Pages

Friday, October 16, 2009

Translation: State v. Guo Quan - Subversion

NOTE: This post was published on December 6, 2020, but this post is dated the date the court judgment was issued in order to prevent confusion.

 Intermediate People's Court of Suqian, Jiangsu

Criminal Judgment

(2009) Su Intermediate Criminal Second First Instance No. 00021


The public prosecution agency was the People's Procuratorate of Suqian, Jiangsu.

Defendant Guo Quan, Male, born [INTENTIONALLY DELETED], 1968 in Nanjing, Jiangsu, ID number [INTENTIONALLY DELETED], Han, post-graduate education, formerly a member of the information staff at the information office of the College of Liberal Arts of Nanjing Normal University, residing at [INTENTIONALLY DELETED], Drum Tower District, Nanjing. On November 13, 2008, he was taken into criminal detention on suspicion of committing the crime of subversion of state power, and he was arrested on December 19 of that year. He is currently being held in custody at the Nanjing Detention Center.

Defense counsel Si Weijiang is a lawyer at the Shanghai Dabang Law Firm.

Defense counsel Guo Lianhui is a lawyer at the Jiangxi Ming Li Law Firm.

The People's Procuratorate of Suqian, Jiangsu charged defendant Guo Quan with committing the crime of subversion of state power in the Suqian Criminal Indictment (2009) No. 17 indictment, and filed a public prosecution with this Court on June 8, 2009. In accordance with the High People's Court of Jiangsu's decision on the designation of jurisdiction, on June 10 this Court established the case, formed a collegial panel in accordance with the law, and publicly tried this case on August 7. The People's Procuratorate of Suqian, Jiangsu assigned Procurator Xia Wei, and acting Procurators Liu Zhaodong and Zhao Jing to appear in court in support of the public prosecution. Defendant Guo Quan and his defense counsels Si Weijiang and Guo Lianhui appeared in court to participate in the proceedings. During the trial, this Court applied to the High People's Court of Jiangsu to extend the trial period for one month, after hearing recommendations for an extension submitted by the public prosecution agency. In accordance with the law this Court decided to delay the trial, and resumed the trial on September 16, 2009. The trial has now concluded.

The People's Procuratorate of Suqian, Jiangsu charged that in order to subvert state power and overthrow the socialist system, in the second half of 2007 to November 2008, on several occasions defendant Guo Quan wrote and disseminated through the Internet a series of articles titled "Democracy Herald," used the Internet to publish a "Party Constitution of the China New Democracy Party (and Guiding Policy Principles)," "Party Framework of the China New Democracy Party (CNDP)," illegally organized the "China New Democracy Party," and took the position of the so-called "Acting Chairman" and developed the Party organization and members of the "China New Democracy Party." He used the Internet to plan activities including a "Democratic Revolutionary Blue Movement" and a "Seven Day Stay-At-Home Revolution." He instigated the overthrow of the socialist system under the guise of helping certain collective "rights defenders."

In order to substantiate the facts in the aforementioned charges, the People's Procuratorate of Suqian, Jiangsu questioned defendant Guo Quan in court, produced relevant physical and documentary evidence, read out testimony of witnesses who did not appear in court, and examined in court the investigation notes and defendant Guo Quan's repeated statements made at the investigating agency's office, and other evidence. They maintain that defendant Guo Quan's actions violated the provisions of Article 105(1) of the "Criminal Law of the People's Republic of China," constitute the crime of subversion of state power, and request that this Court pass sentence in accordance with law.

Defendant Guo Quan did not contest the facts charged by the public prosecution agency that on several occasions he used the Internet to disseminate a series of articles titled "Democracy Herald," distributed the "Constitution China New Democracy Party" and "Party Framework of the China New Democracy Party," established the "China New Democracy Party," and considered himself the so-called "Acting Chairman." He argued, however, that he lacked the subjective intent and objective behavior to subvert the national regime and overthrow the socialist system, that establishing a "China New Democracy Party" online is an exercise of the constitutional right to freedom of association, that the "Democracy Herald" series of articles do not include content that subverts the national regime and overthrows the socialist system, that the articles relating to the "One Week Stay-at-Home Revolution" and the "Democratic Revolutionary Blue Movement" did not have written expressions about overthrowing the socialist system, and that he told the "rights defenders" the harm to their collective interests had been caused by system's structure, and that this did not overthrow the socialist system, and therefore does not constitute a crime.

Defendant Guo Quan's defense counsels claimed that Guo Quan lacked the subjective intent and objective behavior to subvert state power and overthrow the socialist system, that his use of the Internet to publicly distribute the "Constitution of the China New Democracy Party" and the "Party Framework of the China New Democracy Party" was not illegal, that his actions were within the boundaries of freedom of speech and freedom of association, that the "Seven Day Stay-At-Home Revolution" and the "Democratic Revolutionary Blue Movement" merely propagandized democratic ideals and were not socially harmful, that there is no evidence proving instigated the overthrow the socialist system under the guise of rights defense, and that defendant Guo Quan has not committed a crime.

It was ascertained at trial that in the second half of 2007 to November 2008, defendant Guo Quan did on several occasions write and disseminate through the Internet a series of articles titled "Democracy Herald," defamed China's current socialist system, attacked China's political system as "a one party dictatorial regime," and threatened to "end the existing authoritarian regime." used the Internet to publish a "Party Constitution of the China New Democracy Party (and Guiding Policy Principles)," "Party Framework of the China New Democracy Party (CNDP)," illegally organized the "China New Democracy Party," and furthermore took the position of the so-called "Acting Chairman" and developed the party organization and members of the "China New Democracy Party." and actively developed Liu Chenggong, Mu Hao, Yang Shizhen, and other "New Democracy Party" members. He appointed Kong Qiang, Wang Xiqiang, and others to serve as Party heads in Shandong, Zhejiang, and other places. He called for "China New Democracy Party" Party members to donate "special Party fees" to fund "The Four Cardinal Points Rights Defense Work Office." He used the Internet to plan a "One Week Stay at Home Revolution," a "Democratic Revolutionary Blue Movement," and other activities, calling for "all citizens to stay at home, not collaboration with the dictators, not act in services of dictators, prepare seven days worth of food and water, and wait for the advent of a democratic China." He did all this in an attempt to subvert state power and overthrow the socialist system; instigating the overthrow of the socialist system in the name of helping certain groups "defend their rights."

The aforementioned facts have been substantiated through cross examination of evidence in hearings, and are hereby confirmed by this Court.

1. Documentary evidence, several articles that have been confirmed and acknowledged through the signature of defendant Guo Quan including: "Democracy Herald 88: Party Constitution of the China New Democracy Party (and Guiding Policy Principles)," "Democracy Herald 200: Party Framework of the China New Democracy Party (CNDP)," "Democracy Herald 67: Whoever Believes that China's Society is a Socialist Society Can Go to Hell," "Democracy Herald 129: When Lenin and Huntington Meet in China, That is When the Chinese Communist Dictatorship will be About to End," and "Democracy Herald 287: China New Democracy Party Please Pay Special Membership Dues for the 'Wandering Rights Defense Office.'"

2. Testimony of witnesses Liu Chenggong, Mu Hao, Yang Shizhen, Pang Ben, Guo Jian, Li Wenbin, Ye Jun, Zhang Yongfeng, Wu Yongjian, Chen Xudong, Qian Feng, Kong Qiang, Wang Xiqiang, Lin Nianqin, and Xu Xuefeng, confirmed defendant Guo Quan sent them the "Democracy Herald." In addition, Li Chenggong confirmed that, upon inquiry, Guo Quan replied that he was himself a "New China Democracy Party" member, and had established online the "China New Democracy Forum" (Google Group) and the "Democracy Herald Group," and had published the "Democracy Herald" articles in the name of the "New Democracy Party Propaganda Department." Mu Hao confirmed that, after joining the "New Democracy Party," he founded the "Voice of China" magazine, wrote the "China New Democracy Party Party Song," and wrote articles such as "Election for National Salvation," and "Discussions On the Federated States of Greater China's Constitutional Referendum." In addition, he sent the aforementioned articles to Guo Quan, received Guo Quan's approval, and went on to propagandize the "New Democracy Party" to many people. Yang Shizhen confirmed that Guo Quan asked him to be the person responsible for the "New Democracy Party" in the Linyi region, and to take responsibility for propagandizing and developing the "New Democracy Party," and that at one point he disseminated the "New Democracy Party" program and introduced good friends to join the Party, but did not complete this task. Pang Ben and Guo Jian confirmed that due to their acknowledgment of the "New Democracy Party" Constitution, they believe themselves to be "New Democracy Party" members, and conducted their relationship with Guo Quan in their capacity as members of the "New Democracy Party." Guo Jian asked Guo Quan whether he could take responsibility for the Shanxi local party committee of the "New Democracy Party," and received Guo Quan's acknowledgment. Li Wenbin confirmed that at one time Guo Quan wrote to him asking him to establish a "New Democracy Party" Tatung Division, and Guo Quan encouraged him to develop the "New Democracy Party's" grass-roots organizations and Party members. Ye Haijun, Zhang Yongfeng, Wu Yongjian and others confirmed that they got into contact with Guo Quan through the Internet and the telephone and received replies from him, and that they believed themselves to be members of the "New Democracy Party." Kong Qiang, Wang Xiqiang, and Lin Nianjin confirmed that Guo Quan proposed they act respectively as the "New Democracy Party" Shandong and Zhejiang Party Chairmen and as the "Party School" director and develop Party membership and cultivate "New Democracy Party" cadres. Xu Xuefeng confirmed Guo Quan wanted him to be the so-called "second echelon," and have him and Guo Quan run against one another for presidency.

3. The testimony of witnesses Hu Zhengyu, Gong Lei and Wang Kang confirmed Mou Hao regularly propagandized the "China New Democracy Party" Party Constitution to them.

4. The testimony of Lan Hongbo, Yang Yong, Li Jing, and other witnesses confirmed they used QQ and other networking tools to access and read the "Democracy Herald" series of articles written and disseminated by Guo Quan.

5. The testimony of Xu Xiangqian, Liu Chenggong, Zhang Shuifeng and other witnesses separately confirmed that they used articles calling for "New Democracy Party" Party members to provide financial assistance to Xu Xiangqian's "Wandering Rights Defense Workshop" under the guise of paying Party membership dues. Xu Xiangqiang estimated he received 3,500 yuan and a computer from Guo Quan, and that Liu Chenggong, Zhang Yongfeng and others responded to Guo Quan's call and proactively paid "special Party membership dues."

6. The testimony of Ye Haijun, Mu Hao, Kong Mingming and other witnesses confirmed that they had read Guo Quan's articles about the "One Week Stay-at-Home Revolution" and the "Democratic Revolutionary Blue Movement" and that they believed Guo Quan was calling on people to launch a "One Week Stay-at-Home Revolution" and other movements and that the intent was to have workers strike, students skip class, and businessmen stay home from work.

7. The testimony of Kong Guangyou, Chen Bing, Kong Mingming, Liu Fajin, and other witnesses confirmed they used the telephone and Internet to respond to Guo Quan about demobilized cadres, corporate employment, and other problems, and that Guo Quan said that their situation is a result of the current system, and advocated that the only way to solve these problems was to carry out democratic revolution.

8. Physical evidence including a "Shenzhou" brand laptop computer, a "BenQ" brand laptop computer, three black PC compatible desktop machines, one "Shinco" brand portable USB hard drive, two mobile phones, two search records from the public security agency, work records from the examination of electronic evidence, photographic records from inquest investigations, and a list of recovered electronic evidence. These confirmed that public security agencies conducted a search of Guo Quan's residence at [INTENTIONALLY DELETED], Drum Tower District, Nanjing and seized Guo Quan's aforementioned materials, and through an inspection discovered a large quantity of "Democracy Herald" text documents on the computers and the USB portable hard drive, and records that defendant Guo Quan used QQ, MSN, and SKYPE instant messaging software accounts to send the "Democracy Herald" articles to others, and this was recognized and confirmed by Guo Quan.

9. Remote evidence collection work records produced by the public security agencies confirmed that "Democracy Herald 47: China must Quickly Implement a Multi-Party Election Democratic Institutions, Otherwise a Popular Uprising Will Sweep Away Authoritarian Rule" and other articles from the "Democracy Herald" series written by Guo Quan were publicly distributed on the "Epoch Times," "Boxun," "Sound of Hope," and "Radio Free Asia" websites.

10. Electronic evidence inspection work records, electronic data collection reports, judicial appraisals, identification transcripts, identification photos, and evidence collection notices made by public security organs confirmed that when the electronic evidence inspection of the computers of of Yang Shizhen, Liu Chenggong, Xu Qianqian, Mou Hao, and Chen Xudong was conducted a saved article called  "Democracy Herald" was found.

11. The remote forensic work records produced by the public security agency and the screenshots of the websites confirmed by Liu Chenggong confirmed that Mou Hao sent Guo Quan emails such as "China New Democracy Party's Party Song" and "On the Constitutional Referendum of the Federal Republic of Greater China" and they were received and opened by Guo Quan, and a large number of "Democracy Herald" articles were found in Liu Chenggong's mailbox and he published the "Democracy Herald" articles on overseas websites using user names such as "Success" and "China New Democracy Party."

12. The online chat records of defendant Guo Quan and Liu Chenggong, Xu Xuefeng, Yang Shizhen, Wang Xiqiang, and others collected by the public security agencies confirmed the facts that Guo Quan sent the article "Democracy Herald" and asked Yang Shizhen to serve as "acting chairman" of theShandong Linyi Party Branch of the "New Democracy Party," and proposed having Xu Xuefeng run with him for election for the president as a so-called "second echelon."

13. The mobile phone SMS records of defendant Guo Quan and Mou Hao, Pang Ben, and Guo Jian collected by the public security agencies confirmed the facts that Mou Hao and Guo Jian reported to Guo Quan to establish the so-called "China New Democracy Party Greater China Federal Constitutional Committee" and the "Shanxi Party Department," and that Guo Quan clearly requested party member Pang Ben to not join the Communist Party in his personal capacity.

14. The bank card transaction details and remittance records of Xu Qiangqian, Liu Chenggong, Zhang Yongfeng, and Chen Yao collected by public security agencies in accordance with the law confirmed the fact that Liu Chenggong, Zhang Yongfeng, and Chen Yao remitted 100, 500, and 1,000 yuan to Xu Qianqian, respectively.

15. The Public Security Bureau of Nanjing's public security administrative punishment decision letter and punishment notification transcript confirmed that defendant Guo Quan was held for 10 days in administrative detention starting May 18, 2008 for using the "5.12" Wenchuan earthquake to assemble dozens of fictitious experts on the Internet on May 13, 2008 in a "China New Democracy Party Disaster Relief Committee" to spread rumors and disturb public order.

16. The "Supplementary Letter of Investigation on Guo Quan's Suspected Subversion of State Power" issued by the Nanjing Public Security Bureau confirmed that during the supplementary investigation of this case, the Public Security Bureau of Suqian entrusted the Public Security Bureau of Nanjing to conduct investigations.

17. The explanations of matters such as the case resolution process and detention process submitted by the public security agencies proved that defendant Guo Quan was arrested and brought to justice.

18. Guo Quan's household registration information and the "Proof of Guo Quan's Employment Status" issued by the Personnel Office of Nanjing Normal University confirmed that Guo Quan was born on [INTENTIONALLY DELETED], 1968, and before the incident he worked in the position of a data clerk in the reference room of the School of Liberal Arts, Nanjing Normal University.

19. Defendant Guo Quan's statement at the investigation stage confirmed that since the second half of 2007, he used the Internet to establish the Chinese New Democracy Party with the aim of opposing the "Communist dictatorship" and actively developed Party organizations and members, and published a large number of "Democracy Herald" series through the Internet, and planned activities such as the "Seven Day Stay-at-Home Revolution" and the "Republican Revolutionary Blue Movement," and used his own accounts on QQ, MSN, SKYPE, and other instant messaging software on the Internet to instill in certain "rights protection" groups the idea that "the dictatorship of the Communist Party" was the root cause of their current situation and their own.

This Court finds that defendant Guo Quan illegally formed the "China New Democracy Party" through the Internet, and published a large number of reactionary articles through the Internet, developed Party members, planned a "Seven Day Stay-at-Home Revolution," "Republican Revolutionary Blue Movement" and other activities, and organized, planned, and carried out subversion of state power and the overthrow of the socialist system, and his actions constitute the crime of subversion of state power, the crime is serious, and should be punished in accordance with the law. With respect to the People 's Procuratorate of Suqian, Jiangsu's charge that defendant Guo Quan of committed the crime of subversion of state power, the facts are clear, the evidence is reliable and copious, and the offense is correct.

The defense justifications and defense opinions of defendant Guo Quan and his defense counsels claim that Guo Quan lacked the subjective intent and objective behavior to subvert the national regime. An investigation has determined that the fact that defendant Guo Quan organized, planned, and implemented the actions to subvert the national regime and overthrow the socialist system is supported by physical evidence, documentary evidence, witness testimony, transcripts of investigation and inspection, and Guo Quan's multiple statements during the investigation stage, and the sources of evidence are legal, mutually corroborate each other, and are sufficient to reach a determination.

With respect to Guo Quan's defense justifications and the defense justifications and defense opinions proffered by his defense counsels that Guo Quan's forming a political party and publishing articles online was a lawful exercise of the rights of freedom of association and freedom of speech granted under the Constitution, and that his actions do not constitute a crime, an investigation has shown that, while freedom of association and freedom of speech are political rights provided to China's citizens by the Constitution, the Constitution also clearly provides that when exercising these rights citizens may not jeopardize the nation's interests or its security. Defendant Guo Quan used methods such as the illegal formation of a "New People's Party of China," the publication of a Party Constitution, the recruitment of Party members, and the planning of the "Seven Day Stay-at-Home Revolution" to subvert state power and overthrow the socialist system, which endangered national security, and his actions meet the requirements to constitute the crime of subversion of state power. Therefore, defendant Guo Quan's defense justifications and his defense counsel's defense opinions are not accepted by this Court. Therefore, in accordance with the provisions of Articles 105(1), 55(1), 56(1), and 64 of the "Criminal Law of the People's Republic of China," the judgment is as follows:

1. Defendant Guo Quan committed the crime of subversion of state power, and is sentenced to a fixed term imprisonment of 10 years and 3 years deprivation of political rights. (The prison term is to be calculated starting on the day the judgment is executed, and each day in custody prior to the execution of the judgment shall count as one day of the prison term, that is from November 13, 2008 and expiring on November 12, 2018.)
2. Computers, USB sticks, etc. used in the crime and seized are confiscated.

If any party does not accept this judgment, they may within 10 days after the second day after receiving this written judgment bring an appeal through this Court or directly to the High People's Court of Jiangsu. A written appeal should be submitted with one original and two copies of the appeal brief.

Chief Adjudicator: Liu Zhi
Adjudicator: Zhong Jia
Adjudicator: Yang Haifeng

October 16, 2009

Clerk: Dai Jianjun

江苏省宿迁市中级人民法院

刑事判决书

(2009)宿中刑二初字第0002号


公诉机关江苏省宿迁市人民检察院。

被告人郭泉,男,1968年[INTENTIONALLY DELETED]出生于江苏省南京市,身份证号[INTENTIONALLY DELETED],汉族,研究生文化,原系南京师范大学文学院资料室资料员,住南京市鼓楼区[INTENTIONALLY DELETED]。因涉嫌犯颠覆国家政权罪于2008年11月13日被刑事拘留,同年12月19日被逮捕。现羁押于南京市看守所。

辩护人斯伟江,上海大邦律师事务所律师。

辩护人郭莲辉,江西明理律师事务所律师。

江苏省宿迁市人民检察院以宿检刑诉(2009)17号起诉书指控被告人郭泉犯颠覆国家政权罪一案,于2009年6月8日向本院提起公诉。本院依照江苏省高级人民法院指定管辖决定,于6月10日立案受理,并依法组成合议庭,于8月7日公开审理了本案。江苏省宿迁市人民检察院指派检察员夏玮、代理检察员刘兆东、赵静出庭支持公诉,被告人郭泉及其辩护人斯伟江、郭莲辉到庭参加诉讼。在审理期间,本院向江苏省高级人民法院申请延长审限一个月,后公诉机关提出延期审理建议,本院依法决定延期审理,并于2009年9月16日恢复审理。本案现已审理终结。

江苏省宿迁市人民检察院指控,被告人郭泉为颠覆国家政权、推翻社会主义制度,于2007年下半年至2008年11月间,撰写并通过网络多次传播《民主先声》系列文章,通过互联网公开发布《中国新民党党章(暨施政纲领)》、《中国新民党(CNDP)党建党务大纲》,非法组建"中国新民党",并自任所谓"代主席",积极发展"中国新民党"党组织和成员;通过互联网先后策划了"民主革命蓝色运动"、"七日在家革命"等活动;借帮助部分群体"维权"之名策动推翻社会主义制度。

江苏省宿迁市人民检察院为证实上述指控的事实,当庭讯问了被告人郭泉,出示了相关物证和书证,宣读了未到庭证人证言、勘验检查笔录级被告人郭泉在侦查机关所作的多次供述等证据,认为被告人郭泉的行为已触犯《中华人民共和国刑法》第一百零五条第一款之规定,构成颠覆国家政权罪,提请本院依法判处。

被告人郭泉对公诉机关指控其撰写并通过网络多次传播《民主先声》系列文章,发布《中国新民党党章》、《中国新民党党建党务大纲》,组建"中国新民党",并自认所谓"代主席"的事实不存异议,但辩称其无颠覆国家政权、推翻社会主义制度的主观故意和客观行为,网上组建"中国新民党",属于行使宪法赋予的结社自由权,撰写的《民主先声》系列文章不含有颠覆国家政权、推翻社会主义制度的内容,"七日在家革命"、"民主革命蓝色运动"相关文章中并没有推翻社会主义制度的文字表述,告诉"维权"群体利益被损害是制度体制造成的,并不是推翻社会主义制度,故不构成犯罪。

被告人郭泉的辩护人提出,郭泉无颠覆国家政权、推翻社会主义制度的主观故意和客观行为,其通过网络公开发布《中国新民党党章》、《中国新民党党建党务大纲》文章并不违法,其行为属于言论、结社自由范畴,"七日在家革命"、"民主革命蓝色运动"只是宣传民主理念,无社会危害性,无证据证实其借维权之名策动推翻社会主义制度,被告人郭泉不构成犯罪。

经审理查明,被告人郭泉于2007年下半年至2008年11月间,撰写并通过网络多次传播《民主先声》系列文章,诋毁我国现行社会主义制度,攻击我国政治制度是"一党专制独裁政权",扬言要"终结全部现存的独裁专制制度";在互联网公开发布《中国新民党党章(暨施政纲领)》、《中国新民党(CNDP)党建党务大纲》,非法组建"中国新民党"并自任所谓"代主席",积极发展了刘成功、牟昊、杨士振等"新民党"成员,提出孔强、王喜强等人担任山东、浙江等地党部负责人,号召"新民党"党员交"特别党费"资助"走四方维权工工作室";通过互联网策划了"七日在家革命"、"民主革命蓝色运动"等活动,要求"全体国民在家,不与专制者合作,不为专制者服务,备齐七天之饮食,静候民主中国来临",妄图颠覆国家政权、推翻社会主义制度;借帮助部分群体"维权"之名策动推翻社会主义制度。

上述事实,有下列经庭审举证、质证的证据证实,本院予以确认:

1、书证,经被告人郭泉认可并签名确认的《民主先声88:中国新民党党章(暨施政纲领)》、《民主先声200:中国新民党(CNDP)党建党务大纲》、《民主先声67:现在谁还认为中国这样的社会是社会主义社会,谁就该下地狱》、《民主先声129:当列宁与亨延顿在中国相遇的时候、中共独裁统治即将被终结》、《民主先声287:请全体中国新民党党员为"走四方维权工作室"交纳特别党费》等多篇文章。

2、证人刘成功、牟昊、杨士振、庞奔、郭剑、李文斌、叶海俊、张永峰、武勇健、陈旭东、钱峰、孔强、王喜强、林年锦、徐雪峰等人的证言,均证实被告人郭泉向其发送《民主先声》系列文章,此外,刘成功证实经询问郭泉得到回复后自认为是"新民党"党员,在网上创建了"中国新民党论坛"(谷歌群组)、"声先民主群",以"新民党宣传部"名义宣传《民主先声》文章;牟昊证实加入"新民党"后,先后创办"华夏之声"杂志、创作《中国新民党党歌》、撰写《大选救国》、《论大中华联邦国的立宪公投》等文章,并将上述文章向郭泉发送,受到郭泉肯定,其还向多人宣传"新民党";杨士振证实郭泉要求其任"新民党"临沂地区负责人,负责宣传并发展"新民党",其曾传播过"新民党"纲领并介绍好友入党但未成;庞奔、郭剑证实因认可"新民党"党章而自认为是"新民党"党员,以"新民党"党员身份与郭泉进行交流,郭剑询问郭泉自己能否负责"新民党"山西党部,得到郭泉认可;李文斌证实曾给郭泉写信要求建立"新民党"大同分部,郭泉鼓励其发展"新民党"基层组织和党员;叶海俊、张永峰、武勇健等人证实通过与郭泉网络或电话联系,得到郭泉的回复,自认为是"新民党"党员;孔强、王喜强、林年锦证实郭泉提出让其分别担任"新民党"山东、浙江党部主席、"党校"校长,发展党员或培养"新民党"干部;徐雪峰证实郭泉要其为所谓"第二梯队",并让其与郭泉一起竞选总统,

3、证人胡正余、龚磊、王康的证言,证实牟昊经常向其宣传"中国新民党"及党章。

4、证人兰洪波、杨勇、李晶等人的证言,证实通过QQ等网络工具接受或阅读过郭泉撰写并传播的《民王先声》系列文章。

5、证人许向前及刘成功、张水峰等人的证言,分别证实郭泉通过文章号召"新民党"党员用交"新民党"党费的形式资资助许向前的"走四方维权工作室",许向前合计收到3500余元和郭泉邮寄的电脑一部及刘成功、张永峰等人响应郭泉号召,积极交纳"特别党费"的情况。

6证人叶海俊、牟昊、孔明鸣等人的证言,证实阅读过郭泉关于"七日在家革命"、"民主革命蓝色运动"相关文章,认为郭泉要求人们开展"七日在家革命"等运动.是要工人罢工、学生罢课、商人罢市。

7证人孙光友、陈冰、孔明鸣、刘法进等人的证言,证实通过电话或网络向郭泉反映军转干部、企业用工等问题,郭泉说他们的情况是现行体制造成的,鼓吹只有进行民主革命、换掉现行制度才能解决司题。

8、物证"神舟"牌笔记本电脑、"明基"牌笔记本电脑、黑色台式兼容机三机各一台、"新科"牌U盘一只、手机两部及公安机关制作的搜查笔录、电子证据检查工作记录、勘验检查照片记录表、提取电子证据清单.证实公安机关对被告人郭泉位于[INTENTIONALLY DELETED]室住处和南京师范大学办公地点进行搜查,扣押郭泉上述物品,以及经检查,在电脑及U盘中发现大量《民主先声》文本文件、被告人郭泉使用QQ、MSN、SKYPE即时通讯软件账号向他人传送《民主先声》文章的记录,经郭泉辨认并确认的情况。

9、公安机关制作的远程勘验工作记录,证实被告人郭泉撰写的《民主先声47:中国必须尽快实行多党竞选的民主体制,否则风起云涌的人民起义将横扫一切专制统治》等《民主先声》系列文章在"中国事务"、"大纪元"、"博讯"、"希望之声"、"自由亚洲电台"、"看中国"等网站公开发布的情况。

10、公安机关制作的电子证据检查工作记录、电子数据提取报告、司法鉴定书、指认笔录、指认照片、调取证据通知书等,证实对杨士振、刘成功、许向前、牟昊、陈旭东电脑进行电子证据检查时,发现其中存有《民主先声》文章。

11、公安机关制作的远程勘验工作记录、经刘成功确认的网站截屏资料,证实牟昊向郭泉发送《中国新民党党歌》、《论大中华联邦国的立宪公投》等电子邮件并被郭泉收到或打开阅读,以及在刘成功邮箱内发现大量《民主先声》文章及其以"成功"、"中国新民党"等用户名在境外网站发布《民主先声》文章的情况。

12、公安机关依法提取的被告人郭泉与刘成功、徐雪峰、杨士振、王喜强等人的网络聊天记录,证实郭泉向其发送《民主先声》文章并要求杨士振任"新民党"山东临沂党部的"代理主席"、提出让徐雪峰与其共同竞选总统并为所谓"第二梯队"等事实。

13、公安机关依法提取的被告人郭泉与牟昊、庞奔、郭剑的手机短信记录,证实牟昊、郭剑向郭泉汇报成立所谓"中国新民党大中华联邦国制宪委员会"、"山西党部"以及郭泉明确要求党员庞奔不可以个人身份加入共产党等事实。

14、公安机关依法提取的许向前、刘成功、张永峰、陈耀的银行卡交易明细、汇款记录等,证实刘成功、张永峰、陈耀分别向许向前汇款100元、500元、1000元的事实。

15、南京市公安局公安行政处罚决定书及处罚告知笔录,证实被告人郭泉因于2008年5月13日以虚构的数十名专家组成的"中国新民党赈灾委员会"名义在互联网上利用"5.12"汶川大地震散布谣言、扰乱公共秩序,于2008年5月18日被行政拘留10日。

16、南京市公安局出具的《关于郭泉涉嫌颠覆国家政权案补充侦查委托函》,证实本案补充侦查期间,宿迁市公安局委托南京市公安局进行侦查。

17、公安机关出具的发破案经过、抓获经过等说明,证实被告人郭泉系被抓获归案。

18、郭泉的户籍信息、南京师范大学人事处出具的"关于郭泉任职情况的证明",证实郭泉出生于1968年[INTENTIONALLY DELETED]、案发前在南京师范大学文学院资料室资料员岗位工作。

19、被告人郭泉在侦查阶段的供述,证实自2007年下半年以来,通过网络组建旨在反对"共产党独裁统治"的"中国新民党,并积极发展党组织和成员,通过网络发布大量《民主先声》系列文章及策划了"七日在家革命"、"民王革命蓝色运动"等活动,向部分"维权"群体灌输造成他们现状的根源在于"共产党的独裁统治"的思想以及自己在互联网上使用的QQ、MSN、SKYPE等即时通讯软件的账号等情况。

本院认为,被告人郭泉通过互联网非法组建"中国新民党"、并通过互联网发表大量反动文章,发展党员,策划"七日在家革命"、"民王革命蓝色运动"等活动,组织、策划、实施颠覆我国国家政权,推翻社会主义制度、其行为已构成颠覆国家政权罪,且罪行重大,依法应予惩处。江苏省宿迁市人民检察院指控被告人郭泉犯颠覆国家政权罪的事实清楚,证据确实、充分,定性准确。被告人郭泉及其辩护人关于郭泉没有颠覆国家政权的主观故意和客观行为的辩解和辩护意见,经查,认定被告人郭泉组织、策划、实施颠覆国家政权、推翻社会主义制度行为的事实有物证、书证、证人证言、勘验检查笔录及郭泉在侦查阶段多次供述等证据证实,且证据来源合法,相互印证,足以认定。对被告人郭泉的辩解及其辩护人提出郭泉在网上组建政党、发表文章,属于依法行使宪法赋予的结社自由权、言论自由权,其行为不构成犯罪的辩解及辩护意见,经查,结社自由权、言论自由权是宪法赋予我国公民的一项政治权利,但宪法也明确规定,公民在行使该权力时,不得损害国家利益和安全。被告人郭泉利用非法组建"中国新民党"、发表党章、招募党员、策划"七日在家革命"等方式实施颠覆国家政权、推翻社会主义制度的活动,危害了国家安全,其行为符合颠覆国家政权罪的构成要件,故被告人郭泉的辨解及其辩护人的辩护意见,本院不予采纳。据此,依照"中华人民共和国刑法》第一百零五条第一款、第五十五条第一款、第五十六条第一款、第六十四条之规定,判决如下:

一、被告人郭泉犯颠覆国家政权罪,判处有期徒刑十年,剥夺政治权利三年。

(刑期从判决执行之日起计算,判决执行以前先行羁押的、羁押一日折抵刑期一日,即自2008年11月13日起至2018年11月12日止。)

二、查获供犯罪使用的电脑、U盘等物品,予以没收。

如不服本判决,可在接到本判决书的第二日起十日内,通过本院或者直接向江苏省高级人民法院提出上诉。书面上诉的,应提交上诉状正本一份,副本二份。

审判长 刘国志

审判员 仲佳

审判员 杨海峰

二零零九年十月十六日

书记员 戴建军