were lawful.

The Long Public (He) Decision (2019) No. 0819 “Public Security Administrative Punishment Decision" issued by the Public Security Bureau of Longhui applied the law correctly when it subjected Liu Wenren to 10 days administrative detention in accordance with the provisions of Article 26 of the "Public Security Administration Punishment Law of the People's Republic of China;" subjected Liu Wenren to 10 days administrative detention in accordance with the provisions of Article 15 of the "National Anthem Law of the People’s Republic of China;" and decided that the administrative detention on Liu Renwen should run consecutively for 20 days in accordance with the provisions of Article 161(1) of the “Procedures for Public Security Organs on the Handling Administrative Cases."

The original judgment determined that the facts were clear, the laws and regulations were correctly applied, and the judgment result was not inappropriate. Liu Renwen’s request to revoke the administrative penalty decision and the original judgment is not sustained by this Court. Accordingly, in accordance with the provisions of Article 89(1)(i) of the "Administrative Procedure Law of the People's Republic of China," the judgment is as follows:

The appeal is denied and the original sentence is upheld.

The appeal fee for the trial of second instance of this case is 50 yuan, which shall be borne by appellant Liu Renwen.

This judgment shall be the final judgment.

Chief Adjudicator: Jiang Hongling
Adjudicator: Liu Zhaohui
Adjudicator: Yang Yaozhi

December 5, 2019

Judge's Assistant: Li Ping

Acting Clerk: You Xiaohong

Laws Cited:


National Anthem Law

Article 15. Anyone who, in a public venue, intentionally distorts the national anthem's lyrics or music, or sings the national anthem in a twisted or derogatory manner, or insults the national anthem in any other manner shall be subject to a warning or no more than 15 days detention. Where it constitutes a crime, criminal responsibility will be pursued in accordance with the law.

Public Security Administrative Punishments Law

Article 26. Anyone who commits one of the following acts shall be detained for not less than 5 days and not more than 10 days and may, in addition, be fined not more than 500 yuan; and if the circumstances are relatively serious, they shall be detained for not less 10 than days and not more than 15 days and may, in addition, be fined not more than 1,000 yuan:

(1) gang-fighting;
(2) chasing or intercepting another person;
(3) forcibly taking and obstinately seizing, or willfully damaging and occupying, public or private property; or
(4) other provocative acts.


刘任文与隆回县公安局治安行政处罚二审行政判决书
湖南省邵阳市中级人民法院
行 政 判 决 书
(2019)湘05行终315号


上诉人(原审原告)刘任文,男,1984年10月14日出生,住隆回县。

被上诉人(原审被告)隆回县公安局,住所地隆回县桃洪镇平安街1号。

法定代表人申松能,该局局长。

委托代理人文杰威,该局法制大队教导员。

上诉人刘任文因诉被上诉人隆回县公安局治安行政处罚一案,不服湖南省武冈市人民法院作出的(2019)湘0581行初101号行政判决,向本院提起上诉。本院依法组成合议庭,对本案进行了审理,现已审理终结。

原审查明,2019年3月,原告刘任文开始了解隆回县小沙江镇旺溪两名儿童死亡事件(以下简称旺溪事件),因不相信警方发布的警情通报,便加入了一些讨论旺溪事件的微信群(包括“志愿者之家”、“恒信公益朋友群”、“正义者之家”、“全国万人老乡交流会⑥群”、“旺溪情”、“大邵洞口群”、“聊天47群”),组建微信群“志愿者①”讨论旺溪事件,并从2019年5月初开始在多个微信群里倡议万人签名请愿书。

2019年5月8日,刘任文在“正义者之家”、“全国万人老乡交流会⑥群”等微信群发布“关于小沙江旺溪两小兄弟被害之命案,现代官家专爱财和色,伤天害理无人德。人格,只爱眼前有钱花!不怕断子绝孙受刑法,可耻无知,我是个实在无能之人。只敬请列为懂法、有才能义士为死者讨回公道。为世人争取平安,为国民声张正气,……严明的法律,请问你们保护杀人犯,连杀两名7-8岁的孩童该定什么罪”。

同年5月14日,刘任文在“志愿者①”群里发布“参加旺溪(自主脱衣冻死)的所有警察是渎职的,他们的行为符合黑恶势力保护伞的行为,属扫黑除恶的范畴,必须打击和严惩”。

另,2019年5月9日,刘任文将他人篡改的国歌歌词转发到其他微信群。

2019年5月16日,被告隆回县公安局受案后,依法询问了刘任文,进行了相关调查,并在行政处罚前进行了告知。

2019年5月17日,隆回县公安局作出隆公(荷)决字[2019]第0819号《公安行政处罚决定书》:“根据《中华人民共和国治安管理处罚法》第二十六条之规定,对刘任文行政拘留十日;根据《中华人民共和国国歌法》第十五条之规定,对刘任文行政拘留十日;根据《公安机关办理行政案件程序规定》第一百六十一条第一款之规定,决定对刘任文合并执行行政拘留二十日”。

刘任文不服,遂提起行政诉讼,请求撤销隆回县公安局作出的隆公(荷)决字[2019]第0819号《公安行政处罚决定书》。

原判认为,原告刘任文因不相信警方发布的警情通报,在本人组建或加入的微信群内散发、编造有关旺溪事件的虚假信息,倡议万人签名请愿书,已构成寻衅滋事的违法行为;刘任文在微信群里转发篡改的国歌歌词,已构成以其他方式侮辱国歌的违法行为。被告隆回县公安局认定刘任文的违法行为事实清楚,证据确实、充分。隆回县公安局在对刘任文作出行政处罚决定过程中,履行了受案、调查、行政处罚前的告知等法定程序,程序合法。隆回县公安局适用《中华人民共和国治安管理处罚法》第二十六条、《中华人民共和国国歌法》第十五条、《公安机关办理行政案件程序规定》第一百六十一条第一款的规定对刘任文作出的行政拘留处罚,适用法律正确,处罚适当。原审根据《中华人民共和国行政诉讼法》第六十九条的规定,判决驳回原告刘任文的诉讼请求。

上诉人刘任文上诉称,一审认定事实错误,请求二审法院撤销原审判决及隆公(荷)决字[2019]第0819号《公安行政处罚决定书》。

被上诉人隆回县公安局答辩称,被诉行政处罚决定认定事实清楚,证据确实、充分,程序合法,适用法律正确,量罚适当。原审判决正确,请求二审驳回上诉,维持原判。

本院二审查明的事实与一审认定的事实一致,本院予以确认。

本院认为,上诉人刘任文在多个微信群里散发虚假信息,起哄闹事,寻衅滋事;并在多个微信群转发篡改的国歌歌词,侮辱国歌的事实,有其本人陈述、证人证言、微信聊天记录等证据予以证实,事实清楚,证据确凿。被上诉人隆回县公安局依法履行了立案、调查、处罚告知、作出处罚决定、送达、通知被拘留人家属等程序,程序合法。

隆回县公安局作出的隆公(荷)决字[2019]第0819号《公安行政处罚决定书》,根据《中华人民共和国治安管理处罚法》第二十六条之规定,对刘任文行政拘留十日;根据《中华人民共和国国歌法》第十五条之规定,对刘任文行政拘留十日;根据《公安机关办理行政案件程序规定》第一百六十一条第一款之规定,决定对刘任文合并执行行政拘留二十日,适用法律正确。

原判认定事实清楚,适用法律、法规正确,判决结果并无不当,对刘任文要求撤销行政处罚决定和原审判决的请求,本院不予支持。据此,依照《中华人民共和国行政诉讼法》第八十九条第一款第(一)项之规定,判决如下:

驳回上诉,维持原判。

本案二审受理费50元,由上诉人刘任文负担。

本判决为终审判决。

审 判 长  蒋红玲
审 判 员  刘朝晖
审 判 员  杨皞陟

二〇一九年十二月五日

法官 助理  李 萍


Saturday, May 30, 2020

At Least 10 People Convicted in China in 2019 for Twitter Posts that "Disturbed the Peace"

Following up on last week's post "Court Jails Man for 8 Months for Tweets That Harmed China's Image," below is a list of 9 other similar judgments.

Chen Guoji Criminal Judgment (陈国吉寻衅滋事一审刑事判决书), (2018) Ning 1321 Criminal First Instance No. 164, wherein the court found "Defendant Chen Guoji 'liked' and reposted false information and confusing videos that implicated the image of the State and insulted and defamed State leaders, and his actions are sufficient to cause severe chaos in public order, and constitute the crime of disturbing the peace, and should be punished."

Sentence: 2 year suspended sentence.

Source: https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=61aa44e0314a4bfba324aa3b00a6ae78

Wei Qi Criminal Judgment (魏琪寻衅滋事一审刑事判决书), (2019) Ning 0291 Criminal First Instance No. 146, wherein the court found "Defendant Wei Qi used information networks to insult others and spread false information on information networks under serious circumstances, he disrupted social order, and his actions constitute the crime of disturbing the peace."

The information "included over 100 posts with inappropriate speech content that was anti-Party and anti-Communist, and that insulted State leaders."

Sentence: 6 months imprisonment.

Source: https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=264806519c1242f282a0aa560021d4de

Yang Zhaoxing Criminal Judgment (杨兆星寻衅滋事一审刑事判决书), (2019) Yue 0605 Criminal First Instance No. 639, wherein the court found "Defendant Yang Zhaoxing spread false information on information networks that he clearly knew to be fabricated, incited trouble, and caused severe chaos in public order, and his actions constitute the crime of disturbing the peace."

The information included Twitter posts and reposts of "false information fabricated by foreign media regarding China's ruling Party, government regime, and State leaders."

Sentence: 10 months imprisonment.

Source: https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=d0b4f852e0fa4c4681b3aa5b00c1b74f

Xu Jianyu Criminal Judgment (许建榆寻衅滋事罪一审刑事判决书), (2019) Shaan 0802 Criminal First Instance No. 383, wherein the court found "Defendant Xu Doe repeatedly posted and reposted information on the foreign website Twitter that insulted, besmirched, and maliciously attacked Party and State leaders, the socialist system, police groups, and others, and he continued to post and repost this type of information even after he had subject to administrative punishment. The circumstances are severe, his actions severely disrupted social order, are an offense under the provisions of Article 293 of the "Criminal Law of the People's Republic of China," constitute the crime of disturbing the peace, and should be punished."

Sentence: 2 years and 6 months imprisonment.

Source: https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=8fbe1fe8c0164e7aa11caa2200c4affd

Dong Doe Criminal Judgment (董某寻衅滋事罪一审刑事判决书), (2018) Pu 0902 Criminal First Instance No. 342, wherein the court found "Defendant Dong Doe fabricated false information which he transmitted and spread on information networks, he incited trouble, damaged the image of the State, caused severe chaos in public order, and his actions constitute the crime of disturbing the peace."

The information included Twitter posts that "hyped up the Dong Yaoqiong ink splashing incident" and "inappropriate speech that spread rumors and besmirched and attacked the Party and the State."

Sentence: 8 months imprisonment.

Source: https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=e79d66abd4bc4ceb9515aac500f72d87

Cheng Doe Criminal Judgment (程某某寻衅滋事一审刑事判决书), (2019) Wan 0824 Criminal First Instance No. 110, wherein the court found "Defendant Cheng Doe used information networks to insult others, and besmirch the image of the Party and the State, under circumstances that were vile, and his actions constitute the crime of disturbing the peace."

Sentence: 10 months imprisonment.

Source: https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=9694db719f024150a90aaad80026a096

Ge Renqiang Criminal Judgment (葛仁强寻衅滋事一审刑事判决书), (2019) Ning 0291 Criminal First Instance No. 329, wherein the court found "Defendant Ge Renqiang spread a large amount information on information networks despite clearly knowing that it was false information that had been fabricated to insult and besmirch State leaders, he incited trouble, he caused severe chaos in public order, his actions constitute the crime of disturbing the peace, and should be punished."

Sentence: 6 months imprisonment.

Source: https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=9694db719f024150a90aaad80026a096

Gao Zhenqiang Criminal Judgment (高振强寻衅滋事一审刑事判决书), (2019) Ning 0304 Criminal First Instance No. 323, wherein the court found the following fact sufficient to convict the defendant of the crime of disturbing the peace: "From the time defendant Gao Zhenqiang applied for a Twitter account on May 18 2017 until June 11, 2019, his Twitter account with the name "Butterfly Flying" posted and reposted a total of 17,051 tweets, and of those over 80% included content that related to attacking the Party and the State and central Party and government leaders, which then received various amounts of hits and reposts, and between April 20 and June 11, 2019, Gao Zhenqiang published 39 posts that attacked State leaders.

Sentence: 6 months imprisonment.

Source: https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=1eab84577b524de6a56cab29002a09a7

Wang Beiyuan Criminal Judgment (汪北源诽谤一审刑事判决书), (2019) Yue 2071 Criminal First Instance No. 1881, in which the court found: "Even though the information posted by defendant Wang Beiyuan was not entirely comprised of harmful information that besmirched State leaders, smeared China's government, and denounced State policies, nevertheless he fabricated facts to damage the reputations of Party and State leaders, and the content of the defamatory information he spread on the Internet harmed the image of the State and State interests, and such circumstances should be considered severe."

Sentence: 1 year imprisonment.

Source: https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=75c5e923fd0d4232bcfaab2600f33e00

Monday, May 25, 2020

Court Jails Man for 8 Months for Tweets That Harmed China's Image

Original Chinese Language Source: Supreme People's Court "China Judgments Online" -  https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=cd7fedb4c6134ced8e08ab9d00b678f1


People's Court of Daxinganling Prefecture, Jiagedaqi District, Heilongjiang
Criminal Judgment
(2019) Hei 2701 Criminal First Instance No. 71


The public prosecution agency was the People's Procuratorate of Daxinganling Prefecture, Jiagedaqi District.

Defendant Jiang Kun, male, Han nationality, born February 8, 1983 in the Jiagedaqi District in the Daxinganling Prefecture of Heilongjiang Province, university education, no fixed occupation. Residing in the Jiagedaqi District in the Daxinganling Prefecture of Heilongjiang Province. On April 3, 2019, he was taken into administrative detention for this case. On April 17, 2019, he was taken into criminal detention by the Public Security Bureau of Jiagedaqi District on suspicion of committing the crime of defamation. On April 30, 2019, the District People's Procuratorate approved his arrest on suspicion of committing the crime of defamation, and on the same day his arrest was executed by the Public Security Bureau of Jiagedaqi District. He is currently being held in custody in the Jiagdachi District Detention Center.

The People's Procuratorate of Jiagedaqi District charged defendant Jiang Kun with committing the crime of defamation in Da Jia Procuratorate Prosecution Criminal Indictment [2019] No. 71, and filed a public prosecution with this Court on June 18, 2019. On September 29, 2019, the Procuratorate filed the Da Jia Procuratorate Prosecution Criminal Amendment [2019] No. 7 Amended Prosecution Decision charging defendant Jiang Kun with committing the crime of disturbing the peace. This court applied ordinary procedures in accordance with the law, formed a collegial panel in accordance with the law, and heard the case in closed court. The People's Procuratorate of the Jiagedaqi District appointed Deputy Procurator Wang Lianshan to appear in court in support of the public prosecution, and the defendant Jiang Kun was present in court to participate in the proceedings. The trial has now concluded.

The indictment of the People's Procuratorate of Jiagedaqi District charged defendant Jiang Kun with using wall-climbing software to browse the overseas website Twitter. Since 2014, Jiang Kun followed certain anti-China forces on Twitter. Because he often watched videos and read articles by overseas anti-China forces that attacked and vilified the Party and State leaders, he developed hateful thoughts about Party and State leaders. From 2014 to the present, Jiang Kun used computers and mobile phones to distribute, vilify, and attack Party and State leaders on his overseas Twitter account. There were a total of 1,434 posts with harmful information which harmed the nation's image, seriously jeopardized the nation's interests, and caused a negative impact internationally.

The amended Indictment Decision charged defendant Jiang Kun with using wall-climbing software to browse the overseas website Twitter. Since 2014, Jiang Kun followed certain anti-China forces on Twitter. He often watched videos and read articles by overseas anti-China forces that attacked and vilified the institutions and policies of the Party and the nation, and this caused him to develop hateful thoughts about the current social system. From 2014 to the present, Jiang Kun used computers and mobile phones log onto the overseas website Twitter to distribute, vilify, and attack the Party and the nation. There were a total of 1,434 posts with harmful information. Defendant Jiang Kun fabricated false information to attack the socialist system and national policies of the People's Republic of China, and he spread it on the Internet, causing severe disturbance to public order.

Following an investigation defendant Jiang Kun was apprehended by the Public Security Office of Jiagedaqi District in No. 2511 Tiedong Dajie on April 3, 2019.

The public security authorities undertook a psychological evaluation of defendant Jiang Kun in accordance with the law on July 19, 2019. The evaluation found that during the time period covering the case hat defendant Jiang Kun had the capacity to be held criminally liable.

The public prosecution agency alleges that defendant Jiang Kun fabricated false information to attack the socialist system and national policies of the People ’s Republic of China, and he spread it on the Internet, causing severe disturbance to public order, and that his actions constitute an offense under the provisions of Article 293, paragraph 1, clauses 3 and 4 of the "Criminal Law of the People's Republic of China," the criminal facts are clear and the evidence is reliable and copious, and that he should be held criminally liable for the crime of disturbing the peace. They provided corresponding evidence in court, and requested that punishment be imposed in accordance with the law. Defendant, Jiang Kun, admitted the facts of the crime charged by the public prosecution agency, and did not offer any justification.

It was ascertained at trial that since 2014, defendant Jiang Kun used wall-climbing software to browse the overseas website Twitter, and he followed certain anti-China forces on Twitter. During that time he often watched videos and read articles by overseas anti-China forces that attacked and vilified the institutions and policies of the Party and the nation, and this caused him to develop hateful thoughts about the current social system. From 2014 to the present, Jiang Kun used computers and mobile phones log onto the overseas website Twitter to carry out the spread of commentary and articles that vilified and attacked the Party and the nation. There were a total of 1,434 posts with harmful information, and defendant Jiang Kun fabricated false information to attack the socialist system and national policies of the People's Republic of China, and he spread it on the Internet, causing severe disturbance to public order.

Following an investigation defendant Jiang Kun was apprehended by the Public Security Office of Jiagedaqi District in No. 2511 Tiedong Dajie on April 3, 2019.

The public security authorities undertook a psychological evaluation of defendant Jiang Kun in accordance with the law on July 19, 2019. The evaluation found that during the time period covering the case hat defendant Jiang Kun had the capacity to be held criminally liable.

the aforementioned criminal facts have been confirmed by the following evidence which was provided by the public prosecution agency and examined in court and which has been affirmed by this Court.

1. Material evidence one desktop computer, one notebook computer, one mobile phone.

2. Documentary evidence including one Decision to Open a Case, one Apprehension Process, one Leads Bulletin, one evidence of household registration, one explanation by the Daxinganling Prefecture Office Public Security Bureau Cyber Security Detachment of the circumstances of the online collection of the Twitter network account, and one Online Collection Report from the Daxinganling Prefecture Office Public Security Bureau Cyber Security Detachment.

3. Defendant Jiang Kun's confession and justifications.

4. One Judicial Forensic Opinion.

5. One On-Site Inspection Record from the Public Security Bureau of Jiagedaqi District.

This Court finds that defendant Jiang Kun fabricated false information, which he broadcast, spread, and caused trouble with on the Internet, harming the image of the nation, and causing severe disturbance to public order. His actions constitute the crime of the disturbing the peace. The facts and offenses charged by the public prosecuting agencies have been established, and are hereby sustained by this Court in accordance with the law. After this began defendant Jiang Kun admitted his crime, expressed remorse, and it is therefore possible to impose a light sentence upon him. In accordance with the provisions of Article 293, paragraph 1, clauses 3 and 4 and Article 64 of the "Criminal Law of the People's Republic of China," and Article 5 paragraph 2 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate Regarding Certain Questions About Applicable Law When Dealing With Criminal Cases Whereby Information Networks are Utilized to Commit Defamation and Other Crimes," the judgment is as follows:

1. Defendant Jiang Kun committed the crime of disturbing the peace, and is hereby sentenced to a fixed term of imprisonment of eight 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. Therefore it shall commence on April 3, 2019 and shall conclude on December 2, 2019).

2. The tools used in the commission of this case and transferred as part of this case are hereby confiscated and turned over to the State treasury.

If the defendant does not accept this judgment, he may within 10 days after the second day after receiving this written judgment bring an appeal through this court or directly to the High People's Court of Shandong.  A written appeal should be submitted with one original and two copies.

Chief Judge: Wang Yancheng
Adjudicator: Ma Guofeng
Adjudicator: Chen Hongyan

November 30, 2019

Clerk: Jiang Yanping

黑龙江省大兴安岭地区加格达奇区人民法院
刑 事 判 决 书
(2019)黑2701刑初71号


公诉机关大兴安岭地区加格达奇区人民检察院。

被告人姜坤,男,汉族,1983年2月8日出生于黑龙江省大兴安岭地区加格达奇区,大学文化,无固定职业,住黑龙江省大兴安岭地区加格达奇区。2019年4月3日因本案被行政拘留,2019年4月17日因涉嫌犯诽谤罪被加格达奇区公安局刑事拘留,2019年4月30日因涉嫌犯诽谤罪被加格达奇区人民检察院批准逮捕,同日由加格达奇区公安局执行,现羁押于加格达奇区看守所。

加格达奇区人民检察院以大加检诉刑诉[2019]71号起诉书指控被告人姜坤犯诽谤罪,于2019年6月18日向本院提起公诉。2019年9月29日以大加检诉刑变诉[2019]7号变更起诉决定书指控被告人姜坤犯寻衅滋事罪。本院依法适用普通程序,依法组成合议庭,不公开开庭审理了本案。加格达奇区人民检察院指派副检察长王连山出庭支持公诉,被告人姜坤到庭参加诉讼。现已审理终结。

加格达奇区人民检察院起诉书指控被告人姜坤常年使用翻墙软件,用于浏览境外推特网站,2014年开始姜坤在推特上关注一些反华势力,因其经常观看境外反华势力攻击污蔑党和国家领导人的视频、文章,使其对中国共产党和国家领导人产生了仇视思想。从2014年至今,姜坤使用电脑,手机在境外推特网账号散布、污蔑、攻击党和国家领导人。有害信息共计1434条,损害国家形象,严重危害国家利益,造成了恶劣的国际影响。

变更起诉决定书指控被告人姜坤常年使用翻墙软件,浏览境外推特网站。2014年开始,姜坤在推特上关注一些反华势力,经常观看境外反华势力攻击、污蔑党和国家有关制度和政策的视频、文章,因而对我国现行社会制度产生了仇视思想。从2014年至今,姜坤使用电脑、手机登陆境外推特网账号散布、污蔑、攻击党和国家的评论、文章,有害信息共计1434条。被告人姜坤编造虚假信息攻击中华人民共和国社会主义制度和国家政策,并在网络上散布,造成公共秩序严重混乱。

经侦查,被告人姜坤于2019年4月3日在铁东大街2511号平房内,被加格达奇区公安局抓获。

公安机关于2019年7月19日依法对被告人姜坤进行精神鉴定。经鉴定,被告人姜坤作案时具有刑事责任能力。

公诉机关认为,被告人姜坤编造虚假信息攻击中华人民共和国社会主义制度和国家政策,并在网络上散布,造成公共秩序严重混乱,其行为已触犯了《中华人民共和国刑法》第二百九十三条第一款第(二)、(四)项的规定,犯罪事实清楚,证据确实充分,应当以寻衅滋事罪追究其刑事责任。并当庭提供了相应的证据,请求依法判处。
被告人姜坤承认公诉机关指控的犯罪事实,未作辩解。

经审理查明,被告人姜坤自2014年开始,使用翻墙软件,浏览境外推特网站,并在推特上关注一些反华势力,同时观看境外反华势力攻击、污蔑党和国家有关制度和政策的视频、文章,因而对我国现行社会制度产生了仇视。从2014年至今,姜坤使用电脑、手机登陆境外推特网账号进行散布、污蔑、攻击党和国家的评论、文章。有害信息共计1434条,被告人姜坤编造虚假信息攻击中华人民共和国社会主义制度和国家政策,并在网络上散布,造成公共秩序严重混乱。

经侦查,被告人姜坤于2019年4月3日在铁东大街2511号平房内,被加格达奇区公安局抓获。

公安机关于2019年7月19日依法对被告人姜坤进行精神鉴定。经鉴定,被告人姜坤作案时具有刑事责任能力。

上述犯罪事实有公诉机关提供,经当庭质证查实,本院予以确认下列证据证实:

1.物证台式电脑机箱、笔记本电脑、手机;
2.书证立案决定书、抓获经过、线索通报、户籍证明、大兴安岭地区行署公安局网络安全保卫支队关于对推特网络账号网络在线提取的情况说明、大兴安岭地区行署公安局网络安全保卫支队网络在线提取报告书等;
3.被告人姜坤的供述与辩解;
4.司法鉴定意见书;
5.加格达奇区公安局现场勘查记录。

本院认为,被告人姜坤编造虚假信息,在网络上传播、散步、起哄闹事,损害国家形象,造成公共秩序严重混乱,其行为已经构成寻衅滋事罪。公诉机关指控的事实和罪名成立,本院依法予以支持。案发后,被告人姜坤认罪、悔罪,可以对其从轻处罚。依照《中华人民共和国刑法》第二百九十三条第一款第二、四项、第六十四条、《最高人民法院、最高人民检察院关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释》第五条第二款的规定,判决如下:

一、被告人姜坤犯寻衅滋事罪,判处有期徒刑八个月。

(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4月3日起至2019年12月2日止)。

二、随案移送的作案工具联想牌笔记本电脑一部、黑白色台式电脑主机箱一台、诺基亚智能手机一部依法予以没收,上缴国库。

如不服本判决,可在接到判决书的第二日起十日内,通过本院或者直接向大兴安岭地区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,副本两份。

审判长  王延成
审判员  马国峰
审判员  沈洪艳

二〇一九年十一月三十日

书记员  蒋艳萍