Thursday, September 17, 2020

PRC Scholars: Judicial Interpretation on Disturbing the Peace Illegal, Unconstitutional

On August 5, 2020, Liu Zhiqiang (刘志强) and Song Haichao (宋海超), academics at the Guangzhou University Institute for Human Rights, published an article on Wechat (https://mp.weixin.qq.com/s/kbCrJJfkLJPL7PBmjwQ0YA) entitled “A Review of the "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] The article, which was also published in the 2020.5 edition of the journal “Academia” (学术界), reached the following conclusion regarding the crime of disturbing the peace (sometimes translated as "picking quarrels and provoking trouble") as applied by PRC courts to online speech:
There are major flaws in the rationality of the Judicial Interpretation of the Crime of Disturbing the Peace. . . .From its legislative subject matter to its legislative content and legislative procedures the Judicial Interpretation of the Crime of Disturbing the Peace is "substantive legislation" that completely fails to comply with the provisions of the Legislation Law." . . . . It not only does not conform to the principles of the Constitution, it also violates the basic spirit of the Constitution and the spirit of the rule of law.
寻衅滋事罪司法解释的合理性存在重大缺陷,不符合刑法整体谦抑性的发展趋势,也不符合社会主义法治的法理需要。其合法性的要求在依法治国的环境下要求更加严格,寻衅滋事司法解释的“实质立法”从立法主体到立法内容、立法程序完全不符合《立法法》的规定。其合宪性从根本上否定了寻衅滋事司法解释存在的意义,不仅不符合宪法的原则,更违背宪法的基本精神和法治精神。
This is not the first time criticisms of this nature have been raised. For example:
  • In 2005, Beijing University law professor He Weifang, Chengdu University law professor Wang Yi, and journalist Wang Guangze, and some 200 others signed a draft "opinion" calling on the State Council and National People's Congress Standing Committee to review the constitutionality and legality of the Rules on the Administration of Internet News Information Services (Rules). The draft opinion argued that the Rules, which went into effect in late September and which prohibit anyone from using the Internet to post news reports without prior government authorization, violated the Chinese Constitution and national laws. The opinion made the following arguments:
    • Articles 2, 33, 35, and 41 of China's Constitution provide respectively that (a) all power in China belongs to the people, and it is they who administer state affairs and manage economic, cultural, and social affairs; (b) the state respects and safeguards human rights; (c) Chinese citizens enjoy freedom of speech; and (d) Chinese citizens have the right to criticize and make suggestions to any state organ or functionary.
    • Article 54 of China's Criminal Law states that the deprivation of political rights includes the deprivation of the right of freedom of speech. Therefore, the right to expression is a political right of the citizens.
    • On the foregoing grounds, citizens have a constitutionally protected right with respect to "reporting and commentary relating to politics, economics, military affairs, foreign affairs, and social and public affairs, as well as reporting and commentary relating to fast-breaking social events."
    • Articles 2, 5-12, and 16 of the Rules prohibit citizens from exercising this right on the Internet, and restrict this type of expression to government authorized websites.
    • Article 8 of China's Legislation Law states that the deprivation of a citizen's political rights may only be done through a national law, and that the State Council and its subordinate agencies lack the authority to adopt a rule to this effect.
    • The Rules, which were promulgated by the State Council Information Office and the Ministry of Information Industry, therefore violate China's Constitution and national laws.
The original website version is no longer available, but an archived version is available here: https://web.archive.org/web/20060118235101/https://www.gmwq.org/web/news_view.asp?newsid=198.
  • Also in 2006, an article published in Journalist Monthly, a joint publication of the Shanghai Communist Party Central Committee and the Shanghai Academy of Social Sciences, raised questions as to whether the authority of the General Administration of Press and Publication and the State Administration of Radio, Film, and Television to regulate China's news media through "administrative rules they have formulated themselves" violated the provisions of Article 71 of China's Legislation Law which stipulated that "A matter on which an administrative rule is enacted shall be a matter which is within the scope of implementing national law, administrative regulations, and decisions or orders issued by the State Council." The original version (entitled “我国新闻领域法律体系的构成与缺陷”) is no longer available, but an archived version is available here: https://web.archive.org/web/20060613194501/https://xwjz.eastday.com/eastday/xwjz/node114414/node114416/userobject1ai1838632.html.
For more background on these see:
Below are some additional translated excerpts from the Liu Zhiqiang and Song Haichao article:

The crime of disturbing the peace was a crime derived from the crime of hooliganism stipulated in Article 160 of the 1979 Criminal Law. It was a response to the development trend of statutory crimes and punishments in China, and was intended to solve the problem of the vagueness associated with the crime of hooliganism and the excessive discretion of judges. However, the crime of disturbing the peace as derived did not solve the essential problems of that crime. It still retains the characteristics of the vagueness of the crime of hooliganism and is widely used in judicial judgments. As of October 2019, a search of the cases published on the China Judgment Documents Online found 170,436 disturbing the peace-related cases, and they have shown an upward trend year by year. 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 flaws associated with determining what constitutes the crime of disturbing the peace, including determining the standard for the offense, the difficulty of judicial application dilemma, and generally focusing on opposing the existence of the crime of disturbing the peace and restricting the scope of application of the crime.
. . . .
In September 2013, the Supreme People’s Court and the Supreme People’s Procuratorate issued 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" [Judicial (2013) No. 21], in which paragraphs 1 and 2 of Article 5 both deal with improper words and deeds on the Internet which, after reaching a certain level, will be investigated for criminal responsibility as a crime of disturbing the peace.
. . . .
In the Judicial Interpretation of the Crime of Disturbing the Peace the provision “Where false information is fabricated or where information is clearly known to be fabricated and false, and it is disseminated on information networks, or persons are organized and incited to disseminate it on the internet, to stir up trouble and cause grave chaos of social order” can be compared with this provision of Article 293 of the Criminal Law: “creating disturbances in a public place, thus causing serious disorder in such place.” The Judicial Interpretation redefines public places, and thereby brings new subject matter of online public opinion within the scope of the criminal law. The Internet, as a space for social interaction, has the nature of public space, but it is not a public place under Article 293 of the Criminal Law. What was needed was rigorous legislative debate and discussion, and not just an expansion of the scope of penalties under the criminal law through a judicial interpretation.
. . . .
China’s Constitution and the Legislation Law establish the legislative powers of the National People’s Congress and the Standing Committee of the National People’s Congress. Article 62(3) of the Constitution stipulates that the National People’s Congress shall exercise the following powers: formulating and amending criminal, civil, state structure, and other basic laws. Article 67 (2) (3) stipulates that the Standing Committee of the National People's Congress shall exercise the following functions and powers: formulating and amending laws other than those that should be enacted by the National People's Congress. When the National People's Congress is not in session, some supplements and amendments may be made to the laws formulated by the National People's Congress, but they must not conflict with the basic principles of those laws.

Article 7 of the "Legislation Law" stipulates that the National People's Congress formulates and revises criminal, civil, state structure, and other basic laws. The Standing Committee of the National People’s Congress enacts and revises laws other than those that should be enacted by the National People’s Congress. The Standing Committee of the National People’s Congress enacts and revises laws other than those that should be enacted by the National People’s Congress. When the National People’s Congress is not in session, some supplements and revisions may be made to the laws enacted by the National People’s Congress, but they must not conflict with the basic principles of those laws. In particular, clauses 4, 5, and 9 of Article 8 of the Law stipulates that criminal offenses and penalties, compulsory measures and penalties involving deprivation of a citizen's political rights or restriction of personal freedom, and litigation and the arbitration system shall only be governed by laws. In enacting criminal laws and in the administration of criminal justice, the aforementioned principles, rights, and powers must be regulated by the Constitution.

The Supreme People’s Court and the Supreme People’s Procuratorate’s judicial interpretation power originally came from the National People’s Congress’ June 10, 1981 “Resolution of the Standing Committee of the National People's Congress Providing an Improved Interpretation of the Law” which stipulated:

In cases where the limits of articles of laws and decrees need to be further defined or additional stipulations need to be made, the Standing Committee of the National People's Congress shall provide interpretations or make stipulations by means of decrees.
Interpretation of questions involving the specific application of laws and decrees in court trials shall be provided by the Supreme People's Court. Interpretation of questions involving the specific application of laws and decrees in the procuratorial work of the procuratorates shall be provided by the Supreme People's Procuratorate. [http://www.lawinfochina.com/display.aspx?id=28&lib=law]

The "People's Court Organization Law" stipulates that the Supreme People's Court shall interpret the specific application of laws and decrees in the trial process. According to Shu Guoying [law professor at China University of Political Science and Law], the above-mentioned provisions mean that China’s Supreme People’s Court has the authority to make judicial interpretations in the course of its trial activities with respect to how to specifically apply the law and how to apply legal provisions so that they are more in line with the original intent of the law. The law does not give the Supreme People's Court the authority to make abstract interpretations of the law.
. . . .
The crime of disturbing the peace was successor to the crime of hooliganism. It was essentially formulated to handle real-life small-time gangsters. The spread of rumors and rumors on the Internet can only be resolved through legislation enacted by the National People's Congress. The Judicial Interpretation of the Supreme People’s Court and Procuratorate represents an encroachment on the National People’s Congress’ legislative authority, and its enlargement of scope and the irregularity of its procedures clearly violate the provisions of the Legislation Law.


寻衅滋事罪是从1979年刑法第160条规定的流氓罪中分解出来的一种罪,是为了回应我国罪刑法定的发展趋势,解决流氓罪的不确定性以及法官自由裁量权力过大的问题。但是,分解出来的寻衅滋事罪却没有解决这一罪名的本质问题,依然保留了流氓罪不确定性的特征,并在司法裁判中广泛的应用,截止到2019年10月,在中国裁判文书网上公布的案例中,搜索寻衅滋事相关案由的案件已经有170436件,而且呈现出逐年上升的趋势。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。
. . . .
2013年9月最高人民法院、最高人民检察院发布《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》[法释(2013)21号],其中第5条第1款和第2款都把网络上的不当言行,在达到“一定程度”后以寻衅滋事罪追究刑事责任 . . . .
. . . .
寻衅滋事罪的司法解释中“编造虚假信息,或者明知是编造的虚假信息,在信息网络上散布,或者组织知识人员在信息网络上散布、起哄闹事,造成公共秩序严重混乱的”,与刑法293条规定的:“在公共场所起哄闹事,造成公共场所严重混乱的”的情况对比,司法解释属于重新定义了公共场所,把网络舆论这一新事物纳入了刑法的规制范围,而网络作为社会交往的空间,是有公共空间的性质,但是不是刑法293条的公共场所,就需要更加严谨的立法论证,而不是仅仅以司法解释的方式进行刑法处罚范围的扩大化。
. . . .
我国《宪法》与《立法法》确立了全国人民代表大会与全国人民代表大会常务委员会的立法权,《宪法》第62条第(3)项规定,全国人大行使下列职权: 制定和修改刑事、民事、国家机构的和其他的基本法律。第67条第(2)(3)项规定全国人大常务会行使下列职权: 制定和修改除应当由全国人民代表大会制定的法律以外的其他法律; 在全国人大闭会期间,对全国人大制定的法律进行部分补充和修改,但是不得同该法律的基本原则相抵触。《立法法》第7条规定,全国人大制定和修改刑事、民事、国家机构的和其他的基本法律。全国人大常委会制定和修改除应当由全国人大制定的法律以外的其他法律; 在全国人大闭会期间,对全国人大制定的法律进行部分补充和修改,但是不得同该法律的基本原则相抵触。特别是该法第8条第(4) (5) (9) 项规定,有关犯罪和刑罚,对公民政治权利的剥夺、限制人身自由的强制措施和处罚,对非国有财产的征收,诉讼和仲裁制度,必须只能制定法律。上述这些原则、权利与权限,在刑法立法与刑事司法中,必须受到宪法的规制。最高人民法院、最高人民检察院的司法解释权最初来自全国人大1981年6月10日《关于加强法律解释工作的决议》,规定了:一,凡法律、法令本身需要进一步明确界限或作补充规定的,由全国人民代表大会常委委员会进行解释或用法令加以规定。二,凡属于法院审判工作中具体应用法律、法令的问题,由最高法院进行解释。凡属于检察院检察工作中具体应用法律、法令的问题,由最高检进行解释。《人民法院组织法》规定最高人民法院对于在审判过程中如何具体应用法律、法令的问题,进行解释。按照舒国滢的观点,上述规定,是指我国的最高人民法院有权在其审判活动过程中,对于如何具体应用法律、法条怎样适用更加符合法律原意来进行司法解释,法律没有赋予最高人民法院对法条制定抽象性解释的权利。
. . . .
寻衅滋事罪前身是流氓罪,其本质上是对现实生活中小混混为对象而制定,对网络上的造谣、传谣,只能通过人大立法来解决,两高的司法解释属于僭越人大的立法权限,内容的扩大化,以及程序的不规范,明显违背《立法法》的规定。

Monday, August 31, 2020

Lai Liangping v. Shanghang Public Security Bureau, et. al. (2019) Min 0803 Administrative First Instance No. 36

 Source: https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=51f3b1bf5def4384a322ab6f00fedd4e


People's Court of Yongding District, Longyan City, Fujian Province

Administrative Decision

(2019) Min 0803 Administrative First Instance No. 36


Plaintiff Lai Liangping, male, born June 20, 1977, Han ethnicity, residing in Shanghang County, Fujian Province.

Defendant (original administrative agency) Shanghang County Public Security Bureau, located at Middle Section, North Second Ring Road, Lincheng Town, Shanghang County, unified social credit code 11350823004113475E.

The legal representative was Xu Weiqing, director.

Person in charge of court appearances of administrative agencies was Tang Chunkang, deputy director.

Attorney Fu Wenhui, male, born April 9, 1974, Han ethnicity, Shanghang County Public Security Bureau, Instructor in the Legal Brigade, residing in Shanghang County, Fujian Province.

Attorney Zhang Zhengmeng, male, born November 12, 1981, Han ethnicity, the Shanghang County Public Security Bureau, Instructor in the Lufeng Police Station, living in Shanghang County, Fujian Province.

Defendant (reconsideration agency) Shanghang County People's Government, located at No. 12, Beida Road, Linjiang Town, Shanghang County, Fujian Province.

The legal representative was Wang Bo, county head.

Ding Yanzhi, the person in charge of the court appearance of the administrative agency, was in charge of the legal affairs work.

Attorney Chen Liangjin is a lawyer at the Fujian Tinghang Law Firm.

Plaintiff Lai Liangping did not accept either the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 Administrative Punishment Decision issued by defendant Shanghang County Public Security Bureau (original administrative agency) or the Hang Government Administrative Reconsideration Decision [2019] No. 12 Administrative Reconsideration Decision issued by defendant Shanghang County People’s Government (reconsideration agency) and filed an administrative appeal. Afterwards this Court docketed the case on September 20,2019, and on September 24, 2019 delivered a copy of the appeal brief and Notice of Response to the defendants. This Court formed a collegial panel in accordance with the law and held public hearings in this case on November 28, 2019. Plaintiff Lai Liangping, Tang Chunkang and attorneys Fu Wenhui and Zhang Zhengmeng appearing in court on behalf of administrative agency defendant Shanghang County Public Security Bureau, and Ding Yanzhi and attorney Chen Liangjin appearing in court on behalf of administrative agency defendant Shanghang County People’s Government appeared in court to participate in the proceedings. Hearings in this case have now concluded.

The Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 Administrative Punishment Decision issued by defendant Shanghang County Public Security Bureau on June 27, 2019 determined that on May 26 and 27, 2019, Lai Liangping fabricated false information such as the staff of the Lufeng government in Shanghang County were human traffickers and spread it on Chinese language Twitter social software, damaging the credibility of the government, causing disturbances, disrupting public order, and publishing inappropriate remarks that insulted others. In accordance with the provisions of Article 26(4) of the Public Security Administration Punishment Law of the People's Republic of China it was decided to impose a punishment of 10 days administrative detention on Lai Liangping. Plaintiff Lai Liangping did not accept this and applied to defendant Shanghang County People’s Government for administrative reconsideration. On August 27, 2019, defendant Shanghang County People’s Government issued the Hang Government Administrative Reconsideration Decision [2019] No. 12 Administrative Reconsideration Decision upholding the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 administrative punishment decision issued by the Shanghang County Public Security Bureau. Plaintiff Lai Liangping filed a lawsuit requesting that the Shanghang County People's Government’s Hang Government Administrative Reconsideration Decision [2019] No. 12 Administrative Reconsideration Decision and the Shanghang County Public Security Bureau Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 administrative punishment decision be revoked.

Facts and Reasoning

1. The administrative decisions made by the two defendants were factually unclear. The factual basis of the administrative punishments was that he fabricated that family planning personnel in Lufeng Township were human traffickers. However, according to the complaint made by Li Yuhua and his wife, Lan Doe and Chen Wenming (the director of the Family Planning Office at the time) and other staff of Lufeng Family Planning Office used helping them apply for a household registration as an excuse to coax Li Yuhua and his wife to have their 60 day old newborn fostered in a neighboring village by Zhang Mouyuan. The baby was sent to the Lufeng Family Planning Office and put into a white car that had been waiting for a long time at the gate of the government, and was then taken somewhere unknown. After that, there was no information about the baby who had been abducted. The foregoing was evidenced by videos of Li Yuhua and his wife and the adoptive mother, as well as a large number of witness testimonies, and was not fabricated out of thin air.

The Shanghang County Public Security Bureau determined that he fabricated facts without looking into the circumstances of the case, and issued its administrative punishment decision without any factual basis. As the reconsideration agency the Shanghang County People's Government should have revoked the Shanghang County Public Security Bureau’s punishment decision on the grounds that the facts were not clear.

2. The determination by the two defendants alleging he disturbed the peace and damaged the government's credibility does not accord with the facts. On May 27, 2019, he accompanied Li Yuhua and his wife to the Lufeng government to find family planning personnel to learn about the incident, but was besieged by Lufeng government officials, he dialed 110 as it was an emergency, and was detained for 24 hours on suspicion of disturbing the peace. During that entire time he always followed the concepts of peace, rationality, and non-violence and had no intent to behavior that damaged the government's credibility. On the contrary, his proactively calling 110 to alert the police was an appropriate exercise of a citizen’s legal rights. His remarks on Chinese language social networking sites on November 29, 2017 were not insulting in nature.

3. The punishment and reconsideration decisions made by the two defendants violated legal procedures. His remarks on Chinese language social networking sites on November 29, 2017 were statements from two years prior, and already exceeded the time limit for punishment. In addition, on June 28, 2019, the Shanghang County Public Security Bureau had already issued the Shanghang County Public Security Bureau Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision punishing him with an order to cease networking and a warning. For them to use this again as justification to punish him is double jeopardy.

4.The punishment decisions made by the two defendants have no legal basis. It was out of sympathy for Li Yuhua and his wife that he accompanied them to find out about the situation with the family planning staff who had taken the child away. The texts that he published were in fact excessive in some places, but it did not deliberately attack relevant personnel, nor did it intend to damage the image of the government. It was merely done in the hope of attracting everyone’s attention and helping citizens defend their rights. It is obviously unlawful and unreasonable for the public security agency to impose administrative detention based on this.

Plaintiff Lai Liangping submitted the following evidence to this Court:

1. One video disc of Li Yuhua speaking, proving the fact that Li Yuhua’s baby was taken away by the family planning staff.

2. Testimony of witness Liu Doe proved that on the tenth day of March 2001, the staff of Lufeng Family Planning Office took the child to the township government’s registered permanent location and abducted the child. It was only after Liu and his wife went to the relevant department and were unable to get any response that they asked the plaintiff for help.

3. One sound recording optical disc proved that the plaintiff called the director of the Lufeng police station, but the director did not mention anything about the matter of Lan Doe abducting the child, and the records and call recordings of Li Yuhua and his wife's petition to different departments in March 2019.

Defendant Shanghang County Public Security Bureau (original administrative agency) argues:

1. With regard to the administrative punishment decision it issued to plaintiff Lai Liangping the facts are clear and the evidence is copious。In 2001, Zhang Hongyuan and his wife, villagers in Lufeng Liying Village, Shanghang County, were taken to the Civil Affairs Bureau by the Lufeng People’s Government in accordance with the law for illegally adopting a baby. In March 2019, villagers Li Yuhua and Liu Doe of Lufeng Zhongfang Village reached out to Lan Doe and Li Yongfang and other staff of the Family Planning Office of the Lufeng People’s Government on the grounds that the baby who was taken to the Civil Affairs Bureau was born to his wife and demanded that Lan Doe retrieve the baby that had been taken to the Civil Affairs Bureau, and at the same time they began to petition about this matter. Lai Liangping (who was not previously acquainted with Li Yuhua and his family) learned about this matter on the Internet, and he took the initiative to contact Li Yuhua and his wife in the name of helping contact the relevant media to monitor the government, and afterwards the two parties began to contact each other. On May 26, 2019, Lai Liangping used Twitter, Bit Accelerator, and other mobile phone software on his mobile phone to post tweets with contents such as, "I will go to the Lufeng Township Family Planning Office on May 27, 2019 to see what the human traffickers Lan Yuexiu and Li Yongfang are up to," and "Please pay attention to the Shaw orphans in Fujian, there have already been multiple cases of babies being abducted by family planning hooligans in Lufeng Township, Shanghang County.” The next morning, Lai Liangping, together with Li Yuhua and his wife, went to the Lufeng government to find Lan Doe. Plaintiff Lai Liangping took video with a mobile phone and reported to 110 that he had caught a human trafficker who had abducted a child. Because the township government staff called the police, Lai Liangping was taken to the police station to be investigated by civil police from the police station. During that time, Lai Liangping launched a Twitter live stream and marked "Human Traffickers," "Human Traffickers Are Coming," and "A government building with a population of just over 10,000" in the video. In the afternoon of the same day, Lai Liangping tweeted again, "At the police station and demanding a record be made. When the police saw the party’s loyalty and honesty, they threatened her and she is so scared she is trembling all over.” It was also found out that on November 29, 2017, Lai Liangping insulted a former national leader on Twitter on the grounds that he did something that went against human ethics. The foregoing facts are substantiated by Lai Liangping’s statements and defenses, testimony of Li Yuhua, Lan Doe, Bao Dongxing and others; electronic data inspection work records; extracts of transcripts and other evidence.

2. With regards to the administrative punishment imposed on plaintiff Lai Liangping the law applied was correct, the procedures were legal, and the punishment was appropriate. Lai Liangping used Twitter mobile phone software to deliberately fabricate false information on the Internet such as the family planning staff in Lufeng Township were human traffickers and that Lufeng family planning gangsters in Shanghang County abducted, causing disturbances. At the same time he casually insulted a former national leader on the Internet, damaging the government's credibility and the image of a former national leader, and his behavior constituted acts that disturbed the peace. Based on this, the public security agency issued a decision to impose a punishment of 10 days administrative detention on Lai Liangping in accordance with the provisions of Article 26(4) of the Public Security Administration Punishment Law of the People's Republic of China. The case was handled in strict accordance with the relevant case-handling procedures stipulated by the Public Security Administration Punishment Law of the People's Republic of China from receiving the report to the police, accepting, investigating, and informing according to the law before making the punishment decision. In summary, the Shanghang County Public Security Bureau clearly determined the administrative punishment facts of plaintiff Lai Liangping, the evidence was indeed copious, the law applied was correct, the procedures were legal, and the punishment was appropriate. It requests the court to reject the plaintiff’s claim.

Defendant Shanghang County Public Security Bureau (original administrative agency) submitted to this Court the following evidence and basis to prove the legitimacy of the original administrative act:

(1) Evidence

1. Case registration form, case acceptance receipt, petition to extend the time limit of the inquiry review report, petition to extend the time limit of the review and approval report, administrative punishment notification transcript, review transcript, administrative punishment decision, administrative reconsideration decision, administrative detention notice to family members, administrative detention execution receipt, proved that the administrative punishment of the plaintiff complied with the procedural regulations.

2. The transcripts of two questionings of Lai Liangping proved the plaintiff’s process of getting to know Li Yuhua and his use of Twitter and Bit Accelerator software to publish tweets with content that Lufeng government staff were human traffickers who abduct babies and to insult previous Party and state leaders.

3. The transcript of Li Yongfang’s questioning proved the circumstances of Li Yuhua’s appeal and plaintiff Lai Liangping’s unreasonable troublemaking process.

4. The transcript of Lan Doe’s questioning proved the process of the Lufeng government’s handling of babies and plaintiff Lai Liangping going to the Lufeng government to unreasonably make trouble.

5. The transcripts of Li Yuhua’s two questionings proved that the whole process of the incident includes part of the process of plaintiff Lai Liangping’s fact-picking and disturbing the peace.

6. The transcript of Bao Dongxing’s questioning proved the process of the Lufeng government’s handling of babies and plaintiff Lai Liangping going to the Lufeng government to unreasonably make trouble.

7. The Fujian Provincial Administrative Law Enforcement Certificate proved that Lan Doe is an administrative law enforcement officer with administrative law enforcement qualifications in the Family Planning Bureau of Shanghang County.

8. Petition replies proved that the Lufeng government responded to Li Yuhua’s petitions.

9. The Hang Public Evidence Preservation Decision [2019] No. 00447 Evidence Preservation Decision and List of Evidence Preservation proved that the public security agency seized the plaintiff’s mobile phone.

10. Transcript extracts and screenshots of mobile phone content proved that the public security agency extracted the content stored on the plaintiff’s mobile phone that proved the disturbance of the peace, which was also confirmed by the plaintiff.

11. The electronic data inspection work record proved that the public security agency has carried out the electronic data extraction of the mobile phone seized from the plaintiff.

12. A household registration certificate proved the basic identity of the plaintiff as a natural person with administrative responsibility

13. The Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision proved that the public security agency carried out administrative punishment on the plaintiff’s illegal use of wall climbing software to access foreign websites.

(2) Basis

The provisions of Articles 2, 91, and 26 of the Public Security Administration Punishment Law of the People's Republic of China proved the law based on and applicable to the specific administrative acts that are the subject of the lawsuit.

Defendant Shanghang County People’s Government (reconsideration agency) argued:

1. Defendant Shanghang County People’s Government was performing its legal duty in issuing the reconsideration decision.

2. The defendant accepted the plaintiff’s reconsideration application in accordance with the law and made a reconsideration decision in accordance with the law, and the procedures were legal. The defendant accepted the case after receiving the plaintiff’s application for reconsideration on July 18, 2019. The "Administrative Reconsideration Reply Notice" was delivered to the Shanghang County Public Security Bureau on July 23, the reconsideration decision was made in accordance with the law on August 27, and it was directly delivered to the Shanghang County Public Security Bureau on August 29, and administrative reconsideration was conducted on September 2. The decision letter was mailed to Lai Liangping.

3. The facts determined in the administrative reconsideration decision were clear. After review, the defendant believes that on May 26 and 27, 2019, Lai Liangping fabricated fake information that the Lufeng government family planning staff in Shanghang County were human traffickers, and he had discovered multiple cases of the Lufeng family planning gangsters abducting babies in Shanghang County and spread it on Chinese language Twitter social media software. On May 27th, he went to the Lufeng government to cause disturbances and disrupt public order. These facts were substantiated by evidence including Lai Liangping’s statement and defense, the evidence preservation decision and evidence preservation checklist, electronic data inspection work records, transcript extracts, extracted photos, and replies from the Lufeng People’s Government. In summary, the Shanghang County People's Government made an administrative review decision to determine that the facts are clear, the applicable law is correct, and the procedures are legal, and request the people's court to maintain it. In summary, the facts determined in the administrative reconsideration decision issued by the Shanghang County People's Government were clear, the law applied was correct, the procedures were legal ,and it asks the People’s Court to uphold it.

Defendant Shanghang County People’s Government (reconsideration agency) submitted to this court evidence and basis to prove the legality of the reconsideration procedure:

1. Approval form for filing administrative reconsideration cases;

2. Administrative reconsideration application;

3. Reply notice;

4. Administrative reconsideration decision letter and delivery certificate;

5. The relevant provisions of the Administrative Reconsideration Law of the People’s Republic of China and the Guiding Opinions on the Adjudication of Public Security Organs on the Implementation of Penalties for Certain Violations of Public Security Administration proved the basis and applicable law of the specific administrative acts that are the subject of the lawsuit.

Based on an examination of evidence during hearings plaintiff Lai Liangping objected to evidence 4 and 6 submitted by defendant Shanghang County Public Security Bureau. He believes that the testimony of the witnesses Lan Doe and Bao Dongxing are false. The plaintiff did use his mobile phone to film the whole process, but at that time dozens of people surrounded him in the township government office and tried to grab his mobile phone, and he called the police.

With respect to the rest of the evidence submitted by defendant Shanghang County Public Security Bureau, he does not have any objections. With respect to the evidence submitted by defendant Shanghang County People’s Government, he does not have any objections. With respect to evidence 1 and 2 submitted by the plaintiff in the original case, the two defendants believe that it is not possible to determine their veracity. For evidence 2, the two defendants believe that the plaintiff’s claims could not be proved. For evidence 3, the two defendants believe that it is not related to this case.

This Court verifies the aforementioned evidence as follows: the evidence provided by the two defendants is related to the case, and meets the requirements of legality and authenticity, and is confirmed by this Court. Evidence 1 and 2 provided by the plaintiff, because Li Yuhua and Liu Mou are interested parties, the content of their statements is not supported by objective evidence, and its authenticity cannot be determined. Evidence 3 provided by the plaintiff has no relevance to this case, so none of it will be the basis for the judgment in this case.

It was ascertained at trial that in 2001, the Shanghang County Lufeng People's Government took an infant who had been illegally adopted by Liying villagers Zhang Hongyuan and his wife in that township to the Civil Affairs Bureau for processing. In March 2019, Zhongfang villagers Li Yuhua and Liu Doe in that township reached out to Lan Doe and other staff of the Family Planning Office of the Lufeng People’s Government on the grounds that the baby who was taken to the Civil Affairs Bureau was born to his wife and demanded that the baby be found and returned, and at the same time they began to petition about this matter. The Lufeng People’s Government carried out a response to that petition. Plaintiff Lai Liangping took the initiative to contact Li Yuhua and his wife after hearing the news to help contact the media to attract attention. On May 26, 2019, plaintiff Lai Liangping used his mobile phone to post tweets on the Twitter social network platform with contents such as, "I will go to the Lufeng Township Family Planning Office on May 27, 2019 to see what the human traffickers Lan Yuexiu and Li Yongfang are up to," and "Please pay attention to the Shaw orphans in Fujian! There have already been multiple cases of babies being abducted by family planning gangsters in Lufeng Township, Shanghang County! I will go to the scene before May 27 and live stream.” In the morning of the next day, Lai Liangping, Li Yuhua, his wife Liu Doe and others went to the Shanghang County Lufeng People's Government to find Lan Doe. Lai Liangping used his mobile phone to take pictures and reported to 110 that Lan Doe was a human trafficker and had abducted the daughter of Li Yuhua and his wife. Lai Liangping also used his mobile phone to launch a Twitter live stream and continuously posted tweets on the Twitter social network platform such as: "human traffickers are here", "a government building with a population of just over 10,000." In the afternoon of the same day, he tweeted again: “At the police station and demanding a record be made. When the police saw the party’s loyalty and honesty, they threatened her and she is so scared she is trembling all over. Now its impossible to do.” On May 27, 2019, the Shanghang County Public Security Bureau Lufeng Police Station accepted the case of Lai Liangping and others disturbing a work unit’s order as reported by the Lufeng People’s Government staff member Li Yongfang. It conducted an investigation of evidence obtained from both parties and relevant personnel and carried out evidence preservation and electronic data extraction on two mobile phones of Lai Liangping. In addition, Lai Liangping posted inappropriate remarks that insulted others on the Twitter social network platform on November 29, 2017. The remarks were published until May 27, 2019, when they were seized by the public security agency. On June 27, 2019, the Shanghang County Public Security Bureau issued the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 administrative punishment decision subjecting Lai Liangping to punishment of 10 days administrative detention. Lai Liangping did not accept it and on July 16, 2019 applied to the Shanghang County People's Government for administrative review. The Shanghang County People's Government held hearings on July 18, 2019 and decided to accept the case, and on July 23, 2019 it delivered a copy of Lai Liangping’s administrative reconsideration application to the Shanghang County Public Security Bureau and requested it to submit a written response and relevant materials such as evidence and basis for the administrative actions taken at that time. On August 27, 2019, the Shanghang County People's Government issued the Hang Government Administrative Reconsideration Decision [2019] No. 12 administrative reconsideration decision and decided to uphold the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 administrative punishment decision made by the Shanghang County Public Security Bureau. The reconsideration decision was delivered to the Shanghang County Public Security Bureau and Lai Liangping on August 29 and September 3, 2019.

It was also found that the Shanghang County Public Security Bureau issued the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision on June 28, 2019, and decided to order Lai Liangping to stop networking and issued a warning on the grounds that Lai Liangping engaged the unlawful activity of installing Bit Accelerator wall-climbing software on his mobile phone, and used international access channels provided by non-state public telecommunication networks to carry out national networking, and “climbed the wall” to access foreign websites.

This Court finds that in accordance with the provisions of Articles 2, 7(1), 91(1), the public security agencies of the local people's governments at or above the county level are responsible for public security management punishments within their administrative areas that disrupt public order, obstruct public safety, violate personal and property rights, obstruct social management, are socially harmful, and that do not justify criminal punishment. Defendant Shanghang County Public Security Bureau in this case has statutory responsibility for the management of public security within this administrative district. In accordance with the provisions of Article 12(1) of the Administrative Reconsideration Law of the People’s Republic of China, defendant Shanghang County People’s Government has the right to exercise the power of administrative reconsideration. The plaintiff raised no objection to the qualifications of the two defendants as subjects of law enforcement, and this Court confirms it.

With respect to the question of whether the facts are clear, whether the procedures are legal, and whether the applicable laws are correct in the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 administrative punishment decision issued by defendant Shanghang County Public Security Bureau. An investigation showed that on May 26, 2019, plaintiff Lai Liangping used his mobile phone to post tweets on the Twitter social network platform with information such as, "I will go to the Lufeng Township Family Planning Office on May 27, 2019 to see what the human traffickers Lan Yuexiu and Li Yongfang are up to," and "Please pay attention to the Shaw orphans in Fujian! There have already been multiple cases of babies being abducted by family planning gangsters in Lufeng Township, Shanghang County!!!” This fact was sufficiently substantiated by evidence such as the records of the questioning of plaintiff Lai Liangping, Li Yongfang, Lan Doe, Bao Dongxing and others, as well as the electronic evidence such as the WeChat chat records extracted from Lai Liangping’s two mobile phones and tweets published on the Twitter social network platform. In addition, plaintiff Lai Liangping stated in two questioning transcripts that he had contacted Li Yuhua and heard him out on the grounds of helping to contact the media to attract attention after seeing the help letter sent by Li Yuhua on the Internet in March 2019.

During the trial of the case, plaintiff Lai Liangping also failed to submit evidence and basis that could prove the facts stated by Li Yuhua and his wife Liu Doe. Plaintiff Lai Liangping, as a capable responsible natural person who has reached the age of responsibility did not verify Li Yuhua’s unilateral statements and spread information with no factual basis on the Internet such as “get the human traffickers Lan Yuexiu and Li Yongfang," and "There have already been multiple cases of babies being abducted by family planning gangsters in Lufeng Township, Shanghang County!!!” which misled the normal public opinion, caused a bad influence on society, and objectively caused the consequences of disturbing the social order.

In accordance with the provisions of Article 26(4) of the Public Security Administration Punishment Law of the People's Republic of China and with reference to the "Guiding Opinions on the Adjudication of Penalties for Certain Violations of Public Security Administration" defendant Shanghang County Public Security Bureau imposed 10 days administrative detention on plaintiff Lai Liangping. The laws and regulations applied were correct and the punishment was appropriate. Although citizens have the right to supervise in accordance with the law, it goes beyond the boundaries of proper supervision if citizens exercise their rights by means of disrupting public order. Therefore, plaintiff Lai Liangping’s claim that he did not fabricate false information to disturb public order, but hoped to attract the attention of the government and society to help the weak is not consistent with the facts. This court does not give it credence. After establishing the case, defendant Shanghang County Public Security Bureau summoned the parties in accordance with the law, conducted investigations and collected evidence, and informed the plaintiff of the facts, reasons, and basis for the administrative punishment before the punishment, it fulfilled the obligation of notification, and protected the plaintiff’s right of statement and defense. Later, in light of the circumstances of the case, a decision was made to impose administrative detention for ten days in accordance with Article 26(4) "Other acts of provocation and provocation" of the Public Security Administration Punishment Law of the People's Republic of China, and the facts were clear, the procedures were legal, and the law applied was correct. Defendant Shanghang County People’s Government filed and reviewed the case after receiving the plaintiff’s reconsideration application, and made a reconsideration decision within the statutory time limit and served it. The administrative procedures were legal.

With respect to the question of plaintiff Lai Liangping’s claim that defendant Shanghang County Public Security Bureau imposed penalties on his posting on the Twitter social network platforms on November 29, 2017 beyond the penalty time limit. An investigation showed that based on the record of plaintiff Lai Lianping’s posting on the Twitter social networking platform obtained by defendant Shanghang County Public Security Bureau in accordance with the law it can be proved that plaintiff published inappropriate speech that insulted others that was still being published on plaintiff’s Twitter social networking platform on May 28, 2019 when it was seized by the Shanghang County Public Security Bureau, and the plaintiff’s unlawful behavior had been occurring continuously from the day it was published. Defendant Shanghang County Public Security Bureau issuance of administrative punishment in respect of this on June 27, 2019 did not exceed the legal deadline. Therefore, the plaintiff's claim has no foundation in law and this Court does not support it.

With respect to the question of plaintiff Lai Liangping’s claim that defendant Shanghang County Public Security Bureau issuing the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision on June 28, 2019, ordering him to cease networking and giving him a warning was once again imposing administrative punishment on him, and constitutes double jeopardy. An investigation showed that the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision issued by defendant Shanghang County Public Security Bureau was with respect to Lai Liangping’s violation of the provisions of Articles 6(2) and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks of the People's Republic of China" and was an administrative punishment of ceasing networking and a warning for the unlawful action of “climbing the wall” to access foreign websites. The laws and regulations upon which it was based were not the same as the distinct administrative actions that are the subject of the lawsuit, and was a separate distinct administrative action, and therefore does not constitute double jeopardy. The plaintiff’s claim is not consistent with the facts, and is not supported in accordance with the law.

In summary, with respect to the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00030 administrative punishment decision issued by defendant Shanghang County Public Security Bureau and the Hang Government Administrative Reconsideration Decision [2019] No. 12 administrative reconsideration decision issued by defendant Shanghang County People’s Government the facts determined are clear, the evidence is conclusive, the laws and regulations applied were correct, and in compliance with legal procedures. The plaintiff’s justifications for suing are not established, and his claims are rejected in accordance with the law. In accordance with the provisions of Article 69 of the Administrative Procedure Law of the People's Republic of China the judgment is as follows:

The claims of plaintiff Lai Liangping are denied.

The case filing fee of 50 yuan shall be borne by plaintiff Lai Liangping.

If anyone does not accept this judgment, they may within 25 days after after receiving the decision document submit a brief to this court along with the number of copies matching the number of their opposing parties, and appeal to the Intermediate People's Court of Longyan City, Fujian Province

Chief Adjudicator Guo Huazhen
People's Assessor Su Liqing
People's Assessor Lu Runfeng

December 24, 2019

Judge’s Assistant Li Xiaofeng
Clerk Zhang Liyan

 




福建省龙岩市永定区人民法院


行 政 判 决 书


(2019)闽0803行初36号



原告赖亮平,男,1977年6月20日出生,汉族,住福建省上杭县。


被告(原行政机关)上杭县公安局,住所地上杭县临城镇北二环路中段,统一社会信用代码11350823004113475E。


法定代表人徐卫清,局长。


行政机关出庭负责人汤春康,副局长。


委托代理人傅文辉,男,1974年4月9日出生,汉族,上杭县公安局法制大队教导员,住福建省上杭县。


委托代理人张正锰,男,1981年11月12日出生,汉族,上杭县公安局庐丰派出所教导员,住福建省上杭县。


被告(复议机关)上杭县人民政府,住所地福建省上杭县临江镇北大路12号。


法定代表人王波,县长。


行政机关出庭负责人丁焱志,法制工作分管领导。


委托代理人陈亮金,福建汀杭律师事务所律师。


原告赖亮平不服被告上杭县公安局(原行政机关)作出的杭公(庐丰)行罚决字〔2019〕00030号行政处罚决定及被告上杭县人民政府(复议机关)作出的杭政行复决〔2019〕12号行政复议决定,提起行政诉讼。本院于2019年9月20日立案后,于2019年9月24日向被告送达了起诉状副本及应诉通知书。本院依法组成合议庭,于2019年11月28日公开开庭审理了本案,原告赖亮平,被告上杭县公安局行政机关出庭负责人汤春康及委托代理人傅文辉、张正锰,被告上杭县人民政府行政机关出庭负责人丁焱志及委托代理人陈亮金到庭参加诉讼。本案现已审理终结。
被告上杭县公安局于2019年6月27日作出杭公(庐丰)行罚决字〔2019〕00030号行政处罚决定,认定2019年5月26日至27日,赖亮平编造上杭县庐丰政府工作人员是人贩子等虚假信息在中文推特社交软件上散布,损害政府公信力,起哄闹事,扰乱公共秩序,并发布侮辱他人不当言论。根据《中华人民共和国治安管理处罚法》第二十六条第(四)项规定,决定对赖亮平处以行政拘留十日。原告赖亮平不服,向被告上杭县人民政府申请行政复议,被告上杭县人民政府于2019年8月27日作出杭政行复决〔2019〕12号行政复议决定,维持上杭县公安局作出的杭公(庐丰)行罚决字〔2019〕00030号行政处罚决定。


原告赖亮平诉称,请求撤销上杭县人民政府杭政行复决〔2019〕12号行政复议决定以及上杭县公安局杭公行(庐丰)罚决字〔2019〕00030号行政处罚决定。事实与理由:1.两被告作出的行政决定认定事实不清。行政处罚的事实依据是其捏造庐丰乡计生人员是人贩子。但根据李育华夫妇的投诉,庐丰计生办工作人员蓝某、陈文明(时任计生办主任)等以帮忙上户口为由,把李育华夫妇寄养在邻村张某远夫妇家刚出生60天的婴儿连哄带骗地送到庐丰计生办,上了一辆在政府门口等候多时的白色小轿车后不知去向,之后被抢的婴儿一直都没有任何消息。以上有李育华夫妇及养母等人的视频以及大量的证人证言为证,并不是其凭空捏造。上杭县公安局在未查清案情的情况下,就认定其捏造事实,作出行政处罚没有事实依据。上杭县人民政府作为复议机关在事实不清的状况下,应该撤销上杭县公安局的处罚决定。2.两被告认定其涉嫌寻衅滋事,损害政府公信力,也不符合事实。其于2019年5月27日陪同李育华夫妇前往庐丰政府找计生人员了解事件经过,却被庐丰政府工作人员围攻,在紧急情况下拨打110报警,后被以涉嫌寻衅滋事扣留24小时。期间,其始终遵循和平理性、非暴力理念,没有损害政府公信力的故意和行为,反而主动拨打110报警,是正当行使公民的合法权益。其于2017年11月29日在中文社交网站发表的言论并没有侮辱的性质。3.两被告作出的处罚决定与复议决定违反法律程序。其于2017年11月29日在中文社交网站上发布的言论是2年前的言论,已超出了处罚的时限,且上杭县公安局也已于2019年6月28日作出了上杭县公安局杭公行(庐丰)罚决字〔2019〕00031号处罚决定,对其作出了责令停止联网、警告处罚。现又以此为由对其作出处罚,属于重复处罚。4.两被告作出的处罚决定没有法律依据。其是出于同情李育华夫妇的遭遇,陪同他们去找原来抢走孩子的计生人员了解情况。其发布的文字,确实有部分过激,但并不是故意攻击有关人员,也无意损害政府形象,只是希望引起大家关注,帮助公民维权。公安机关据此对其进行行政拘留明显不合法不合理。


原告赖亮平向本院提供证据:1.李育华口述视频光盘1张,证明李育华的婴儿被计生人员抱走的事实;2.证人刘某的证言,证明庐丰计生办工作人员于2001年3月初十借口将小孩抱去乡政府上户口,将孩子抢走,之后刘某夫妇找相关部门反映无果后才找原告帮忙的事实经过;3.录音光盘1张,证明原告打电话给庐丰派出所所长,但所长对于蓝某强行抱走孩子的事情只字不提及2019年3月份李育华夫妇向不同部门上访的记录和通话录音。


被告上杭县公安局(原行政机关)辩称,1.对原告赖亮平作出行政处罚事实清楚,证据充分。2001年,上杭县庐丰立英村村民张洪远夫妇因非法抱养婴儿被庐丰人民政府依法将婴儿抱至民政部门处理。2019年3月,庐丰中坊村村民李育华、刘某以当年被抱至民政局的婴儿系其夫妇所生为由找到庐丰人民政府计生办蓝某、李永方等工作人员,要求蓝某将抱至民政局的婴儿找回,同时开始以此事进行信访。赖亮平(此前与李育华及其家属均不认识)通过互联网知悉此事,遂以帮助联系有关媒体进行关注以此监督政府为名主动联系李育华夫妇,随后双方开始互有联系。2019年5月26日,赖亮平在其手机上利用推特、比特加速器等手机软件发布“本人将于2019年5月27日前往庐丰乡计生办现场围观抓人贩子兰月秀、李永芳”、“请关注福建邵氏孤儿,现已经发现多例上杭县庐丰乡计生流氓强抢婴儿事件”等推文内容。次日上午,赖亮平伙同李育华夫妇等人到庐丰政府找到蓝某,原告赖亮平用手机拍摄并向110报警称抓到了抢小孩子的人贩子。因乡政府工作人员报警,赖亮平被派出所民警带至派出所调查。在此期间,赖亮平还开通推特直播视频并在视频中标注“抓人贩子了”、“人贩子来了”、“一个人口只有一万多的政府大楼”等内容。当日下午,赖亮平又在推特上发布“派出所,要求做笔录,警察看了当事人忠厚老实,就恐吓她,吓得浑身发抖。现已无法做”等内容。另经查明,2017年11月29日,赖亮平以前国家领导人做了有违人伦的事情为由在推特上对其进行侮辱。对于上述事实,有赖亮平的陈述和申辩,李育华、蓝某、包东星等多人的证词证言;电子数据勘验工作记录;提取笔录等证据证实。2.对原告赖亮平作出行政处罚适用法律正确,程序合法,量罚得当。赖亮平利用手机推特软件,故意编造庐丰乡计生工作人员是人贩子、上杭县庐丰计生流氓强抢婴儿等虚假信息在网络上散布,起哄闹事。同时在互联网上随意侮辱前国家领导人,损害政府公信力,损害前国家领导人形象,其行为已经构成寻衅滋事行为。据此,公安机关依据《中华人民共和国治安管理处罚法》第二十六条第(四)项之规定对赖亮平作出行政拘留十日的处罚决定。该案从接到报警受理、调查、处罚前依法告知,到作出处罚决定,均严格按照《中华人民共和国治安管理处罚法》规定的相关办案程序办理。综上所述,上杭县公安局对原告赖亮平作出的行政处罚事实认定清楚,证据确实充分,适用法律正确、程序合法、量罚适当,请求法院判决驳回原告的诉讼请求。


被告上杭县公安局(原行政机关)向本院提交了证明原行政行为合法性的以下证据、依据:(一)证据部分。1.受案登记表、受案回执、呈请延长询问时限审批报告、呈请延长办案期限审批报告、行政处罚告知笔录、复核笔录、行政处罚决定书、行政复议决定书、行政拘留家属通知书、行政拘留执行回执,证明对原告的行政处罚遵循了程序规定。2.赖亮平两次的询问笔录,证明原告认识李育华的过程和利用推特、比特加速软件发布庐丰政府工作人员是人贩子强抢婴儿以及侮辱先前党和国家领导人等推文内容;3.李永方的询问笔录,证明李育华诉求情况和原告赖亮平无理滋事过程;4.蓝某的询问笔录,证明庐丰政府处理婴儿过程和原告赖亮平到庐丰政府无理滋事过程;5.李育华的两次询问笔录,证明事件全过程包括原告赖亮平事实寻衅滋事行为的部分过程;6.包东星的询问笔录,证明庐丰政府处理婴儿过程和原告赖亮平到庐丰政府无理滋事过程;7.福建省行政执法证,证明蓝某是上杭县计生局具有行政执法资格的行政执法人员;8.信访答复件,证明庐丰政府有对李育华的信访事项给予答复;9.杭公证保决〔2019〕00447号证据保全决定书、证据保全清单,证明公安机关对原告的手机进行了扣押;10.提取笔录、手机内容截图,证明公安机关对原告手机存储的有关证实寻衅滋事的内容进行了提取,原告也予以确认;11.电子数据勘验工作记录,证明公安机关对原告被扣押的手机进行了电子数据提取;12.户籍证明,证明原告的基本身份情况以及是具有行政责任能力的自然人;13.杭公(庐丰)行罚决字〔2019〕00031号行政处罚决定书,证明公安机关对原告非法利用翻墙软件访问境外网站的违法行为进行行政处罚。(二)依据部分。《中华人民共和国治安管理处罚法》第二条、第九十一条、第二十六条等规定,证明被诉具体行政行为所依据和适用的法律。


被告上杭县人民政府(复议机关)辩称,1.被告上杭县人民政府作出复议决定是其法定职权。2.被告依法受理原告的复议申请,依法作出复议决定,程序合法。被告于2019年7月18日收到原告的复议申请后受理此案,7月23日向上杭县公安局送达《行政复议答复通知书》,8月27日依法作出复议决定,8月29日直接送达上杭县公安局,9月2日将行政复议决定书邮寄送达赖亮平。3.行政复议决定认定事实清楚。被告审查后认为,赖亮平于2019年5月26日至27日编造上杭县庐丰政府计生工作人员是人贩子、发现多例上杭县庐丰计生流氓强抢婴儿事件等虚假信息在中文推特社交软件上散布;于5月27日公然到庐丰政府起哄闹事,扰乱公共秩序。该事实有赖亮平的陈述和申辩,证据保全决定书及证据保全清单,电子数据勘验工作记录、提取笔录、提取照片,庐丰人民政府答复等证据证实。综上所述,上杭县人民政府作出行政复议决定认定事实清楚、适用法律正确、程序合法,请求人民法院予以维持。


被告上杭县人民政府(复议机关)向本院提交了证明复议程序合法性的证据、依据:1.行政复议案件立案审批表;2.行政复议申请书;3.答复通知书;4.行政复议决定书及送达回证;5.《中华人民共和国行政复议法》、《公安机关对部分违反治安管理行为实施处罚的裁量指导意见》有关规定,证明被诉具体行政行为所依据和适用的法律。


经庭审质证,对被告上杭县公安局提交的证据4、6,原告赖亮平有异议,认为证人蓝某、包东星的证言不实,原告确实有用手机拍摄整个过程,但当时在乡政府办公室有几十个人把其围在中间,试图要抢其手机,其才报警的;对被告上杭县公安局提交的其他证据、依据均没有异议。对被告上杭县公安局提供的证据、依据,被告上杭县人民政府均没有异议。


对被告上杭县人民政府提交的证据、依据,原告赖亮平、被告上杭县公安局均没有异议。
对原告提供的证据1、2,两被告均认为真实性无法确认;证据2,两被告均认为不能证明原告主张;证据3,两被告均认为与本案无关。


本院对上述证据认证如下:两被告提供的证据均与本案具有关联性,且符合合法性、真实性要件,本院予以认定。原告提供的证据1、2,因李育华、刘某为利害关系人,且其所陈述内容无客观证据佐证,无法确定其真实性,原告提供的证据3,与本案不具有关联性,故均不作为本案定案依据。


经审理查明,2001年,上杭县庐丰人民政府依法将该乡立英村村民张洪远夫妇非法抱养的婴儿抱至民政部门处理。2019年3月,该乡中坊村村民李育华、刘某以当年被抱至民政部门的婴儿系其夫妇所生为由找到庐丰人民政府计生办蓝某等工作人员,要求将该婴儿寻回,并因此事开始信访,庐丰人民政府对此信访进行了答复。原告赖亮平闻讯以帮助联系媒体关注为由主动联系李育华夫妇。2019年5月26日,原告赖亮平用其手机在推特社交网络平台上发文称“本人将于2019年5月27日前往庐丰乡计生办现场围观抓人贩子兰月秀、李永芳”、“请关注福建邵氏孤儿!现已经发现多例上杭县庐丰计生流氓强抢婴儿事件!!!本人将于5月27日前往现场直播。”次日上午,赖亮平与李育华及其妻子刘某等人共同到上杭县庐丰人民政府找到蓝某,赖亮平用手机拍摄并向110报警称:蓝某是人贩子,抢走了李育华夫妇的女儿。赖亮平还用手机开通推特直播视频并在推特社交网络平台连续发表推文:“人贩子来了”、“一个人口只有一万多的政府大楼”等内容。当日下午又在推特发文“在派出所,要求做笔录,警察看当事人忠厚老实,就恐吓她,吓的浑身发抖!现已无法做。”上杭县公安局庐丰派出所于2019年5月27日对庐丰人民政府工作人员李永方报称的赖亮平等人扰乱单位秩序一案立案受理,并对当事双方及相关人员进行了调查取证,且就赖亮平的两部手机进行了证据保全、电子数据提取。另外,赖亮平于2017年11月29日在推特社交网络平台上发布侮辱他人的不当言论,该言论发布直至2019年5月27日被公安机关查获。2019年6月27日,上杭县公安局作出杭公(庐丰)行罚决字〔2019〕00030号行政处罚决定,决定对赖亮平处以行政拘留十日。赖亮平不服,于2019年7月16日向上杭县人民政府申请行政复议,上杭县人民政府经审查于2019年7月18日决定立案受理,并于2019年7月23日向上杭县公安局送达赖亮平的行政复议申请书副本并要求其提交书面答复以及当初作出行政行为的证据、依据等相关材料。2019年8月27日,上杭县人民政府作出杭政行复决〔2019〕12号行政复议决定,决定维持上杭县公安局作出的杭公(庐丰)行罚决字〔2019〕00030号行政处罚决定。该复议决定书分别于2019年8月29日、9月3日送达给上杭县公安局和赖亮平。


另查明,上杭县公安局以赖亮平在自己手机上安装比特加速器翻墙软件,使用非国家公用电信网提供的国际出入口信道进行国家联网,即“翻墙”访问境外网站的违法行为,于2019年6月28日作出杭公(庐丰)行罚决字〔2019〕00031号行政处罚决定,决定对赖亮平责令停止联网,给予警告。


本院认为,根据《中华人民共和国治安管理处罚法》第二条、第七条第一款、第九十一条第一款的规定,县级以上地方各级人民政府公安机关负责本行政区域内的有关扰乱公共秩序,妨害公共安全,侵犯人身权利、财产权利,妨碍社会管理,具有社会危害性,尚不够刑事处罚的治安管理处罚工作。本案被告上杭县公安局具有负责本行政区域内治安管理工作的法定职责。根据《中华人民共和国行政复议法》第十二条第一款规定,被告上杭县人民政府有权行使行政复议权。原告对两被告的执法主体资格均未提出异议,本院予以确认。


关于被告上杭县公安局作出杭公(庐丰)行罚决字〔2019〕00030号行政处罚决定认定事实是否清楚、程序是否合法、适用法律是否正确问题。经查,原告赖亮平用其手机在推特社交网络平台上发文称“本人将于2019年5月27日前往庐丰乡计生办现场围观抓人贩子兰月秀、李永芳”、“请关注福建邵氏孤儿!现已经发现多例上杭县庐丰计生流氓强抢婴儿事件!!!”等信息,此事实有原告赖亮平和李永方、蓝某、包东星等人的询问笔录和赖亮平的两部手机中提取微信聊天记录及推特社交网络平台发布的推文等电子证据能够证实。而根据原告赖亮平在两份询问笔录中称其是在2019年3月份从网上看到李育华发到网上的求助信后以帮忙联系媒体关注为由主动联系李育华后听其讲述的。在案件审理过程中,原告赖亮平亦未提交可以证明李育华、刘某夫妇所述事项属实的证据、依据。原告赖亮平作为达到责任年龄具有责任能力的自然人,在未对李育华单方陈述事项进行核实的情况下,将“抓人贩子兰月秀、李永芳”、“现已经发现多例上杭县庐丰计生流氓强抢婴儿事件!!!”等没有事实根据的信息在网络上散布传播,误导了正常的社会舆论,在社会上造成了恶劣影响,客观上造成了扰乱社会秩序的后果。根据《中华人民共和国治安管理处罚法》第二十六条第(四)项规定以及参照《公安机关对部分违反治安管理行为实施处罚的裁量指导意见》关于“寻衅滋事情节较重”的规定,被告上杭县公安局对原告赖亮平处以行政拘留十日,适用法律法规正确、量罚适当。公民虽有依法监督的权利,但公民如果以扰乱公共秩序的手段来行使权利,则超出了正当监督的权界。故原告赖亮平称其未编造虚假信息扰乱公共秩序,而是希望引起政府和社会的重视以帮助弱者的理由与事实不符,本院不予采信。被告上杭县公安局立案后,依法传唤当事人,经调查取证,并在处罚前向原告告知了拟作出行政处罚的事实、理由和依据,履行了告知义务,保障了原告的陈述、申辩权,后结合案情依据《中华人民共和国治安管理处罚法》第二十六条第(四)项“其他寻衅滋事行为”作出处以行政拘留十日的决定,事实清楚、程序合法、适用法律正确。被告上杭县人民政府在收到原告复议申请后进行立案、审查,并在法定期限内作出复议决定并送达,行政程序合法。


关于原告赖亮平称被告上杭县公安局对其于2017年11月29日在推特社交网络平台上发布言论的行为进行处罚超出了处罚时限问题。经查,根据被告上杭县公安局依法提取的原告赖亮平推特社交网络平台的发文记录可证实原告发表了侮辱他人的不当言论且该不当言论在2019年5月28日被上杭县公安局查获时仍发布在原告的推特社交网络平台,即原告的违法行为从发表之日起就一直存续,被告上杭县公安局于2019年6月27日对此作出行政处罚并未超出法定期限。故原告的该项主张于法无据,本院不予支持。


关于原告赖亮平称被告上杭县公安局已于2019年6月28日对其作出杭公(庐丰)行罚决字〔2019〕00031号行政处罚决定,决定对其责令停止联网、给予警告,现又对其进行行政处罚,属重复处罚的问题。经查,被告上杭县公安局作出的杭公(庐丰)行罚决字〔2019〕00031号行政处罚决定,系对赖亮平违反《中华人民共和国计算机信息网络国际联网管理暂行规定》第六条第二款、第十四条的规定,即“翻墙”访问国外网站的违法行为处以停止联网、警告的行政处罚,所处罚的违法行为、所依据的法律法规均与被诉具体行政行为不同,系另一个具体行政行为,故不属于重复处罚,原告的该项主张与事实不符,依法不予支持。


综上,被告上杭县公安局作出的杭公(庐丰)行罚决字〔2019〕00030号行政处罚决定及被告上杭县人民政府作出的杭政行复决〔2019〕12号行政复议决定,认定事实清楚,证据确凿,适用法律、法规正确,符合法定程序,原告起诉理由不成立,依法应驳回其诉讼请求。依照《中华人民共和国行政诉讼法》第六十九条的规定,判决如下:
驳回原告赖亮平的诉讼请求。


本案受理费50元,由原告赖亮平负担。


如不服本判决,可在判决书送达之日起十五日内向本院递交上诉状,并按对方当事人的人数提出副本,上诉于福建省龙岩市中级人民法院。


审 判 长  郭华珍
人民陪审员  苏丽清
人民陪审员  卢润锋


二〇一九年十二月二十四日

法官助理李小凤
书记员张丽燕


 

Sunday, August 9, 2020

Man Claims He Intended to Insult Republican, Not Communist, Party; Still Gets 5 Days In Jail

 First, a summary of the facts of the case:

  • September 23, 2019: Zhang Zhixiang posted the following statement to a Wechat group: "文明社会,暴政的共匪不会长期存." The English translation of this would be along the lines of "In a civilized society, tyrannical [WORD IN DISPUTE] will not survive for long." More about the "WORD IN DISPUTE" later.
  • September 24, 2019: the Public Security Bureau of Dongzhi launched an investigation and summoned Zhang to the Nixi Police Station for questioning on suspicion that his post had constituted a disturbance of the peace (涉嫌寻衅滋事).
  • November 22, 2019:  the Public Security Bureau of Dongzhi issued an administrative penalty notification to Zhang Zhixiang, informing him of the matters which would be subject to punishment, and asking him whether he wished to submit a statement and defense. Zhang stated he would not make a statement in his defense.
  • November 23, 2019: the Public Security Bureau of Dongzhi issued an administrative penalty decision ordering Zhang to serve five days in administrative detention.
  • January 13, 2020: Zhang filed an appeal with the People’s Court of Dongzhi, Anhui requesting the administrative punishment decision be revoked. 
  • The People’s Court of Dongzhi rejected Zhang's appeal, so Zhang appealed again to the  Intermediate People's Court of Chizhou, Anhui, which also rejected his appeal.

So far there is nothing special about this case.  Arrest and imprisonment by police without trial or legal representation for insulting the Communist Party of China and its leaders is so commonplace that this case would normally not warrant any particular comment. Nor is it unusual for those who are jailed by the police for their speech to file an appeal in court. And they almost always lose. See, for example "At Least 10 People Convicted in China in 2019 for Twitter Posts that "Disturbed the Peace."

What makes this case noteworthy is Zhang's basis for requesting the courts revoke the Public Security Bureau's punishment. Here is how the People’s Court of Dongzhi summarized it:

Because the New Rural Cooperative Medical Insurance Company failed to reimburse plaintiff Zhang Zhixiang in a timely manner after he suffered from a malignant tumor of the right kidney, he posted inappropriate political statements like "In a civilized society, tyrannical  [WORD IN DISPUTE] will not survive for long" on the "B-Side Observation Group 1" (344 people in total) which was clearly illegal and constituted other acts of disturbing the peace. Plaintiff argued that the remarks he posted on the Internet had nothing to do with the governing party or government of China, and that what was online referred to the Republican government of the United States.

本案原告张志祥因患右肾恶性肿瘤后新农合医保未能及时报销,在“B彼岸观察1群”(共344人)的微信群里,发布了“文明社会,暴政的共匪不会长期存在”的不当政治言论,其行为明显违法,构成其他寻衅滋事行为。原告辨称其在网上发布的言论与本国政党政府无关,网上所指是美国共和党政府。

And here's how the Intermediate People's Court of Chizhou, Anhui summarized it (this time apparently with Zhang referring to himself in the first person):

I was referring to the current United States President and Republican Party leader Donald Trump's government's supporting "Hong Kong Independence" activists, damaging "One Country Two Systems," bring chaos to my China, and furthering the realization of global hegemonism. The statements I posted online had nothing to do with China's governing party or government, and what was online was referring to the United States Republican Party government. 

指的是现任美国总统共和党领袖特朗普政府支持“港独”分子,破坏“一国两制”,乱我中华,从而实现世界霸权主义。本人在网上发布的言论与本国政党政府无关,网上所指是美国共和党政府。

Zhang's argument had some basis, at least from a purely linguistic perspective. He was claiming that the word "共匪" refers to "Republican Bandits" and not "Communist Bandits." There no dispute that the second character "匪" refers to "bandits." So the only question is whether the first character "共" could possibly refer to "Republicans."  

As the screenshot below shows, in Chinese "Republican Party" and "Communist Party" share the same first character - "共." 

So the word "共匪" could, in theory, refer to either "Republican Bandit" or "Communist Bandit."

Unfortunately for Zhang, neither court was prepared to accept this argument. The odds were always against Zhang, because the term "共匪" has a long history of being used to refer to the Communist Party of China. Historical roots for the term "共匪" go back to the Kuomintang government in the 1920s, and Chiang Kaishek used that term several times in his book "Soviet Russia In China" - (苏俄在中国). 

Even today the term is censored on PRC websites. For example, this screenshot shows that Baidu will not even provide a translation for the term.

Baidu also tells users of its "Postbar" (Tieba) social media product who search for that term "Apologies, in accordance with relevant laws, regulations, and policies, related search results cannot be displayed." (抱歉,根据相关法律法规和政策,相关结果不予展现)
And searches for the term on Baidu's search engine only return results from websites under the direct control of the central government.
As for the judgment in Zhang's case, as of the posting of this article it appears to have been removed from the Supreme People's Court judgment database. As this screenshot shows, it was originally available at this URL: https://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=0b19bd66a0024fc4a2bcabec004072a6.

Here is how that page appears now.

I have pasted the full text of the judgment below.

安徽省池州市中级人民法院
行 政 判 决 书
(2020)皖17行终31号


上诉人(一审原告)张志祥,男,1964年2月28日出生,汉族,住安徽省池州市东至县。

被上诉人(一审被告)东至县公安局,住所地安徽省东至县政务新区至德大道,统一社会信用代码113418210032868681。法定代表人陆骏,局长。

上诉人张志祥与被上诉人东至县公安局因治安管理行政处罚一案,不服安徽省东至县人民法院(2020)皖1702行初2号行政判决,向本院提出上诉。本院依法组成合议庭审理了本案。本案现已审理终结。

一审法院经审理查明:原告张志祥系安徽省池州市东至县泥溪镇河庙村王畈组村民,2019年1月25日因(右侧)肾恶性肿瘤在安徽医科大学第一附属医院住院治疗,2019年1月30日行腹腔下右肾根治性切除术,2019年2月4日出院。2019年9月23日池州市公安局网安支队在网安工作发现,原告张志祥以网民“东方不亮西方亮”在微信群称其近几日准备办出入证到香港去,并发表:“文明社会,暴政的共匪不会长期存在”等言论。池州市公安局网安支队将该涉嫌违法线索交由东至县公安局予以核查。2019年9月24日东至县公安局泥溪派出所接警后,以原告张志祥涉嫌寻衅滋事依法履行了受案、调查,并将原告张志祥传唤至泥溪派出所进行了询问。2019年9月25日,被告东至县公安局对原告张志祥涉嫌违法行为载体华为畅享8手机一部予以扣押保全。2019年9月26日被告东至县公安局在泥溪财政分局依法调取原告张志祥病情相关材料。2019年11月22日被告东至县公安局向原告张志祥作出行政处罚告知笔录,对拟处罚事项向其进行告知,并征询其是否提出陈述和申辩,原告张志祥在笔录上表示不陈述申辩。期间、因案情复杂,被告决定延长办案时间三十日。2019年11月23日被告东至县公安局作出东公(泥)行罚决字[2019]第698号行政处罚决定书,决定对原告张志祥予以行政拘留五日并于2019年11月24日向原告张志祥进行了送达。原告张志祥不服行政处罚决定书,于2020年1月13日诉至一审法院请求撤销东公(泥)行罚决字[2019]第698号行政处罚决定书。

一审法院认为,被告东至县公安局作为地方公安机关有依法维护辖区治安秩序的职责,对寻衅滋事行为作出治安处罚,是其享有的法定职权。《中华人民共和国治安管理处罚法》第二十六条规定:有下列行为之一的,处五日以上十日以下拘留,可以并处五百元以下罚款;情节严重的,处十日以上十五日以下拘留,可以并处一千元以下罚款:(一)结伙斗殴的;(二)追逐、拦截他人的;(三)强拿硬要或者任意损毁、占用公私财物的;(四)其他寻衅滋事行为。本案原告张志祥因患右肾恶性肿瘤后新农合医保未能及时报销,在“B彼岸观察1群”(共344人)的微信群里,发布了“文明社会,暴政的共匪不会长期存在”的不当政治言论,其行为明显违法,构成其他寻衅滋事行为。原告辨称其在网上发布的言论与本国政党政府无关,网上所指是美国共和党政府。但从原告的询问笔录、“悔过书”、手机存储器中提取电子数据的内容可以看出,原告辩解无任何依据可以支持,故对原告辩解不予采信。被告东至县公安局依据《中华人民共和国治安管理处罚法》的规定履行了受案、传唤、调查、询问、告知、裁决、送达等一系列法律程序,根据原告的违法情节轻重等因素综合作出对原告张志祥行政拘留五日,事实清楚、证据确实充分,适用法律正确,程序合法,处罚适当。综上,原告张志祥请求撤销东公(泥)行罚决字[2019]第698号公安行政处罚决定书的理由不能成立,一审法院不予支持。案经该院审判委员会讨论决定,依照《中华人民共和国行政诉讼法》第六十九条之规定,判决驳回原告张志祥的诉讼请求。案件受理费50元,由原告张志祥负担。

张志祥上诉称,上诉人于2019年9月24日以“东方不亮西方亮”的网民在“B彼岸观察1群”发布的言论、内容(21世纪现代文明社会,共匪不亡,天理不容)指的是现任美国总统共和党领袖特朗普政府支持“港独”分子,破坏“一国两制”,乱我中华,从而实现世界霸权主义。本人在网上发布的言论与本国政党政府无关,网上所指是美国共和党政府。故提起上诉,请求二审法院依法确认东至县公安局作出的东公(泥)行罚决字[2019]第698号行政处罚违法,适用法律错误并予以取消(撤销)。

东至县公安局答辩称,东至县公安局依法对上诉人张志祥作出的东公(泥)行罚决字[2019]698号公安行政处罚决定,认定的事实清楚,证据确实充分,适用法律正确,程序合法,量罚适当。东至县人民法院一审判决认定我局对张志祥的行政处罚事实清楚,证据确凿,适用法律正确,程序合法,量罚适当,请求二审法院予以维持,驳回上诉人上诉请求,以维护法律的严肃性。需要向二审法院做出说明的是在我局依法对张志祥的违法行为作出处罚后,上诉人张志祥感念东至县公安局泥溪派出所在办理该案过程中对其帮教,于2019年12月17日向东至县公安局泥溪派出所送锦旗一面。但上诉人张志祥在没有新的事实和理由及证据情况下,仅凭自己一时想法提起一、二审行政诉讼,根据最高人民法院印发《关于进一步保护和规范当事人依法行使行政诉权的若干意见》(法发[2017]125号)等法治精神,可以看出上诉人张志祥在没有新的事实与理由,针对同一事项反复、重复提起诉讼,其行为一方面扰乱了正常诉讼秩序,损害了司法权威,另一方面也挤占了有限的司法资源,加大了行政机关依法行政成本,属于典型的滥用诉权行为,不应得到法院支持。
东至县公安局向一审法院提交了下列证据:
1、受案登记表、受案回执,证明被告依法受案;
2、传唤证,证明被告依法传唤违法人员到案调查;
3、行政案件权利义务告知书、行政处罚告知笔录,证明被告依法履行告知义务;
4、证据保全决定书、清单、领条,证明被告依法扣押、返还物证;
5、调取证据通知书及清单,证明被告依法调取张志祥病例书证;
6、延长办案期限审批表,证明被告依照法定期限办理治安案件;
7、张志祥的陈述和申辩,证明张志祥就其违法事实进行了陈述和申辩的事实;
8、冯茂林、高玉芳的证人证言,证明张志祥实施违反治安管理行为的事实;
9、张志祥提供的微信个人信息、B彼岸观察1群截图及实施违反治安管理行为时使用的手机,证明张志祥实施违反治安管理行为的事实;
10、电子证物检验报告及提取的电子证据(详见光盘1张),证明张志祥实施违反治安管理行为的事实;
11、张志祥住院病历书证,证明张志祥因病住院治疗客观事实;
12、张志祥悔过书,证明张志祥实施违反治安管理行为的事实;
13、张志祥违法犯罪记录,证明张志祥在被被告依法做出行政处罚前我局暂未发现其有其他前科记录;
14、张志祥、冯茂林、高玉芳户籍身份信息,证明张志祥等三人身份;
15、行政处罚决定书,证明被告依法对张志祥作出行政处罚决定事实;
16、池州市局网安支队交办函,证明张志祥违法线索来源;
17、附相关法律法规,证明被告依法对张志祥作出行政处罚决定相关法律依据。
上述证据材料均随案移送本院,二审中双方均未提供新证据,一审法院对证据的审核与认定符合法律规定,本院予以确认。
本院认为,公安机关有依法对违反治安管理的违法行为进行行政处罚的法定职责。本案中被上诉人对上诉人通过网络发表不当政治言论,借故生非,污蔑和诋毁中国共产党和人民政府,扰乱社会秩序的违法行为,依法进行受案、传唤、查证、告知、处罚、送达等程序,对上诉人的违法行为作出行政处罚,认定事实清楚,适用法律正确,处罚适当,程序合法。上诉人上诉认为其在“B彼岸观察1群”发布的言论、内容指的是现任美国总统共和党领袖特朗普政府支持“港独”分子,与本国政党政府无关,其辩解与事实不符,其上诉理由不能成立。对上诉人此辩解一审判决已充分阐述不予采纳的理由,二审不再赘述。据此,依照《中华人民共和国行政诉讼法》第八十九条第一款(一)项之规定,判决如下:
驳回上诉,维持原判。
二审诉讼费用人民币50元,由张志祥负担。
本判决为终审判决。
审判长 桂 群
审判员 叶光氢
审判员 钱跟东
二〇二〇年六月二十三日
法官助理陈利华
书记员田玉
附相关法律法规:
《中华人民共和国行政诉讼法》
第八十九条人民法院审理上诉案件,按照下列情形,分别处理:
(一)原判决、裁定认定事实清楚,适用法律、法规正确的,判决或者裁定驳回上诉,维持原判决、裁定;
(二)原判决、裁定认定事实错误或者适用法律、法规错误的,依法改判、撤销或者变更;
(三)原判决认定基本事实不清、证据不足的,发回原审人民法院重审,或者查清事实后改判;
(四)原判决遗漏当事人或者违法缺席判决等严重违反法定程序的,裁定撤销原判决,发回原审人民法院重审。
原审人民法院对发回重审的案件作出判决后,当事人提起上诉的,第二审人民法院不得再次发回重审。
人民法院审理上诉案件,需要改变原审判决的,应当同时对被诉行政行为作出判决。

Tuesday, June 16, 2020

Court Upholds Man's 10 Day Detention for Insulting China's National Anthem on WeChat

Background of the "Wangxi Incident"

On the afternoon of January 2, 2019, two children, Lu Yi and Luo Zhiqiang (aged 8-9), were found dead near a small stream in the village of Wangxi, Xiaoshajiang Township, in Longhui County, Hunan.

On January 4, the Public Security Bureau of Longhui conducted an autopsy.

On January 5, the Public Security Bureau of Longhui announced that an investigation was ongoing, but that it had "essentially excluded homicide" as a cause of death.

On February 20, the Public Security Bureau of Longhui published a notice warning Internet users not to trust rumors about the case.

On February 28, the  Public Security Bureau of Longhui announced that the autopsy had determined that the children had frozen to death.

Relatives of the children did not accept the autopsy results, and the Public Security Bureau of Longhui engaged the Public Security Bureau of Hunan's Physical Evidence Appraisal Center to review the cause of death.

On March 29, the Physical Evidence Appraisal Center organized an expert group to go to Longhui to perform another autopsy, extract test materials and send them to the Hubei Tongji Forensic Medicine Forensic Appraisal Center for analysis.

On April 25, the Physical Evidence Appraisal Center issued its finding that it had ruled out the children's cause of death being due to mechanical injury, mechanical suffocation, conventional poisoning, poisoning, fatal disease, and drowning. Its forensic conclusion was that the children had frozen to death. Based on on-site investigations, investigation interviews, and post-mortem forensics, authorities concluded the children had taken off their clothes and bathed in the stream, causing the freezing water to kill them.

On May 13, the Public Security Bureau of Longhui issued a notice to relatives of the children informing them that no criminal activity had been found, and they would not be pursuing the case.

On July 25, the Public Security Bureau of Longhui issued a notice to relatives of the children that based on their investigation the children had died of natural causes, that there was nothing to indicate foul play, and their bodies had to be disposed of.

Sources:
https://xw.qq.com/partner/gdtadf/20190729A0BBR7/20190729A0BBR700
https://mp.weixin.qq.com/s/wrIKssx58rwXcDgB8yIz4Q
https://new.qq.com/omn/20190514/20190514A03IOT.html
https://www.weibo.com/ttarticle/p/show?id=2309404353896536522658

The following is a translation of a court judgment which arose as a result of a person posting his views about the "Wangxi Incident" on Tencent's WeChat platform. The case was brought by Liu Renwen. Police had ordered Liu to be held in detention for 20 days - 10 days for "disturbing the peace" and 10 days for "insulting the national anthem." Liu appealed to a lower court to revoke the punishment and lost. He then appealed to a higher court, which also rejected his appeal.  The translation below is of the appellate court's judgment rejecting Liu's second appeal.

Intermediate People's Court of Shaoyang, Hunan

Administrative Judgment

(2019) Xiang 05 Administrative No. 315

Appellant (plaintiff in the original trial) Liu Renwen, male, born on October 14, 1984, residing in Longhui County.

Appellee (defendant in the original trial) Public Security Bureau of Longhui, located at No. 1, Ping'an Street, Taohong Town, Longhui County.

Legal representative Shen Songneng is the director of that Bureau.

Entrusted agent Wen Jiewei is an instructor on the legal team of that Bureau.

Appellant Liu Renwen filed an appeal in the case of the public order administrative punishment of the Public Security Bureau of Longhui, and he did not accept the (2019) Xiang 0581 Administrative First Instance No. 101 Administrative Judgment rendered by the People's Court of Wugang, Hunan, and filed an appeal with this Court. This Court formed a collegial panel in accordance with the law and conducted a trial in this case. The trial has now concluded.

It was ascertained in the original trial that in March 2019, plaintiff Liu Renwen began to become aware of the death of two children in Wangxi, Xiaoshajiang Township, Longhui County (hereinafter referred to as the Wangxi Incident). Because he did not believe the police incident report issued by the police, he joined some WeChat group discussions of the Wangxi Incident (including "Volunteer's House," "Hengxin Public Welfare Friends Group," "Justice's House," "National Legions Fellowship Exchanges Group," "Wangxi Status," "Dazhaodongkou Group," and "Chat 47 Group"), he set up a WeChat group "Volunteers ①" to discuss the Wangxi Incident, and from the beginning of May 2019 he used WeChat groups to advocate for 10,000 people to sign petitions.

On May 8, 2019, Liu Renwen posted the following in Wechat groups such as "Justice's House" and "National Legions Fellowship Exchanges Group":
Regarding the murder case of the two brothers in Xiaoshajiang, Wangxi, modern officials only love wealth and sex, and inflict harm upon the world without reason. In terms of their character, the only thing they love is the money they have to spend! They have no fear of being cursed or punished as criminals, and are devoid of shame. I am a truly incompetent person. I only ask that those who understand the law and are capable to seek justice on behalf of the dead. .Strive for peace among peoples, stand upright for the citizens, . . . Strict and impartial laws, what protection should you afford murderers, of what crime would you convict those who would murder two children 7-8 years old?

On May 14th of the same year, Liu Renwen posted the following in the "Volunteers ①" group:
All the police officers participating in Wangxi (the self-inflicted stripping and freezing to death) are guilty of dereliction of duty, and their behavior can be likened to providing a protective umbrella for evil forces, those who would purge the world of evil things must crack down and punish it.

In addition, on May 9, 2019, Liu Renwen reposted lyrics of the national anthem which had been distorted by others in other WeChat groups.

On May 16, 2019, after the defendant Public Security Bureau of Longhui received the case, they questioned Liu Renwen in accordance with the law, initiated a related investigation, and served him a notice prior to imposing administrative punishment.

On May 17, 2019, the Public Security Bureau of Longhui issued the Long Public (He) Decision (2019) No. 0819 "Public Security Administrative Punishment Decision":
In accordance with the provision of Article 26 of the "Public Security Administration Punishment Law of the People's Republic of China" Liu Renwen is subject to 10 days administrative detention. In accordance with the provisions of Article 15 of the "National Anthem Law of the People’s Republic of China," Liu Renwen is subject to 10 days administrative detention. In accordance with the provisions of Article 161(1) of the “Procedures for Public Security Organs on the Handling Administrative Cases," it is decided that administrative detention on Liu Renwen shall run consecutively for 20 days.

Liu Renwen did not accept this, and filed an administrative lawsuit requesting that the Long Public (He) Decision (2019) No. 0819 “Public Security Administrative Punishment Decision” issued by the Public Security Bureau of Longhui be revoked.

The first instance judgment determined that because the plaintiff Liu Renwen did not believe the police incident report issued by the police he disseminated and fabricated false information about the Wangxi Incident and advocated for 10,000 people to sign a petition in the WeChat groups that he formed or participated in, which constituted an illegal act of disturbing the peace; in addition Liu Renwen reposted distorted lyrics of the national anthem in a WeChat group and this constituted an illegal act of insulting the national anthem by other means. Defendant Public Security Bureau of Longhui found that Liu Renwen's illegal behavior was clear and the evidence was reliable and copious. In the process of making the administrative punishment decision regarding Liu Renwen, the Public Security Bureau of Longhui conducted legal procedures such as case acceptance, investigation, and notification prior to administrative punishment. The procedures were lawful.

In applying the provisions of Article 26 of the "Public Security Administration Punishment Law of the People’s Republic of China," Article 15 of the "National Anthem Law of the People’s Republic of China," and Article 161(1) of the “Procedures of the Public Security Organs on the Handling Administrative Cases” to the administrative detention punishment imposed on Liu Renwen, the Public Security Bureau of Longhui applied the law correctly and imposed punishment appropriately.

In accordance with the provision of Article 69 of the "Administrative Procedure Law of the People's Republic of China," the court of first instance dismissed plaintiff Liu Renwen's lawsuit.

Appellant Liu Renwen appealed the first instance judgment claiming the facts were wrongly determined and requested the court of second instance revoke the original judgment and the Long Public (He) Decision (2019) No. 0819 “Public Security Administrative Punishment Decision."

Appellee Public Security Bureau of Longhui replied that with respect to the defendant's decision on administrative punishment the facts were clear and the evidence was reliable and copious, the procedures were legal, the law was applied correctly, and the degree of punishment was appropriate. The original judgment was correct and they requested the second instance court dismiss the appeal and uphold the original judgment.

The facts ascertained by this Court in the trial of second instance were consistent with the facts ascertained in the trial of first instance, and are affirmed by this Court.

This Court finds that appellant Liu Renwen disseminated false information in multiple WeChat groups which created a disturbance and disturbed the peace; he also reposted the distorted lyrics of the national anthem in multiple WeChat groups, insulting the national anthem, and these facts are confirmed by his own statements, witness testimonies, and WeChat chat records and other evidence. The facts are clear, and the evidence is conclusive.

Appellee Public Security Bureau of Longhui performed the procedures of filing, investigation, notification of punishment, decision of punishment, delivery, and notification of the family members of the detainee in accordance with the law, and the procedures were lawful.

The Long Public (He) Decision (2019) No. 0819 “Public Security Administrative Punishment Decision" issued by the Public Security Bureau of Longhui applied the law correctly when it subjected Liu Wenren to 10 days administrative detention in accordance with the provisions of Article 26 of the "Public Security Administration Punishment Law of the People's Republic of China;" subjected Liu Wenren to 10 days administrative detention in accordance with the provisions of Article 15 of the "National Anthem Law of the People’s Republic of China;" and decided that the administrative detention on Liu Renwen should run consecutively for 20 days in accordance with the provisions of Article 161(1) of the “Procedures for Public Security Organs on the Handling Administrative Cases."

The original judgment determined that the facts were clear, the laws and regulations were correctly applied, and the judgment result was not inappropriate. Liu Renwen’s request to revoke the administrative penalty decision and the original judgment is not sustained by this Court. Accordingly, in accordance with the provisions of Article 89(1)(i) of the "Administrative Procedure Law of the People's Republic of China," the judgment is as follows:

The appeal is denied and the original sentence is upheld.

The appeal fee for the trial of second instance of this case is 50 yuan, which shall be borne by appellant Liu Renwen.

This judgment shall be the final judgment.

Chief Adjudicator: Jiang Hongling
Adjudicator: Liu Zhaohui
Adjudicator: Yang Yaozhi

December 5, 2019

Judge's Assistant: Li Ping

Acting Clerk: You Xiaohong

Laws Cited:


National Anthem Law

Article 15. Anyone who, in a public venue, intentionally distorts the national anthem's lyrics or music, or sings the national anthem in a twisted or derogatory manner, or insults the national anthem in any other manner shall be subject to a warning or no more than 15 days detention. Where it constitutes a crime, criminal responsibility will be pursued in accordance with the law.

Public Security Administrative Punishments Law

Article 26. Anyone who commits one of the following acts shall be detained for not less than 5 days and not more than 10 days and may, in addition, be fined not more than 500 yuan; and if the circumstances are relatively serious, they shall be detained for not less 10 than days and not more than 15 days and may, in addition, be fined not more than 1,000 yuan:

(1) gang-fighting;
(2) chasing or intercepting another person;
(3) forcibly taking and obstinately seizing, or willfully damaging and occupying, public or private property; or
(4) other provocative acts.


刘任文与隆回县公安局治安行政处罚二审行政判决书
湖南省邵阳市中级人民法院
行 政 判 决 书
(2019)湘05行终315号


上诉人(原审原告)刘任文,男,1984年10月14日出生,住隆回县。

被上诉人(原审被告)隆回县公安局,住所地隆回县桃洪镇平安街1号。

法定代表人申松能,该局局长。

委托代理人文杰威,该局法制大队教导员。

上诉人刘任文因诉被上诉人隆回县公安局治安行政处罚一案,不服湖南省武冈市人民法院作出的(2019)湘0581行初101号行政判决,向本院提起上诉。本院依法组成合议庭,对本案进行了审理,现已审理终结。

原审查明,2019年3月,原告刘任文开始了解隆回县小沙江镇旺溪两名儿童死亡事件(以下简称旺溪事件),因不相信警方发布的警情通报,便加入了一些讨论旺溪事件的微信群(包括“志愿者之家”、“恒信公益朋友群”、“正义者之家”、“全国万人老乡交流会⑥群”、“旺溪情”、“大邵洞口群”、“聊天47群”),组建微信群“志愿者①”讨论旺溪事件,并从2019年5月初开始在多个微信群里倡议万人签名请愿书。

2019年5月8日,刘任文在“正义者之家”、“全国万人老乡交流会⑥群”等微信群发布“关于小沙江旺溪两小兄弟被害之命案,现代官家专爱财和色,伤天害理无人德。人格,只爱眼前有钱花!不怕断子绝孙受刑法,可耻无知,我是个实在无能之人。只敬请列为懂法、有才能义士为死者讨回公道。为世人争取平安,为国民声张正气,……严明的法律,请问你们保护杀人犯,连杀两名7-8岁的孩童该定什么罪”。

同年5月14日,刘任文在“志愿者①”群里发布“参加旺溪(自主脱衣冻死)的所有警察是渎职的,他们的行为符合黑恶势力保护伞的行为,属扫黑除恶的范畴,必须打击和严惩”。

另,2019年5月9日,刘任文将他人篡改的国歌歌词转发到其他微信群。

2019年5月16日,被告隆回县公安局受案后,依法询问了刘任文,进行了相关调查,并在行政处罚前进行了告知。

2019年5月17日,隆回县公安局作出隆公(荷)决字[2019]第0819号《公安行政处罚决定书》:“根据《中华人民共和国治安管理处罚法》第二十六条之规定,对刘任文行政拘留十日;根据《中华人民共和国国歌法》第十五条之规定,对刘任文行政拘留十日;根据《公安机关办理行政案件程序规定》第一百六十一条第一款之规定,决定对刘任文合并执行行政拘留二十日”。

刘任文不服,遂提起行政诉讼,请求撤销隆回县公安局作出的隆公(荷)决字[2019]第0819号《公安行政处罚决定书》。

原判认为,原告刘任文因不相信警方发布的警情通报,在本人组建或加入的微信群内散发、编造有关旺溪事件的虚假信息,倡议万人签名请愿书,已构成寻衅滋事的违法行为;刘任文在微信群里转发篡改的国歌歌词,已构成以其他方式侮辱国歌的违法行为。被告隆回县公安局认定刘任文的违法行为事实清楚,证据确实、充分。隆回县公安局在对刘任文作出行政处罚决定过程中,履行了受案、调查、行政处罚前的告知等法定程序,程序合法。隆回县公安局适用《中华人民共和国治安管理处罚法》第二十六条、《中华人民共和国国歌法》第十五条、《公安机关办理行政案件程序规定》第一百六十一条第一款的规定对刘任文作出的行政拘留处罚,适用法律正确,处罚适当。原审根据《中华人民共和国行政诉讼法》第六十九条的规定,判决驳回原告刘任文的诉讼请求。

上诉人刘任文上诉称,一审认定事实错误,请求二审法院撤销原审判决及隆公(荷)决字[2019]第0819号《公安行政处罚决定书》。

被上诉人隆回县公安局答辩称,被诉行政处罚决定认定事实清楚,证据确实、充分,程序合法,适用法律正确,量罚适当。原审判决正确,请求二审驳回上诉,维持原判。

本院二审查明的事实与一审认定的事实一致,本院予以确认。

本院认为,上诉人刘任文在多个微信群里散发虚假信息,起哄闹事,寻衅滋事;并在多个微信群转发篡改的国歌歌词,侮辱国歌的事实,有其本人陈述、证人证言、微信聊天记录等证据予以证实,事实清楚,证据确凿。被上诉人隆回县公安局依法履行了立案、调查、处罚告知、作出处罚决定、送达、通知被拘留人家属等程序,程序合法。

隆回县公安局作出的隆公(荷)决字[2019]第0819号《公安行政处罚决定书》,根据《中华人民共和国治安管理处罚法》第二十六条之规定,对刘任文行政拘留十日;根据《中华人民共和国国歌法》第十五条之规定,对刘任文行政拘留十日;根据《公安机关办理行政案件程序规定》第一百六十一条第一款之规定,决定对刘任文合并执行行政拘留二十日,适用法律正确。

原判认定事实清楚,适用法律、法规正确,判决结果并无不当,对刘任文要求撤销行政处罚决定和原审判决的请求,本院不予支持。据此,依照《中华人民共和国行政诉讼法》第八十九条第一款第(一)项之规定,判决如下:

驳回上诉,维持原判。

本案二审受理费50元,由上诉人刘任文负担。

本判决为终审判决。

审 判 长  蒋红玲
审 判 员  刘朝晖
审 判 员  杨皞陟

二〇一九年十二月五日

法官 助理  李 萍