Translator's Notes:
- Based on public reports, Ruan Xiaohuan was the writer behind the "Program-Think" blog (编程随想的博客 https://program-think.blogspot.com/). Presumably all references in the court judgment "blogs" are to that blog.
- The Chinese version was created by running images of the court judgment through OCR software. I have tried to proof the OCR version, but some errors in transcription may remain.
Second Intermediate People's Court of Shanghai
Criminal Judgment
(2021) Hu 2nd Criminal First Instance No. 67
The public prosecution agency was the People's Procuratorate of Shanghai Branch No. 2.
Defendant Ruan Xiaohuan, male, born June 10, 1977 in Quanzhou, Fujian, Han ethnicity, matriculated university but did not obtain a degree, unemployed, residing in this city at No. 558, Minjing Road, Yangpu District. On May 11, 2021 he was taken into criminal detention in connection with this case, and he was arrested on June 17 of the same year. He is currently being held in detention at the Shanghai Yangpu District detention center.
Defense counsel Lu Peiyu is a lawyer at the Shanghai Ruifa Law Firm.
In the Hu Procuratorate 2nd Criminal Indictment 2 (2021) No. Z18 indictment the People's Procuratorate of Shanghai Branch No. 2 charged defendant Ruan Xiaohuan committed the crime of inciting subversion of state power, and filed a public prosecution with this Court. This Court formed a collegial panel in accordance with the law, and because state secrets were implicated, tried this case with hearings in closed court. The People's Procuratorate of Shanghai Branch No. 2 assigned Procurator Xu Jing to appear in court in support of the public prosecution. Defendant Ruan Xiaohuan and his defense counsel appeared in court to participate in the proceedings. The trial has now concluded. The People's Procuratorate of Shanghai Branch No. 2 charged:
From June 2009 to May 2021, defendant Ruan Xiaohuan, owing to his long-term dissatisfaction with China's political system and social governance model, used his own computer in his residence to write more than a hundred inciting articles that manufactured rumors and defamed with contents that involved attacking and smearing China's current political system, inciting subversion of state power, and intending to overthrow the socialist system. He posted them through foreign Internet platforms, causing offensive outcomes such as a large number of Internet users to browse, comment, repost, and imitate them.
On May 10, 2021, defendant Ruan Xiaohuan was apprehended by public security agents at his residence, and the computer he was logged-into and using was taken into custody at the scene. After being taken into police custody, Ruan Xiaohuan fully confessed to the aforementioned criminal facts.
In order to substantiate the aforementioned charged facts, the public prosecutor read and produced in court relevant evidence, including defendant Ruan Xiaohuan's statement. It believed defendant Ruan Xiaohuan incited subversion of state power and the overthrow of the socialist order through manufacturing rumors, defamation, smearing, and other means, that he was a major offender, that his actions were the commission of an offense under the provisions of Article 105(2) of the "Criminal Law of the People's Republic of China," and that he should bear criminal liability for committing the crime of inciting subversion of state power. After being taken into police custody, Ruan Xiaohuan made truthful statements regarding his criminal conduct, and can be given a lighter punishment. It requests an adjudication in accordance with the law.
Defendant Ruan Xiaohuan did not maintain any objections to the basic facts and the offense charged in the indictment, but he argued that his goal in writing articles implicating politics was a desire to let the country change for the better, and that the number of articles he distributed that incited subversion did not number in the hundreds.
Defense counsel did not maintain any objections to the basic facts and the offense charged in the indictment. At the same time, they proffered that prior to the development of this case defendant Ruan Xiaohuan's ideological understanding had undergone a transformation, and he is not as radical as before, and the number of articles implicating inciting subversion required further verification. After being taken into police custody Ruan Xiaohuan made truthful statements regarding the criminal facts,pleaded guilty and repented in court, and requested Ruan Xiaohuan be given a lighter punishment.
It was ascertained at trial that beginning in June 2009, defendant Ruan Xiaohuan, owing to his dissatisfaction with China's political system and social governance model, used a computer to write more than 100 inciting articles that manufactured rumors and defamed attacking and smearing China's current political system, inciting subversion of state power, and intending to overthrow the socialist system, and he posted them through foreign Internet platforms, causing offensive outcomes such as a large number of Internet users to browse, comment, repost, and imitate them .
On May 10, 2021, public security agents apprehended defendant Ruan Xiaohuan at his residence, and the computer he was logged-into and using was taken into custody at the scene. After being taken into police custody, Ruan Xiaohuan made truthful statements regarding the aforementioned primary criminal facts.
The evidence proving the aforementioned facts is:
1.The "Decision to Open a Case," "Case Acceptance Form, "Apprehension Process," and "Arrest Process" issued by the public security agency confirmed the case resolution and the process of how the defendant Ruan Xiaohuan came into police custody in this case.
2. The "search warrant," "search record," "list of seized items," "seizure record," "crime scene investigation record," and relevant photographs, and "electronic data on the scene collection record" produced by the public security agency confirmed that, public security agents conducted a crime scene investigation and search of defendant Ruan Xiaohuan's residence in accordance with the law, and there was an Acer laptop computer on the desk in the second bedroom at the scene. The computer was connected to a monitor and a keyboard, and having ascertained by the power light of the computer that it was on, the screen was woken up by shaking the mouse, and a collection of the electronic data in the computer was conducted. Because the relative long period of time the collection took, the machine was transferred to the public security agency without turning off the power to continue to complete the collection work. At the same time, the public security agency also took into custody and seized an Apple mobile phone, a Xiaomi mobile phone, a Huawei laptop, a Toshiba mobile hard drive, USB sticks, keyboards, and other items.
3. The "remote crime scene investigation record" produced by the public security agency confirmed public security agency undertook a network remote crime scene investigation to collect several hundred articles from defendant Ruan Xiaohuan's blog. Included among these were over 100 articles implicating politics.
4. The "forensic report" issued by the public security agency confirmed that, based on forensics, it could not be ruled out that the biological substances in the cotton swabs of the Acer laptop keyboards and external keyboards were left by defendant Ruan Xiaohuan.
5. The "Judicial Forensic Opinion Report" issued by the Shanghai Hong Electronic Data Judicial Forensic Institute and copies of the articles implicating politics confirmed that, based on forensics, more than a dozen virtual machines, hundreds of blog posts, etc. were detected on Ruan Xiaohuan's Acer laptop. ".XML" format files were discovered on the computer.
6."Electronic Data Investigation Experiment Record" and optical discs produced by the public security agency confirmed that, after logging in to the blog as a blogger, you can download and generate a blog post template file in ".XML" format through the "Backup" function of the blog, which stores all the blog post content published by the blog and the configuration information of the blog. Ordinary Internet users browsing the blogs as visitors would not be able to download and generate the aforementioned template files.
7. The testimony of witness [REDACTED IN ORIGINAL] Bei confirmed that the north room in the common residence Bei shares with her husband Ruan Xiaohuan is Ruan's study, and the study and the items in the room are used by him.
8. After being taken into police custody, defendant Ruan Xiaohuan fully confessed to the fact that he used his personal blog over a long period of time to distribute a large volume of articles implicating politics, and inciting subversion of state power and the overthrow the socialist order. Ruan Xiaohuan also undertook to read and sign the over 100 blog posts implicating politics that had been taken into custody, affirming that they were written by him.
All of the foregoing evidence was produced and examined in court, and is confirmed by this Court.
This Court finds defendant Ruan Xiaohuan incited subversion of state power and the overthrow of the socialist system through manufacturing rumors, defamation, and other means, and his actions constitute the commission of the crime of inciting subversion of state power. Ruan Xiaohuan committed crimes over a long period of time, the number of articles he posted was large, their influence was offensive, and constituted a major offense. The offense charged by the public prosecution agency is established. Given that defendant Ruan Xiaohuan made truthful statements regarding the criminal facts after being taken into police custody, in accordance with the law he can be given a lighter punishment. Defense counsel's opinion requesting a lighter punishment be given can be adopted. In accordance with the provisions of Articles 105(2), 113(2), 67(3), 56(1), 55(1), and 64 of the "Criminal Law of the People's Republic of China," the judgment is as follows:
1. Defendant Ruan Xiaohuan committed the crime of inciting subversion of state power, and is sentenced to a fixed term imprisonment of seven years and two years deprivation of political rights, and confiscation of property valued at 20,000 renminbi.
(The prison term is to be calculated starting on the day the judgment is executed, and each day in custody prior to the execution of the judgment shall count as one day of the prison term, that is from May 10, 2021 to May 9, 2028.)
2. Tools used in the commission of the crime, including computers and other materials taken into custody, shall be confiscated.
If any party does not accept this judgment, they may within 10 days after the second day after receiving this written judgment bring an appeal through this Court or directly to the High People's Court of Shanghai. A written appeal should be submitted with one original and one copy of the appeal brief.
Chief Adjudicator Wei Dong
Adjudicator Sun Ye
Adjudicator Zheng Wang
February 10, 2023
Clerk Xia Jing
上海市第二中级人民法院
刑事判决书
(2021)沪02刑初67号
公诉机关上海市人民检察院第二分院。
被告人阮晓寰,男,1977年6月10日出生于福建省泉州市,汉族,大学肄业,无业,住本市杨浦区民京路558号。因本案于2021年5月11日被刑事拘留,同年6月17日被逮捕。现羁押于上海市杨浦区看守所。
辩护人陆培煜,上海睿法律师事务所律师。
上海市人民检察院第二分院以沪检二分二部刑诉[2021]Z18号起诉书指控被告人阮晓寰犯煽动颠覆国家政权罪,向本院提起公诉。本院依法组成合议庭,因涉及国家秘密,不公开开庭审理了本案。上海市人民检察院第二分院指派检察员许靖出庭支持公诉。被告人阮晓寰及其辩护人到庭参加诉讼。现已审理终结。上海市人民检察院第二分院指控:
2009年6月至2021年5月期间,被告人阮晓寰因长期对我国政治体制、社会治理模式存在不满情绪,在其居住地内多次使用自用电脑编写百余篇造谣、诽谤的煽动性文章,内容涉及攻击抹黑我国现行政治体制、煽动颠覆国家政权、意图推翻社会主义制度,并通过境外网络平台予以发布,造成大量网民浏览、评论、转发、效仿等恶劣后果。
2021年5月10日,被告人阮晓寰在其居住地被公安人员抓获,并当场查获其正在登陆使用的电脑。阮晓寰到案后,对上述犯罪事实供认不讳。
为证实上述指控事实,公诉人当庭宣读并出示了包括被告人阮晓寰供述在内的相关证据,认为被告人阮晓寰以造谣、诽谤、抹黑等方式煽动颠覆国家政权,推翻社会主义制度,罪行重大,其行为已触犯《中华人民共和国刑法》第一百零五条第二款的规定,应当以煽动颠覆国家政权罪追究刑事责任,阮晓寰到案后如实供述自己罪行,可以从轻处罚,提请依法审判。
被告人阮晓寰对于起诉指控的基本事实及罪名不持异议,但辩称其写涉政类文章的目的是想让国家变得更好,所发表的具有煽动颠覆性质的文章并没有百余篇。
辩护人对于起诉指控的事实及罪名不持异议,同时提出案发前被告人阮晓寰的思想认识已有所转变,没有最初那样激进,所涉煽动颠覆性质的文章数量有待进一步查实,阮晓寰到案后如实供述犯罪事实,认罪悔罪,请求对阮晓寰从轻处罚。
经审理查明,被告人阮晓寰因对我国政治体制、社会治理模式等存在不满情绪,自2009年6月起,使用电脑编写百余篇造谣、诽谤的煽动性文章,攻击抹黑我国现行政治体制,煽动颠覆国家政权,意图推翻社会主义制度,通过境外网络平台予以发布,造成大量网民浏览、评论、转发等恶劣后果。
2021年5月10日,公安人员在阮晓寰的居住地将抓获,并当场查获阮正在登陆使用的电脑。阮晓寰到案后如实供述了上述主要犯罪事实。
证明上述事实的证据有:
1.公安机关出具的《立案决定书》《受案登记表》《抓获经过》《抓捕经过》证实了本案的侦破以及被告人阮晓寰的到案经过。
2.公安机关制作的《搜查证》《搜查笔录》《扣押清单》《扣押笔录》《现场勘验笔录》及相关照片、《电子数据现场提取笔录》证实,公安人员依法对被告人阮晓寰的居住地进行勘验及搜查,在现场次卧室的书桌上有一台宏基牌笔记本电脑,该电脑连有显示器及键盘,通过该电脑电源灯判断处于开启状态,通过摇动鼠标唤醒屏幕,对电脑内的电子数据进行提取,由于提取时间较长,故采用不关闭电源的方式,移机至公安机关继续完成提取工作。同时,公安机关还查获并扣押苹果手机、小米手机、华为笔记本电脑、东芝移动硬盘、U盘、键盘等物品。
3.公安机关制作的《远程勘验笔录》证实,公安人员通过网络远程勘验,从被告人阮晓寰的博客提取博文数百篇,其中包含百余篇涉政文章。
4.公安机关出具的《鉴定书》证实,经鉴定,不能排除宏基笔记本电脑键盘、外接键盘的棉签涂取物中的生物性物质为被告人阮晓寰所留。
5.上海弘电子数据司法鉴定所出具的《司法鉴定意见书》及涉政文章复印件证实,经鉴定,从被告人阮晓寰的宏基笔记本电脑中检出十余个虚拟机,数百篇博文等;在电脑内发现“.XML”格式文件。
6.公安机关制作的《电子数据侦查实验笔录》及光盘证实,以博主身份登录博客后,能够通过博客自带的“备份”功能下载生成“.XML”格式的博文模板文件,该文件内保存有博客所发布的全部博文内容以及博客的配置信息,普通网民以游客身份浏览博客无法下载生成上述模板文件。
7.证人贝的证言证实,贝和丈夫阮晓寰共同居住地內的北房间系阮的书房,该书房及房内物品均由本人使用。
8.被告人阮晓寰到案后对于其利用个人博客,长期发表大量涉政文章,煽动颠覆国家政权,推翻社会主义制度的事实供认不讳。阮晓寰还对查获的百余篇涉政博文进行了阅看,并签字确认系其本人所写。
以上证据均经庭审质证,本院予以确认。
本院认为,被告人阮晓寰以造谣、诽谤等方法煽动颠覆国家政权,推翻社会主义制度,其行为已构成煽动颠覆国家政权罪,且阮晓寰犯罪时间长,发布文章数量多,影响恶劣,属罪行重大。公诉机关指控罪名成立。鉴于被告人阮晓寰到案后如实供述犯罪事实,依法可以从轻处罚。辩护人请求从轻处罚的意见,可予采纳。依照《中华人民共和国刑法》第一百零五条第二款、第一百一十三条第二款、第六十七条第三款、第五十六条第一款、第五十五条第一款、第六十四条的规定,判决如下:
一、被告人阮晓寰犯煽动颠覆国家政权罪,判处有期徒刑七年,剥夺政治权利二年,没收财产人民币二万元。
(刑期从判决执行之日起计算。判决执行以前先行羁押的,羁押一日折抵刑期一日,即自二○二一年五月十日起至二○二八年五月九日止。)
二、查获的作案工具电脑等物品予以没收。
如不服本判决,可在接到判决书的第二日起十日内,通过本院或者直接向上海市高级人民法院提出上诉。书面上诉的,应当提交上诉状正本一份,副本一份。
审判长 董玮
审判员 孙晔
审判员 王峥
二0二三年二月十日
书记员 夏菁