Sunday, March 6, 2022

PRC Lawyer Proposes Abolishing "Disturbing the Peace" Offense

On March 1, 2022 an article titled "National Committee of the Chinese People's Political Consultative Conference Member Zhu Zhengfu: A Proposal to Abolish the Crime of Disturbing the Peace in Due Course" was published on page 12 of the "People's Political Consultative Daily" (人民政协报). The full article was published by Baidu (https://baijiahao.baidu.com/s?id=1726079190961095864), and a shorter version was published on the website of the People's Political Consultative Conference (http://www.rmzxb.com.cn/c/2022-03-04/3064649.shtml). A full translation of the Baidu version is included below.

Translator's Notes: This is not the first time someone has noted problems with the crime of Disturbing the Peace (寻衅滋事, also commonly literally translated as "picking quarrels and provoking troubles" for more on why I have chosen to translate this as "disturbing the peace," see "State Prosecutions of Speech in the People's Republic of China: Cases Illustrating the Application of National Security and Public Order Laws to Political and Religious Expression, pp. 21-22, https://www.feichangdao.com/publications/state-prosecutions-vol-1). For example, Liu Zhiqiang (刘志强) and Song Haichao (宋海超),  two academics at the Guangzhou University Institute for Human Rights, noted:

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 the flaws associated with determining what constitutes the crime of disturbing the peace, including determining the standard for the offense, the difficulty of judicial application, and generally focusing on opposing the existence of the crime of disturbing the peace and restricting the scope of application of the crime. (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.)

"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), Academics (学术界), Issue No. 5, May, 2020. See http://blog.feichangdao.com/2020/09/prc-scholars-judicial-interpretation-on.html.

While not mentioned in the reporting about Zhu's proposal, the crime of disturbing the peace is often used to prosecute political speech, both online and in physical venues. The following examples are all from 2019:

  • A court found Dong Zehua & Yuan Shuai guilty of disturbing the peace on the grounds that Dong "wore a T-shirt with sensitive markings on it and took photos in Tiananmen Square and posted the photos online" and Dong and Yuan "interviewed foreigners in Tiananmen Square and made inquiries into sensitive topics." See "State Prosecutions," pp. 513-515).
  • A court found Jie Ruixue guilty on the grounds that she "stood in an area crowded with tourists in the vicinity of the national flag pole in Tiananmen Square wearing a white t-shirt upon which was written 'Freedom of Speech, Vindicate June Fourth, Oppose Repeating the Tragedy.'" See "State Prosecutions," pp. 516-18).
  • A court found an individual surnamed Wang guilty of disturbing the peace on the grounds that he used Twitter to repost, like, and comment on a large number of posts relating to major domestic incidents, including: 
    • Hu Wei proves the authenticity of Guo Wengui's revelations;
    • The Communist Party of China controls all the resources . . . the working people can only get a piece of the pie;
    • If China has the best socialist system in the world, why is the quality of each generation lower than the last?;
    • The Communist Party seizes power in order to kill people;
    • The Communist Party of China will never open the Internet . . . their end is at hand;
    • The Communist Party of China has become an interest group and will devour the private sector;
as well as content about 'June Fourth,' 'Tibet,' and 'The Mirror Group.' See "State Prosecutions," p. 715.
  • A court found an individual surnamed Cheng guilty of disturbing the peace on the grounds that he used Twitter to post and repost 471 tweets on the Internet that denigrated and berated others, and denigrated the image of the Party and the government. See "State Prosecutions," p. 717.
  • A court found an individual surnamed Xu guilty of disturbing the peace on the grounds that he used Twitter to post and repost content that "berated Party and State leaders, and assailed the socialist system, soldiers, and police groups." See "State Prosecutions," pp. 717-718.

National Committee of the Chinese People's Political Consultative Conference Member Zhu Zhengfu: A Proposal to Abolish the Crime of Disturbing the Peace in Due Course

The crime of disturbing the peace is a crime derived from the crime of hooliganism in the 1979 Criminal Law. Article 293 of our country's Criminal Law:

Where one of the following acts of disturbing the peace has been committed that undermines social order, it shall be punished with a fixed term imprisonment, penal detention, or surveillance of no more than five years:

    1. Assaulting another party without cause under offensive circumstances;
    2. Pursuing, obstructing, berating, or intimidating another party under offensive circumstances;
    3. Extorting or willfully damaging or appropriating public or private property where the circumstances are severe; or
    4. Creating a disturbance in a public venue, causing severe chaos in public venue order.

Bringing together other parties on several occasions to engage in the aforementioned acts shall, where there is a severe undermining of social order, be punished with a fixed term imprisonment of not more than five years, and may be further punished with a fine.

Lawyer Zhu Zhengfu, a member of the National Committee of the Chinese People's Political Consultative Conference, said that in practice, the crime has gradually become a new "pocket crime" similar to the crime of hooliganism. The reason is that there are obvious defects in this crime, and many concepts related to this crime are too vague, which not only creates confusion in judicial practice, but also is easily abused, resulting in excessive criminalization in society. To this end, Zhu Zhengfu will submit a proposal for the "Timely Repeal of the Crime of Disturbing the Peace" at the Two Sessions this year.

Zhu Zhengfu believes that the constitutive elements of the crime of disturbing the peace lack of clarity. Clarity is the basic requirement of a legally prescribed punishment. However, it is difficult to accurately define the expression of specific criminal conduct constituting the crime of disturbing the peace. For example, what kind of "pursuing, obstructing" conduct in public venues has the characteristics of undermining social order?  In addition, he believes that the expressions "without cause," "willfully," "severe circumstances" and "causing severe chaos in public venue order" in the crime of disturbing the peace are too vague, and these are the key elements of the crime.

Although the Supreme People's Court and Supreme People's Procuratorate have issued a relevant judicial interpretation (N.B. This is a reference to the Interpretation of the Supreme People's Court and Supreme People's Procuratorate Regarding Certain Issues on the Handling of Cases Applying the Crime of Disturbing the Peace, 最高法、最高检关于办理寻衅滋事刑事案件适用若干问题的解释, which became effective on July 22, 2013) clarifying, for example, that a perpetrator shall have subjective motives such as "seeking excitement, venting emotions, behaving in an arrogant and overbearing manner, or being deliberately provocative," nevertheless in specific cases differing opinions may exist when it comes to subjective judgments about a perpetrator. In practice, some people have been convicted of the crime of "disturbing the peace" because of excessive debt recovery methods. How does one judge subjectively whether a reaction to the recovery of legal debts is being deliberately provocative or done with just cause? The judicial interpretation is still unable to eliminate the ambiguity of the line that demarcates this crime.

In addition, the crime of disturbing the peace overlaps with various other provisions of the criminal law. The behavioral characteristics of this crime stipulated in Article 2 of the Two Supremes' 2013 Judicial Interpretation (N.B. see text of that article included below) overlaps with the crime of intentional injury (If the crime of intentional injury is constituted, the starting point of sentencing can be determined within the corresponding range according to the following different situations: if intentional injury causes one person to be slightly injured, the starting point of sentencing can be determined within the range of fixed term imprisonment of not more than two years and penal detention . . .), Article 3 with the crime of berating, Article 4 with crimes of robbery and intentional destruction of property, and Article 5 with crime of gathering crowds to disrupt public venue order.

Furthermore, there are logical defects in the nature of the crime of disturbing the peace. On the one hand, some of the same acts would not meet the standards for establishing a case under the laws that directly punish those acts, but they can constitute the crime of disturbing the peace. For example:

  • Intentional injury causing minor injury does not constitute the crime of intentional injury, but it may constitute the crime of disturbing the peace;
  • Causing property loss of 2,000 yuan does not meet the standard to establish a case for the crime of intentional destruction of property (the standard is 5,000 yuan), but it can constitute the crime of disturbing the peace (the standard for filing a case is 2,000 yuan).

On the other hand, the starting point for sentencing the crime of disturbing the peace is five years or less, which results in acts that do not constitute an offense with a lighter punishment, but that may constitute the crime of disturbing the peace with a heavier punishment. Zhu Zhengfu said that in this example, something may not constitute the crime of intentional injury or the crime of intentional destruction of property, both of which are punished with sentences of less than three years, but may constitute the crime of disturbing the peace with heavier penalties. This is not only a paradox in the legislative system, it also does not conform to the principle of the degree of punishment being proportional to the degree of culpability.

The most important thing is that the harmful behaviors targeted by the crime of disturbing the peace have been dealt with by corresponding laws, and the abolition of this crime there will not result in any legal gaps. Much of the conduct covered by this crime is covered in the Public Security Administration Punishments Law. For example, Articles 42, 43, and 49 of that law stipulate the punishment standards for insulting, threatening others, intentionally injuring others, and intentionally destroying public or private property. From this it can be seen that "administrative penalties can also be imposed on conduct that does not constitute crimes and endangers the society, and the law will let them go unchecked. Criminal law is not the only means to crack down on conduct that endangers society. Therefore, rejecting the use of vague provisions to gather more conduct within the scope of the criminal law is not only required under the principle that there must be a specific crime for any legally prescribed punishment, it is also the embodiment of restraint in the application criminal law.

The existence of the crime of disturbing the peace to a certain extent is conducive to punishing conduct that endangers social order and maintaining social stability, but the various drawbacks of this crime are also obvious. The selective enforcement of the law by the government agencies ultimately damages the legitimate interests of the people and detracts from the people's respect for, and faith in, the law. Therefore, Zhu Zhengfu proposes that the crime of disturbing the peace should be abolished in due course.

Interpretation of the Supreme People's Court and Supreme People's Procuratorate Regarding Certain Issues on the Handling of Cases Applying the Crime of Disturbing the Peace, Article 2:

Assaulting another party and undermining social order shall, where one of the following situations exists, be deemed to "offensive circumstances" as provided by Article 293(1)(i) of the Criminal Law:

(1) causing minor injuries to more than one person or minor injuries to two or more people;
(2) causing serious consequences such as mental disorder or suicide;
(3) assaulting another party without cause multiple times;
(4) assaulting another party without cause with a lethal weapon;
(5) assaulting without cause the mentally ill, the disabled, vagrants and beggars, the elderly, pregnant women and minors, causing an offensive social influence;
(6) assaulting another party without cause in a public venue, causing severe chaos in public venue order;
(7) other situations with offensive circumstances.

全国政协委员朱征夫:建议适时取消寻衅滋事罪

人民政协网
发布时间: 2022-03-01 14:49人民政协网
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全国政协委员朱征夫:建议适时取消寻衅滋事罪

寻衅滋事罪是从1979年刑法流氓罪中分解出的罪名。我国刑法第293条:有下列寻衅滋事行为之一,破坏社会秩序的,处五年以下有期徒刑、拘役或者管制:(一)随意殴打他人,情节恶劣的;(二)追逐、拦截、辱骂、恐吓他人,情节恶劣的;(三)强拿硬要或者任意损毁、占用公私财物,情节严重的;(四)在公共场所起哄闹事,造成公共场所秩序严重混乱的。纠集他人多次实施前款行为,严重破坏社会秩序的,处五年以上十年以下有期徒刑,可以并处罚金。

全国政协委员朱征夫律师表示,在实践中,该罪名逐渐沦为类似于流氓罪的新的“口袋罪”。原因在于该罪名存在明显缺陷,许多与该罪名有关的概念过于模糊,不仅对司法实践构成困扰,也极易被滥用,造成社会过度刑法化。为此,朱征夫将于今年两会提交《适时取消寻衅滋事罪》的提案。

朱征夫认为,寻衅滋事罪的构成要件缺乏明确性。明确性是罪刑法定原则的基本要求,然而,寻衅滋事罪中对于具体犯罪行为的表述难以准确界定。例如,在公共场所怎样的“追逐、拦截”行为才具有破坏社会秩序的特征?另外,他认为,寻衅滋事罪中“随意”“任意”“情节严重”“造成公共场所秩序严重混乱”等表述过于模糊,而这些又是该罪关键的构成要件。虽然两高出台了相关的司法解释,如明确行为人要有“寻求刺激、发泄情绪、逞强耍横等,无事生非”等主观动机,但具体案件中对行为人主观上的判断又可能存在不同意见。实践中就有人因追讨债务方式过激被判寻衅滋事罪,追讨合法债务是无事生非还是事出有因,主观怎么判断?司法解释仍无法消除该罪在犯罪界限上的模糊性。

此外,寻衅滋事罪与多个刑法法条存在竞合。按2013年两高的司法解释规定的该罪的行为特征,第二条(随意殴打他人,破坏社会秩序,具有下列情形之一的,应当认定为刑法第293条第一款第一项规定的“情节恶劣”:①致一人以上轻伤或者二人以上轻微伤的;②引起他人精神失常、自杀等严重后果的;③多次随意殴打他人的;④持凶器随意殴打他人的;⑤随意殴打精神病人、残疾人、流浪乞讨人员、老年人、孕妇、未成年人,造成恶劣社会影响的;⑥在公共场所随意殴打他人,造成公共场所秩序严重混乱的)与故意伤害罪(构成故意伤害罪的,可以根据下列不同情形在相应的幅度内确定量刑起点:故意伤害致一人轻伤的,可以在二年以下有期徒刑、拘役幅度内确定量刑起点……)、第三条与侮辱罪、第四条与抢劫罪、故意毁坏财物罪,第五条与聚众扰乱公共场所秩序罪等均存在竞合。“一个法条惩治的行为与多个法条存在重叠,有重复立法之嫌。”朱征夫说。

再者,寻衅滋事罪存在体系上的逻辑缺陷。一方面,某些同样的行为达不到直接惩治该行为的法条的立案标准,却可以构成寻衅滋事罪。例如,故意伤害致人轻微伤不构成故意伤害罪,但却有可能构成寻衅滋事罪;造成财物损失2000元达不到故意毁坏财物罪立案标准(立案标准为5000元),却可以构成寻衅滋事罪(立案标准为2000元)。另一方面,寻衅滋事罪起刑点为五年以下,这也导致了一个不构成刑罚较轻的罪名的行为,却可能构成刑罚更重的寻衅滋事罪。朱征夫说,正如前例,不构成刑罚均为三年以下的故意伤害罪和故意毁坏财物罪,却可以构成刑罚更重的寻衅滋事罪。这不仅是立法体系上的一个悖论,也不符合罪责刑相适应原则。

最为重要的是,寻衅滋事罪所打击的危害行为,已有相应法律予以处理,取消该罪不会出现法律的空白。朱征夫表示,该罪表述的多种行为,在治安管理处罚法中均有规定,例如该法第42条、第43条、第49条,规定了侮辱、威胁他人、故意伤害他人、故意毁坏公私财物行为的处罚标准,由此可见,“对于不构成犯罪的危害社会的行为,还可以施加行政处罚,法律并非听之任之。对于危害社会的行为,刑法并非唯一打击手段。因此,拒绝利用模糊的规定将更多的行为纳入刑法的考量,这既是罪刑法定原则的要求,也是刑法谦抑性的体现。”

寻衅滋事罪的存在一定程度上有利于惩治危害社会秩序的行为,维护了社会稳定,但该罪名的种种弊端也是显而易见的,其模糊性不仅影响人民群众对权利义务的合理预期,也可能使得执法机关选择性执法,最终损害人民群众的合法利益,减损人民群众对法律的尊重和信仰。因此,朱征夫建议适时取消寻衅滋事罪。

来源:《人民政协报》(2022年03月01日 第12版)

记者:徐艳红

版面编辑:王天奡

新媒体编辑:莫愁

审核:周佳佳

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