On August 6, 2023, this document was posted on Twitter.
The document was titled "Legislative Proposal on Abolishing the Crime of Disturbing the Peace," and the image of the envelope posted along with it indicated it was sent by Yu Zhaoyan of the Shandong Xiaolin Law Firm to the "Legislative Affairs Commission of the National People's Congress Standing Committee."
The NPC is the only governmental body with the power to interpret the Constitution and supervise its enforcement. PRC courts do not have the power either to apply constitutional provisions in the absence of concrete implementing legislation or to strike down laws or regulations that are inconsistent with the Constitution. Therefore, anyone who believes that courts are applying laws in a manner that violates the Constitution have no recourse other than to petition the NPC, as the Xiaolin Law Firm has done here.
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://ssrn.com/abstract=4168412) 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;
- 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.
This is not the first time someone has noted problems with the crime
of disturbing the peace.
For example:
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.)
The Shandong Xiaolin Law Firm
To: The Legislative Affairs Commission of the National People's Congress Standing Committee
Legislative Proposal on Abolishing the Crime of Disturbing the Peace
Legislative Affairs Commission of the National People's Congress Standing Committee
Director Shen Chunyao:
In the course of many years of practice we have handled several disturbing the peace cases, among which there have been at least three cases where we did not think it constituted a crime, but which were nevertheless ruled to have constituted a crime with sentences of probation imposed. In another case, after the court session, the procuratorate withdrew the prosecution and made a decision not to prosecute without prejudice.
We deeply feel that the ambiguity of the crime of disturbing the peace has seriously affected the public's reasonable expectations of rights and obligations, and has damaged the authority and credibility of the criminal law. In accordance with the "Legislation Law of the People's Republic of China" (hereinafter referred to as the "Legislation Law") and the principle of legally prescribed crimes and punishments, we proffer this legislative proposal to your committee, proposing that the crime of disturbing the peace be abolished.
1. Problems Found in Judicial Practice
The crime of disturbing the peace originated from the crime of hooliganism stipulated in Article 160 of the 1979 Criminal Law. After it was separated from the crime of hooliganism, it gradually replaced the crime of hooliganism and became a new "crime of hooliganism." In current judicial practice, the existence of the crime of disturbing the peace is one of the main reasons for the selective law enforcement by law enforcement agencies. Disturbing the peace is used as a catch-all clause to punish certain behaviors in the gray area between administrative punishment and criminal punishment. For example, those engaging in actions such as publishing negligent remarks on the Internet, petitioning, appealing, and making accusation are often accused of disturbing the peace. In fact, such an accusation not only deprives citizens of their right to freedom of speech and their power of supervision, it also violates the principle of restraint in criminal law.
Calls for the abolition of the crime of disturbing the peace continues to be voiced in criminal law academic and judicial practice circles. Zhu Zhengfu and other deputies to the National People's Congress have been calling for the abolition of the crime of disturbing the peace. Luo Xiang and other university professors also believe that this crime will inevitably be abused in judicial practice because of the enormous conflict between the ambiguity of the provisions and the principle of legal certainty, and suggest that the crime of disturbing the peace be abolished.
2. Model Cases That Raise Issues
Case 1. Zhu Yuzhen's family in Huainan disturbed the peace. Zhu Yuzhen and her ex-husband were charged with the crime of disturbing the peace because they reported on the Internet that the Huainan government had illegally expropriated land and undertaken violent demolitions. It was understood that Zhu Yuzhen's family had no choice but to appeal after resorting to legal procedures against the government's forced demolition. Later, Zhu Yuzhen's ex-husband posted several videos on Douyin reflecting the illegal forced demolitions and his situation during his stay in Beijing. He was charged with the crime of disturbing the peace, and Zhu Yuzhen was also subsequently charged with the crime of disturbing the peace. Prior to this, Zhu Yuzhen's nearly 80-year-old parents were also convicted of disturbing the peace for defending their son.
Case 2. a villager was sentenced to the crime of disturbing the peace for collecting tolls on a pontoon bridge. Huang Deyi, a villager in Taonan City, Jilin Province, and 18 others were convicted of disturbing the peace for charging fees for building a pontoon bridge. The court ruled that Huang Deyi and others built a pontoon bridge to collect bridge tolls, and intercepted passing vehicles to collect bridge tolls. This is a case of taking other people’s property by force, causing bad social impact, disrupting social order, with severe circumstances, constituting the crime of disturbing the peace. Huang Deyi refused to accept the judgment and filed a complaint with the court, which has been accepted for review by the court.
Case 3. Tang Hui, a "petitioner mother," was subjected to reeducation through labor, and she and her brother Tang Shike were charged with disturbing the peace. Prosecutors filed three charges of disturbing the peace. In the "ectopic pregnancy" and "alkaline poisoning" disturbing the peace cases, the prosecution accused the two of disturbing the peace by using improper treatment as an excuse to put pressure on the hospital through malicious reports, insults and threats to hospital staff, and illegal petitions in Beijing demanding "medical compensation." In the case of "wild camphor trees being logged," the prosecution accused them of "illegally logging wild camphor trees in hilly land" and carrying out acts of "disturbing the peace" by means of malicious false reporting, making a scene, and abusing, chasing, and intercepting government employees, making trouble in public places, and posting false posts on the Internet. The case is currently being tried.
After the publication of the above three cases, people from all walks of life unanimously condemned them, which once again sparked heated discussions calling for the "abolition of the crime of disturbing the peace." It is generally believed that the above-mentioned behaviors that should be regulated by administrative laws and regulations have been regulated by criminal laws, which seriously deviates from natural justice and humanist principles, and does not conform to legal common sense.
We believe that Zhu Yuzhen's family were legitimately exercising the public's rights of supervision and freedom of speech when they reported on matters such as law enforcement chaos and judicial injustice, and they are identified as suspected of constituting the crime of disturbing the peace, which seriously reduces citizens' belief in the law. Professor Xu also said that Zhu Yuzhen's family was "wiped out by the judiciary."
Huang Deyi and others did not disturb social public order by building bridges and charging fees. In the absence of plans by relevant government departments to build bridges, the construction of bridges met the expectations of the people to a certain extent. Fees were only paid voluntarily and were not mandatory. In addition, there was no provocative motive to make something out of nothing or create a pretext to cause trouble. This behavior did not harm society, did not infringe on the legitimate rights and interests of others, and did not infringe on anyone's legal interests. It was a violation of the criminal law's principle of restraint to identify it as a crime.
The three cases involving Tang Hui and others were borne out of rights defense. There was a reason for everything they did, there was no coercion, even if the manner of rights protection was somewhat fierce. Since 2019, the Supreme People's Court and the Supreme People's Procuratorate have continuously advocated that "criminal trials should take into account the principles of natural justice, State law, and human conditions." Criminal trials should not be indifferent to public opinion or mechanically impose justice, and should not deviate from human nature and common sense. In practice, one of the root causes of judicial deviation from public opinion is the shortcoming of the legislation of the crime of disturbing the peace, and it is the ambiguity of the legal provisions of the crime of disturbing the peace that leads to judicial uncertainty.
3. Proposal to Abolish the Crime of Disturbing the Peace
(1) Flaws in Legislation and Judicial Interpretation
First, the description of the crime is vague. Expressions such as "arbitrary," "willfully," "severe circumstances," "offensive circumstances," and "causing severe disorder in public venues" are too vague, and these are the key constituent elements for the determination of this crime. Judicial interpretation has not eliminated the ambiguity of this crime in the determination of criminal boundaries. There has been significant controversy among professionals in judicial theory and practice about the expression of relevant provisions, and it is even more difficult for ordinary people to distinguish them.
Second, the acts of pursuing or obstructing others and creating a disturbance violate the "Public Security Administrative Punishments Law," or they may be involved in other crimes. If all of them are convicted and punished according to the crime of disturbing the peace, it may lead to excessive attention to maintaining social order, and then excessive infringement of personal legal interests.
Third, although Articles 2, 3, 4, and 5 of the Interpretation of the Supreme People's Court and People's Procuratorate on Issues Concerning the Application of Law for Criminal Cases of Disturbing the Peace (hereinafter referred to as the "Interpretation on Handling Disturbing the Peace") are a detailed list of how the relevant behavior types and methods in Article 293 of the Criminal Law may be carried out, because the list itself is not exhaustive, and the interpretation itself also retains vague expressions, it cannot fundamentally address the problem of the law's opacity.
Fourth, the "Interpretation on Handling Disturbing the Peace" stipulates the subjective motives of the crime of disturbing the peace, stipulating that a perpetrator shall be deemed to have "disturbed the peace" when they make trouble out of nothing by seeking excitement, venting their emotions, acting the hero, etc., and commits the acts stipulated in Article 293 of the Criminal Law. However, the provisions on this subjective motive remain ambiguous, so it is impossible for them to actually limit the expansion of the offense of disturbing the peace, and it may still lead to the subjective imputations by the judiciary.
(2) Corresponding Solutions
Article 5 of the "Legislation Law" stipulates that "legislation shall conform to the provisions, principles, and spirit of the Constitution." Article 6 stipulates that "legislation shall uphold and develop people's democracy throughout the process, respect and protect human rights, and safeguard and promote social fairness and justice." Article 7(2) stipulates that "legal norms shall be clear, specific, targeted, and enforceable."
The ambiguity of the crime of disturbing the peace violates the above-mentioned provisions of the Legislative Law and the principle of legally prescribed crimes and punishments, leading to selective law enforcement by the judiciary and serious damage the authority and credibility of the criminal law. Accordingly, we propose to abolish the crime of disturbing the peace and divide it into other crimes. After the crime of disturbing the peace is abolished, the four different forms of the crime of disturbing the peace can be dealt with by the crime of intentional injury, crime of insult, crime of robbery, crime of intentionally destroying property, and the crime of gathering crowds to disturb order in public places. If the circumstances of the behavior are relatively minor, administrative penalties may be imposed in accordance with the Public Security Administrative Punishments Law.
The aforementioned proposals are hereby offered to the honorable Commission for legislation.
Respectfully submitted to Legislative Affairs Commission of the National People's Congress Standing Committee.
Proposed by: The Shandong Xiaolin Law Firm
Lawyer Lan Qingzhou
Lawyer Ma Xiaolin
Lawyer Yu Zhaoyan
Zhang Wenpeng
Lawyer Yu Kai
August 2, 2023
Contact information:
Lawyer Yu Kai: [INTENTIONALLY OMITTED]
Lawyer Yu Zhaoyan: [INTENTIONALLY OMITTED]
山东晓临律师事务所
致全国人民代表大会常务委员会法制工作委员会
关于废除寻衅滋事罪的立法建议
全国人民代表大会常务委员会法制工作委员会
沈春耀主任:
我们在多年执业过程中曾办理了数起寻衅滋事案,其中至少有三起案件,我们认为不构成犯罪,但依然判决认定构成犯罪判处缓刑;还有一起案件,在法院开庭后检察院撤回起诉,作出存疑不起诉决定。
我们深感寻衅滋事罪罪状表述的模糊性,严重影响了公众对权利义务的合理预期,损害了刑法的权威和公信力。现依据《中华人民共和国立法法》(以下简称《立法法》》及罪刑法定原则,向贵委员会提出立法建议,建议废除寻衅滋事罪。
一、司法实践中发现的问题
寻衅滋事罪来源于1979年刑法第160条规定的流氓罪,其从流氓罪中分解出来后,逐渐代替流氓罪,成为了新的“流氓罪”。在当前司法实践中,寻衅滋事罪的存在,是导致执法机关选择性执法的主要原因之一,一些处在行政处罚与刑事处罚模糊地带的行为,大多被以寻衅滋事罪作为兜底条款进行处罚。比如网络上发表失察言论的行为以及上访、申诉、控告等行为,常常被指控涉嫌寻衅滋事。实际上,如此指控不仅剥夺了公民的言论自由权,使公权力缺乏监督,更违背了刑法的谦抑性原则。
刑法学界、司法实务界关于废除寻衅滋事罪的呼声不断。朱征夫等人大代表一直呼吁废除寻衅滋事罪;罗翔等大学教授也认为,本罪由于规定的模糊性与罪刑法定原则存在巨大的冲突,以至于不可避免地会在司法实践中存在被滥用的情况,建议废除寻衅滋事罪。
二、典型存疑案例
案例一,淮南朱玉珍一家满门被寻衅滋事案。朱玉珍及其前夫因在网络上反映淮南政府违法征地、暴力强拆现象,被指控涉嫌寻衅滋事罪一案,目前已到检察院审查起诉阶段。据了解,朱玉珍一家人在针对政府强拆一事诉诸法律程序无果后,无奈进行上访,后朱玉珍前夫在抖音上发布了几条反映违法强拆和其在北京期间情况的视频,就被指控涉嫌寻衅滋事罪,之后朱玉珍也被指控涉嫌寻衅滋事罪。在此之前,朱玉珍年近八十的父母也因为替儿子伸冤被判寻衅滋事罪。
案例二,村民搭浮桥收费被判寻衅滋事罪案。吉林洮南市村民黄德义等18人因为搭浮桥收费,被判寻衅滋事罪。法院判决认定:黄德义等人搭建浮桥收取过桥费,拦截过往车辆收取过桥费,属于强拿硬要他人财物,造成恶劣社会影响,破坏社会秩序,情节严重,构成寻衅滋事罪。黄德义不服判决,向法院提出申诉,目前法院已受理审查。
案例三,被劳教的“上访妈妈”唐慧及其哥哥唐世科被控寻衅滋事案。检方共指控了三起寻衅滋事案。其中“宫外孕”和“碱中毒”寻衅滋事案中,检方指控二人以治疗不当为由,通过恶意举报、辱骂、威胁医院工作人员和赴省进京非法上访等方式给医院施压,索要“医疗赔偿款”,实施寻衅滋事行为。“野生樟树被采伐”寻衅滋事案中,检方指控二人以“自留山中的野生樟树被非法采伐”为由,通过恶意虚假报、撒泼耍赖、辱骂、追逐、拦截国家机关工作人员、在公共场所起哄闹事和网络虚假发帖等手段,实施寻衅滋事行为。该案目前已开庭。
上述三个案例公布后,各界一致口诛笔伐,再次引发了呼吁“废除寻衅滋事罪”的热议,大家普遍认为上述本应由行政法律法规规制的行为,上升到由刑法规制,严重背离了天理、人情,不符合法律常识。
我们认为,朱玉珍一家人反映执法乱象、司法不公等现象,是正当行使公权力的监督权和言论自由权,将其认定为涉嫌构成寻衅滋事罪,严重降低了公民对法律的信仰。徐教授亦称,朱玉珍一家被“司法灭门”。
黄德义等人建桥及收费行为并未扰乱社会公共秩序,在政府相关部门未规划建造桥梁的情况下,建桥一定程度满足了民众的期待,收费也仅是自愿缴纳并无强制,且没有无事生非和借故生非的寻衅动机。该行为没有危害社会,没有侵害他人合法权益,没有法益侵害性,将其认定为犯罪违反了刑法的谦抑性原则。
唐慧等涉及的三起案件均是出于维权,是事出有因,并非强拿硬要,只是维权方式有些激烈。最高人民法院、最高人民检察院自2019年开始,不断倡导“刑事审判要兼顾天理国法人情”,刑事审判不能对民意无动于衷,搞机械司法,不能背离人之常情,世之常理。实践中,导致司法背离民意的根本原因之一是寻衅滋事罪立法上存在的弊端,是寻衅滋事罪法律规定的模糊性导致了司法的不确定性。
三、建议废除寻衅滋事罪
(一)立法及司法解释存在缺陷
第一,本罪罪状表述模糊。“随意”“任意”“情节严重”“情节恶劣”“造成公共场所秩序严重混乱”等表述过于模糊,而这些又是认定构成本罪的关键构成要件,司法解释也没有消除本罪在犯罪界限认定上的模糊性。理论和司法实践界专业人士对相关条文的表述争议就很大,普通群众更难以辨别。
第二,追逐、拦截他人,起哄闹事的行为,违反《治安管理处罚法》或可能涉嫌其他罪名,如果全部按照寻衅滋事罪进行定罪处罚,可能会导致因过分注重维护社会秩序,进而过分侵害个人法益。
第三,《最高人民法院、最高人民检察院关于办理寻衅滋事刑事案件适用法律若干问题的解释》(以下简称“《办理寻衅滋事的解释》”)第二条、第三条、第四条、第五条虽然对刑法第二百九十三条相关行为类型和行为方式进行了细化列举,但由于列举本身难以穷尽,加上解释本身也保留了模糊性表述,不能从根本上解决法律规定的不明确问题。
第四,《办理寻衅滋事的解释》对寻衅滋事罪的主观动机进行了规定,规定行为人为寻求刺激、发泄情绪、逞强耍等,无事生非,实施刑法第二百九十三条规定的行为的,应当认定为“寻衅滋事”。但关于该主观动机的规定仍然存在模糊性,不可能真正限制寻衅滋事罪名扩大化,依然可能导致司法机关主观归罪。
(二)相应解决措施
《立法法》第五条规定“立法应当符合宪法的规定、原则和精神。”第六条规定“立法应当坚持和发展全过程人民民主,尊重和保障人权,保障和促进社会公平正义。”第七条第二款规定“法律规范应当明确、具体,具有针对性和可执行性。”
寻衅滋事罪的模糊性规定,违反了《立法法》上述规定和罪刑法定原则,导致司法机关选择性执法,严重损害了刑法的权威和公信力。据此,我们建议废除寻衅滋事罪,将其分解到其他犯罪中。寻衅滋事罪废止后,寻衅滋事罪的四种不同形式的行为可分别由故意伤害罪、侮辱罪、抢劫罪、故意毁坏财物罪、聚众扰乱公共场所秩序罪来处理。行为情节较轻的,可以依照治安管理处罚法进行行政处罚。
以上建议,敬请贵委员会立法参考。
此致
全国人民代表大会常务委员会法制工作委员会
建议人:山东晓临律师事务所
兰庆洲律师
马晓临律师
于兆燕律师
张文鹏
于凯律师
2023年8月2日
联系方式:
于凯律师: [INTENTIONALLY OMITTED]
于兆燕律师: [INTENTIONALLY OMITTED]
