Wednesday, March 17, 2021

Translation: Police Using Private Lawsuits to Jail Critics

Intermediate People's Court of Jingde, Jiangxi


Criminal Ruling


(2020) Gan 02 Criminal Final No. 77

Appellant (defendant in the original trial) Chen Guangping, male, born October 3, 1956 in Jingde, Jiangxi, Han ethnicity, college education, retired public servant, household registration in Zhushan District, Jingde, residing in Fulian, Jiangxi Fuliang. On April 16, 2020, it was decided by the People's Court of Fuliang that he would be detained, and his detention was carried out on the same day. He is currently being held in detention at the Jingde Detention Center.

Private prosecutor in the original trial Shao Doe, male, born on March 10, 1973 in Leping, Jiangxi, Han ethnicity, undergraduate education, policeman, registered permanent residence in Leping, residing in Leping.

Private prosecutor in the original trial Wu Doe, male, born on October 7, 1968 in Leping, Jiangxi, Han ethnicity, college education, civilian police, household registration in Leping, residing in Leping.
Retained litigation representatives (for Shao Doe and Wu Doe) Hu Bin and Xupeng Congcong are with the Beijing Deheng (Nanchang) Law Firm.

Private prosecutor in the original trial Ni Doe, male, born on November 13, 1979 in Leping City, Jiangxi, Han ethnicity, junior high school education, businessman, household registration and residence in Leping.
Retained litigation representative Jiang Yuanjin is with the Zhejiang Nankong Law Firm.

The People's Court of Fuliang adjudicated the case of the lawsuit brought by private prosecutors in the original trial Shao Doe, Wu Doe, and Ni Doe against defendant in the original trial Chen Guangping for commiting the crime of defamation, and on April 16, 2020 issued the (2019) Gan 0222 Criminal First No. 145 criminal judgment. Defendant in the original trial Chen Guangping did not accept the judgment and submitted an appeal. Private prosecutors in the original trial Shao Doe, Wu Doe, and Ni Doe all accepted the judgment and did not appeal. This Court formed a collegial panel in accordance with the law, and held a preliminary hearing on August 4, 2020, and on August 7 of the same year tried this case in open court. In court appellant Chen Guangping refused to be defended by defense counsels Yang Xuelin of the Beijing Capital Law Firm and Deng Xueping of the Shanghai Jintian City Law Firm. After appellant Chen Guangping refused to be defended by defense counsel and was without defense counsel, this Court announced that there would be an adjournment in accordance with the law. During the adjournment appellant Chen Guangping separately retained Wang Hong of the Jianxi Huazhen Law Firm as his defense counsel. Prior to the hearing appellant Chen Guangping once again refused to be defended by defense counsel, and at that time he said that he would no longer appoint any defense counsel, and that he did not require a legal aid agency to assign a lawyer to provide a defense. Appellant Chen Guangping represented himself pro se in accordance with the law. On September 1, 2020, this Court tried this case in open court again in accordance with the law. Private prosecutors in the original trial Shao Doe and Wu Doe and their retained litigation representatives Hu Bin and Xupeng Congcong, and private prosecutor in the original trial Ni Doe and his retained litigation representative Jiang Yuanjin, and appellant Chen Guangping appeared in court to participate in the proceedings. The trial has now concluded.

The judgment in the original trial found that from September 3, 2019 to December 28, 2019, defendant Chen Guangping did, without any proper or legal justification, use the Sina Weibo and Zine account "Yi Chen" and the WeChat public account "Yi Chen Looks at the World" to spread this false claim over information networks about private prosecutors Shao Doe, Wu Doe, Ni Doe: "Police and mafia colluded to fabricate an offense to frame the innocent, concocted a model fake criminal case, causing Shi Doe Xiang and others to be put in prison," and furthermore used them to smear private prosecutors Shao Doe and Wu Doe as "Black Police" and the three private prosecutors as "criminals," "thieves," and "an organized and malicious criminal conspiracy." The aforementioned information was clicked-on and viewed over 670,000 times leading Internet users to make negative assessments of private prosecutors Shao Doe, Wu Doe, and Ni Doe.

The evidence proving the aforementioned facts is:

1. The statement of private prosecutor Shao Doe proved: From September to December 2019, Chen Guangping published multiple articles on Weibo, a WeChat public account, and Zine, falsely claiming that he was "black police," "the black sheep in the police," and a "thief," and that he colluded with Ni Doe to use police power against Shi Doe Xiang and others to frame them for crimes, manufactured a fake criminal case, and formed "an organized and malicious criminal conspiracy" with Ni Doe. The aforementioned articles have already exceeded 600,000 clicks and views on Weibo, WeChat, and Zine.

2. The statement of private prosecutor Wu Doe proved: From September to December 2019, Chen Guangping published multiple articles on Weibo, a WeChat public account, and Zine, falsely claiming that he was "black police," "the black sheep in the police," and formed "an organized and malicious criminal conspiracy," and that he colluded with Ni Doe to fabricate offenses against Shi Doe Xiang and others to frame the innocent. The aforementioned articles have already exceeded 30,000 clicks and views on Weibo, WeChat, and Zine. He did not participate in the review of the case of Shi Doe Xiang and others' embezzlement of funds, having recused himself in accordance with the law. In September 2019, after Chen Guangping posted the articles online, he told Chen Guangping over the phone that he did not participate in the review of that case.

3. The statement of private prosecutor Ni Doe proved: From September to December 2019, Chen Guangping published multiple articles on Weibo, a WeChat public account, and Zine, falsely claiming that he colluded with Shao Doe and Ni Doe and used police power to fabricate a fake criminal case. Chen Guangping repeatedly referred to him as a "thief" and "an organized and malicious criminal conspiracy." The aforementioned articles have already exceeded 5,000 clicks and views on Weibo, WeChat, and Zine.

4. Thirteen notarized articles posted by Chen Guangping on the Weibo "Yi Chen" account, WeChat "Yi Chen Looks at the World" public account, and Zine "Yi Chen" account with titles such as "Using the law to analyze how Shi Doe Guo and others were framed by a false black case," "An insider exposes clues about Ni Doe's evil," and "Yi Chen likes to hear about the black police's complaints," as well as reply letters produced by Shenzhen Tencent Computer Systems Co., Ltd. Beijing Weimeng Chuangke Network Technology Co., Ltd. and Shenzhen Oulomake Technology Co., Ltd. proved: From September to December 2019, Chen Guangping continued to post on self-publishing platforms Weibo, WeChat, and Zine:

  • Making false claims that Ni Doe and Shao Doe, and Wu Doe colluded and used police power to fabricate an offense against Shi Doe Xiang and others, and concocted a model fake criminal case against Shi Doe Xiang and others for embezzling funds, and then framed Shi Doe Xiang and other innocent people, causing Shi Doe Xiang and others to be jailed;
  • Saying that Shao Doe, Wu Doe, and Ni Doe were "criminals who floated to the surface," "thieves," and "an organized and malicious criminal conspiracy", Wu Doe, Shao Doe are suspected of "corrupting the law, framing innocent corrupt officials," and that Shao Doe and Wu Doe were "Black Police" and Shao Doe was a "black sheep" in the police force.

The aforementioned posts triggered negative comments from Internet users about Shao Doe, Wu Doe, and Ni Doe. The aforementioned posts were read 187,062 times on WeChat, 433,323 times on Weibo, and 53,352 times by Zine, totaling 673,737 times.

5. The testimony of witnesses Bi Doe and Zou Doe, the statements of private prosecutors Wu Doe, Shao Doe, and the Explanation of Circumstances produced by the Public Security Bureau of Leping proved: During the investigation into the case of embezzlement of funds by Shi Doe Xiang and others by the Public Security Bureau of Leping, Wu Doe submitted an application for recusal, which was approved. Wu Doe did not participate in the review of the case, and the person in charge of the Public Security Bureau of Leping appointed someone else to review the case. Shao Doe was one of the investigating civil police officers in the case of embezzlement of funds by Shi Doe Xiang and others.

6. Defendant Chen Guangping's statement proved: The notarized articles on the Sina Weibo "Yi Chen," the WeChat public account "Yi Chen Looks at the World," and on the Zine "Yi Chen" which the private prosecutors submitted to the court were in fact posted by him.

7. The Case Acceptance Registration Form, Decision to Open a Case, Criminal Detention Certificate, Case Handler Transfer, Offense Discussion Record, and other litigation documentation materials proved: The case of embezzlement of funds by Shi Doe Xiang and others was registered as accepted on September 21, 2018 in accordance with the law. On October 17, an investigation was opened in accordance with the law. On that day compulsory measures were adopted with respect to Shi Doe Xiang in accordance with the law. On February 19, 2019, the agency handling the case unanimously agreed after collective discussion to amend the crime from contract fraud to embezzlement of funds, and to transfer it for pre-prosecution examination in accordance with the law.

8. A letter produced by the relevant functional department within the Public Security Bureau of Jingde proved: After an investigation Shao Doe, Wu Doe, and Ni Doe were not suspected of committing any wrongful acts or illegal crimes; Shao Doe was not suspected of committing any illegal crimes in the case of embezzlement of funds by Shi Doe Xiang and others.

9. Jiangxi People's Court of Zhushan, Jingde's (2019) Gan 0203 Criminal First Instance No. 295 criminal judgment proved: Shi Doe Xiang and three other defendants voluntarily pleaded guilty and repented their crimes. Shi Doe Xiang and three other defendants were found guilty of embezzling funds on January 19, 2020, and were all sentenced and ordered to refund the victims' losses. The four defendants did not appeal, and the aforementioned judgment has already become legally effective.

10. Household registration information proved: Defendant Chen Guangping was born on October 3, 1956, and has the capacity to be bear full criminal liability.

A summary review of the judgment in the original trial with respect to the justifications and defense opinions of defendant Chen Guangping and his defense counsel is as follows:

1. Regarding the claims of defendant Chen Guangping and his defense counsel that there were violations of laws and regulations in the procedures used by private prosecutors Shao Doe and Wu Doe's in handling the case of embezzlement of funds by Shi Doe Xiang and others: Chen Guangping believed that the three private prosecutors colluded to fabricate a fake criminal case and frame the innocent, and this was not a claim fabricated out of thin air, but was a judgment based on certain facts, and Chen Guangping's acts cannot be deemed as fabricating facts to defame others.

It was ascertained by the court in the original trial that private prosecutor Wu Doe did not participate in examination of the case of embezzlement of funds by Shi Doe Xiang and others. A valid criminal judgment in the case of embezzlement of funds by Shi Doe Xiang and others confirmed how the case acceptance, case opening for examination, case opening for investigation, judicial forensic opinions, detention, and arrest all complied with laws and regulations. The inspection performed at the public security agency's senior levels also proved that private prosecutor Shao Doe was not suspected of committing any illegal crimes in the process of handling the case, that Shi Doe Xiang and the three other defendants voluntarily pleaded guilty and repented their crimes, and that Shi Doe Xiang and the three other defendants were determined to be guilty in the Jiangxi People's Court of Zhushan, Jingde's (2019) Gan 0203 Criminal First Instance No. 295 criminal judgment.

Therefore, defendant Chen Guangping's post made through self-publishing media about private prosecutors Wu Doe, Shao Doe, and Ni Doe that "Police and mafia colluded, they violated laws and regulations to fabricate a fake criminal case and frame the innocent, causing Shi Doe Xiang and others to be put in prison," was defendant Chen Guangping's subjective speculation, and is deemed to be an act of fabricating facts to harm the reputation of third parties.

The opinions of defendant Chen Guangping and his defense counsel were not sustained.

2. Regarding the claims of defendant Chen Guangping and his defense counsel that Chen Guangping was carrying out supervision though public opinion and using the Internet to express his views in accordance with the law with respect to the conduct of private prosecutors Shao Doe and Wu Doe in the performance of their professional duties, and that the purpose and methods were proper and there was no subjective intent to harm the reputations of the private prosecutors, and therefore Chen Guangping's actions do not constitute the crime of defamation.

It was ascertained by the court in the original trial that over the span of three months defendant Chen Guangping made 30 posts on self-publishing media platforms Weibo, WeChat, and Zine, and on many occasions used language such as "black police," "thieves," "criminals floating the top," "an organized and malicious criminal conspiracy," and "corrupt officials" to describe the private prosecutors and lead Internet users to make negative assessments of the private prosecutors. Defendant Chen Guangping continued to refuse to the delete the relevant posts even after there was a valid criminal judgment finding Shi Doe Xiang and three other defendants guilty and an examination by the public security agency's senior levels proved that private prosecutors Shao Doe, Wu Doe, and Ni Doe were not suspected of committing any wrongful acts or illegal crimes.

Over the three months from September to December 2019 defendant Chen Guangping made 30 posts that defamed the private prosecutors, and defendant Chen Guangping failed delete the relevant posts and eliminate their influence prior to the announcement of the judgment. The aforementioned posts harm to the reputations of the three private prosecutors continued. The aforementioned facts are sufficient to prove that defendant Chen Guangping had the subjective intent to harm the reputations of the private prosecutors, and objectively caused severe harm to the reputations of the private prosecutors. The purpose and methods of defendant Chen Guangping's postings were entirely improper, his actions already exceeded the boundaries of supervision through public opinion, breached the bottom line of the law, and seriously violated the legal rights of others. The speech of citizens that is expressed on information networks in accordance with the law will have the protection of the law. But "freedom of speech" on information networks is not without boundaries, and when Internet users exercise their rights of supervision and expression, they must not breach the bottom lines of the law. The law does not permit so-called "free speech" that defames others.

The opinions of defendant Chen Guangping and his defense counsel were not sustained.

3. Regarding the claims of defendant Chen Guangping and his defense counsel that the critical opinions Chen Guangping expressed about private prosecutors Shao Doe, Wu Doe, and Ni Doe were value judgments and did not fabricate facts, and Chen Guangping's actions do not constitute the crime of defamation.

The court in the original trial found:

First, Article 246(1) of the "Criminal Law of the People's Republic of China" provides that the requisite act to constitute the crime of defamation is "fabricating facts to defame a third party." Defendant Chen Guangping made posts saying about private prosecutors Shao Doe, Wu Doe, and Ni Doe "Police and mafia colluded to fabricate an offense to frame the innocent, concocted a model fake criminal case, causing Shi Doe Xiang and others to be put in prison." This is clearly a description of facts, and relevant evidence has already proven that they are false facts which harmed the reputations of third parties. Defendant Chen Guangping took these false facts as a basis to smear private prosecutors Shao Doe and Wu Doe as "black police" and the three private prosecutors as "criminals" and "an organized and malicious criminal conspiracy." The aforementioned views were clearly formed on the basis of false facts that were fabricated by him. The two are inseparable and should be treated as a single whole. The opinions contained in defendant Chen Guangping's posts were by their very nature not pure value judgments, but were based on fabricated facts.

Second, in accordance with the provisions of Article 12 of the "Criminal Procedure Law of the People's Republic of China," no person shall be found guilty of a crime except as adjudicate as such by a people's court in accordance with the law. Under circumstances whereby private prosecutors Shao Doe, Wu Doe, and Ni Doe had yet to be adjudicated as guilty by a judicial agency, defendant Chen Guangping asserted that the private prosecutors were "black police,""criminals," "thieves," and "an organized and malicious criminal conspiracy," thereby subjecting the private prosecutors to hatred, humiliation, or ridicule, and thereby causing harm to the reputations of the private prosecutors. Therefore, defendant Chen Guangping fabricated false facts that harmed the reputations of third parties with malicious intent, and this is deemed to be the requisite act to constitute the crime of defamation.

The opinions of defendant Chen Guangping and his defense counsel were not sustained.

4. Regarding the claims of defendant Chen Guangping and his defense counsel that the posts made by Chen Guangping on self-publishing media platforms did not have severe consequences for private prosecutors Shao Doe, Wu Doe, and Ni Doe. Private prosecutors can use civil law to protect their right of reputation, but anything failing to rise to the level of "severe circumstances" does not constitute the crime of defamation.

The court in the original trial found that, in accordance with the provisions of Article 2 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," when information networks are used to defame third parties and the same defamatory information is actually clicked or browsed for more than 5,000 times, it shall be deemed a “severe circumstance” as mentioned in Article 246(1) of the Criminal Law. The defamatory information posted online by defendant Chen Guangping was actually clicked or browsed for more than 670,000 times, and should be deemed "severe circumstances."

Over a period of time spanning three months defendant Chen Guangping made 20 public posts on Weibo, a WeChat public account, and the Zine self-publishing platform that flagrantly spread fabricated facts that harmed the personal dignity and reputations of private prosecutors Shao Doe, Wu Doe, and Ni Doe, causing severe harm to the personal dignity and reputations of private prosecutors Shao Doe, Wu Doe, and Ni Doe. In addition, defendant Chen Guangping refused to delete the relevant posts, eliminate their influence, or apologize. The manner of his defamatory behvior was pernicious, and his subjective malice was relatively significant and caused real-world harms. He should be convicted and punished for the crime of defamation.

The opinions of defendant Chen Guangping and his defense counsel were not sustained.

In summary, the court in the original trial found that defendant Chen Guangping fabricated facts on information networks that defamed others in disregard of laws and regulations, the circumstances were severe, the number of people defamed was large and created a pernicious social influence, and his actions constituted the crime of defamation. Private prosecutors Shao Doe, Wu Doe, and Ni Doe sued defendant Chen Guangping for committing the crime of defamation, and the facts were clear and the evidence was reliable and copious, and the offense forming the basis for lawsuit was established.

Defendant Chen Guangping refused to confess his guilt and had no intent to repent. In accordance with the facts, nature, and circumstances of the crime and the degree social harm, in accordance with the provisions of Articles 246 and 61 of the "Criminal Law of the People's Republic of China," Articles 1(1), 2(1), and 4 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," Article 200(1) of the "Criminal Law of the People's Republic of China," and Articles 241(1)(i) and 276 of the "Supreme People's Court Regarding the Application of the 'Criminal Procedure Law of the People's Republic of China'," the court sentenced defendant Chen Guangping to a fixed term imprisonment of two years and six months for the crime of defamation.

Appellant Chen Guangping claims:

1. The case of embezzlement of funds by Shi Doe Xiang and others was a model fake criminal case, and that case cannot serve as the basis for finding he committed the crime of defamation.

2. His posts saying that the three private prosecutors colluded to manufacture a fake criminal cases in the original trial was based on evidence and facts, and there was no fabrication of facts, and his actions did not constitute defamation.

3. The critical opinions Chen Guangping expressed about the private prosecutors in the original trial were value judgments and did not fabricate facts.

4. He was carrying out criticism and online supervision through public opinion of the conduct of private prosecutors in the original trial Shao Doe and Wu Doe in the performance of their professional duties, and that this was a lawful act and did not constitute the crime of defamation.

In summary, the trial of first instance's sentencing him for committing the crime of defamation was based on unclear facts and insufficient evidence, and he should be pronounced not guilty.

Private prosecutors in the original trial Shao Doe, Wu Doe, and Ni Doe and their retained litigation representatives claim that in the judgment in the original trial finding Chen Guangping committed the crime of defamation, the facts were clear and the evidence was reliable and copious, and they request the court in the trial of second instance reject the appeal and uphold the judgment in the original trial.

The facts and evidence ascertained in the trial of second instance were identical to those in trial of first instance, and the evidence proving the criminal facts of this case have been presented and cross-examined in court in the trials of first and second instance, is legal and valid, and is affirmed by this Court.

Regarding the opinion of the appellant and his claims that the three private prosecutors in the original trial colluded and conspired to manufacture a fake criminal case were based on a foundation of certain facts and evidence, that he did not fabricate facts, that his actions do not constitute defamation, and that his critical opinions of the three private prosecutors in the original trial were value judgments and not fabricating facts, the appellant has already raised these during the trial of first instance, and there is already ample reasoning regarding these set forth in the judgment in the original trial, and they are not affirmed by this Court.

Regarding appellant's other appeal rationale, based on the facts and evidence ascertained at trial, this Court's general evaluation is as follows:

1. Regarding appellant Chen Guangping's claim that the case of embezzlement of funds by Shi Doe Xiang and others was a model fake criminal case, and that case cannot serve as the basis for finding he committed the crime of defamation.

An investigation found that the case of embezzlement of funds by Shi Doe Xiang and three other defendants has already been adjudicated by the People's Court of Zhushan, Jingde in accordance with the law, and Shi Doe Xiang and three other defendants voluntarily confessed their guilt, repented their crimes, and were determined to be guilty in the People's Court of Zhushan, Jingde's valid criminal judgment (2019) Gan 0203 Criminal First Instance No. 295, and this is not a fake criminal case. This valid judgment was lawfully derived, its content was objective, and is directly related to this case. In addition it mutually corroborates the other evidence in this case, and used as evidence to reach a determination in this case.

The appeal rationale of appellant Chen Guangping is not sustained.

2. Regarding appellant Chen Guangping's claim that he was carrying out criticism and online supervision through public opinion of the conduct of private prosecutors in the original trial Shao Doe and Wu Doe in the performance of their professional duties, and that this was a lawful act and did not constitute the crime of defamation.

This Court finds that citizens enjoy the right to criticize and supervise in accordance with the law. But these rights should be exercised in a manner in accordance with the law and propriety. They absolutely do not have the right to "fabricate facts to defame a third party."

According to the facts ascertained by this Court, Chen Guangping used multiple self-publishing platforms to make 30 posts over three months, and he spread false claims over information networks that private prosecutors in the original trial Shao Doe, Wu Doe, and Ni Doe "Police and mafia colluded to fabricate an offense to frame the innocent, concocted a model fake criminal case, causing Shi Doe Xiang and others to be put in prison."

He carried out personal attacks on, and degraded the personal dignity of, private prosecutors in the original trial Shao Doe, Wu Doe, and Ni Doe, smearing those three on multiple occasions as "criminals," "thieves," and "an organized and malicious criminal conspiracy," causing severe harm to the reputations of the three private prosecutors. Prior to this Court issuing its judgment he had yet to delete the relevant posts, thereby causing ongoing harm to the reputations of the three private prosecutors.

Private prosecutors in the original trial Shao Doe and Wu Doe are protected by law when carrying out their professional duties in accordance with the law, and Chen Guangping's behavior exceeded the scope of lawful criticism and supervision, and are deemed to be acts of fabricating facts to defame third parties. In addition the defamatory information was clicked on and browsed a total of over 670,000 times, the circumstances were severe, and he should bear criminal liability in accordance with the law.

The appeal rationale of appellant Chen Guangping is not sustained.

This Court finds that appellant Chen Guangping fabricated facts to defame third parties, that the circumstances were severe, that his actions constitute the crime of defamation, and in accordance with the law he should be punished. Chen Guangping defamed many people, did not admit his guilt or show repentance for his crime, and continued to make derogatory statements about the three private prosecutors in court, disregarding the sanctity of the law. Appellant Chen Guangping's appeal rationales could not be established.

The request of the private prosecutors in the original trial Shao Doe, Wu Doe, and Ni Doe and their retained litigation representatives that the appeal be rejected and their opinion that the judgment in the original trial be upheld, is hereby sustained.

The facts confirming the judgment in the original trial are clear and the evidence is reliable and copious, the conviction was correct, the sentence was appropriate, and the trial procedures were lawful. In accordance with the provisions of Article 236(1)(i) of the "Criminal Procedure Law of the People's Republic of China," and based on the discussions of this Court's adjudicative committee, the ruling is as follows:

The appeal is rejected, and the judgment in the original trial is upheld.

This ruling shall be the final ruling.

Chief Adjudicator    Luo Minghua
Adjudicator        Zhou Zongxiang
Adjudicator        Zeng Fanbin

September 14, 2020

Judge's Assistant    Tang Dongyong
Clerk            Li Jie

江西省景德镇市中级人民法院


刑 事 裁 定 书


(2020)赣02刑终77号


上诉人(原审被告人)陈光平,男,1956年10月3日出生于江西省景德镇市,汉族,大专文化,退休公务员,户籍所在地景德镇市珠山区,住江西省浮梁县。因本案于2020年4月16日被浮梁县人民法院决定逮捕,同日被执行逮捕。现羁押于景德镇市看守所。

原审自诉人邵某,男,1973年3月10日出生于江西省乐平市,汉族,大学本科文化,民警,户籍所在地乐平市,住乐平市。

原审自诉人吴某,男,1968年10月7日出生于江西省乐平市,汉族,大专文化,民警,户籍所在地乐平市,住乐平市。

邵某、吴某的委托诉讼代理人胡彬、徐彭胄聪,北京德恒(南昌)律师事务所律师。
原审自诉人倪某,男,1979年11月13日出生于江西省乐平市,汉族,初中文化,经商,户籍所在地和居住地乐平市。

委托诉讼代理人江源进,浙江南孔律师事务所律师。

浮梁县人民法院审理原审自诉人邵某、吴某、倪某控诉原审被告人陈光平犯诽谤罪一案,于2020年4月16日作出(2019)赣0222刑初145号刑事判决。原审被告人陈光平不服提出上诉。原审自诉人邵某、吴某、倪某均服判,不上诉。本院依法组成合议庭,于2020年8月4日召开了庭前会议,于同年8月7日公开开庭审理了本案。上诉人陈光平当庭拒绝辩护人北京市首信律师事务所律师杨学林、上海市锦天城律师事务所律师邓学平辩护,上诉人陈光平拒绝辩护人辩护后,没有辩护人,本院依法宣布休庭。休庭期间上诉人陈光平另行委托辩护人江西华镇律师事务所律师王红。上诉人陈光平开庭前再次拒绝辩护人辩护,同时表示不再另行委托辩护人,也不需要法律援助机构指派律师为其提供辩护。上诉人陈光平依法自行辩护。本院于2020年9月1日依法再次公开开庭审理了本案。原审自诉人邵某、吴某及其委托诉讼代理人胡彬、徐彭胄聪,原审自诉人倪某及其委托诉讼代理人江源进,上诉人陈光平到庭参加诉讼。现已审理终结。

原审判决认定,被告人陈光平在没有正当或合法理由的情况下,于2019年9月3日至2019年12月28日,使用昵称为“亦忱”的新浪微博、Zine和昵称为“亦忱看世界”的微信公众号账户,捏造自诉人邵某、吴某、倪某“警黑勾结,罗织罪名构陷无辜,炮制一起典型刑事假案,使石某香等人陷于牢狱之灾”,并以此污蔑自诉人邵某、吴某为“黑警”以及三自诉人为“罪犯”“抢劫犯”“涉黑涉恶犯罪团伙”,在信息网络上散布。上述信息被点击、浏览累计为67万余次,引发网民对自诉人邵某、吴某、倪某的负面评价。

证明上述事实的证据有:

1、自诉人邵某的陈述,证明:自2019年9月至12月,陈光平在微博、微信公众号、Zine上发布多篇文章,捏造其是“黑警”“警界害群之马”“抢劫犯”,与倪某勾结利用警权对石某香等人进行刑事构陷,制造一起刑事假案,与倪某形成“黑恶势力犯罪团伙”。上述文章在微博、微信、Zine被点击、浏览次数已超过60万余次。

2、自诉人吴某的陈述,证明:自2019年9月至12月,陈光平在微博、微信公众号、Zine上公开发布多篇文章,捏造其是“黑警”“罪犯”“黑恶势力犯罪团伙”,与倪某勾结对石某香等人罗织罪名,进行无辜构陷。上述文章在微博、微信、Zine被点击、浏览次数已超过30万余次。石某香等人挪用资金案其未参与审核,依法自行回避。2019年9月份,陈光平在网上发文后,其电话告知过陈光平未参与此案审核。

3、自诉人倪某的陈述,证明:自2019年9月至12月,陈光平在微博、微信公众号、Zine上公开发布多篇文章,捏造其和邵某、吴某勾结,利用警权炮制刑事假案,陈光平多次称其为“抢劫犯”“涉黑涉恶犯罪团伙”。上述文章在微博、微信、Zine被点击浏览次数已超过5000次。

4、经公证的陈光平新浪微博“亦忱”、微信公众号“亦忱看世界”、Zine“亦忱”上发布题为《用法律剖析石某国等人被涉黑假案构陷》、《来自知情人对倪某涉黑涉恶线索曝料》、《亦忱喜闻黑警缠诉》等三十篇文章,以及深圳市腾讯计算机系统有限公司、北京微梦创科网络技术有限公司、深圳市欧若马可科技有限公司出具的回函,证明:陈光平自2019年9月至12月份,在微博、微信、Zine自媒体平台上持续公开发文,捏造倪某与邵某、吴某勾结,利用警权对石某香等人罗织罪名,炮制石某香等人挪用资金典型刑事假案,对石某香等人进行无辜构陷,致使石某香等人遭遇牢狱之灾,邵某、吴某、倪某是浮在面上的“罪犯”,是“抢劫犯”,是“涉黑涉恶犯罪团伙”,吴某、邵某涉嫌“贪赃枉法,是构陷无辜的贪官污吏”,邵某、吴某是“黑警”,邵某是警队中“害群之马”。上述帖文引发网友对邵某、吴某、倪某的负面评论。上述帖文微信公众号阅读187062次,微博阅读433323次,Zine阅读53352次,总计673737次。

5、证人毕某、邹某证言、自诉人吴某、邵某的陈述及乐平市公安局出具的情况说明,证明:石某香等人挪用资金案在乐平市公安局侦查期间,吴某自行提出回避申请并获同意,吴某未参与案件审核,乐平市公安局负责人指派其他人审核该案;邵某为石某香等人挪用资金案的侦办民警之一。

6、被告人陈光平的供述,证明:自诉人向法庭提交经公证的新浪微博“亦忱”、微信公众号“亦忱看世界”、Zine“亦忱”上的文章确系其所发。


7、受案登记表、立案决定书、刑事拘留证、办案单位变更罪名讨论记录表等诉讼文书材料,证明:石某香等人挪用资金案于2018年9月21日依法受案登记,2018年10月17日依法立案侦查,当日依法对石某香采取强制措施,2019年2月19日办案单位经集体讨论一致同意由挪用资金罪变更为合同诈骗罪并依法移送审查起诉。

8、景德镇市公安局相关职能部门出具的函,证明:经核查,邵某、吴某、倪某无涉黑涉恶违法犯罪嫌疑;邵某在办理石某香等人挪用资金案中无违法犯罪嫌疑。

9、江西省景德镇市珠山区人民法院(2019)赣0203刑初295号刑事判决书,证明:石某香等四被告人自愿认罪、悔罪,石某香等四被告人于2020年1月19日被认定犯挪用资金罪,均被判刑,且被责令退赔被害单位损失。四被告人未上诉,上述判决已发生法律效力。

10、户籍信息,证明:被告人陈光平出生于1956年10月3日,具有完全刑事责任能力。
原审判决针对被告人陈光平及其辩护人的辩解和辩护意见,综合评判如下:

一、关于被告人陈光平及其辩护人提出,自诉人邵某、吴某在办理石某香等人挪用资金案过程中确存在违法违规,陈光平据此认为三自诉人勾结炮制刑事假案,构陷无辜,并非凭空捏造,系基于一定事实基础作出的判断,陈光平的行为不属于捏造事实诽谤他人。

原审法院经查,自诉人吴某并未参与石某香等人挪用资金案审核,石某香等人挪用资金案生效刑事判决书确认此案的受案、立案审查、立案侦查、司法鉴定意见、拘留、逮捕等符合法律规定,上级公安机关经核查亦证明自诉人邵某在办案过程中无违法犯罪嫌疑,石某香等四被告人自愿认罪、悔罪,石某香等四被告人被景德镇市珠山区人民法院(2019)赣0203刑初295号生效刑事判决确定有罪。因此,被告人陈光平在无任何证据和合法理由的情况下,擅自通过自媒体发布自诉人吴某、邵某、倪某“警黑勾结、违法违规炮制刑事假案、构陷无辜,致石某香等人陷于牢狱之灾”的帖文,系被告人陈光平主观上的妄加揣测,属于捏造事实损害他人名誉的行为。对被告人陈光平及其辩护人的意见不予支持。

二、关于被告人陈光平及其辩护人提出,陈光平依法对自诉人邵某、吴某履职行为进行舆论监督并通过网络表达意见,目的和手段正当,无损害自诉人名誉的主观故意,因此,陈光平的行为不构成诽谤罪。

原审法院经查,被告人陈光平在微博、微信、Zine自媒体上持续三个多月发布三十篇帖文,多次使用自诉人为“黑警”“抢劫犯”“浮在水面上的罪犯”“涉黑涉恶犯罪团伙”“贪官污吏”等描述性语言,引发网民对自诉人的负面评价。被告人陈光平在石某香等四人被生效刑事判决确定有罪,以及上级公安机关经核查证明自诉人邵某、吴某、倪某无涉黑涉恶违法犯罪嫌疑后,仍拒不删除相关帖文。被告人陈光平自2019年9月至12月持续三个多月,发布三十篇帖文诽谤自诉人,且被告人陈光平至判决宣告前仍未删除相关帖文消除影响,上述帖文对三自诉人的名誉损害仍在持续当中,上述事实足以证明被告人陈光平主观上具有损害自诉人名誉的故意,客观上造成自诉人名誉的严重损害。被告人陈光平发文的目的和手段均不正当,其行为已超越舆论监督的范围,触及了法律底线,严重侵犯了他人合法权益。公民依法在信息网络上发表言论,受法律保护。但信息网络上的“言论自由”并非没有边界,网民在行使监督权和表达权的同时,不能触及法律底线。法律不允许有诽谤他人的所谓“言论自由”。对被告人陈光平及其辩护人的意见不予支持。

三、关于被告人陈光平的辩护人提出,陈光平对自诉人邵某、吴某、倪某所发表的批评意见为价值判断,并未捏造事实,陈光平的行为不构成诽谤罪。

原审法院认为,第一,《中华人民共和国刑法》第二百四十六条第一款将诽谤罪的构成要件行为表述为“捏造事实诽谤他人”。被告人陈光平发帖文称自诉人邵某、吴某与倪某“警黑勾结,罗织罪名、构陷无辜,炮制刑事假案,使石某香等人陷于牢狱之灾”,这显然是事实陈述,且相关证据已证明属于损害他人名誉的虚假事实。被告人陈光平正是以此虚假事实为根据,污蔑自诉人邵某、吴某为“黑警”以及三自诉人为“罪犯”“涉黑涉恶犯罪团伙”,上述观点显然是建立在其捏造的虚假事实基础之上作出的,二者密不可分,应从整体上进行认定。被告人陈光平在帖文中所发表的意见本质上并非单纯的价值判断,是以捏造的事实为基础。第二,根据《中华人民共和国刑事诉讼法》第十二条的规定,未经人民法院依法判决,对任何人都不得确定有罪。在自诉人邵某、吴某、倪某未被司法机关确定有罪的情况下,被告人陈光平妄自断言自诉人为“黑警”“罪犯”“抢劫犯”“涉黑涉恶犯罪团伙”等,将自诉人置于被仇恨、被羞辱或者被嘲讽的境况之下,从而对自诉人名誉造成损害。因此,被告人陈光平恶意捏造损害他人名誉的虚假事实,属于诽谤罪的构成要件行为。对被告人陈光平的辩护人的意见不予支持。

四、关于被告人陈光平的辩护人提出,陈光平在自媒体上发布的帖文没有给自诉人邵某、吴某、倪某造成严重后果,自诉人可以通过民事法律保护名誉权,尚未达到“情节严重”的程度,不构成诽谤罪。

原审法院认为,根据《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》第二条的规定,利用信息网络诽谤他人,同一诽谤信息实际被点击、浏览次数达到五千次以上,应当认定为刑法第二百四十六条第一款规定的“情节严重”。被告人陈光平在网络上散布的诽谤信息累计被点击、浏览次数达到67万余次,应当认定为“情节严重”。被告人陈光平在微博、微信公众号、Zine自媒体平台上在长达三个多月时间内,持续公开发文三十篇,公然散布捏造损害自诉人邵某、吴某、倪某人格和名誉的事实,造成自诉人邵某、吴某、倪某人格和名誉严重损害,且被告人陈光平拒不删除相关帖文消除影响和赔礼道歉,其诽谤行为手段恶劣,主观恶性较大,具有现实的社会危害性,应当以诽谤罪定罪处罚。对被告人陈光平的辩护人的意见不予支持。

综上,原审法院认为,被告人陈光平无视法律规定,在信息网络上捏造事实诽谤他人,情节严重,且系诽谤多人,造成恶劣社会影响,其行为构成诽谤罪。自诉人邵某、吴某、倪某控诉被告人陈光平犯诽谤罪的事实清楚,证据确实、充分,控诉的罪名成立。鉴于被告人陈光平拒不认罪,毫无悔改之意。根据其犯罪的事实、性质、情节和社会危害程度,依照《中华人民共和国刑法》第二百四十六条、第六十一条,《最高人民法院、最高人民检察院关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释》第一条第一款第(一)项、第二条第(一)项、第四条,《中华人民共和国刑事诉讼法》第二百条第(一)项,《最高人民法院关于适用〈中华人民共和国刑事诉讼法〉的解释》第二百四十一条第一款第(一)项、第二百七十六条的规定,以诽谤罪判处被告人陈光平有期徒刑二年六个月。

上诉人陈光平提出:1、石某香等人挪用资金案是一起典型的刑事假案,该案判决不能作为认定其构成诽谤罪的依据。2、其发文称原审三自诉人勾结合谋制造刑事假案,系建立在一定证据和事实的基础上,并未捏造事实,其行为不构成诽谤。3、其对原审三自诉人的批评意见为价值判断,并非捏造事实。4、其对原审自诉人邵某、吴某的履职行为进行批评、网络监督,系合法行为,不构成诽谤罪。综上,一审判处其构成诽谤罪事实不清,证据不足,应宣告其无罪。

原审自诉人邵某、吴某、倪某及其委托诉讼代理人提出,原审判决认定陈光平犯诽谤罪,事实清楚,证据确实、充分,请求二审法院驳回上诉,维持原判。

经二审审理查明的事实和证据与一审相同,证明本案犯罪事实的证据经一、二审当庭举证、质证,合法有效,本院予以确认。

上诉人所提其发文称原审三自诉人勾结合谋制造刑事假案,系建立在一定证据和事实的基础上,并未捏造事实,其行为不构成诽谤,以及对原审三自诉人的批评意见为价值判断,并非捏造事实等意见,一审时上诉人已提出,且原判已经进行充分说理,本院予以认可。针对上诉人的其他上诉理由,根据审理查明的事实和证据,本院综合评判如下:

一、关于上诉人陈光平提出,石某香等人挪用资金案是一起典型的刑事假案,该案判决不能作为认定其构成诽谤罪的依据。

经查,石某香等四被告人挪用资金案已经景德镇市珠山区人民法院依法审理,石某香等四被告人自愿认罪、悔罪,被景德镇市珠山区人民法院(2019)赣0203刑初295号生效刑事判决确定有罪,并非刑事假案。该生效判决书来源合法,内容客观,与本案具有关联性,且与在案其他证据相互印证,可作为定案证据使用。对上诉人陈光平的上诉理由不予支持。

二、关于上诉人陈光平提出,其对原审自诉人邵某、吴某的履职行为进行批评、网络监督,系合法行为,不构成诽谤罪。

本院认为,公民依法享有批评、监督的权利,但应依法、正当行使,绝不享有“捏造事实诽谤他人”的权利。根据本院查明的事实,陈光平利用多个自媒体持续三个多月发布三十篇帖文,在信息网络上散布其捏造的原审自诉人邵某、吴某、倪某“警黑勾结,罗织罪名构陷无辜,炮制一起典型刑事假案,使石某香等人陷于牢狱之灾”事实,对原审自诉人邵某、吴某、倪某进行人身攻击和人格贬损,多次污蔑三人系“罪犯”“抢劫犯”“涉黑涉恶犯罪团伙”等,对三自诉人名誉造成严重损害,至本院作出裁判前仍然未删除相关帖文,对三自诉人的名誉损害仍在持续当中。原审自诉人邵某、吴某依法履职行为应受法律保护,陈光平的行为已超出了批评与监督的合法范畴,属于捏造事实诽谤他人的行为,且诽谤信息被点击、浏览累计为67万余次,情节严重,应当依法追究其刑事责任。对上诉人陈光平的上诉理由不予支持。

本院认为,上诉人陈光平捏造事实诽谤他人,情节严重,其行为已构成诽谤罪,依法应予处罚。陈光平诽谤多人,无认罪、悔罪之意,且当庭再次贬损三自诉人,无视法律尊严。上诉人陈光平的上诉理由不能成立。原审自诉人邵某、吴某、倪某及其委托诉讼代理人请求驳回上诉,维持原判的意见,应予支持。原判认定事实清楚,证据确实、充分,定罪准确,量刑适当。审判程序合法。依照《中华人民共和国刑事诉讼法》第二百三十六条第一款第(一)项的规定,经本院审判委员会讨论,裁定如下:

驳回上诉,维持原判。

本裁定为终审裁定。

审判长  罗明华
审判员  周宗祥
审判员  曾凡斌

二〇二〇年九月十四日

法官助理唐东勇

书记员李洁

Translation: Huang Xuqin and Wang Jianbing Inciting Subversion Indictment

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