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...