Sunday, November 29, 2020

Disappearing Government Records Show Police Ordering People, Companies to Stop Using Foreign VPNs

China's state sponsored media has long made it clear that foreign VPNs are not legal. For example, the Global Times wrote in 2012:

Residents in China have found logging into their Facebook and Twitter accounts increasingly difficult in recent days, after several popular VPN (virtual private network) companies have alleged that China's Great Firewall (GFW) has been upgraded. However, officials and experts in China's Internet industry have said that it is illegal for foreign companies to operate a VPN business in China.

Three overseas VPN service providers, Astrill, Witopia and StrongVPN apologized Thursday that their service to residents in the Chinese mainland has been blocked due to a recent upgrade of the GFW. Astrill claimed that most VPN protocols have been blocked,  and that many foreign companies have been influenced.

Fang Binxing, designer of the GFW, told the Global Times Thursday he did not know of any upgrade to the firewall.

"As far as I know, companies running a VPN business in China must register with the Ministry of Industry and Information Technology. I haven't heard that any foreign companies have registered," Fang said.

Unregistered VPN service providers are not protected by Chinese laws, and any company running a VPN business should realize they have a responsibility to register, he said.

An employee from the Ministry of Industry and Information Technology, surnamed Li, also confirmed that only Chinese companies and Sino-foreign joint ventures can apply to establish a VPN business.

See: "Foreign-run VPNs illegal in China: govt," December 12, 2012, https://www.globaltimes.cn/content/750158.shtml

Over the past several years there has also been a growing body of case law in China addressing the (il)legality of VPNs that are not provided by telecommunications carriers licensed  to operate in China. Courts have always been clear that providing unlicensed VPN services to others could violate a number of PRC criminal laws. For example, in State v. Liu Bingyang (刘冰洋刑事判决书, (2017)豫1329刑初556号), Liu was found to have violated Articles 285(3) of the "Criminal Law of the People's Republic of China," by "providing programs and tools for the intrusion into and illegal control of computer information services" when he "used a website of his own construction XX to distribute information about Shadowsocks software and download links to users making payments to defendant Lin Bingyang through third party platforms." The court stated that "Shadowsocks" software and services which the defendant illegally sold could circumvent the monitoring of China's Internet firewall, and illegally access foreign websites, receive and view illegal videos, and receive and listen to illegal broadcasts." See: https://blog.feichangdao.com/2018/03/prc-court-unauthorized-great-firewall.html

It has also been quite common to see courts cite a defendant's use of "wall-climbing" software as evidence of their guilt in relation to other offenses, usually involving posting or accessing content the court deemed to be illegal. For example: 

  • State v. Tian Weiguo (田卫国刑事判决书, (2016)新4003刑初5号): "Tian Weiguo used wall-climbing software to register on the foreign website 'Google,' and reposted false information with the content 'Xinjiang Shache Uighurs have been massacred.'" See: https://blog.feichangdao.com/2017/03/court-cites-gfw-circumvention-software.html
  • State v. Jiang Kun (姜坤刑事判决书, (2019)黑2701刑初71号) "The indictment of the People's Procuratorate of Jiagedaqi charged defendant Jiang Kun with using wall-climbing software to browse the foreign website Twitter. . . . From 2014 to the present, Jiang Kun used computers and mobile phones to distribute, vilify, and attack Party and State leaders on his foreign 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." See: https://blog.feichangdao.com/2020/05/court-jails-man-for-8-months-for-tweets.html
  • State v. Duan Zheng (段铮刑事判决书, (2017)京01刑初69号): "In November 2016, he used wall-climbing software on his mobile phone to access a foreign video website called "theYNC." On that website he watched seven violent terrorist videos." See: https://blog.feichangdao.com/2017/09/man-jailed-seven-months-for-saving-isis.html

A question remained, however: Is it illegal to simply use a foreign VPN to access ostensibly legal content on foreign websites?

That question was answered in the affirmative this year in a series of articles by Wang Yuyang (王宇扬) posted on Tencent's Wexin:

Wang documented dozens of examples of police apprehending and punishing inviduals solely for using VPNs. In each of the cases there was no claim either that the individuals posted anything illegal, or that the information they were accessing was illegal. In some cases the VPNs were being used to play games.

Below are full translations of three entries taken from the Zhejiang Government Services website's "Open Information on Administrative Punishments Outcomes":

Majin Police Precinct, Public Security Bureau of Kaihua
Administrative Punishment Decision
Kai Public (Ma) Administrative Punishment Decision [2019] No. 2019150842

Date Administrative Punishment Issued: September 27, 2019

Main Illegal Facts: From June 2019 to September 2019, Yao Zenglei used VPN software to illegally access international networks while playing the game “Ace Fishing: Wild Catch” on her mobile phone. There was no profit involved. Yao Zenglei’s behavior constituted unauthorized use of non-statutory channels for international networking

Category and Basis of Administrative Punishment: In accordance with the provisions of Articles 6 and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks" it was decided to give Yao Zenglei a warning as an administrative punishment.

Method of Execution and Time Limit of Administrative Punishment: Reprimanded on the Spot.


Chengguan Police Precinct, Public Security Bureau of Changshan, Zhejiang
Administrative Punishment Decision
Chang Public (Chengguan) Administrative Punishment Decision [2020] No. 005601

Date Administrative Punishment Issued: September 14, 2020

Main Illegal Facts: From 2014, 2015 to September 6, 2020, Zhang Liping downloaded wall-climbing software on her personal mobile phone and utilized the software to log onto the overseas "Twitter," "Facebook," "youTube," "instagram," etc. to browse various kinds of information. There was no financial gain. She was apprehended by our bureau on September 14, 2020. Zhang Liping's actions constitute unauthorized use of non-statutory networking channels.

Category and Basis of Administrative Punishment: In accordance with the provisions of Articles 6 and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks" it was decided to give Zhang Liping a warning as an administrative punishment.

Method of Execution and Time Limit of Administrative Punishment: Reprimanded on the Spot.

Jiefang Police Precinct, Dinghai District, Public Security Bureau of Zhoushan, Zhejiang
Administrative Punishment Decision
Zhou Ding Public (Jie) Administrative Punishment Decision [2020] No. 016921

Date Administrative Punishment Issued: October 24, 2020

Main Illegal Facts: From the first half of 2019 through October 2020, Zhang Tao searched and downloaded the wall-climbing software "LANTERN" using Baidu, and repeatedly used the "LANTERN" wall-climbing software to illegally browse the Wikipedia website for information. On October 24, 2020, Zhang Tao was apprehended by the public security agency in Room X, Unit X, Building X, Mingzhuyuan, Huannan Street, Dinghai District.

Category and Basis of Administrative Punishment: This Precinct believes that Zhang Tao illegally used mobile phone wall-climbing software to access international networks in order to inquire about relevant information. His action constitutes: Unauthorized establishment and use of non-statutory channels for international networking, and shall be subject to administrative punishment according to the law. In accordance with the provisions of Articles 6 and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks" and based on the circumstances of this case, it was decided to give Zhang Tao a warning as an administrative punishment, and he was ordered on the spot to stop making illegal connections to the international network.

Method of Execution and Time Limit of Administrative Punishment: Reprimanded on the Spot.


 

Police have also ordered companies to stop using foreign VPNs, again citing Articles 6 and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks." The screenshots below show that police ordered several companies to stop using Astrill and other VPNs and issued the companies official reprimands. There was no indication that the companies was using their VPNs to access foreign websites (as opposed to say, using them for video conferencing or exchanging files).

 



Articles 6 and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks" provide:

Article 6. To carry out international networking of computer information, the output and input channels provided by the Ministry of Posts and Telecommunications in its public telecommunication network shall be used. No units or individuals shall establish or use other channels for international networking on their own accord.
Article 14. Those that violate stipulations in articles 6, 8 and 10 shall be ordered by public security departments to stop networking, with a warning issued to them. They may also be fined an amount up to 15,000 yuan. If they have earned any illegal income, said income shall be confiscated.

The police's application of Articles 6 and 14 has been explicitly endorsed by courts in China in both civil and administrative punishment cases. For example:

Panxing Ximin v. Google LLC (潘⾏紫旻与⾕歌有限责任公司⽹络侵权责任纠纷⼀审民事判决书, (2018)皖0291民初4662号): Wherein the court held that any evidence gathered by the plaintiff using ExpressVPN should be excluded by the court because its collection violated Article 6 of the Interim Provisions of the People's Republic of China on the Management of International networking of Computer Information:

关于原告潘行紫旻提交光盘中的屏幕快照、视频。根据《中华人民共和国计算机信息网络国际联网管理暂行规定》第六条规定,“计算机信息网络直接进行国家联网,必须使用邮电部国家公用电信网提供的国际出入口信息。任何单位和个人不得自行建立或者使用其他信道进行国际联网”。而本案中原告潘行紫旻提交的屏幕快照、视频显示,其是在中国使用ExpressVPN访问了被告谷歌有限责任公司经营的Gmail邮箱,并进行了相关邮件内容的查阅,违反了前述行政法规的规定,本院依法不予采信。

Lai Liangping v. Public Security Bureau of Shanghang (赖亮平行政判决书,(2019)闽0803行初36号): 

With respect to the question of plaintiff Lai Liangping’s claim that defendant Shanghang County Public Security Bureau issuing the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision on June 28, 2019, ordering him to cease networking and giving him a warning was once again imposing administrative punishment on him, and constitutes double jeopardy. An investigation showed that the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision issued by defendant Shanghang County Public Security Bureau was with respect to Lai Liangping’s violation of the provisions of Articles 6(2) and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks of the People's Republic of China" and was an administrative punishment of ceasing networking and a warning for the unlawful action of “climbing the wall” to access foreign websites. The laws and regulations upon which it was based were not the same as the distinct administrative actions that are the subject of the lawsuit, and was a separate distinct administrative action, and therefore does not constitute double jeopardy. The plaintiff’s claim is not consistent with the facts, and is not supported in accordance with the law.

See: https://blog.feichangdao.com/2020/08/lai-liangping-v-shanghang-public.html

Readers wishing to conduct their own research regarding the aforementioned cases should note the following:

Restricted Access to Court Judgments: The texts for the court cases cited in this post were retreived from the Supreme People's Court's China Judgments Online database (裁判文书网, https://wenshu.court.gov.cn) . However, beginning on September 1, 2020, anyone wishing to use the  China Judgments Online database must first register using a mobile phone number. For this reason I have not included any links to cases in that database, because they will not work for many readers.

Disappearing Administrative Punishment Decisions: In November 2020, the Zhejiang Government Services website's "Open Information on Administrative Punishments Outcomes" (http://www.zjzwfw.gov.cn/zjzw/punish/frontpunish/showadmins.do) removed cases relating to "Illegal Use of Non-Statutory Networking Channels." The first screenshot below shows that in September 2020 a search for the term "信道" ("Channels") returned 111 search results, and the first page of results was all cases involving "Illegal Use of Non-Statutory Networking Channels" (擅自建立、使用非法定信道进行国际联网). The second screenshot shows that by November 2020, however, the same search only returned 12 results, none of which related to cases involving "Illegal Use of Non-Statutory Networking Channels." For this reason I have not included any links to cases in that database, because they currently resolve to a 404 page.

This screenshot appeared in "It is an Undisputed Fact that Wall-Climbing is Illegal, In August Alone, Zhejiang Province had 18 Administrative Penalties for 'Individual Wall-Climbing' (With 60 Cases Over the Whole Year)," Wang Yuyang, September 4, 2020,.

This screenshot was taken by the author on November 7, 2020

Saturday, November 28, 2020

China's Police Jailing People Who Call Them "Dogs" Online

Article 2(1)(7) of the "Public Security Administrative Punishment Law of the People's Republic of China," provides that public security bureaus of the people's government at the level of county and above are responsible for public security administrative punishments within their administrative districts relating to disturbing public order, harming public security, infringements of personal and property rights, and harming public administration where there is social harm that does not rise to the level requiring criminal sanctions. 

Article 26 of the "Public Security Administrative Punishment Law of the People's Republic of China," provides that "other provocative acts" (其他寻衅滋事行为 - also translated as "picking quarrels and provoking troubles" and "disturbing the peace") may be punished by detention of between 5 and 10 days or a fine of no more than 500 yuan. Where the circumstances are severe, a punishment of between 10 and 15 days detention and a fine of no more than 1,000 yuan may be imposed.

Article 42(2) of the "Public Security Administrative Punishment Law of the People's Republic of China," provides that insult or fabrication of facts to defame a third party may be punished by detention of five days or less or a fine of no more than 500 yuan. Where the circumstances are severe, a punishment of between 5 and 10 days detention and a fine of no more than 500 yuan may be imposed.

Insult refers to words and actions that harm the reputation or personal dignity of a third party. Defamation refers to distorting and spreading falsehoods which harm the reputation or personal dignity of a third party.

Below are four examples from China's state sponsored media of people who were subjected to administrative detention for referring to police as "dogs" on social media platforms.

Lei Doe's Administrative Punishment

At about 2:00 pm on November 2, 2018, the police officer on duty at the Chengbei Police Station of the Public Security Bureau of Poyang received a call saying someone posted on the Internet that "Poyang traffic police bite and bark like mad dogs." The Chengbei Police Station identified the Internet user as Lei (female, 33 years old, from Poyang). Upon questioning, Lei confessed and was sentenced to administrative detention by the Poyang police.

Source: Netease - "A Woman in Poyang, Shangrao Vented her Anger online and was Detained for Insulting Traffic Policeman," [上饶鄱阳一女子网上泄愤,辱骂交警被拘留] November 6, 2018, https://dy.163.com/article/DVV36IBL0517V8NK.html

Zheng Doe's Administrative Punishment

On June 26, 2019, the Traffic Police Detachment of the Public Security Bureau of Guangfeng found in WeChat Moments that someone had taken a video of traffic police officer on duty, accompanied by voice and text insulting the officers on duty such as "Lots of wild dogs." After learning of the situation, the Traffic Police Detachment reported the situation to the police station in the jurisdiction. After an investigation, Zheng Doe was taken into custody. Under questioning Zheng Doe confessed to the fact that he had posted material insulting the police. On June 27, Zheng Doe was sentenced to administrative detention by the Public Security Bureau of Guangfeng for seven days on suspicion of disturbing the peace.

Source: Shangrao Evening News, "Guangfeng Man Detained for 7 days for WeChat Moments Video of Insulting Police" [广丰一男子在朋友圈发辱警言论视频被拘留7日] July 2, 2019, http://paper.srxww.com/srwb/page/34/2019-07-02/A03/74611562026953355.pdf

Xia Weifeng's Administrative Punishment

At 9:00 am on August 15, 2019, Xia Weifeng was fined 20 yuan and admonished by traffic police for driving without wearing a seat belt and not displaying a student driver sticker. On the morning of August 19, Xia sent his own photos of traffic police officers on duty accompanied by the insulting text "Do these dogs have reason to bite people every day" to WeChat Moments. This was forwarded by Internet users which aroused the attention of the Public Security Bureau of Shenqiu. The "Rights Defense Office" of the Bureau and the Traffic Police Department initiated investigation. On the afternoon of the same day, Xia was taken into custody and transferred to the Xiguan Police Station for investigation and was punished by the public security agency with 14 days of administrative detention for disturbing the peace.

Source: Sohu, "A Man in Shen Qiu Scolded the Police on WeChat Moments and was Administratively Detained 14 Days!" [沈丘一男子在微信朋友圈骂警察 被行政拘留14日!] https://www.sohu.com/a/335203992_120066352

Xi Doe's Administrative Punishment

On November 15, 2019, Xi Doe was ticketed by a traffic police officer for parking her car illegally. After seeing the ticket, she posted "They aren't police officers, they're police dogs" and other text insulting the police in WeChat Moments. Screenshots of her Moments were reposted in large numbers, attracting widespread attention from society, and creating a pernicious influence. Xi Doe was taken into custody following an investigation by the Shengli West Road Police Station, and was punished by the public security agency with 10 days of administrative detention and a 500 yuan fine.

Source: The Paper, "A Woman in Hengshui Insulted a Traffic in her WeChat Friends Circle Over a Parking Ticket, and Then . . . ," [衡水一女子因违章停车被“贴条”朋友圈辱骂交警,结果······] November 19, 2019, https://www.thepaper.cn/newsDetail_forward_4999904


Tuesday, October 20, 2020

Translation: Judgment in Case of US University Student Jailed for Twitter Postings

People's Court of Wuchang District, Wuhan, Hebei


Criminal Judgment


(2019) E 0160 Criminal First Instance No. 10871


The public prosecution agency was the People's Procuratorate of Wuchang District, Wuhan, Hubei.

Defendant Luo Daiqing, male, born [INTENTIONALLY DELETED], 1999, Han ethnicity, studying in Humanities Department of the University of Minnesota in the United States, household registration in the Honghan District of Wuhan, currently residing in the Wuchang District of Wuhan. On July 12, 2019 he was summoned to appear on suspicion of the crime of disturbing the peace, and on the same day it was decided he would subjected to 10 days in administrative custody. On July 22, 2019, he was taken into criminal detention by the Public Security Bureau of Wuchang District, Wuhan, and on August 29 of the same year he was arrested. He is currently being held in custody in the Wuchang District Detention Center.

Defense counsel Hu Jibin is a lawyer at the Hubei Lingfeng Law Firm.

In the Chang Procuratorate First Division Criminal Indictment (2019) No. 127 indictment the People's Procuratorate of Wuchang District, Wuhan, Hubei charged defendant Luo Daiqing with committing the crime of disturbing the peace, and October 11, 2019 filed a public prosecution with this Court. This Court utilized ordinary procedures in accordance with the law, and formed a collegial panel and on October 29, 2019 tried this case in closed court. The People's Procuratorate of Wuchang District, Wuhan, Hubei assigned Procurator Chen Honglin to appear in court in support of the public prosecution, and defendant Luo Daiqing and his defense counsel Hu Jibin appeared in court to participate in the proceedings. The collegial panel has held deliberations on this case, and the trial has now concluded.

The People's Procuratorate of Wuchang District, Wuhan, Hubei charged that in September and October of 2018, while studying at the University of Minnesota in the United States, defendant Luo Daiqing posted 40 statements and inappropriate memes that ridiculed the image of State leaders through his Twitter account on a foreign website in order to attract the attention of others. This drew the attention of others and created a pernicious social influence. On July 12, 2019, defendant Luo Daiqing was taken into custody and brought to justice by public security agencies.

The aforementioned facts have been substantiated by relevant evidence submitted by the public prosecution agency including documentary evidence, witness testimony, audio-visual materials, and statements of the defendant. Based on these it alleges defendant Luo Daiqing utilized information networks to post fake images and statements that ridiculed the nation's image, disrupted social management order, that the circumstances were severe, that he violated  the provisions Article 293 of the "Criminal Law of the People's Republic of China," and should bear criminal liability for the crime of disturbing the peace.

Defendant Luo Daiqing and his defense counsel did not object to any of the criminal facts and the crime charged by the public prosecution agency. In court Luo Daiqing expressed remorse for his offenses and asked to be shown leniency. Defense counsel believes that Luo Daiqing is a first offender who is ordinarily well behaved,  that once he became involved in the case he made truthful statements and plead guilty. They asked that he be shown leniency during sentencing.

It was ascertained at trial that while studying at the University of Minnesota in the United States in September and October of 2018, defendant Luo Daiqing posted 40 statements and inappropriate memes that ridiculed the image of State leaders through his Twitter account on a foreign website in order to attract the attention of others. This drew the attention of others and created a pernicious social influence. On July 12, 2019, defendant Luo Daiqing was taken into custody and brought to justice by public security agencies.

The evidence proving the aforementioned facts includes:

1. The process of how the defendant came into police custody produced by the Shuiguohu Police Precinct of the Public Security Bureau of Wuchang District, Wuhan, and the explanation of circumstances produced by the Public Security Bureau of Xuzhou's Cyber Security Detachment confirmed the process by which Luo Daiqing was taken into custody: On October 20, 2018, while Ma Doe was assisting in an investigation at the Xuzhou Police Precinct, they reported to the police that someone had stolen their identity to register on Twitter and other foreign Internet social media platforms, and had posted over 50 statements and inappropriate memes that ridiculed the nation's image and that were drawing unwanted attention and creating a pernicious social influence. An investigation found that the suspect was Luo Daiqing, and based on certain leads, on July 12, 2019, the Public Security Bureau of Wuchang District, Wuhan detained Luo Daiqing at Hongshan Side Road, Xiaohongshan Western District, Wuchang District, who stated that he undertook the aforementioned actions in order to attract online attention. The case was considered solved.

The Public Security Bureau of Xuzhou's Cyber Security Detachment confirmed that said detachment conducted online evidence retrieval with respect to the "mianq12" Twitter account in this case, and recorded it in fixed form on a disc.

2. The Public Security Bureau of Xuzhou's online collection work record and volume of evidence collected from the Internet information content.

3. The written testimony of witness Ma Doe confirmed that someone used the Internet in their name to post images and statements that insulted the nation's image: I am an anime author, and owing to some online interpersonal contradictions I got involved in many flame wars with online trolls, and I offended many people and was attacked by them. I had registered the  nickname "Eastern Footbath" in many places online, and had also registered it on Twitter, but I had never used it, and had lost that account. None of the images that insulted State leaders that were posted online under the names Ma Doe and "Footbath" were posted by me.  I was framed.

4. Defendant Luo Daiqing's household registration, identification information and statement confirmed the circumstances of the crimes he committed: I am student in the Humanities Department of the University of Minnesota in the United States. I returned to China in May  2019 and have not yet graduated. I registered three Twitter accounts; "Soft Green," "Ma Doe," and "The Footbath." I logged into Twitter in the United State, and in order to attract the attention of followers I reposted images created by others that smeared some State leaders. I do not know Ma Doe, I saw many denounce him in a Telegram group, and I pretended to be him in order to go ahead and do this. I used the reputation of "Ma Doe" to post certain derogatory information, and it increased my followers (attracted attention) quite a bit. I was posting continuously from September to October 2018, adding some of my own writings. Afterwards I felt that it was not appropriate to post inappropriate information in the name of someone else, and it was linked to politics and did not really mean anything to me, so I deleted all of that content.

5. The thoughts and understandings set down in writing by Luo Daiqing confirmed the detailed circumstances of the crimes he committed and that his attitude was one of regret.

6. The Public Security Bureau of Wuchang District, Wuhan Administrative Punishment Decision confirmed that on July 13, 2019 it was decided to subject Luo Daiqing to 10 days of administrative detention for his actions in the aforementioned case.

All the foregoing evidence was submitted by public prosecution agencies, was presented and examined in court, defendant Luo Daiqing and his defense counsel raised no objections, and it was affirmed in court. The evidence is reliable, copious, and consistent, and this Court deems the facts charged by the public prosecution agency with respect to defendant Luo Daiqing committing the crime of disturbing the peace to be determinative.

This Court finds that defendant Luo Daiqing utilized information networks to promulgate false information that ridiculed the State's image (the original text of the document phrased it thus, not as ridiculing the image of State leaders), this caused a disturbance and attracted attention. It disrupted social management order, the circumstances were pernicious, and his actions constitute the commission of the crime of disturbing the peace. The facts in this case charged by the public prosecution agency are clear and the evidence is reliable and copious, the was applied correctly, the offense charged is established and is upheld by this Court.

After becoming involved in the case Luo Daiqing was able to honestly confess to the crime and recognize his offense and show a relatively penitent attitude, so he may be shown leniency.

This Court does not accept the relevant opinions of defense counsel. This Court accepts as appropriate the opinion of the public prosecution agency recommending a sentence of between four months detention and a fixed term imprisonment of 10 months. In accordance with the provisions of Articles 293(1) and 67(3) of the "Criminal Law of the People's Republic of China" and Article 5 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Defamation Through Information Networks and Other Criminal Cases," the judgment is as follows:

Defendant Luo Daiqing committed the crime of disturbing the peace and is sentenced to a fixed term imprisonment of 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 July 12, 2019 to January 11, 2020.)

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 Intermediate People's Court of Wuhan, Hubei. A written appeal should be submitted with one original and three copies of the appeal brief,

Chief Adjudicator  Wei Xiaoxia
Adjudicator                  Cheng Ping
People's Assessor  Bao Jianping

November 5, 2019

Clerk    Zhang Yanglan 

湖北省武汉市武昌区人民法院

刑事判决书

(2019)鄂0106刑初1087号


公诉机关湖北省武汉市武昌区人民检察院。

被告人罗岱青,男,1999年[INTENTIONALLY DELETED]出生,汉族,美国明尼苏达大学人文学院在读学生,户籍地武汉市江汉区,现住武汉市武昌区。因涉嫌寻衅滋事罪于2019年7月12日被传唤,次日决定行政拘留10日,2019年7月22日被武汉市公安局武昌区分局刑事拘留,同年8月29日被逮捕。现羁押于武汉市武昌区看守所。

辩护人胡继斌,湖北凌枫律师事务所律师。

湖北省武汉市武昌区人民检察院以昌检一部刑诉(2019)127号起诉书指控被告人罗岱青犯寻衅滋事罪,于2019年10月11日向本院提起公诉。本院本院依法适用普通程序,组成合议庭于2019年10月29日开庭不公开审理本案。武汉市武昌区人民检察院指派检察员陈红林出庭支持公诉,被告人罗岱青及其辩护人胡继斌到庭参加诉讼。案件经合议庭评议,现已审理终结。

湖北省武汉市武昌区人民检察院指控,被告人罗岱青于2018年9、10月间,在美国明尼苏达大学就读期间,为吸引他人关注,在境外网站上通过其推特账户,发布丑化国家领导人形象的言论及不雅拼装图片信息40余条,引发他人围观,造成恶劣社会影响。被告人罗岱青于2019年7月12日被公安机关抓获归案。

上述事实公诉机关提交相关书证、证人证言、视听资料,被告人的供述等证据证实,据此认为被告人罗岱青利用信息网络发布丑化国家形象的虚假图片、言论,破坏社会管理秩序,情节恶劣,触犯《中华人民共和国刑法》第二百九十三条的规定,应当以寻衅滋事罪追究刑事责任。

被告人罗岱青及其辩护人对公诉机关指控的犯罪事实及罪名均没有异议,罗岱青当庭表示认罪悔罪,请求从轻处罚;辩护人认为罗岱青系初犯,平时表现良好,到案后如实供述、认罪认罚,量刑时请求从轻处罚。

经审理查明,被告人罗岱青在美国明尼苏达大学就读期间,于2018年9、10月间,为吸引他人关注,在境外通过其本人的推特账户,发布丑化国家领导人形象的言论及不雅拼装图片信息40余条,引发他人围观,造成恶劣社会影响。被告人罗岱青后于2019年7月12日回国期间被公安机关抓获归案。

证明上述事实的证据有:

1、武汉市公安局武昌区分局水果湖街派出所出具的到案经过、徐州市公安局网安支队出具情况说明,证实罗岱青查获的过程:2018年10月20日马某在徐州市珠山派出所配合调查案件时,报警称被他人在境外冒用身份登录推特等网络社交平台,在网上发表丑化国家形象的言论、不雅图片50多条,引发起哄围观,影响恶劣。经查嫌疑人系罗岱青。2019年7月12日武汉市公安局武昌区分局根据线索,在武昌区洪山侧路小洪山西区查获罗岱青,其供述为吸引网络关注实施了上述行为。案件告破。

徐州市公安局网安支队证实,该队对涉案推特账号“mianq12”推文进行在线取证固定,并刻盘保存。

2、徐州市公安局在线提取工作记录及提取的网络信息内容在卷佐证。

3、证人马某的证词,证实他人以其名义通过网络发表有辱国家形象的图片言论:我是动画制作者,因为网络社交中的个人矛盾,与网络暴力圈的一些人发生过多次口角,得罪了很多人,被他们攻击。我在网上多处注册昵称为“东风洗脚盆”,也注册过推特,但没有使用过,账号已经丢了。网上以马某和“洗脚盆”的名义发布的侮辱国家领导人的照片,都不是我发表的,是嫁祸行为。

4、被告人罗岱青的户籍、身份信息及供述,证实其实施犯罪经过:我是美国明尼苏达大学人文学院学生,2019年5月回国、现在未毕业。我注册了三个推特账号分别是“绵青”“马某”“洗脚盆”。我在美国登录推特,为吸引粉丝关注,转发了别人制作的一些丑化国家领导人的图片信息。我不认识马某,在“电报群”里看到很多人声讨他,我想出头办这个事,就伪装成他,以“马某”的名义发布这些负面信息,涨粉(吸引关注)不少,2018年9月到10月一直在发,有些加上我自己写的文字。后来觉得冒充他人发这些不当信息的行为不正当,和政治挂钩,对我也没有实际意义,就把这些内容都删了。

5、罗岱青本人书写的思想认识,证实其实施犯罪的详细过程及悔罪态度。

6、武汉市公安局武昌区分局行政处罚决定书,证实罗岱青因上述涉案行为于2019年7月13日被决定行政拘留十日日。

以上证据均由公诉机关提交,经庭审举证质证,被告人罗岱青及其辩护人均无异议,当庭予以确认。证据确实、充分且吻合一致,公诉机关指控被告人罗岱青犯寻衅滋事罪的事实,本院予以认定。

本院认为,被告人罗岱青利用信息网络散布丑化国家形象(文书原文如此,并非丑化国家领导人形象)的虚假信息,起哄闹事、引发围观,破坏社会管理秩序,情节恶劣,其行为已构成寻衅滋事罪。公诉机关指控事实清楚,证据确实、充分,适用法律正确,指控罪名成立,本院均予以支持。罗岱青到案后能如实交代罪行,认罪悔罪态度较好,可以从轻处罚。辩护人相关意见本院予以采纳。公诉机关建议在拘役四个月至有期徒刑十个月之间量刑的意见,本院酌情采纳。依照《中华人民共和国刑法》第二百九十三条第一款,第六十七条第三款,及最高人民法院、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》第五条的规定,判决如下:

被告人罗岱青犯寻衅滋事罪,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7月12日起至2020年1月11日止。)

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湖北省武汉市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,副本三份。

审判长  魏筱霞
审判员  成萍
人民陪审员  鲍建平

二〇一九年十一月五日

书记员  张映兰


Thursday, September 17, 2020

PRC Scholars: Judicial Interpretation on Disturbing the Peace Illegal, Unconstitutional

On August 5, 2020, Liu Zhiqiang (刘志强) and Song Haichao (宋海超), academics at the Guangzhou University Institute for Human Rights, published an article on Wechat (https://mp.weixin.qq.com/s/kbCrJJfkLJPL7PBmjwQ0YA) entitled “A Review of the "Three Characteristics of the ‘Judicial Interpretation of the Crime of Disturbing the Peace.’” [寻衅滋事罪司法解释“三性”审视] The article, which was also published in the 2020.5 edition of the journal “Academia” (学术界), reached the following conclusion regarding the crime of disturbing the peace (sometimes translated as "picking quarrels and provoking trouble") as applied by PRC courts to online speech:
There are major flaws in the rationality of the Judicial Interpretation of the Crime of Disturbing the Peace. . . .From its legislative subject matter to its legislative content and legislative procedures the Judicial Interpretation of the Crime of Disturbing the Peace is "substantive legislation" that completely fails to comply with the provisions of the Legislation Law." . . . . It not only does not conform to the principles of the Constitution, it also violates the basic spirit of the Constitution and the spirit of the rule of law.
寻衅滋事罪司法解释的合理性存在重大缺陷,不符合刑法整体谦抑性的发展趋势,也不符合社会主义法治的法理需要。其合法性的要求在依法治国的环境下要求更加严格,寻衅滋事司法解释的“实质立法”从立法主体到立法内容、立法程序完全不符合《立法法》的规定。其合宪性从根本上否定了寻衅滋事司法解释存在的意义,不仅不符合宪法的原则,更违背宪法的基本精神和法治精神。
This is not the first time criticisms of this nature have been raised. For example:
  • In 2005, Beijing University law professor He Weifang, Chengdu University law professor Wang Yi, and journalist Wang Guangze, and some 200 others signed a draft "opinion" calling on the State Council and National People's Congress Standing Committee to review the constitutionality and legality of the Rules on the Administration of Internet News Information Services (Rules). The draft opinion argued that the Rules, which went into effect in late September and which prohibit anyone from using the Internet to post news reports without prior government authorization, violated the Chinese Constitution and national laws. The opinion made the following arguments:
    • Articles 2, 33, 35, and 41 of China's Constitution provide respectively that (a) all power in China belongs to the people, and it is they who administer state affairs and manage economic, cultural, and social affairs; (b) the state respects and safeguards human rights; (c) Chinese citizens enjoy freedom of speech; and (d) Chinese citizens have the right to criticize and make suggestions to any state organ or functionary.
    • Article 54 of China's Criminal Law states that the deprivation of political rights includes the deprivation of the right of freedom of speech. Therefore, the right to expression is a political right of the citizens.
    • On the foregoing grounds, citizens have a constitutionally protected right with respect to "reporting and commentary relating to politics, economics, military affairs, foreign affairs, and social and public affairs, as well as reporting and commentary relating to fast-breaking social events."
    • Articles 2, 5-12, and 16 of the Rules prohibit citizens from exercising this right on the Internet, and restrict this type of expression to government authorized websites.
    • Article 8 of China's Legislation Law states that the deprivation of a citizen's political rights may only be done through a national law, and that the State Council and its subordinate agencies lack the authority to adopt a rule to this effect.
    • The Rules, which were promulgated by the State Council Information Office and the Ministry of Information Industry, therefore violate China's Constitution and national laws.
The original website version is no longer available, but an archived version is available here: https://web.archive.org/web/20060118235101/https://www.gmwq.org/web/news_view.asp?newsid=198.
  • Also in 2006, an article published in Journalist Monthly, a joint publication of the Shanghai Communist Party Central Committee and the Shanghai Academy of Social Sciences, raised questions as to whether the authority of the General Administration of Press and Publication and the State Administration of Radio, Film, and Television to regulate China's news media through "administrative rules they have formulated themselves" violated the provisions of Article 71 of China's Legislation Law which stipulated that "A matter on which an administrative rule is enacted shall be a matter which is within the scope of implementing national law, administrative regulations, and decisions or orders issued by the State Council." The original version (entitled “我国新闻领域法律体系的构成与缺陷”) is no longer available, but an archived version is available here: https://web.archive.org/web/20060613194501/https://xwjz.eastday.com/eastday/xwjz/node114414/node114416/userobject1ai1838632.html.
For more background on these see:
Below are some additional translated excerpts from the Liu Zhiqiang and Song Haichao article:

The crime of disturbing the peace was a crime derived from the crime of hooliganism stipulated in Article 160 of the 1979 Criminal Law. It was a response to the development trend of statutory crimes and punishments in China, and was intended to solve the problem of the vagueness associated with the crime of hooliganism and the excessive discretion of judges. However, the crime of disturbing the peace as derived did not solve the essential problems of that crime. It still retains the characteristics of the vagueness of the crime of hooliganism and is widely used in judicial judgments. As of October 2019, a search of the cases published on the China Judgment Documents Online found 170,436 disturbing the peace-related cases, and they have shown an upward trend year by year. Most of those in domestic academic circles have either resolutely opposed or hold a very negative attitude toward the crime of disturbing the peace. Many scholars in criminal law circles have published papers discussing flaws associated with determining what constitutes the crime of disturbing the peace, including determining the standard for the offense, the difficulty of judicial application dilemma, and generally focusing on opposing the existence of the crime of disturbing the peace and restricting the scope of application of the crime.
. . . .
In September 2013, the Supreme People’s Court and the Supreme People’s Procuratorate issued the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Defamation through Information Networks and Other Criminal Cases" [Judicial (2013) No. 21], in which paragraphs 1 and 2 of Article 5 both deal with improper words and deeds on the Internet which, after reaching a certain level, will be investigated for criminal responsibility as a crime of disturbing the peace.
. . . .
In the Judicial Interpretation of the Crime of Disturbing the Peace the provision “Where false information is fabricated or where information is clearly known to be fabricated and false, and it is disseminated on information networks, or persons are organized and incited to disseminate it on the internet, to stir up trouble and cause grave chaos of social order” can be compared with this provision of Article 293 of the Criminal Law: “creating disturbances in a public place, thus causing serious disorder in such place.” The Judicial Interpretation redefines public places, and thereby brings new subject matter of online public opinion within the scope of the criminal law. The Internet, as a space for social interaction, has the nature of public space, but it is not a public place under Article 293 of the Criminal Law. What was needed was rigorous legislative debate and discussion, and not just an expansion of the scope of penalties under the criminal law through a judicial interpretation.
. . . .
China’s Constitution and the Legislation Law establish the legislative powers of the National People’s Congress and the Standing Committee of the National People’s Congress. Article 62(3) of the Constitution stipulates that the National People’s Congress shall exercise the following powers: formulating and amending criminal, civil, state structure, and other basic laws. Article 67 (2) (3) stipulates that the Standing Committee of the National People's Congress shall exercise the following functions and powers: formulating and amending laws other than those that should be enacted by the National People's Congress. When the National People's Congress is not in session, some supplements and amendments may be made to the laws formulated by the National People's Congress, but they must not conflict with the basic principles of those laws.

Article 7 of the "Legislation Law" stipulates that the National People's Congress formulates and revises criminal, civil, state structure, and other basic laws. The Standing Committee of the National People’s Congress enacts and revises laws other than those that should be enacted by the National People’s Congress. The Standing Committee of the National People’s Congress enacts and revises laws other than those that should be enacted by the National People’s Congress. When the National People’s Congress is not in session, some supplements and revisions may be made to the laws enacted by the National People’s Congress, but they must not conflict with the basic principles of those laws. In particular, clauses 4, 5, and 9 of Article 8 of the Law stipulates that criminal offenses and penalties, compulsory measures and penalties involving deprivation of a citizen's political rights or restriction of personal freedom, and litigation and the arbitration system shall only be governed by laws. In enacting criminal laws and in the administration of criminal justice, the aforementioned principles, rights, and powers must be regulated by the Constitution.

The Supreme People’s Court and the Supreme People’s Procuratorate’s judicial interpretation power originally came from the National People’s Congress’ June 10, 1981 “Resolution of the Standing Committee of the National People's Congress Providing an Improved Interpretation of the Law” which stipulated:

In cases where the limits of articles of laws and decrees need to be further defined or additional stipulations need to be made, the Standing Committee of the National People's Congress shall provide interpretations or make stipulations by means of decrees.
Interpretation of questions involving the specific application of laws and decrees in court trials shall be provided by the Supreme People's Court. Interpretation of questions involving the specific application of laws and decrees in the procuratorial work of the procuratorates shall be provided by the Supreme People's Procuratorate. [http://www.lawinfochina.com/display.aspx?id=28&lib=law]

The "People's Court Organization Law" stipulates that the Supreme People's Court shall interpret the specific application of laws and decrees in the trial process. According to Shu Guoying [law professor at China University of Political Science and Law], the above-mentioned provisions mean that China’s Supreme People’s Court has the authority to make judicial interpretations in the course of its trial activities with respect to how to specifically apply the law and how to apply legal provisions so that they are more in line with the original intent of the law. The law does not give the Supreme People's Court the authority to make abstract interpretations of the law.
. . . .
The crime of disturbing the peace was successor to the crime of hooliganism. It was essentially formulated to handle real-life small-time gangsters. The spread of rumors and rumors on the Internet can only be resolved through legislation enacted by the National People's Congress. The Judicial Interpretation of the Supreme People’s Court and Procuratorate represents an encroachment on the National People’s Congress’ legislative authority, and its enlargement of scope and the irregularity of its procedures clearly violate the provisions of the Legislation Law.


寻衅滋事罪是从1979年刑法第160条规定的流氓罪中分解出来的一种罪,是为了回应我国罪刑法定的发展趋势,解决流氓罪的不确定性以及法官自由裁量权力过大的问题。但是,分解出来的寻衅滋事罪却没有解决这一罪名的本质问题,依然保留了流氓罪不确定性的特征,并在司法裁判中广泛的应用,截止到2019年10月,在中国裁判文书网上公布的案例中,搜索寻衅滋事相关案由的案件已经有170436件,而且呈现出逐年上升的趋势。国内学界对寻衅滋事罪的态度大多都持坚决反对或者十分消极的态度,刑法学界很多学者都曾发表论文论述寻衅滋事罪的犯罪构成缺陷、罪名认定标准、司法适用困境,总体上以反对寻衅滋事罪的存在和限制该罪名适用范围两方面为主。
. . . .
2013年9月最高人民法院、最高人民检察院发布《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》[法释(2013)21号],其中第5条第1款和第2款都把网络上的不当言行,在达到“一定程度”后以寻衅滋事罪追究刑事责任 . . . .
. . . .
寻衅滋事罪的司法解释中“编造虚假信息,或者明知是编造的虚假信息,在信息网络上散布,或者组织知识人员在信息网络上散布、起哄闹事,造成公共秩序严重混乱的”,与刑法293条规定的:“在公共场所起哄闹事,造成公共场所严重混乱的”的情况对比,司法解释属于重新定义了公共场所,把网络舆论这一新事物纳入了刑法的规制范围,而网络作为社会交往的空间,是有公共空间的性质,但是不是刑法293条的公共场所,就需要更加严谨的立法论证,而不是仅仅以司法解释的方式进行刑法处罚范围的扩大化。
. . . .
我国《宪法》与《立法法》确立了全国人民代表大会与全国人民代表大会常务委员会的立法权,《宪法》第62条第(3)项规定,全国人大行使下列职权: 制定和修改刑事、民事、国家机构的和其他的基本法律。第67条第(2)(3)项规定全国人大常务会行使下列职权: 制定和修改除应当由全国人民代表大会制定的法律以外的其他法律; 在全国人大闭会期间,对全国人大制定的法律进行部分补充和修改,但是不得同该法律的基本原则相抵触。《立法法》第7条规定,全国人大制定和修改刑事、民事、国家机构的和其他的基本法律。全国人大常委会制定和修改除应当由全国人大制定的法律以外的其他法律; 在全国人大闭会期间,对全国人大制定的法律进行部分补充和修改,但是不得同该法律的基本原则相抵触。特别是该法第8条第(4) (5) (9) 项规定,有关犯罪和刑罚,对公民政治权利的剥夺、限制人身自由的强制措施和处罚,对非国有财产的征收,诉讼和仲裁制度,必须只能制定法律。上述这些原则、权利与权限,在刑法立法与刑事司法中,必须受到宪法的规制。最高人民法院、最高人民检察院的司法解释权最初来自全国人大1981年6月10日《关于加强法律解释工作的决议》,规定了:一,凡法律、法令本身需要进一步明确界限或作补充规定的,由全国人民代表大会常委委员会进行解释或用法令加以规定。二,凡属于法院审判工作中具体应用法律、法令的问题,由最高法院进行解释。凡属于检察院检察工作中具体应用法律、法令的问题,由最高检进行解释。《人民法院组织法》规定最高人民法院对于在审判过程中如何具体应用法律、法令的问题,进行解释。按照舒国滢的观点,上述规定,是指我国的最高人民法院有权在其审判活动过程中,对于如何具体应用法律、法条怎样适用更加符合法律原意来进行司法解释,法律没有赋予最高人民法院对法条制定抽象性解释的权利。
. . . .
寻衅滋事罪前身是流氓罪,其本质上是对现实生活中小混混为对象而制定,对网络上的造谣、传谣,只能通过人大立法来解决,两高的司法解释属于僭越人大的立法权限,内容的扩大化,以及程序的不规范,明显违背《立法法》的规定。

Monday, August 31, 2020

Lai Liangping v. Shanghang Public Security Bureau, et. al. (2019) Min 0803 Administrative First Instance No. 36

 Source: https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=51f3b1bf5def4384a322ab6f00fedd4e


People's Court of Yongding District, Longyan City, Fujian Province

Administrative Decision

(2019) Min 0803 Administrative First Instance No. 36


Plaintiff Lai Liangping, male, born June 20, 1977, Han ethnicity, residing in Shanghang County, Fujian Province.

Defendant (original administrative agency) Shanghang County Public Security Bureau, located at Middle Section, North Second Ring Road, Lincheng Town, Shanghang County, unified social credit code 11350823004113475E.

The legal representative was Xu Weiqing, director.

Person in charge of court appearances of administrative agencies was Tang Chunkang, deputy director.

Attorney Fu Wenhui, male, born April 9, 1974, Han ethnicity, Shanghang County Public Security Bureau, Instructor in the Legal Brigade, residing in Shanghang County, Fujian Province.

Attorney Zhang Zhengmeng, male, born November 12, 1981, Han ethnicity, the Shanghang County Public Security Bureau, Instructor in the Lufeng Police Station, living in Shanghang County, Fujian Province.

Defendant (reconsideration agency) Shanghang County People's Government, located at No. 12, Beida Road, Linjiang Town, Shanghang County, Fujian Province.

The legal representative was Wang Bo, county head.

Ding Yanzhi, the person in charge of the court appearance of the administrative agency, was in charge of the legal affairs work.

Attorney Chen Liangjin is a lawyer at the Fujian Tinghang Law Firm.

Plaintiff Lai Liangping did not accept either the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 Administrative Punishment Decision issued by defendant Shanghang County Public Security Bureau (original administrative agency) or the Hang Government Administrative Reconsideration Decision [2019] No. 12 Administrative Reconsideration Decision issued by defendant Shanghang County People’s Government (reconsideration agency) and filed an administrative appeal. Afterwards this Court docketed the case on September 20,2019, and on September 24, 2019 delivered a copy of the appeal brief and Notice of Response to the defendants. This Court formed a collegial panel in accordance with the law and held public hearings in this case on November 28, 2019. Plaintiff Lai Liangping, Tang Chunkang and attorneys Fu Wenhui and Zhang Zhengmeng appearing in court on behalf of administrative agency defendant Shanghang County Public Security Bureau, and Ding Yanzhi and attorney Chen Liangjin appearing in court on behalf of administrative agency defendant Shanghang County People’s Government appeared in court to participate in the proceedings. Hearings in this case have now concluded.

The Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 Administrative Punishment Decision issued by defendant Shanghang County Public Security Bureau on June 27, 2019 determined that on May 26 and 27, 2019, Lai Liangping fabricated false information such as the staff of the Lufeng government in Shanghang County were human traffickers and spread it on Chinese language Twitter social software, damaging the credibility of the government, causing disturbances, disrupting public order, and publishing inappropriate remarks that insulted others. In accordance with the provisions of Article 26(4) of the Public Security Administration Punishment Law of the People's Republic of China it was decided to impose a punishment of 10 days administrative detention on Lai Liangping. Plaintiff Lai Liangping did not accept this and applied to defendant Shanghang County People’s Government for administrative reconsideration. On August 27, 2019, defendant Shanghang County People’s Government issued the Hang Government Administrative Reconsideration Decision [2019] No. 12 Administrative Reconsideration Decision upholding the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 administrative punishment decision issued by the Shanghang County Public Security Bureau. Plaintiff Lai Liangping filed a lawsuit requesting that the Shanghang County People's Government’s Hang Government Administrative Reconsideration Decision [2019] No. 12 Administrative Reconsideration Decision and the Shanghang County Public Security Bureau Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 administrative punishment decision be revoked.

Facts and Reasoning

1. The administrative decisions made by the two defendants were factually unclear. The factual basis of the administrative punishments was that he fabricated that family planning personnel in Lufeng Township were human traffickers. However, according to the complaint made by Li Yuhua and his wife, Lan Doe and Chen Wenming (the director of the Family Planning Office at the time) and other staff of Lufeng Family Planning Office used helping them apply for a household registration as an excuse to coax Li Yuhua and his wife to have their 60 day old newborn fostered in a neighboring village by Zhang Mouyuan. The baby was sent to the Lufeng Family Planning Office and put into a white car that had been waiting for a long time at the gate of the government, and was then taken somewhere unknown. After that, there was no information about the baby who had been abducted. The foregoing was evidenced by videos of Li Yuhua and his wife and the adoptive mother, as well as a large number of witness testimonies, and was not fabricated out of thin air.

The Shanghang County Public Security Bureau determined that he fabricated facts without looking into the circumstances of the case, and issued its administrative punishment decision without any factual basis. As the reconsideration agency the Shanghang County People's Government should have revoked the Shanghang County Public Security Bureau’s punishment decision on the grounds that the facts were not clear.

2. The determination by the two defendants alleging he disturbed the peace and damaged the government's credibility does not accord with the facts. On May 27, 2019, he accompanied Li Yuhua and his wife to the Lufeng government to find family planning personnel to learn about the incident, but was besieged by Lufeng government officials, he dialed 110 as it was an emergency, and was detained for 24 hours on suspicion of disturbing the peace. During that entire time he always followed the concepts of peace, rationality, and non-violence and had no intent to behavior that damaged the government's credibility. On the contrary, his proactively calling 110 to alert the police was an appropriate exercise of a citizen’s legal rights. His remarks on Chinese language social networking sites on November 29, 2017 were not insulting in nature.

3. The punishment and reconsideration decisions made by the two defendants violated legal procedures. His remarks on Chinese language social networking sites on November 29, 2017 were statements from two years prior, and already exceeded the time limit for punishment. In addition, on June 28, 2019, the Shanghang County Public Security Bureau had already issued the Shanghang County Public Security Bureau Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision punishing him with an order to cease networking and a warning. For them to use this again as justification to punish him is double jeopardy.

4.The punishment decisions made by the two defendants have no legal basis. It was out of sympathy for Li Yuhua and his wife that he accompanied them to find out about the situation with the family planning staff who had taken the child away. The texts that he published were in fact excessive in some places, but it did not deliberately attack relevant personnel, nor did it intend to damage the image of the government. It was merely done in the hope of attracting everyone’s attention and helping citizens defend their rights. It is obviously unlawful and unreasonable for the public security agency to impose administrative detention based on this.

Plaintiff Lai Liangping submitted the following evidence to this Court:

1. One video disc of Li Yuhua speaking, proving the fact that Li Yuhua’s baby was taken away by the family planning staff.

2. Testimony of witness Liu Doe proved that on the tenth day of March 2001, the staff of Lufeng Family Planning Office took the child to the township government’s registered permanent location and abducted the child. It was only after Liu and his wife went to the relevant department and were unable to get any response that they asked the plaintiff for help.

3. One sound recording optical disc proved that the plaintiff called the director of the Lufeng police station, but the director did not mention anything about the matter of Lan Doe abducting the child, and the records and call recordings of Li Yuhua and his wife's petition to different departments in March 2019.

Defendant Shanghang County Public Security Bureau (original administrative agency) argues:

1. With regard to the administrative punishment decision it issued to plaintiff Lai Liangping the facts are clear and the evidence is copious。In 2001, Zhang Hongyuan and his wife, villagers in Lufeng Liying Village, Shanghang County, were taken to the Civil Affairs Bureau by the Lufeng People’s Government in accordance with the law for illegally adopting a baby. In March 2019, villagers Li Yuhua and Liu Doe of Lufeng Zhongfang Village reached out to Lan Doe and Li Yongfang and other staff of the Family Planning Office of the Lufeng People’s Government on the grounds that the baby who was taken to the Civil Affairs Bureau was born to his wife and demanded that Lan Doe retrieve the baby that had been taken to the Civil Affairs Bureau, and at the same time they began to petition about this matter. Lai Liangping (who was not previously acquainted with Li Yuhua and his family) learned about this matter on the Internet, and he took the initiative to contact Li Yuhua and his wife in the name of helping contact the relevant media to monitor the government, and afterwards the two parties began to contact each other. On May 26, 2019, Lai Liangping used Twitter, Bit Accelerator, and other mobile phone software on his mobile phone to post tweets with contents such as, "I will go to the Lufeng Township Family Planning Office on May 27, 2019 to see what the human traffickers Lan Yuexiu and Li Yongfang are up to," and "Please pay attention to the Shaw orphans in Fujian, there have already been multiple cases of babies being abducted by family planning hooligans in Lufeng Township, Shanghang County.” The next morning, Lai Liangping, together with Li Yuhua and his wife, went to the Lufeng government to find Lan Doe. Plaintiff Lai Liangping took video with a mobile phone and reported to 110 that he had caught a human trafficker who had abducted a child. Because the township government staff called the police, Lai Liangping was taken to the police station to be investigated by civil police from the police station. During that time, Lai Liangping launched a Twitter live stream and marked "Human Traffickers," "Human Traffickers Are Coming," and "A government building with a population of just over 10,000" in the video. In the afternoon of the same day, Lai Liangping tweeted again, "At the police station and demanding a record be made. When the police saw the party’s loyalty and honesty, they threatened her and she is so scared she is trembling all over.” It was also found out that on November 29, 2017, Lai Liangping insulted a former national leader on Twitter on the grounds that he did something that went against human ethics. The foregoing facts are substantiated by Lai Liangping’s statements and defenses, testimony of Li Yuhua, Lan Doe, Bao Dongxing and others; electronic data inspection work records; extracts of transcripts and other evidence.

2. With regards to the administrative punishment imposed on plaintiff Lai Liangping the law applied was correct, the procedures were legal, and the punishment was appropriate. Lai Liangping used Twitter mobile phone software to deliberately fabricate false information on the Internet such as the family planning staff in Lufeng Township were human traffickers and that Lufeng family planning gangsters in Shanghang County abducted, causing disturbances. At the same time he casually insulted a former national leader on the Internet, damaging the government's credibility and the image of a former national leader, and his behavior constituted acts that disturbed the peace. Based on this, the public security agency issued a decision to impose a punishment of 10 days administrative detention on Lai Liangping in accordance with the provisions of Article 26(4) of the Public Security Administration Punishment Law of the People's Republic of China. The case was handled in strict accordance with the relevant case-handling procedures stipulated by the Public Security Administration Punishment Law of the People's Republic of China from receiving the report to the police, accepting, investigating, and informing according to the law before making the punishment decision. In summary, the Shanghang County Public Security Bureau clearly determined the administrative punishment facts of plaintiff Lai Liangping, the evidence was indeed copious, the law applied was correct, the procedures were legal, and the punishment was appropriate. It requests the court to reject the plaintiff’s claim.

Defendant Shanghang County Public Security Bureau (original administrative agency) submitted to this Court the following evidence and basis to prove the legitimacy of the original administrative act:

(1) Evidence

1. Case registration form, case acceptance receipt, petition to extend the time limit of the inquiry review report, petition to extend the time limit of the review and approval report, administrative punishment notification transcript, review transcript, administrative punishment decision, administrative reconsideration decision, administrative detention notice to family members, administrative detention execution receipt, proved that the administrative punishment of the plaintiff complied with the procedural regulations.

2. The transcripts of two questionings of Lai Liangping proved the plaintiff’s process of getting to know Li Yuhua and his use of Twitter and Bit Accelerator software to publish tweets with content that Lufeng government staff were human traffickers who abduct babies and to insult previous Party and state leaders.

3. The transcript of Li Yongfang’s questioning proved the circumstances of Li Yuhua’s appeal and plaintiff Lai Liangping’s unreasonable troublemaking process.

4. The transcript of Lan Doe’s questioning proved the process of the Lufeng government’s handling of babies and plaintiff Lai Liangping going to the Lufeng government to unreasonably make trouble.

5. The transcripts of Li Yuhua’s two questionings proved that the whole process of the incident includes part of the process of plaintiff Lai Liangping’s fact-picking and disturbing the peace.

6. The transcript of Bao Dongxing’s questioning proved the process of the Lufeng government’s handling of babies and plaintiff Lai Liangping going to the Lufeng government to unreasonably make trouble.

7. The Fujian Provincial Administrative Law Enforcement Certificate proved that Lan Doe is an administrative law enforcement officer with administrative law enforcement qualifications in the Family Planning Bureau of Shanghang County.

8. Petition replies proved that the Lufeng government responded to Li Yuhua’s petitions.

9. The Hang Public Evidence Preservation Decision [2019] No. 00447 Evidence Preservation Decision and List of Evidence Preservation proved that the public security agency seized the plaintiff’s mobile phone.

10. Transcript extracts and screenshots of mobile phone content proved that the public security agency extracted the content stored on the plaintiff’s mobile phone that proved the disturbance of the peace, which was also confirmed by the plaintiff.

11. The electronic data inspection work record proved that the public security agency has carried out the electronic data extraction of the mobile phone seized from the plaintiff.

12. A household registration certificate proved the basic identity of the plaintiff as a natural person with administrative responsibility

13. The Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision proved that the public security agency carried out administrative punishment on the plaintiff’s illegal use of wall climbing software to access foreign websites.

(2) Basis

The provisions of Articles 2, 91, and 26 of the Public Security Administration Punishment Law of the People's Republic of China proved the law based on and applicable to the specific administrative acts that are the subject of the lawsuit.

Defendant Shanghang County People’s Government (reconsideration agency) argued:

1. Defendant Shanghang County People’s Government was performing its legal duty in issuing the reconsideration decision.

2. The defendant accepted the plaintiff’s reconsideration application in accordance with the law and made a reconsideration decision in accordance with the law, and the procedures were legal. The defendant accepted the case after receiving the plaintiff’s application for reconsideration on July 18, 2019. The "Administrative Reconsideration Reply Notice" was delivered to the Shanghang County Public Security Bureau on July 23, the reconsideration decision was made in accordance with the law on August 27, and it was directly delivered to the Shanghang County Public Security Bureau on August 29, and administrative reconsideration was conducted on September 2. The decision letter was mailed to Lai Liangping.

3. The facts determined in the administrative reconsideration decision were clear. After review, the defendant believes that on May 26 and 27, 2019, Lai Liangping fabricated fake information that the Lufeng government family planning staff in Shanghang County were human traffickers, and he had discovered multiple cases of the Lufeng family planning gangsters abducting babies in Shanghang County and spread it on Chinese language Twitter social media software. On May 27th, he went to the Lufeng government to cause disturbances and disrupt public order. These facts were substantiated by evidence including Lai Liangping’s statement and defense, the evidence preservation decision and evidence preservation checklist, electronic data inspection work records, transcript extracts, extracted photos, and replies from the Lufeng People’s Government. In summary, the Shanghang County People's Government made an administrative review decision to determine that the facts are clear, the applicable law is correct, and the procedures are legal, and request the people's court to maintain it. In summary, the facts determined in the administrative reconsideration decision issued by the Shanghang County People's Government were clear, the law applied was correct, the procedures were legal ,and it asks the People’s Court to uphold it.

Defendant Shanghang County People’s Government (reconsideration agency) submitted to this court evidence and basis to prove the legality of the reconsideration procedure:

1. Approval form for filing administrative reconsideration cases;

2. Administrative reconsideration application;

3. Reply notice;

4. Administrative reconsideration decision letter and delivery certificate;

5. The relevant provisions of the Administrative Reconsideration Law of the People’s Republic of China and the Guiding Opinions on the Adjudication of Public Security Organs on the Implementation of Penalties for Certain Violations of Public Security Administration proved the basis and applicable law of the specific administrative acts that are the subject of the lawsuit.

Based on an examination of evidence during hearings plaintiff Lai Liangping objected to evidence 4 and 6 submitted by defendant Shanghang County Public Security Bureau. He believes that the testimony of the witnesses Lan Doe and Bao Dongxing are false. The plaintiff did use his mobile phone to film the whole process, but at that time dozens of people surrounded him in the township government office and tried to grab his mobile phone, and he called the police.

With respect to the rest of the evidence submitted by defendant Shanghang County Public Security Bureau, he does not have any objections. With respect to the evidence submitted by defendant Shanghang County People’s Government, he does not have any objections. With respect to evidence 1 and 2 submitted by the plaintiff in the original case, the two defendants believe that it is not possible to determine their veracity. For evidence 2, the two defendants believe that the plaintiff’s claims could not be proved. For evidence 3, the two defendants believe that it is not related to this case.

This Court verifies the aforementioned evidence as follows: the evidence provided by the two defendants is related to the case, and meets the requirements of legality and authenticity, and is confirmed by this Court. Evidence 1 and 2 provided by the plaintiff, because Li Yuhua and Liu Mou are interested parties, the content of their statements is not supported by objective evidence, and its authenticity cannot be determined. Evidence 3 provided by the plaintiff has no relevance to this case, so none of it will be the basis for the judgment in this case.

It was ascertained at trial that in 2001, the Shanghang County Lufeng People's Government took an infant who had been illegally adopted by Liying villagers Zhang Hongyuan and his wife in that township to the Civil Affairs Bureau for processing. In March 2019, Zhongfang villagers Li Yuhua and Liu Doe in that township reached out to Lan Doe and other staff of the Family Planning Office of the Lufeng People’s Government on the grounds that the baby who was taken to the Civil Affairs Bureau was born to his wife and demanded that the baby be found and returned, and at the same time they began to petition about this matter. The Lufeng People’s Government carried out a response to that petition. Plaintiff Lai Liangping took the initiative to contact Li Yuhua and his wife after hearing the news to help contact the media to attract attention. On May 26, 2019, plaintiff Lai Liangping used his mobile phone to post tweets on the Twitter social network platform with contents such as, "I will go to the Lufeng Township Family Planning Office on May 27, 2019 to see what the human traffickers Lan Yuexiu and Li Yongfang are up to," and "Please pay attention to the Shaw orphans in Fujian! There have already been multiple cases of babies being abducted by family planning gangsters in Lufeng Township, Shanghang County! I will go to the scene before May 27 and live stream.” In the morning of the next day, Lai Liangping, Li Yuhua, his wife Liu Doe and others went to the Shanghang County Lufeng People's Government to find Lan Doe. Lai Liangping used his mobile phone to take pictures and reported to 110 that Lan Doe was a human trafficker and had abducted the daughter of Li Yuhua and his wife. Lai Liangping also used his mobile phone to launch a Twitter live stream and continuously posted tweets on the Twitter social network platform such as: "human traffickers are here", "a government building with a population of just over 10,000." In the afternoon of the same day, he tweeted again: “At the police station and demanding a record be made. When the police saw the party’s loyalty and honesty, they threatened her and she is so scared she is trembling all over. Now its impossible to do.” On May 27, 2019, the Shanghang County Public Security Bureau Lufeng Police Station accepted the case of Lai Liangping and others disturbing a work unit’s order as reported by the Lufeng People’s Government staff member Li Yongfang. It conducted an investigation of evidence obtained from both parties and relevant personnel and carried out evidence preservation and electronic data extraction on two mobile phones of Lai Liangping. In addition, Lai Liangping posted inappropriate remarks that insulted others on the Twitter social network platform on November 29, 2017. The remarks were published until May 27, 2019, when they were seized by the public security agency. On June 27, 2019, the Shanghang County Public Security Bureau issued the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 administrative punishment decision subjecting Lai Liangping to punishment of 10 days administrative detention. Lai Liangping did not accept it and on July 16, 2019 applied to the Shanghang County People's Government for administrative review. The Shanghang County People's Government held hearings on July 18, 2019 and decided to accept the case, and on July 23, 2019 it delivered a copy of Lai Liangping’s administrative reconsideration application to the Shanghang County Public Security Bureau and requested it to submit a written response and relevant materials such as evidence and basis for the administrative actions taken at that time. On August 27, 2019, the Shanghang County People's Government issued the Hang Government Administrative Reconsideration Decision [2019] No. 12 administrative reconsideration decision and decided to uphold the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 administrative punishment decision made by the Shanghang County Public Security Bureau. The reconsideration decision was delivered to the Shanghang County Public Security Bureau and Lai Liangping on August 29 and September 3, 2019.

It was also found that the Shanghang County Public Security Bureau issued the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision on June 28, 2019, and decided to order Lai Liangping to stop networking and issued a warning on the grounds that Lai Liangping engaged the unlawful activity of installing Bit Accelerator wall-climbing software on his mobile phone, and used international access channels provided by non-state public telecommunication networks to carry out national networking, and “climbed the wall” to access foreign websites.

This Court finds that in accordance with the provisions of Articles 2, 7(1), 91(1), the public security agencies of the local people's governments at or above the county level are responsible for public security management punishments within their administrative areas that disrupt public order, obstruct public safety, violate personal and property rights, obstruct social management, are socially harmful, and that do not justify criminal punishment. Defendant Shanghang County Public Security Bureau in this case has statutory responsibility for the management of public security within this administrative district. In accordance with the provisions of Article 12(1) of the Administrative Reconsideration Law of the People’s Republic of China, defendant Shanghang County People’s Government has the right to exercise the power of administrative reconsideration. The plaintiff raised no objection to the qualifications of the two defendants as subjects of law enforcement, and this Court confirms it.

With respect to the question of whether the facts are clear, whether the procedures are legal, and whether the applicable laws are correct in the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 administrative punishment decision issued by defendant Shanghang County Public Security Bureau. An investigation showed that on May 26, 2019, plaintiff Lai Liangping used his mobile phone to post tweets on the Twitter social network platform with information such as, "I will go to the Lufeng Township Family Planning Office on May 27, 2019 to see what the human traffickers Lan Yuexiu and Li Yongfang are up to," and "Please pay attention to the Shaw orphans in Fujian! There have already been multiple cases of babies being abducted by family planning gangsters in Lufeng Township, Shanghang County!!!” This fact was sufficiently substantiated by evidence such as the records of the questioning of plaintiff Lai Liangping, Li Yongfang, Lan Doe, Bao Dongxing and others, as well as the electronic evidence such as the WeChat chat records extracted from Lai Liangping’s two mobile phones and tweets published on the Twitter social network platform. In addition, plaintiff Lai Liangping stated in two questioning transcripts that he had contacted Li Yuhua and heard him out on the grounds of helping to contact the media to attract attention after seeing the help letter sent by Li Yuhua on the Internet in March 2019.

During the trial of the case, plaintiff Lai Liangping also failed to submit evidence and basis that could prove the facts stated by Li Yuhua and his wife Liu Doe. Plaintiff Lai Liangping, as a capable responsible natural person who has reached the age of responsibility did not verify Li Yuhua’s unilateral statements and spread information with no factual basis on the Internet such as “get the human traffickers Lan Yuexiu and Li Yongfang," and "There have already been multiple cases of babies being abducted by family planning gangsters in Lufeng Township, Shanghang County!!!” which misled the normal public opinion, caused a bad influence on society, and objectively caused the consequences of disturbing the social order.

In accordance with the provisions of Article 26(4) of the Public Security Administration Punishment Law of the People's Republic of China and with reference to the "Guiding Opinions on the Adjudication of Penalties for Certain Violations of Public Security Administration" defendant Shanghang County Public Security Bureau imposed 10 days administrative detention on plaintiff Lai Liangping. The laws and regulations applied were correct and the punishment was appropriate. Although citizens have the right to supervise in accordance with the law, it goes beyond the boundaries of proper supervision if citizens exercise their rights by means of disrupting public order. Therefore, plaintiff Lai Liangping’s claim that he did not fabricate false information to disturb public order, but hoped to attract the attention of the government and society to help the weak is not consistent with the facts. This court does not give it credence. After establishing the case, defendant Shanghang County Public Security Bureau summoned the parties in accordance with the law, conducted investigations and collected evidence, and informed the plaintiff of the facts, reasons, and basis for the administrative punishment before the punishment, it fulfilled the obligation of notification, and protected the plaintiff’s right of statement and defense. Later, in light of the circumstances of the case, a decision was made to impose administrative detention for ten days in accordance with Article 26(4) "Other acts of provocation and provocation" of the Public Security Administration Punishment Law of the People's Republic of China, and the facts were clear, the procedures were legal, and the law applied was correct. Defendant Shanghang County People’s Government filed and reviewed the case after receiving the plaintiff’s reconsideration application, and made a reconsideration decision within the statutory time limit and served it. The administrative procedures were legal.

With respect to the question of plaintiff Lai Liangping’s claim that defendant Shanghang County Public Security Bureau imposed penalties on his posting on the Twitter social network platforms on November 29, 2017 beyond the penalty time limit. An investigation showed that based on the record of plaintiff Lai Lianping’s posting on the Twitter social networking platform obtained by defendant Shanghang County Public Security Bureau in accordance with the law it can be proved that plaintiff published inappropriate speech that insulted others that was still being published on plaintiff’s Twitter social networking platform on May 28, 2019 when it was seized by the Shanghang County Public Security Bureau, and the plaintiff’s unlawful behavior had been occurring continuously from the day it was published. Defendant Shanghang County Public Security Bureau issuance of administrative punishment in respect of this on June 27, 2019 did not exceed the legal deadline. Therefore, the plaintiff's claim has no foundation in law and this Court does not support it.

With respect to the question of plaintiff Lai Liangping’s claim that defendant Shanghang County Public Security Bureau issuing the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision on June 28, 2019, ordering him to cease networking and giving him a warning was once again imposing administrative punishment on him, and constitutes double jeopardy. An investigation showed that the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision issued by defendant Shanghang County Public Security Bureau was with respect to Lai Liangping’s violation of the provisions of Articles 6(2) and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks of the People's Republic of China" and was an administrative punishment of ceasing networking and a warning for the unlawful action of “climbing the wall” to access foreign websites. The laws and regulations upon which it was based were not the same as the distinct administrative actions that are the subject of the lawsuit, and was a separate distinct administrative action, and therefore does not constitute double jeopardy. The plaintiff’s claim is not consistent with the facts, and is not supported in accordance with the law.

In summary, with respect to the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 administrative punishment decision issued by defendant Shanghang County Public Security Bureau and the Hang Government Administrative Reconsideration Decision [2019] No. 12 administrative reconsideration decision issued by defendant Shanghang County People’s Government the facts determined are clear, the evidence is conclusive, the laws and regulations applied were correct, and in compliance with legal procedures. The plaintiff’s justifications for suing are not established, and his claims are rejected in accordance with the law. 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:

The claims of plaintiff Lai Liangping are denied.

The case filing fee of 50 yuan shall be borne by plaintiff Lai Liangping.

If anyone does not accept this judgment, they may within 25 days after after receiving the decision document submit a brief to this court along with the number of copies matching the number of their opposing parties, and appeal to the Intermediate People's Court of Longyan City, Fujian Province

Chief Adjudicator Guo Huazhen
People's Assessor Su Liqing
People's Assessor Lu Runfeng

December 24, 2019

Judge’s Assistant Li Xiaofeng
Clerk Zhang Liyan

 




福建省龙岩市永定区人民法院


行 政 判 决 书


(2019)闽0803行初36号



原告赖亮平,男,1977年6月20日出生,汉族,住福建省上杭县。


被告(原行政机关)上杭县公安局,住所地上杭县临城镇北二环路中段,统一社会信用代码11350823004113475E。


法定代表人徐卫清,局长。


行政机关出庭负责人汤春康,副局长。


委托代理人傅文辉,男,1974年4月9日出生,汉族,上杭县公安局法制大队教导员,住福建省上杭县。


委托代理人张正锰,男,1981年11月12日出生,汉族,上杭县公安局庐丰派出所教导员,住福建省上杭县。


被告(复议机关)上杭县人民政府,住所地福建省上杭县临江镇北大路12号。


法定代表人王波,县长。


行政机关出庭负责人丁焱志,法制工作分管领导。


委托代理人陈亮金,福建汀杭律师事务所律师。


原告赖亮平不服被告上杭县公安局(原行政机关)作出的杭公(庐丰)行罚决字〔2019〕00030号行政处罚决定及被告上杭县人民政府(复议机关)作出的杭政行复决〔2019〕12号行政复议决定,提起行政诉讼。本院于2019年9月20日立案后,于2019年9月24日向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2019年11月28日公开开庭审理了本案,原告赖亮平,被告上杭县公安局行政机关出庭负责人汤春康及委托代理人傅文辉、张正锰,被告上杭县人民政府行政机关出庭负责人丁焱志及委托代理人陈亮金到庭参加诉讼。本案现已审理终结。
被告上杭县公安局于2019年6月27日作出杭公(庐丰)行罚决字〔2019〕00030号行政处罚决定,认定2019年5月26日至27日,赖亮平编造上杭县庐丰政府工作人员是人贩子等虚假信息在中文推特社交软件上散布,损害政府公信力,起哄闹事,扰乱公共秩序,并发布侮辱他人不当言论。根据《中华人民共和国治安管理处罚法》第二十六条第(四)项规定,决定对赖亮平处以行政拘留十日。原告赖亮平不服,向被告上杭县人民政府申请行政复议,被告上杭县人民政府于2019年8月27日作出杭政行复决〔2019〕12号行政复议决定,维持上杭县公安局作出的杭公(庐丰)行罚决字〔2019〕00030号行政处罚决定。


原告赖亮平诉称,请求撤销上杭县人民政府杭政行复决〔2019〕12号行政复议决定以及上杭县公安局杭公行(庐丰)罚决字〔2019〕00030号行政处罚决定。事实与理由:1.两被告作出的行政决定认定事实不清。行政处罚的事实依据是其捏造庐丰乡计生人员是人贩子。但根据李育华夫妇的投诉,庐丰计生办工作人员蓝某、陈文明(时任计生办主任)等以帮忙上户口为由,把李育华夫妇寄养在邻村张某远夫妇家刚出生60天的婴儿连哄带骗地送到庐丰计生办,上了一辆在政府门口等候多时的白色小轿车后不知去向,之后被抢的婴儿一直都没有任何消息。以上有李育华夫妇及养母等人的视频以及大量的证人证言为证,并不是其凭空捏造。上杭县公安局在未查清案情的情况下,就认定其捏造事实,作出行政处罚没有事实依据。上杭县人民政府作为复议机关在事实不清的状况下,应该撤销上杭县公安局的处罚决定。2.两被告认定其涉嫌寻衅滋事,损害政府公信力,也不符合事实。其于2019年5月27日陪同李育华夫妇前往庐丰政府找计生人员了解事件经过,却被庐丰政府工作人员围攻,在紧急情况下拨打110报警,后被以涉嫌寻衅滋事扣留24小时。期间,其始终遵循和平理性、非暴力理念,没有损害政府公信力的故意和行为,反而主动拨打110报警,是正当行使公民的合法权益。其于2017年11月29日在中文社交网站发表的言论并没有侮辱的性质。3.两被告作出的处罚决定与复议决定违反法律程序。其于2017年11月29日在中文社交网站上发布的言论是2年前的言论,已超出了处罚的时限,且上杭县公安局也已于2019年6月28日作出了上杭县公安局杭公行(庐丰)罚决字〔2019〕00031号处罚决定,对其作出了责令停止联网、警告处罚。现又以此为由对其作出处罚,属于重复处罚。4.两被告作出的处罚决定没有法律依据。其是出于同情李育华夫妇的遭遇,陪同他们去找原来抢走孩子的计生人员了解情况。其发布的文字,确实有部分过激,但并不是故意攻击有关人员,也无意损害政府形象,只是希望引起大家关注,帮助公民维权。公安机关据此对其进行行政拘留明显不合法不合理。


原告赖亮平向本院提供证据:1.李育华口述视频光盘1张,证明李育华的婴儿被计生人员抱走的事实;2.证人刘某的证言,证明庐丰计生办工作人员于2001年3月初十借口将小孩抱去乡政府上户口,将孩子抢走,之后刘某夫妇找相关部门反映无果后才找原告帮忙的事实经过;3.录音光盘1张,证明原告打电话给庐丰派出所所长,但所长对于蓝某强行抱走孩子的事情只字不提及2019年3月份李育华夫妇向不同部门上访的记录和通话录音。


被告上杭县公安局(原行政机关)辩称,1.对原告赖亮平作出行政处罚事实清楚,证据充分。2001年,上杭县庐丰立英村村民张洪远夫妇因非法抱养婴儿被庐丰人民政府依法将婴儿抱至民政部门处理。2019年3月,庐丰中坊村村民李育华、刘某以当年被抱至民政局的婴儿系其夫妇所生为由找到庐丰人民政府计生办蓝某、李永方等工作人员,要求蓝某将抱至民政局的婴儿找回,同时开始以此事进行信访。赖亮平(此前与李育华及其家属均不认识)通过互联网知悉此事,遂以帮助联系有关媒体进行关注以此监督政府为名主动联系李育华夫妇,随后双方开始互有联系。2019年5月26日,赖亮平在其手机上利用推特、比特加速器等手机软件发布“本人将于2019年5月27日前往庐丰乡计生办现场围观抓人贩子兰月秀、李永芳”、“请关注福建邵氏孤儿,现已经发现多例上杭县庐丰乡计生流氓强抢婴儿事件”等推文内容。次日上午,赖亮平伙同李育华夫妇等人到庐丰政府找到蓝某,原告赖亮平用手机拍摄并向110报警称抓到了抢小孩子的人贩子。因乡政府工作人员报警,赖亮平被派出所民警带至派出所调查。在此期间,赖亮平还开通推特直播视频并在视频中标注“抓人贩子了”、“人贩子来了”、“一个人口只有一万多的政府大楼”等内容。当日下午,赖亮平又在推特上发布“派出所,要求做笔录,警察看了当事人忠厚老实,就恐吓她,吓得浑身发抖。现已无法做”等内容。另经查明,2017年11月29日,赖亮平以前国家领导人做了有违人伦的事情为由在推特上对其进行侮辱。对于上述事实,有赖亮平的陈述和申辩,李育华、蓝某、包东星等多人的证词证言;电子数据勘验工作记录;提取笔录等证据证实。2.对原告赖亮平作出行政处罚适用法律正确,程序合法,量罚得当。赖亮平利用手机推特软件,故意编造庐丰乡计生工作人员是人贩子、上杭县庐丰计生流氓强抢婴儿等虚假信息在网络上散布,起哄闹事。同时在互联网上随意侮辱前国家领导人,损害政府公信力,损害前国家领导人形象,其行为已经构成寻衅滋事行为。据此,公安机关依据《中华人民共和国治安管理处罚法》第二十六条第(四)项之规定对赖亮平作出行政拘留十日的处罚决定。该案从接到报警受理、调查、处罚前依法告知,到作出处罚决定,均严格按照《中华人民共和国治安管理处罚法》规定的相关办案程序办理。综上所述,上杭县公安局对原告赖亮平作出的行政处罚事实认定清楚,证据确实充分,适用法律正确、程序合法、量罚适当,请求法院判决驳回原告的诉讼请求。


被告上杭县公安局(原行政机关)向本院提交了证明原行政行为合法性的以下证据、依据:(一)证据部分。1.受案登记表、受案回执、呈请延长询问时限审批报告、呈请延长办案期限审批报告、行政处罚告知笔录、复核笔录、行政处罚决定书、行政复议决定书、行政拘留家属通知书、行政拘留执行回执,证明对原告的行政处罚遵循了程序规定。2.赖亮平两次的询问笔录,证明原告认识李育华的过程和利用推特、比特加速软件发布庐丰政府工作人员是人贩子强抢婴儿以及侮辱先前党和国家领导人等推文内容;3.李永方的询问笔录,证明李育华诉求情况和原告赖亮平无理滋事过程;4.蓝某的询问笔录,证明庐丰政府处理婴儿过程和原告赖亮平到庐丰政府无理滋事过程;5.李育华的两次询问笔录,证明事件全过程包括原告赖亮平事实寻衅滋事行为的部分过程;6.包东星的询问笔录,证明庐丰政府处理婴儿过程和原告赖亮平到庐丰政府无理滋事过程;7.福建省行政执法证,证明蓝某是上杭县计生局具有行政执法资格的行政执法人员;8.信访答复件,证明庐丰政府有对李育华的信访事项给予答复;9.杭公证保决〔2019〕00447号证据保全决定书、证据保全清单,证明公安机关对原告的手机进行了扣押;10.提取笔录、手机内容截图,证明公安机关对原告手机存储的有关证实寻衅滋事的内容进行了提取,原告也予以确认;11.电子数据勘验工作记录,证明公安机关对原告被扣押的手机进行了电子数据提取;12.户籍证明,证明原告的基本身份情况以及是具有行政责任能力的自然人;13.杭公(庐丰)行罚决字〔2019〕00031号行政处罚决定书,证明公安机关对原告非法利用翻墙软件访问境外网站的违法行为进行行政处罚。(二)依据部分。《中华人民共和国治安管理处罚法》第二条、第九十一条、第二十六条等规定,证明被诉具体行政行为所依据和适用的法律。


被告上杭县人民政府(复议机关)辩称,1.被告上杭县人民政府作出复议决定是其法定职权。2.被告依法受理原告的复议申请,依法作出复议决定,程序合法。被告于2019年7月18日收到原告的复议申请后受理此案,7月23日向上杭县公安局送达《行政复议答复通知书》,8月27日依法作出复议决定,8月29日直接送达上杭县公安局,9月2日将行政复议决定书邮寄送达赖亮平。3.行政复议决定认定事实清楚。被告审查后认为,赖亮平于2019年5月26日至27日编造上杭县庐丰政府计生工作人员是人贩子、发现多例上杭县庐丰计生流氓强抢婴儿事件等虚假信息在中文推特社交软件上散布;于5月27日公然到庐丰政府起哄闹事,扰乱公共秩序。该事实有赖亮平的陈述和申辩,证据保全决定书及证据保全清单,电子数据勘验工作记录、提取笔录、提取照片,庐丰人民政府答复等证据证实。综上所述,上杭县人民政府作出行政复议决定认定事实清楚、适用法律正确、程序合法,请求人民法院予以维持。


被告上杭县人民政府(复议机关)向本院提交了证明复议程序合法性的证据、依据:1.行政复议案件立案审批表;2.行政复议申请书;3.答复通知书;4.行政复议决定书及送达回证;5.《中华人民共和国行政复议法》、《公安机关对部分违反治安管理行为实施处罚的裁量指导意见》有关规定,证明被诉具体行政行为所依据和适用的法律。


经庭审质证,对被告上杭县公安局提交的证据4、6,原告赖亮平有异议,认为证人蓝某、包东星的证言不实,原告确实有用手机拍摄整个过程,但当时在乡政府办公室有几十个人把其围在中间,试图要抢其手机,其才报警的;对被告上杭县公安局提交的其他证据、依据均没有异议。对被告上杭县公安局提供的证据、依据,被告上杭县人民政府均没有异议。


对被告上杭县人民政府提交的证据、依据,原告赖亮平、被告上杭县公安局均没有异议。
对原告提供的证据1、2,两被告均认为真实性无法确认;证据2,两被告均认为不能证明原告主张;证据3,两被告均认为与本案无关。


本院对上述证据认证如下:两被告提供的证据均与本案具有关联性,且符合合法性、真实性要件,本院予以认定。原告提供的证据1、2,因李育华、刘某为利害关系人,且其所陈述内容无客观证据佐证,无法确定其真实性,原告提供的证据3,与本案不具有关联性,故均不作为本案定案依据。


经审理查明,2001年,上杭县庐丰人民政府依法将该乡立英村村民张洪远夫妇非法抱养的婴儿抱至民政部门处理。2019年3月,该乡中坊村村民李育华、刘某以当年被抱至民政部门的婴儿系其夫妇所生为由找到庐丰人民政府计生办蓝某等工作人员,要求将该婴儿寻回,并因此事开始信访,庐丰人民政府对此信访进行了答复。原告赖亮平闻讯以帮助联系媒体关注为由主动联系李育华夫妇。2019年5月26日,原告赖亮平用其手机在推特社交网络平台上发文称“本人将于2019年5月27日前往庐丰乡计生办现场围观抓人贩子兰月秀、李永芳”、“请关注福建邵氏孤儿!现已经发现多例上杭县庐丰计生流氓强抢婴儿事件!!!本人将于5月27日前往现场直播。”次日上午,赖亮平与李育华及其妻子刘某等人共同到上杭县庐丰人民政府找到蓝某,赖亮平用手机拍摄并向110报警称:蓝某是人贩子,抢走了李育华夫妇的女儿。赖亮平还用手机开通推特直播视频并在推特社交网络平台连续发表推文:“人贩子来了”、“一个人口只有一万多的政府大楼”等内容。当日下午又在推特发文“在派出所,要求做笔录,警察看当事人忠厚老实,就恐吓她,吓的浑身发抖!现已无法做。”上杭县公安局庐丰派出所于2019年5月27日对庐丰人民政府工作人员李永方报称的赖亮平等人扰乱单位秩序一案立案受理,并对当事双方及相关人员进行了调查取证,且就赖亮平的两部手机进行了证据保全、电子数据提取。另外,赖亮平于2017年11月29日在推特社交网络平台上发布侮辱他人的不当言论,该言论发布直至2019年5月27日被公安机关查获。2019年6月27日,上杭县公安局作出杭公(庐丰)行罚决字〔2019〕00030号行政处罚决定,决定对赖亮平处以行政拘留十日。赖亮平不服,于2019年7月16日向上杭县人民政府申请行政复议,上杭县人民政府经审查于2019年7月18日决定立案受理,并于2019年7月23日向上杭县公安局送达赖亮平的行政复议申请书副本并要求其提交书面答复以及当初作出行政行为的证据、依据等相关材料。2019年8月27日,上杭县人民政府作出杭政行复决〔2019〕12号行政复议决定,决定维持上杭县公安局作出的杭公(庐丰)行罚决字〔2019〕00030号行政处罚决定。该复议决定书分别于2019年8月29日、9月3日送达给上杭县公安局和赖亮平。


另查明,上杭县公安局以赖亮平在自己手机上安装比特加速器翻墙软件,使用非国家公用电信网提供的国际出入口信道进行国家联网,即“翻墙”访问境外网站的违法行为,于2019年6月28日作出杭公(庐丰)行罚决字〔2019〕00031号行政处罚决定,决定对赖亮平责令停止联网,给予警告。


本院认为,根据《中华人民共和国治安管理处罚法》第二条、第七条第一款、第九十一条第一款的规定,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有关扰乱公共秩序,妨害公共安全,侵犯人身权利、财产权利,妨碍社会管理,具有社会危害性,尚不够刑事处罚的治安管理处罚工作。本案被告上杭县公安局具有负责本行政区域内治安管理工作的法定职责。根据《中华人民共和国行政复议法》第十二条第一款规定,被告上杭县人民政府有权行使行政复议权。原告对两被告的执法主体资格均未提出异议,本院予以确认。


关于被告上杭县公安局作出杭公(庐丰)行罚决字〔2019〕00030号行政处罚决定认定事实是否清楚、程序是否合法、适用法律是否正确问题。经查,原告赖亮平用其手机在推特社交网络平台上发文称“本人将于2019年5月27日前往庐丰乡计生办现场围观抓人贩子兰月秀、李永芳”、“请关注福建邵氏孤儿!现已经发现多例上杭县庐丰计生流氓强抢婴儿事件!!!”等信息,此事实有原告赖亮平和李永方、蓝某、包东星等人的询问笔录和赖亮平的两部手机中提取微信聊天记录及推特社交网络平台发布的推文等电子证据能够证实。而根据原告赖亮平在两份询问笔录中称其是在2019年3月份从网上看到李育华发到网上的求助信后以帮忙联系媒体关注为由主动联系李育华后听其讲述的。在案件审理过程中,原告赖亮平亦未提交可以证明李育华、刘某夫妇所述事项属实的证据、依据。原告赖亮平作为达到责任年龄具有责任能力的自然人,在未对李育华单方陈述事项进行核实的情况下,将“抓人贩子兰月秀、李永芳”、“现已经发现多例上杭县庐丰计生流氓强抢婴儿事件!!!”等没有事实根据的信息在网络上散布传播,误导了正常的社会舆论,在社会上造成了恶劣影响,客观上造成了扰乱社会秩序的后果。根据《中华人民共和国治安管理处罚法》第二十六条第(四)项规定以及参照《公安机关对部分违反治安管理行为实施处罚的裁量指导意见》关于“寻衅滋事情节较重”的规定,被告上杭县公安局对原告赖亮平处以行政拘留十日,适用法律法规正确、量罚适当。公民虽有依法监督的权利,但公民如果以扰乱公共秩序的手段来行使权利,则超出了正当监督的权界。故原告赖亮平称其未编造虚假信息扰乱公共秩序,而是希望引起政府和社会的重视以帮助弱者的理由与事实不符,本院不予采信。被告上杭县公安局立案后,依法传唤当事人,经调查取证,并在处罚前向原告告知了拟作出行政处罚的事实、理由和依据,履行了告知义务,保障了原告的陈述、申辩权,后结合案情依据《中华人民共和国治安管理处罚法》第二十六条第(四)项“其他寻衅滋事行为”作出处以行政拘留十日的决定,事实清楚、程序合法、适用法律正确。被告上杭县人民政府在收到原告复议申请后进行立案、审查,并在法定期限内作出复议决定并送达,行政程序合法。


关于原告赖亮平称被告上杭县公安局对其于2017年11月29日在推特社交网络平台上发布言论的行为进行处罚超出了处罚时限问题。经查,根据被告上杭县公安局依法提取的原告赖亮平推特社交网络平台的发文记录可证实原告发表了侮辱他人的不当言论且该不当言论在2019年5月28日被上杭县公安局查获时仍发布在原告的推特社交网络平台,即原告的违法行为从发表之日起就一直存续,被告上杭县公安局于2019年6月27日对此作出行政处罚并未超出法定期限。故原告的该项主张于法无据,本院不予支持。


关于原告赖亮平称被告上杭县公安局已于2019年6月28日对其作出杭公(庐丰)行罚决字〔2019〕00031号行政处罚决定,决定对其责令停止联网、给予警告,现又对其进行行政处罚,属重复处罚的问题。经查,被告上杭县公安局作出的杭公(庐丰)行罚决字〔2019〕00031号行政处罚决定,系对赖亮平违反《中华人民共和国计算机信息网络国际联网管理暂行规定》第六条第二款、第十四条的规定,即“翻墙”访问国外网站的违法行为处以停止联网、警告的行政处罚,所处罚的违法行为、所依据的法律法规均与被诉具体行政行为不同,系另一个具体行政行为,故不属于重复处罚,原告的该项主张与事实不符,依法不予支持。


综上,被告上杭县公安局作出的杭公(庐丰)行罚决字〔2019〕00030号行政处罚决定及被告上杭县人民政府作出的杭政行复决〔2019〕12号行政复议决定,认定事实清楚,证据确凿,适用法律、法规正确,符合法定程序,原告起诉理由不成立,依法应驳回其诉讼请求。依照《中华人民共和国行政诉讼法》第六十九条的规定,判决如下:
驳回原告赖亮平的诉讼请求。


本案受理费50元,由原告赖亮平负担。


如不服本判决,可在判决书送达之日起十五日内向本院递交上诉状,并按对方当事人的人数提出副本,上诉于福建省龙岩市中级人民法院。


审 判 长  郭华珍
人民陪审员  苏丽清
人民陪审员  卢润锋


二〇一九年十二月二十四日

法官助理李小凤
书记员张丽燕


 

Translation: Huang Xuqin and Wang Jianbing Inciting Subversion Indictment

On June 14, 2024, the Twitter account "Free Huang Xueqin & Wang Jianbing 释放雪饼" (@FreeXueBing)  posted a copy of the last two p...