Translation: Law Firm's Petition to Abolish Offense Used to Prosecute Pure Speech Crimes
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:
- In 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). I translated that article here: 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.
- In 2020, Liu Zhiqiang (刘志强) and Song Haichao (宋海超), two academics at the Guangzhou University Institute for Human Rights, noted:
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.
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
Lawyer Yu Kai
August 2, 2023
Lawyer Yu Kai: [INTENTIONALLY OMITTED]
Lawyer Yu Zhaoyan: [INTENTIONALLY OMITTED]
于凯律师: [INTENTIONALLY OMITTED]
于兆燕律师: [INTENTIONALLY OMITTED]