Wednesday, May 30, 2012

Translation: Appeal Judgment in Jin Andi, Lv Jiaping, Yu Junyi Incitement of Subversion Case

In May 2011, Lv Jiaping, 73, his wife Yu Junyi, 71, and their friend Jin Andi, 58, were imprisoned for inciting subversion. Below is the original Chinese and an English translation of Jin Andi's appeal document. 

Beijing High People's Court

Criminal Judgment Document (2011) High Final Document No. 308

Original Public Prosecutorial Agency Beijing People's Procurotorate First Office

Appellant (defendant in the trial of first instance) Jin Andi, male, 58 years old, born May 23, 1953 in Shanxi province, Han ethnicity, college graduate, unemployed, residing at No. 24, Building 6, Xinshengli, Xincheng district, Xi'an, Shanxi. Detained on September 19, 2010 on suspicion of inciting subversion of state power, subjected to home surveillance on September 20 of that year, and officially arrested on January 17, 2011. Currently being held at the Beijing No. 1 Detention Center.

Defendant in the trial of first instance Lv Jiaping (previously using the name Lv Jiaping [N.B. - the character "Jia" is different but homophonous]),  male, 69 years old (born June 14, 1941), born in Shanghai, Han ethnicity, high school graduate, retired after working at the Shaoyang Song and Dance Troupe, residing at No. 101, Unit 3, Building 3, #175 Dongfeng Road, Shuangqing District, Shaoyang, Hunan. Detained on September 4, 2010, on suspicion of inciting subversion of state power, subjected to home surveillance on September 5 of that year, and officially arrested on January 17, 2011. Currently being held at the Beijing No. 1 Detention Center.

Defendant Yu Junyi, female, 70 years old, born in Chongqing, Sichuan on January 5, 1941, Han ethnicity, college graduate, retired after working at the Hunan Opera Theater in Hunan, residing at No. 101, Unit 3, Building 3, #175 Dongfeng Road, Shuangqing District, Shaoyang, Hunan. Detained on September 4, 2010, on suspicion of inciting subversion of state power, subjected to home surveillance on September 5 of that year, and officially arrested on January 17, 2011. Currently being held at the Beijing No. 1 Detention Center. Subjected to home surveillance on May 13, 2011.

The Beijing No.1 Intermediate People's Court tried the case of Beijing People's Procuratorate First Division's application of inciting subversion of state power charges against defendants in the trial of first instance Lv Jiaping, Jin Andi, and Yu Junyi, and issued (2011) Intermediate Criminal First Instance Criminal Judgment No. 2036 on May 13, 2011. Defendant in the trial of first instance Jin Andi filed an appeal within the time period established by law stating he did not accept the judgment. This court organized a collegiate bench, and decided not to hold a public trial after reviewing the documents and interviewing appellant Jin Andi and defendants in the trial of first instance Lv Jiaping and Yu Junyi and determining the facts in the case were clear. The trial has now concluded.

The No. 1 Beijing Intermediate People's Court held:

Between 2000 and 2010, Lv Jiaping, Jin Andi, and Yu Junyi wrote essays of an inciting nature at No. 66 Puan Shop, Haidian, Beijing and No. 101, Unit 3, Building 3, #175 Dongfeng Road, Shuangqing District, Shaoyang, Hunan, including "The Origins of the Communist Party's One Party Ruling Structure," "Has the Communist Party's Ruling Party Leadership Had any Status and Core in the Last 20 Years?," and "'Special Parliamentary Procedures' are the Scalpel to Specifically Implement Political Democratic Reforms in China." In addition, they distributed them through the mail, emails, and by posting them on individuals' web pages. The aforementioned essays subsequently were posted and viewed by others on websites such as "Boxun News" and "New Century News."

In the aforementioned essays Lv Jiaping and others spread rumors and libels such as:
 
"The corruption situation cannot be curbed, and the crux of the ongoing worsening corruption situation are the current political structure, mechanisms, and systems." 

"The current political structure is lead and governed by the Communist Party, but at a certain level, becoming a Party leader is what is decisive, and one puts oneself above the laws passed by highest organ of state power and the legal system and regulations, and this in turn leads to individual power being placed above the collective Party organization."

"Even now with 30 years of reform, not only do we remain backwards, the speed at which we fall back is accelerating, and it is bringing with it a long-term flood of corruption for the entire Party and society as well as all kinds of social crises and severe problems. We are facing an inevitable perfect storm of backwardness and corruption which will bring calamity on the heads of China's people.  How are the people of China to view this, when they have pinned their hopes, passions, and lives on the success of reform to conquer backwardness, root out corruption, and desire for a strong China."

as well as incitements:

"In fact, over the last 20 years the Communist Party's ruling party leadership has had neither status nor a core. China's people and its military has not been under the leadership of the Chinese Communist Party. The Chinese Communist Party has been a mere skeleton. Its status as a governing power and leadership utility has long-since been smashed and subverted by the powers that hold the Party at gunpoint."

Through the aforementioned inciting activities, Lv Jiaping and others attempted to achieve the goal of subverting China's state power and the socialist system.

Jin Andi provided Lv Jiaping with information and assistance in revising manuscripts in the process of writing some of his articles. He also  disseminated them.

Yu Junyi provided Lv Jiaping assistance by printing the manuscripts and disseminating them by sending emails and posting them on his personal home page.

Lv Jiaping and Yu Junyi were tracked down and brought to justice on September 4, 2010. Jin Andi was tracked down and brought to just on September 19 of that same year.

The court of first instance held the aforementioned facts were supported by the following evidence:

1. The testimony of witness Yu Dongdong proved: In September and October 2003, his father Lv Jiaping mentioned he was considering establishing a personal website to publish essays, so he put up Lv Jiaping's personal web site on his personal computer with the address kk8259.126.com, which was subsequently changed to aa8259.126.com. Each time afer his father finished writing an essay, his mother would help him put in an email and send it to the email box, and he would go into his father's email box with the address jiapin_1@sina.com, and his mother's email box with the address junyimusic@sina.com. There were around several hundred email addresses of Internet users who sent emails to his mother expressing their grief.

2. The testimony of witness Lv Jiage proved: when Lv Jiaping heard him say that a patient was a secretary of a central government leader, he proposed having him give the secretary the essays Lv Jiaping had written to forward to his superiors. In 2005 or late Autumn 2006 he passed along Lv Jiaping's essays. In 2006 or 2007 he heard that Lv Jiaping had published an article on the Internet that exposed his name, and he was extremely angry, and got into an argument with Lv Jiaping. Afterwards, he did not have any further dealings with Lv Jiaping.

3. The testimony of witness Hu Suoming proved: In late June or early July 2010, he read two essays by Lv Jiaping. One was about how Lv had reported a problem with So-And-So to the central government, and the other was "Two Traitors and Two Phonies." Around mid-July, he wrote a letter to Lv Jiaping, saying he could provide some supplemental evidentiary materials, and gave Lv Jiaping his home telephone and address. In late-July, Lv Jiaping called him, and he explained some situations to Lv Jiaping. Lv Jiaping said he wanted to organize the information and put it into an essay, which he would then send to him to review. In mid-August he received a letter from Lv Jiaping, but the essay had already been disseminated publicly. He was very surprised by what he read in Lv Jiaping's essay, as it contained much that was not what he originally intended, and distorted his meaning.

4. The testimony of witness Deng Taoyi proved: on the morning of August 2, 2010, he went with Zhou Zhongqing to Lv Jiaping's home, and Lv Jiaping discussed with them So-And-So's "Two Traitors and Two Phonies" issues, and gave them "So-And-So's Two Traitors and Two Phoneys" and "Non-Responsive Responses" materials. Lv Jiaping also read to them a letter from a old cadre in Shanghai, and said he was preparing to write another article entitled "New Evidence of Two Traitors and Two Phonies." When they left, he and Zhou Zhongqing took one copy each of "Two Traitors and Two Phonies" and "Non-Responsive Responses." On the morning of August 9, Lv Jiaping called to invite them to his home to show them "New Evidence of Two Traitors and Two Phoneys." He went on to say that he would mail out some, and give them 50 to 100 copies, and asked them to help him disseminate them, and that he had already written the name and address of each recipient. The next day he mailed out the letters Lv had given him from the Longhui county post office.

5. The testimony of witness Liu Zhenqiu proved: he met Lv Jiaping through an Internet user surnamed Tang, and because he had an interest in World War II history, he met up with Lv Jiaping. Afterwards Lv let them come to his home and gave them some materials, and those materials are currently at his home.

6. The testimony of witness Tang Haiding proved: he met Lv Jiaping through an organization called "Gnu Club." On June 29, 2010, he allowed Liu Zhenqiu to accompany him to find Lv Jiaping, and after they met up with Lv Jiaping they talked for a bit about issues relating to World War 2 history. Lv Jiaping then invited them to his home, and Lv Jiaping gave them copies of two essays relating to So-And-So, and gave some materials to Liu Zhenqiu. After he returned home he noted that these materials were all available online, and destroyed them.

7. The testimony of witness Jin Yang proved: On November 26, 2010 public security officials conducted a search of the residence of her father Jin Andi at No. 12, 4th Floor, Unit 3, Building 10 Xiajiashi District, Xi'an, and discovered a laptop computer and other materials.

8. The testimony of witness Zhang Hui proved: In 2002 some of the essay Lv Jiaping published online garnered some attention. After he learned this he contacted Lv Jiaping and maintained contact with him. After Lv Jiaping wrote an essay about issues with So-And-So Party member joining the Party, Lv Jiaping wanted to mail them to military research institutes, the Chinese Communist Party Central Military Commission, Such-And-Such Office, the secretaries of other central government leaders, and other various offices and individuals. Because Lv Jiaping's mail was already being subjected to interception by relevant agencies, Lv Jiaping wanted him to help him send them. He mailed all of these letters as instructed by Lv Jiaping.

9. The public security agency's "Search Records" and "List of Confiscated Items" proves: On February 24, 2004, public security officials conducted a search of Lv Jiaping's residence at No. 66, Xiangshan Puan Shop, Haidian district, Beijing. They discovered and confiscated print outs and handwritten copies of manuscripts of some of the articles that had been written by Lv Jiaping, as well as computers, printers, and other materials used by him.

10. The public security agency's "Search Records" and "List of Confiscated Items" proves: On March 3, 2004, public security officials conducted a search of No. 8-1318 (upper) West Sanqi Qinglv community, Haidian district, Beijing, and confiscated a desktop computer used by Yu Dongdong.

11. The public security agency's "Search Records" and "List of Confiscated Items" proves: On September 9, 2010, public security officials conducted a search of Lv Jiage's residence at a traditional Chinese medicine clinic at No. 117 Xiutang village, Cuicun township, Changping District, Beijing, and discovered and confiscated a copy of "The Origins of the Communist Party's One Party Ruling Structure."

12. The public security agency's "Search Records," "List of Confiscated Items," "Work Description," and photos of physical evidence proves: an August 20, 2010 search by public security officials of Lv Jiaping's residence at No. 175, Dongfeng Road, Shaoyang led to the discovery and confiscation of Dell notebook computer, a Kingston, and handwritten manuscripts of some of the articles at issue in this case.

13. The public security agency's "Search Records," "List of Confiscated Items," and photos of physical evidence proves: on August 20, 2010, Lv Jiaping's son Hu Dalin handed over to the public security agency hard drives from two computers in his home used to go online (two hard Xijie computer hard drives).

14. The public security agency's "List of Confiscated Items," "List of Confiscated Non-Express Mail," "List of Confiscated Mail," and photos of physical evidence proves: several letters mailed by Lv Jiaping from August 4, 2010 to August 17, many of which had contents relating to this case.

15. The public security agency's "List of Confiscated Items" proves: eight copies of "New Evidence Relating to X's Phony Chinese Communist Secret Party Members" and five copies of "Appeal Demanding an Investigation Into Issues Relating to X's 'Two Traitors Two Phonies" and Political Fraud."

16. The public security agency's "Search Records," "List of Confiscated Items," and photos of physical evidence proves: on September 19, 2010 public security officials conducted a search of Jin Andi's residence at Room 20-1003, Jiangnan Shuidu Mingzhu, Cangshan district, Fuzhou, and discovered and confiscated three notebook computers and other materials , and gathered 23 copies of "Appeal Demanding an Investigation Into Issues Relating to X's 'Two Traitors Two Phonies" and Political Fraud," 15 copies of "The Non-Responsive Response to the Previous 'Two Traitors and Two Phonies' Article, and That Essay's Rumors or Facts," 15 copies of "New Evidence Relating to X's Phony Chinese Communist Secret Party Members," and one copy of "Have Leaders' Position and Core Functions Existed in the Last 20 Years?"

17. The public security agency's "List of Confiscated Items" and photos of physical evidence proves: on November 26, 2010 one laptop computer and other materials were confiscated as witnessed by Jin Yang.

18. The public security agencies produced "Record of On Site Inspection," screenshots, and screen documentation proved:

(i) On October 14, 2010 the 3rd Brigade of the Beijing Public Security Bureau's Internet Security and Defense Office discovered on the International Internet an article by "Lv Jiaping" on a website with the URL www.usc.cuhk.edu.hk entitled "The Origins of the Communist Party's One Party Ruling Structure." The website's servers were located overseas, and did not display the time it was posted on the Internet, and named Lv Jiaping as the author. Searches for the essay showed that on October 1, 2010 there was one web page on the International Internet linking to posts or reposts of this essay.

(ii) The 3rd Brigade of the Beijing Public Security Bureau's Internet Security and Defense Office discovered on the International Internet an article by "Lv Jiaping" on a website with the URL www.maostudy.org entitled "'Special Motion' is the Instrument to Achieve Political Democratic Reforms for China." The website's servers were located overseas, and displayed January 15, 2003 as the time it was posted on the Internet, and named Lv Jiaping as the author. Searches for the essay showed that on November 21, 2010 there were two web pages on the International Internet linking to posts or reposts of this essay.

(iii) The 3rd Brigade of the Beijing Public Security Bureau's Internet Security and Defense Office discovered on the International Internet an article by "Lv Jiaping" on a website with the URL boxun.com entitled "Lv Jiaping 'Three Represents' Ideology and One Party Many Factions Structure." The website's servers were located overseas, and displayed January 14, 2003 as the time it was posted on the Internet, and named Lv Jiaping as the author. Searches for the essay showed that on September 28, 2010 there were four web pages on the International Internet linking to posts or reposts of this essay.

(iv) The 3rd Brigade of the Beijing Public Security Bureau's Internet Security and Defense Office discovered on the International Internet an article by "Lv Jiaping" on a website with the URL boxun.com entitled "Lv Jiaping: So-And-So's Secret to Success: Four Connected Methods and 'Double Standards.'" The website's servers were located overseas, and displayed February 7, 2003 as the time it was posted on the Internet, and named Lv Jiaping as the author. Searches for the essay showed that on September 29, 2010 there were four web pages on the International Internet linking to posts or reposts of this essay.

(v) The 3rd Brigade of the Beijing Public Security Bureau's Internet Security and Defense Office discovered on the International Internet an article by "Lv Jiaping" on a website with the URL boxun.com entitled "Secret Ties -- The Formula for Three Generations of Chinese Communist Party Leaders' Success." The website's servers were located overseas, and displayed February 28, 2003 as the time it was posted on the Internet, and named Lv Jiaping as the author. Searches for the essay showed that on October 1, 2010 there were three web pages on the International Internet linking to posts or reposts of this essay.

(vi) The 3rd Brigade of the Beijing Public Security Bureau's Internet Security and Defense Office discovered on the International Internet an article by "Lv Jiaping" on a website with the URL www.wyzxsx.com entitled "Lv Jiaping: General Yang So-And-So the People Thank You for Telling the Truth." The website's servers were located overseas, and displayed March 29, 2007 as the time it was posted on the Internet, and named Lv Jiaping as the author. Searches for the essay showed that on October 1, 2010 there was one page on the International Internet linking to posts or reposts of this essay, and it had been clicked on 6,442 times.

(vii) The 3rd Brigade of the Beijing Public Security Bureau's Internet Security and Defense Office discovered on the International Internet an article by "Lv Jiaping" on a website with the URL www.newcenturynews.com entitled "Have Leaders' Position and Core Functions Existed in the Last 20 Years?" The website's servers were located overseas, and displayed May 27, 2007 as the time it was posted on the Internet, and named Lv Jiaping as the author. Searches for the essay showed that on September 28, 2010 there were four pages on the International Internet linking to posts or reposts of this essay, and it had been clicked on 155 times, and it had 51 responses.

(viii) The 3rd Brigade of the Beijing Public Security Bureau's Internet Security and Defense Office discovered on the International Internet an article by "Lv Jiaping" on a website with the URL boxun.com entitled "Lv Jiaping Regarding Secret Negotiations Between So-And-So and America -- Revelations and Analysis on the Truth and Results of the  Secret Sale of Taiwan's Sovereignty." The website's servers were located overseas, and displayed February 2, 2008 as the time it was posted on the Internet, and named Lv Jiaping as the author. Searches for the essay showed that on October 1, 2010 there were four pages on the International Internet linking to posts or reposts of this essay, and it had been clicked on 194 times.

(ix) The 3rd Brigade of the Beijing Public Security Bureau's Internet Security and Defense Office discovered on the International Internet an article by "Lv Jiaping" on a website with the URL boxun.com entitled "Lv Jiaping Regarding Secret Negotiations Between So-And-So and America -- Supplementary Materials on So-And-So's Secret Sale of Taiwan's Sovereignty." The website's servers were located overseas, and displayed February 2, 2008 as the time it was posted on the Internet, and named Lv Jiaping as the author. Searches for the essay showed that on October 1, 2010 there were seven pages on the International Internet linking to posts or reposts of this essay, and it had been clicked on 968 times, and had one response.

(x) The 3rd Brigade of the Beijing Public Security Bureau's Internet Security and Defense Office discovered on the International Internet an article by "Lv Jiaping" on a website with the URL www.maoflag.net entitled "Lv Jiaping: Why the Lhasa Riot Incident Was not Stopped Ahead of Time." The website's servers were located overseas, and displayed April 29, 2008 as the time it was posted on the Internet, and named Lv Jiaping as the author. Searches for the essay showed that on September 9, 2010 there were four pages on the International Internet linking to posts or reposts of this essay, and it had been clicked on 2,768 times, and had 12 responses.

(xi) The 3rd Brigade of the Beijing Public Security Bureau's Internet Security and Defense Office discovered on the International Internet an article by "Lv Jiaping" on a website with the URL www.epochtimes.net entitled "Appeal Demanding an Investigation Into Issues Relating to X's 'Two Traitors Two Phonies" and Political Fraud." The website's servers were located overseas, and displayed January 9, 2010 as the time it was posted on the Internet, and named Lv Jiaping as the author. Searches for the essay showed that on September 29, 2010 there were 14 pages on the International Internet linking to posts or reposts of this essay, and it had been clicked on 2,373  times, and had eight responses.

(xii) The 3rd Brigade of the Beijing Public Security Bureau's Internet Security and Defense Office discovered on the International Internet an article by "Lv Jiaping" on a website with the URL www.aboluowang.com entitled "Lv Jiaping: So-And-So's Response to 'Two Traitors Two Phonies" Appeal is Very Subtle." The website's servers were located overseas, and displayed July 16, 2010 as the time it was posted on the Internet, and named Lv Jiaping as the author. Searches for the essay showed that on September 30, 2010 there were 15 pages on the International Internet linking to posts or reposts of this essay, and it had been clicked on 6,864 times, and had 22 responses.

(xiii) The 3rd Brigade of the Beijing Public Security Bureau's Internet Security and Defense Office discovered on the International Internet an article by "Lv Jiaping" on a website with the URL boxun.com entitled "The Most Recent Evidence Regarding So-And-So's Issues with Fake Communist Party Secret Members / Lv Jiaping" The website's servers were located overseas, and displayed August 13, 2010 as the time it was posted on the Internet, and named Lv Jiaping as the author. Searches for the essay showed that on September 30, 2010 there were 16 pages on the International Internet linking to posts or reposts of this essay, and it had been clicked on 3,152 times, and had 28 responses.

19. The conclusions of the Beijing Public Security Bureau's Public Information Network Security Investigations Office's Network Forensic Appraisal (2004) No. 8 proves: following a technical forensic examination of white desktop computer, it was discovered that this computer contained the "Lv Jiaping" web site, and this computer had a "zip" format compressed file, and its contents were the contents of Lv Jiaping's personal web site, and the compressed file included a total of 217 web pages, of which there were 105 writings of Lv Jiaping, and in Lv Jiaping's personal home page table of contents could be seen the titles of the following essays: "The Origins of the Communist Party's One Party Ruling Structure" with a file creation date of May 1, 2002, "'Special Parliamentary Procedures' are the Scalpel to Specifically Implement Political Democratic Reforms in China," "So-And-So's 'Serve the People' and 'Three Represents' Ideology and One Party Many Factions Structure" with a file creation date of October 7, 2003, "So-And-So's Secret to Seizing and Maintaing Power: Four Connected Methods and 'Double Standards'" with a file creation date of October 7, 2003, and "Secret Ties -- The Formula for Three Generations of Chinese Communist Party Leaders' Success" with a file creation date of October 7, 2003.

20. The "Acoustic Materials Forensic Report" from the Beijing Tongda First Judicial Expert Evidence Office proves: following an examination of Lv Jiaping's Daier portable computer, Kingston USB stick, two Xijie hard drives and other materials, the titles of the following essays could be seen on the hard drives of the Daier portable computer:  "The Origins of the Communist Party's One Party Ruling Structure" (December 21, 2000), "'Special Parliamentary Procedures' are the Scalpel to Specifically Implement Political Democratic Reforms in China" (February 28, 2002) "So-And-So's 'Serve the People' and 'Three Represents' Ideology and One Party Many Factions Structure" (January 14, 2003), "So-And-So's Secret to Seizing and Maintaing Power: Four Connected Methods and 'Double Standards'" (February 7, 2003), "Secret Ties -- The Formula for Three Generations of Chinese Communist Party Leaders' Success" (February 1, 2003), "General Yang So-And-So the People Thank You for Telling the Truth" (March 18, 2007), "Has the Communist Party's Ruling Party Leadership Had any Status and Core in the Last 20 Years?" (May 10, 2007), "Revelations and Analysis on the Truth and Results of the  Secret Sale of Taiwan's Sovereignty" (January 8, 2008), "Why the Lhasa Riot Incident Was not Stopped Ahead of Time" (April 21, 2008). The Kingston USB stick included some of the titles of these essays. A large quantity o f email boxes were saved on the Xijie 320 GB hard drive. The contents of correspondence between Yang So-and-So and Lv Jiaping could be see on the Xijie 320 GB hard drive.

21. Two "Acoustic Materials Forensic Reports" from the Beijing Tongda First Judicial Expert Evidence Office prove: following an expert electronic forensic appraisal of the data on four portable computers traced to Jin Andi, several articles related to this case were found on each of the four computers, including: "New Evidence Relating to X's Phony Chinese Communist Secret Party Members," "Is 'Two Traitors and Two Phonies'  Rumor or Fact," "Revelations and Analysis on the Truth and Results of the  Secret Sale of Taiwan's Sovereignty," and "Why the Lhasa Riot Incident Was not Stopped Ahead of Time." 

22. Email box information obtained and essays printed out and provided by the Wangzhiyi Information Technology (Beijing) Company prove: A large number of essays at issue in this case could be seen in the email box andye55@126.com, the email box with the name jiapin_2@sina.com, andye55@126.com, and junyimusic@sina.com had sent copies of essays at issue in this case to many email box addresses; the email box with the name jiapin_2@sina.com had sent copies of essays at issue in this case to many email box addresses; the email box with the name andye55@126.com had sent copies of essays at issue in this case to many email box addresses. They also proved that some of the essays at issue in this case could be found in the email box with the name jiapin_2@sina.com.

23. Email box information obtained and essays printed out and provided by Beijing Sina Internet Information Service Company prove:  the email box andye55@sina.com contained essays at issue in this case.

24. At the public security agencies defendants Lv Jiaping, Jin Andi, and Yu Junyi signed acknowledgements of the aforementioned 13 articles that contained discussion of an inciting nature proves: defendant Lv Jiaping confirmed that he wrote the aforementioned essays. Defendant Jin Andi confirmed that he provided materials and information for some of the essays, and he posted one of them on Boxun Net based on an authorization from Lv Jiaping. Defendant Yu Junyi confirmed that the aforementioned 13 essays were written by Lv Jiaping, and she helped with printing, and she sent one of the essays to Jin Andi by email, and distributed the majority of the others by means of email.

25. The "Record of Acceptance of Criminal Case" of the Beijing Public Security First Division proves: On September 3, 2010, the Ministry of Public Security issued a status notice, and based on their inquiries: since 2000 had colluded with his wife Yu Junyi and Jin Andi and others to draft essays of an inciting nature, and used letters, emails, the Internet and other means to distribute and transmit attacks on China's current government system, and incite subversion of the national regime and the socialist system. On that an investigation was launched into Lv Jiaping, Yu Junyi, and Jin Andi.

26. The "Process Summons" provided by the public security agency proves: at 11 o'clock on September 4, 2010, Lv Jiaping and Yu Junyi were taken into custody at #175 Dongfeng road, Shaoyang.

27. The "Process Summons" provided by the public security agency proves: at 11 o'clock on September 19, 2010, Jin Andi taken into custody after turning himself in at the Xi'an public security bureau following coordination with the Xi'an Public Security Bureau's State Security Detachment.

28. Materials provided by the Hunan Provincial Opera Theater prove: Yu Junyi is retired from the Hunan Provincial Opera Theater; Lv Jiaping is retired from the Hunan Province Shaoyang City Opera Troupe.

29. Household registration materials provided by public security agencies prove: the names and residential status of defendants Lv Jiaping, Jin Andi, and Yu Junyi.

30. The statements of defendants Lv Jiaping and Yu Junyi and the statements made by Jin Andi during the investigation are all basically consistent with the foregoing evidence and provide mutual verification.

Based on the foregoing evidence, the Beijing First Intermediate People's Court find that Lv Jiaping, Jin Andi, and Yu Junyi did, with the intent to overthrow the national regime of China's people's democratic dictatorship and the socialist system, from time to time compile over ten articles of an inciting nature to spread rumors and libels, and published them through various means including the mails, sending emails, and uploading them to personal web pages, propagandizing and inciting others to overthrow China's national regime and the socialist system. The actions of the three defendants constitutes the crime of inciting subversion of state power, and should be punished in accordance with the law. The nature of the crimes of Lv Jiaping, Jin Andi, and Yu Junyi in inciting subversion of state power is severe. Lv Jiaping and Jin Andi were the primary instigators, and because Lv Jiaping admitted his crimes and demonstrated a relatively good penitent attitude, he was given a lighter punishment. Yu Junyi was an accomplice, and was given a lighter punishment in accordance with the law. Because Yu Junyi confessed to her crime and expressed regret and a desire to reform, she was given a light punishment, and could receive a suspended sentence. The facts charged by the Beijing People's Procuratorate's First Division against Lv Jiaping, Jin Andi, and Yu Junyi for the crime of inciting subversion of state power are clear, the evidence is ample, and the crimes charges are established. For the crime of intentionally inciting subversion of state power, Lv Jiaping was sentenced to ten years imprisonment and two years deprivation of political rights; Jin Andi was sentenced to eight years imprisonment and one year deprivation of political rights, and Yu Junyi was sentenced to three years imprisonment, suspended for five years, and one year deprivation of political rights.

In his appeal Jin Andi states that the criminal facts affirmed in the original judgment have nothing to do with him, and that he only provided information for some of Lv Jiaping's essays, and he did not revise any essays, and that he only uploaded a single essay to the Internet pursuant to Lv Jiaping's authorization. He also contended that there were flaws with some of the evidence, and the court should accept them.

During the second trial the original defendants Lv Jiaping, Jin Andi, and Yu Junyi each expressed objections to criminal facts and conviction penalties affirmed by the court of first instance.

The evidence affirmed in original judgment in this case has already been put forward, confronted, and affirmed by the court of first instance. During this trial, neither the appellant Jin Andi nor the original defendants Lv Jiaping and Yu Junyi have put forth any new evidence. This court hereby affirms the examination and verification of the evidence by the court of first instance that Lv Jiaping, Jin Andi, and Yu Junyi committed the crime of inciting subversion of state power. The hearings by this court have found that the facts are clear and the evidence is reliable and ample for the court of first instance's judgment that Lv Jiaping, Jin Andi, and Yu Junyi committed the crime of inciting subversion of state power.

In his appeal Jin Andi claims that the criminal facts affirmed in the original judgment have nothing to do with him. Based on an investigation: the statements of Lv Jiaping and Yu Junyi in this case confirm that Jin Andi provided information and materials to the essays Lv Jiaping wrote and published one of the essays Lv Jiaping wrote on the Internet. In addition, during the preliminary investigation, Jin Andi confessed to his having provided materials and revisions in order to shape the ideas in Lv Jiaping's essays. Therefore, the evidence in this case can confirm that Jin Andi actively participated in and carried out inciting criminal acts. His defense that he only published an essay on the Internet pursuant to Lv Jiaping's authorization does not influence finding regarding the nature of his actions.

In his appeal Jin Andi states that some of there were flaws in some of the evidence affirmed by the court of first instance, and they should not be given credence. Based on an investigation: each item of evidence listed in the court of first instance's judgment  has already been put forward and confronted in court in the first trial, and their examination and verification in the second trial shows them to be true and they are affirmed. The defenses put forth by Jin Andi lack sufficient basis.

This court finds that the appellant Jin Andi and the original defendants Lv Jiaping and Yu Junyi did, with the intent to overthrow the national regime of China's people's democratic dictatorship and socialist system, from time to time compile over ten articles of an inciting nature to spread rumors and libels, and published them through various means including the mails, sending emails, and uploading them to personal web pages, propagandizing and inciting others to overthrow China's national regime and the socialist system. The actions of the three defendants constitutes the crime of inciting subversion of state power, and should be punished in accordance with the law. Lv Jiaping, Jin Andi, and Yu Junyi wrote essays over a long period of time, and the aforementioned essays were posted by many websites and browsed by many people, and they presented extreme harm and the severity of the crime of inciting subversion of state power was great. Lv Jiaping and Jin Andi were the primary actors as accomplices in this crime, and were the ringleaders, and should be punished in accordance with the law. Owing to his confessing to the facts of the crime and his relatively good penitent attitude and other circumstances, it is fitting that Lv Jiaping be punished lightly. Yu Junyi played an assisting role in the same crime, and as an accomplice is given a lighter punishment in accordance with the law. Because Yu Junyi confessed to her crime and expressed regret and a desire to reform, she was given a light punishment, and could receive a suspended sentence. Following an investigation, the evidence proving Jin Andi incited subversion of state power is clear, and is sufficient for confirmation, and reasons offered by Jin Andi in his appeal are not tenable and are overruled. The Beijing First Intermediate People's Court made its judgment based on Lv Jiaping's, Jin Andi's, and Yu Junyi's criminal facts, criminal nature and circumstances, and the degree of harm to society, and the crime established and the law utilized were correct and the punishment was appropriate, the trial proceedings were lawful, and should be upheld. Based on this, this court rules as follows in accordance with the provisions of Clause 1 of Article 189 of the "Criminal Procedure Law of the People's Republic of China":

Jin Andi's appeal is rejected, the original judgment is affirmed.

This judgment shall the be judgment of final instance.

Presiding Judge Zhao Deyun
Acting Judicial Officer Yu Tongzhin
Acting Judicial Officer Xiao Hongfeng

May 30, 2011

============================

北 京 市 高 级 人 民 法 院
刑 事 裁 定 书 〔2011〕--高终字第308号

原公诉机关北京市人民检察院第一分院。

上诉人(原审被告人)金安迪,男,58岁,1953年5月23日出生于陕西省,汉族,大学文化,无业,住陕西省西安市新城区兴盛里6号楼24号。因涉嫌犯煽动颠覆国家政权罪于2010年9月.19日被羁押,同年9月20日被监视居住,2011年1月17日被逮捕。现羁押在北京市第一看守所。

原被告人吕加平(曾用名:吕嘉平),男,69岁(1941年6月14日出生),出生地上海市,汉族,高中文化,邵阳市歌舞团退休职工,住湖南省邵阳市双清区东风路175号3栋3单元101号。因涉嫌煽动颠覆国家政权罪,于2010年9月4日被羁押,同年9月5日被监视居住,2011年1月17日被逮捕。现羁押在北京市第一看守所。

被告人于钧艺,女,70岁,1941年1月5日出生于四川省重庆市,汉族,大学文化,湖南省祁剧院退休职工。住湖南省邵阳市双清区东风路175号3栋3单元101号。因涉嫌犯煽动颠覆国家政权罪于2010年9月4日被羁押,同年9月5日被监视居住,2011年1月17日被逮捕。2011年5月13日被监视居住。

北京市第一中级人民法院审理北京市人民检察院第一分院指控原审被告人吕加平、金安迪、于钧艺犯煽动颠覆国家政权罪一案,于2011年5月13日作出(2011)—中刑初字第2036号刑事判决。在法定期限内,原审被告人金安迪不服,提出上诉。本院依法组成合议庭,经过阅卷,讯问上诉人金安迪、原审被告人吕加平、于钧艺,认为本案事实清楚,决定不开庭审理。现已审理终结。

北京市第一中级人民法院判决认定:

吕加平伙同金安迪、于钧艺于2000年至2010年间,在北京市海淀区普安店66号、湖南省邵阳市双清区东风路175号3栋3单元101号等处,编写《共产党一党执政体制的由来》、《二十多年来中共执政党的领导地位和核心作用存在吗》、《“特别动议”方式是中国具体实行政治民主化改革的利器》等煽动性文章,并以邮寄信件、发送电子邮件和上传至个人主页等方式进行传播。上述文章先后在“博讯新闻网”、“新世纪新闻网”等互联网站上登载,并被他人点击浏览。

吕加平等人在上述文章中造谣、诽谤“腐败势头不能制止,腐败局面继续恶化的主要症结,就是现行政治体制、机制、制度。”“现行政治制度是共产党领导、执政,但在相当程度上,成了党主导、决定一切,凌驾于国家最高权力机构通过的法律、现行法制和法规之上,这样又导致个人权力凌驾于党组织集体之上。”、“而现在改革近30年了,却不仅带来了仍然的落后,甚至更加落后,而且还带来了一个全党全社会的腐败长期泛滥和各种社会危机的严重问题,真正做到了既落后又腐败的‘双祸临门’、双管齐下、祸国殃民、不可收拾。这叫特别痛恨落后腐败并把克服落后、铲除腐败、企盼中国强大的全部希望、热情和年华都寄托在改革成功上的中国人民又怎么去看、怎么去想呢?”;煽动“这二十多年来中共在中国的执政党领导地位和核心作用实际上并不存在,中国人民和中国军队并没有在中国共产党的领导下,中共只是一个名义上的空架子,它的执政地位和领导作用也早已被枪指挥党的权力倒置给破坏和颠覆了。”。吕加平等人通过上述煽动行为,妄图达到颠覆我国国家政权和社会主义制度的目的。

金安迪在吕加平编写部分文章过程中为吕提供信息、帮助修改文章稿件并进行传播。

于钧艺协助吕加平打印文章稿件,并以发送电子邮件、上传至个人主页等方式进行传播。

吕加平、于钧艺作案后于2010年9月4日被查获归案;金安迪于同年9月19日被查获归案。

原判认定上述事实的证据有:

1、证人于东东的证言证明:2003年九、十月份,他父亲吕加平提出想建立一个个人网站发表文章,他就将吕加平个人主页这个网站旋转在他的个人电脑上,网址是KK8259.126.com,后来改为AA8259.126.com等。每次都是父亲写完文章后,他母亲帮忙录入发到邮箱内,他再进入父母的邮箱地址jiapin_1@sina.com,母亲的邮箱地址junyimusic@sina.com.他母亲将悼念的网友地址曾经通过邮件的方式发到母亲的邮箱,大概有几百个邮箱地址。 

2、证人吕嘉戈的证言证明:吕加平听他说有一个病人是中央领导的秘书,就提出让他把吕加平写的材料通过这个秘书转递上去。大概在2005年或2006年深秋,他转交了吕加平的文章。2006年或者2007年时,他听说吕加平在网上发了一篇文章,还把他的名字也抖落出去了,他非常恼火,就跟吕加平吵了一架。之后,他和吕加平就没有来往了。

3、证人胡锁明的证言证明:大概是2010年6月底7月初,他读了吕加平写的两篇文章,一篇是讲吕向中央检举了某某某的问题,另一篇是《二奸二假》。大概是在7月中旬,他给吕加平写了封信,意思是可以补充一些证据材料,并把他家里的电话和通信联系方式告诉了吕加平。大概是在7月底,吕打来电话,他给吕加平介绍了一些情况。吕加平说要把他提供的情况整理后写一篇文章,写好后寄给他审核。8月中旬他收到了吕加平寄来的信,但这篇文章已经在外面传开了。他看了吕加平写的这篇文章后很惊讶,文章内容好多都不是他的本意,篡改了他意思。

4、证人邓桃一的证言证明:2010年8月2日上午,他和周重庆去了吕加平家,吕加平向他们讲了某某某“两奸两假”问题,并将“某某某两奸两假”、“不答复的答复”两份材料给他们看,吕还给他念了一封上海老干部的信,吕加平说准备写一篇“两奸两假新证据”的文章。离开时,他和周重庆各带走了一份“两奸两假”、“不答复的答复”。8月9日上午,吕加平打电话约他到吕家,给他看了“两奸两假新证据”,并说再通过邮局发出去一些,还给了他50至100份,让他帮助发,每封信都写好了收信人和地址。第二天,他在隆回县邮政局将吕给的信件发了出去。

5、证人刘珍球的证言证明:他通过一个姓唐的网友认识了吕加平,因为他对二战史感兴趣,就跟吕加平见了面,后吕让他们到吕家,还给了他们一些资料,现资料就在他家里。

6、证人唐海丁的证言证明:他是通过一个“角马俱乐部”的组织认识吕加平的。2010年6月29日,他让刘珍球跟他去找一下吕加平,他们跟吕加平见面后聊了一些关于二战历史的问题。吕加平邀请他们去吕家,吕加平把关于某某某的两份文章给了他,也给了刘珍球一些资料,他回家后发现这些资料网上都有,就给销毁了。

7、证人金阳的证言证明:2010年11月26日公安人员对她父亲金安迪位于西安市夏家什字小区10号楼3单元4层12号的住处进行搜查,发现手提电脑等物。

8、证人张辉的证言证明:2002年时吕加平在网上发表一些文章引起关注。他得知后就和吕加平联系,并保持交往,后吕加平写了一篇关于某某某党员身份入党问题的文章,吕加平想向军事科学院、中央军委、某某某办公室,其他中央领导人秘书处办公室等单位和个人邮寄。因当时吕加平发的信已经被有关部门拦截,所以吕加平就想让他帮助邮寄。他把这些信全部以平信的方式投寄了。

9、公安机关出具的《搜查笔录》及《扣押物品清单》证明:2004年2月24日公安人员对北京市海淀区香山普安店66号吕加平的住处了搜查。发现并扣押了吕加平撰写的部分文章打印稿、手稿及其使用的电脑、打印机等物品。

10、公安机关出具的《检查笔录》及《扣押物品清单》证明:2004年3月3日公安人员对北京市海淀区西三旗清缘小区8-1318(上)号进行检查,将于东东使用的电脑主机一台予以扣押。

11、公安机关出具的《搜查笔录》和《扣押物品清单》及物证照片证明:2010月9月11日公安人员对北京市昌平区崔村镇秀堂村117号吕嘉戈中医诊所的住处进行搜查,发现并扣押《共产党一党执政体制的由来》文稿1份。

12、公安机关出具的《搜查笔录》、《扣押物品清单》、《工作说明》及物证照片证明:2010年8月20日公安人员对邵阳市东风路175号吕加平的住处搜查,发现并扣押DELL牌笔记本电脑一台,kingston一个、多份涉案文章及部分文章的手稿等物。

13、公安机关公安机关的《工作说明》、《扣押物品清单》及物证照片证明:2010年8月20日吕加平儿子胡大林将家中用于上网的两台电脑的硬盘交至公安机关(希捷牌电脑硬盘两块)。

14、公安机关的《扣押物品清单》、《扣押非邮快递清单》、《扣押邮件清单》及物证照片证明:公安人员扣押了从2010年8月4日至8月17日吕加平寄出的多封信件,内含多份涉案文章。

15、公安人员出具的《扣押物品清单》证明:在刘珍球处扣押《关于某的假中共地下党员问题的新证据》8份、《关于某的“二奸二假”和政治诈骗问题与要求调查的呼吁》5份。

16、公安机关出具的《搜查笔录》、《扣押物品清单》及物证照片证明:2010年9月19日公安人员对福州市仓山区江南水都名筑20-1003室金安迪的住处进行搜查,发现并扣押笔记本电脑3台等物,提取文章《关于某的“二奸二假”和政治诈骗问题与要求调查的呼吁》23份,《上面对“二奸二假”一文“不答复”的答复与该文究竟是谣言还是事实》15份,《关于某的假中共地下党员问题的新证据》15份,《二十多年来领导地位和核心作用存在吗?》1份。

17、公安机关出具的《扣押物品清单》及物证照片证明:2010年11月26日在金阳的见证下扣押手提电脑1台等物。

18、公安机关出具的《现场勘验检查笔录》、页面截屏图像、页面文件分别证明:

(1) 2010年10月14日北京市公安局网络安全保卫处三大队在国际互联网上发现署名“吕加平”的文章《共产党一党执政体制的由来》该文章存在于域名为www.usc.cuhk.edu.hk的网站,该网站服务器位于境外,未显示网络发布时间,作者署名为吕加平。经对该文章搜索发现,截至2010年10月1日,国际互联网上存在登载或转载该文章的网页链接共计1个。

(2) 北京市公安局网络安全保卫处三大队在国际互联网上发现署名“吕加平”的文章《“特别动议”方式是中国具体实行政治民主化改革的利器》,该文章存在于域名为 www.maostudy.org 的网站,该网站服务器位于境外,显示网络发布时间为2003年1月15日,作者罢免为吕加平。经对该文章搜索发现,截至2010年11月21日,国际互联网上存在登载该文章的网页链接共计2个。

(3) 北京市公安局网络安全保卫处三大队在国际互联网上发现署名“吕加平”的文章《吕加平“三个代表”思想与一党多派体制》,该文章存在于域名为boxun.com 的网站,该网站服务器位于境外,显示网络发布时间为2003年1月14日,作者署名为吕加平。经对该文章搜索发现,截至2010年9月28日,国际互联网上存在登载或转载该文章的网页链接共计4个。

(4) 北京市公安局网络安全保卫处三大队在国际互联网上发现署名“吕加平”的文章《吕加平:某某某的成功法宝:进行串连的四种方式与“双重标准”》,该文章存在于域名为 boxun.com 的网站,该网站服务器位于境外,显示网络发布时间为2003年2月7日,作者署名为吕加平。经对该文章搜索发现,截至2010年9月29日,国际互联网上存在登载或转载该文章的网页链接共计4个

(5) 北京市公安局网络安全保卫处三大队在国际互联网上发现署名“吕加平”的文章《私下串连---中共三代领导人的成功之诀》,该文章存在于域名为 boxun.com 的网站,该网站服务器位于境外,显示网络发布时间为2003年2月28日,作者署名为吕加平。经对该文章搜索发现,截至2010年10月1日,国际互联网上存在登载或转载该文章的网页链接共计3个

(6) 北京市公安局网络安全保卫处三大队在国际互联网上发现署名“吕加平”的文章《吕加平:杨某将军人民感谢你说真话》,该文章存在于域名为 www.wyzxsx.com 的网站,该网站服务器位于境外,显示网络发布时间为2007年3月29日,作者署名为吕加平。经对该文章搜索发现,截至2010年10月1日,国际互联网上存在登载或转载该文章的网页链接共计1个, 共计点击浏览6442次。

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(8) 北京市公安局网络安全保卫处三大队在国际互联网上发现署名“吕加平”的文章《吕加平关于某某某与美暗盘交易--私卖台湾主权真相和后果的揭示与分析》,该文章存在于域名为boxun.com 的网站,该网站服务器位于境外,显示网络发布时间为2008年2月2日,作者署名为吕加平。经对该文章搜索发现,截至2010年10月1日,国际互联网上存在登载或转载该文章的网页链接共计4个,共计点击浏览194次。

(9) 北京市公安局网络安全保卫处三大队在国际互联网上发现署名“吕加平”的文章《吕加平关于某某某与美暗盘交易--有关某某某私卖台湾主权史实的补充材料》,该文章存在于域名为boxun.com 的网站,该文章服务器位于境外,显示网络发布时间为2008年2月2日,作者署名为吕加平。经对该文章搜索发现,截至2010年10月1日,国际互联网上存在登载或转载该文章的网页链接共计7个,共计点击浏览968次,回复1篇。

(10) 北京市公安局网络安全保卫处三大队在国际互联网上发现署名“吕加平”的文章《吕加平:拉萨藏独暴乱事件为什么没事先制止》,该文章存在于域名为 www.maoflag.net 的网站,该网站服务器位于境外,显示网络发布时间为2008年4月29日,作者署名为吕加平。经对该文章搜索发现,截至2010年9月29日,国际互联网上存在登载或转载该文章的网页链接共计4个,共计点击浏览2768次,回复12篇。

(11)、北京市公安局网络安全保卫处三大队在国际互联网上发现署名“吕加平”的文章《关于某某某的“二奸二假”和政治诈骗问题与要求调查的呼吁》,该文章存在于域名为 www.epochtimes.com 的网站,该网站服务器位于境外,显示网络发布时间为2010年1月9日,作者署名为吕加平。经对该文章搜索发现,截至2010年9月29日,国际互联网上存在登载或转载该文章的网页链接共计14个,共计点击浏览2373次,回复8篇。

(12)、北京市公安局网络安全保卫处三大队在国际互联网上发现署名“吕加平”的文章《吕加平:“二奸二假”上书某某某答复很微妙》,该文章存在于域名为 www.aboluowang.com 的网站,该网站服务器位于境外,显示网络发布时间为2010年7月16日,作者署名为吕加平。经对该文章搜索发现,截至2010年9月30日,国际互联网上存在登载或转载该文章的网页链接共计15个,共计点击浏览6864次,回复22篇。

(13)、北京市公安局网络安全保卫处三大队在国际互联网上发现署名“吕加平”的文章《关于某某某的假中共地下党员问题的最新证据/吕加平》,该文章存在于域名为boxun.com 的网站,该文章服务器位于境外,显示网络发布时间为2010年8月13日,作者署名为吕加平。经对该文章搜索发现,截至2010年9月30日,国际互联网上存在登载或转载该文章的网页链接共计16个,共计点击浏览3152次,回复28篇。

19、北京市公安局公共信息网络安全监察处出具的网监鉴字〔2004〕008号鉴定结论证明:经对送检的白色电脑主机进行技术鉴定,发现该主机建有“吕加平”网站,该主机中有一个“zip”格式的压缩文件,其内容是吕加平个人网站的内容,压缩文件中共有217个网页文件,其中共有吕加平的105篇,吕加平个人主页目录中可见如下文章题目:《共产党一党执政体制的由来》文件创建时间为2002年5月1日;《“特别动议”方式是中国具体实行政治民主化改革的利器》;《某某某“为人民服务”的“三个代表”思想与一党多派体制》文件创建时间为2003年10月7日;《某某某夺权保权的成功法宝:进行串连的四种方式与“双重标准” 》文件创建时间为2003年10月7日;《私下串连--中共三代领导人的成功之诀》文件创建时间为2003年10用7日。

20、北京通达首诚司法鉴定所出具的《声像资料检验报告》证明:经对送检吕加平的戴尔便携式电脑一台、金士顿U盘一个、希捷硬盘两块等进行检验,从戴尔便携式电脑硬盘的文档中可见如下文章题目:《共产党一党执政体制的由来》(2000年12月21日);《“特别动议”方式是中国具体实行政治民主化改革的利器》(2002年2月28日);《某某某“为人民服务”的“三个代表”思想与一党多派体制》(2003年1月14日);《某某某夺权保权的成功法宝:进行串连的四种方式与“双重标准” 》(2003年2月7日);《私下串连-中共三代领导人的成功之诀》(2003年2月1日);《杨某将军人民感谢你说真话》(2007年3月18日);《二十多年来中共执政党的领导地位和核心作用存在吗?》(2007年5月10日);《关于某某某与美暗盘交易私卖台湾主权真相和后果的揭示与分析》(2008年1月8日);《有关某某某私卖台湾主权史实的补充材料》(2008年1月18日);《拉萨藏独暴乱事件为什么没事先制止》(2008年4月21日)。在金士顿U盘中有上述部分文章题目。在希捷320GB硬盘可见保存大量电子邮箱地址等情况。在希捷320GB硬盘可见吕加平与杨某联系的内容。

21、北京通达首诚司法鉴定所出具的两份《声像资料检验报告》分别证明:对起获的金安迪的四台便携式电脑数据进行电子数据司法鉴定,在四台电脑中分别发现名为:《某某某假中共地下党员问题的最新证据》《“二奸二假”是谣言还是事实》《(一文) 私卖台湾主权真相和后果的揭示与分析》《拉萨藏独暴乱事件为什么没事先制止》等涉案文章。

22、网之易信息技术(北京)有限公司提供的电子邮箱提取情况及文章打印件证明:在andye55@126.com电子邮箱中可见大量涉案文章,名为jiapin_2@sina.com、andye55@126.com、junyimusic@sina.com的邮箱向多个电子邮箱地址发送涉案文章;名为jiapin_2@sina.com的邮箱向多个电子邮箱地址发送涉案文章;名为andye55@sina.com的邮箱向多个电子邮箱地址发送涉案文章。另证明在名为jiapin_5@126.com电子邮箱中可见部分涉案文章。

23、北京新浪互联信息服务有限公司提供的电子邮箱提取情况及文章打印件证明:在andye55@sina.com电子邮箱中有涉案文章。

24、被告人吕加平、金安迪、于钧艺在公安机关签字确认的上述十三篇含有煽动性议论的文章证明:被告人吕加平确认其撰写了上述文章。被告人金安迪确认他为其中部分文章提供资料信息、经吕加平授权他将一篇文章发至填表博讯网。被告人于钧艺确认上述十三篇文章是吕加平所写,她帮助打印,其中一篇文章她通过电子邮件只发给金安迪一人,其他大部分文章以电子邮件的方式发送。

25、北京市公安局第一部队出具的《接受刑事案件登记表》证明:2010年9月3日接公安部通报情况,经查:2000年以来吕加平伙同其妻于钧艺及金安迪等人编写民煽动性文章,并通过信件、电子邮箱及互联网等方式散布、传播、攻击我国现行政治体制、煽动颠覆我国国家政权和社会主义制度。于当日对吕加平、于钧艺、金安迪立案侦查。

26、公安机关出具的《到案经过》证明:2010年9月4日11时,在邵阳市东风路175号将吕加平、于钧艺抓获。

27、公安机关出具的《到案经过》证明:2010后9月19目,在西安市公安局国保支队配合下,将金安迪约至西安市公安局将其抓获。

28、湖南省祁剧院出具的材料证明:于钧艺系湖南省祁剧院退休职工;吕加平系湖南省邵阳市歌舞团退休职工。

29、公安机关出具的户籍材料证明:被告人吕加平、金安迪、于钧艺的姓名、住址等情况。

30、被告人吕加平、于钧艺的供述及被告人金安迪在侦查期间的供述与上述证据基本相符,并可相互印证。

根据上述事实和证据,北京市第一中级人民法院认为,吕加平、金安迪、于钧艺以推翻我国人民民主专政的国家政权和社会主义制度为目的,先后编写十余篇煽动性文章进行造谣、诽谤,并分别采用邮寄信件、发送电子邮件和上传至个人主页等方式进行传播,宣传煽动他人推翻我国国家政权和社会主义制度,三被告人的行为均已构成煽动颠覆国家政权罪,依法均应予惩处。吕加平、金安迪、于钧艺煽动颠覆国家政权的罪行重大。吕加平、金安迪系主犯,因吕加平供认犯罪事实,认罪态度较好等情节,对其酌予从轻处罚。于钧艺系从犯,依法予以减轻处罚。由于于钧艺供认犯罪事实,有悔改表现,对其酌予从轻处罚,并可适用缓刑。北京市人民检察院第一分院指控吕加平、金安迪、于钧艺犯煽动颠覆国家政权罪的事实清楚,证据确实充分,指控罪名成立。故以煽动颠覆国家政权的罪,分别判处吕加平有期徒刑十年,剥夺政治权利二年;金安迪有期徒刑八年,剥夺政治权利一年;于钧艺有期徒刑三年,缓刑五年,剥夺政治权利一年。

金安迪上诉提出,原判认定的犯罪事实,与其无关,其只为吕加平的部分文章提供过信息,但没有修改过文章,是在吕加平授权下才将一篇文章发到互联网上;部分证据存在瑕疵,法庭应不予采信。

二审期间,原审被告人吕加平、金安迪、于钧艺分别对原判认定的犯罪事实及定罪量刑表示异议。

原判认定本案事实的证据,已经一审法庭举证、质证后确认,在本院审理期间,上诉人金安迪、原审被告人吕加平、于钧艺未提交新的证据。本院对原判认定吕加平、金安迪、于钧艺犯煽动颠覆国家政权罪的证据经审核予以确认。本院经审理查明,原判认定吕加平、金安迪、于钧艺犯煽动颠覆国家政权罪的事实清楚,证据确实、充分。

金安迪上诉所提原判认定的犯罪事实,与其无关。经查:同案人吕加平、于钧艺的供述均证实,金安迪为吕加平编写的文章提供信息、资料,并将吕加平编写的一篇文章发送到互联网上进行传播,且金安迪在预审期间对其为吕加平编写的文章理清思路、提供资料、修改文章等行为均予以供认,故在案证据能够认定金安迪积极参与实施煽动犯罪行为,其所提是在吕加平授权下才将文章发到互联网上的辩解,不影响对其行为性质的认定。

金安迪上诉提出原判认定的部分证据存在瑕疵,不应采信。经查:一审判决书所列各项证据,已经一审法庭举证、质证,二审经审核属实均予以确认。金安迪所提上述辩解、缺乏充分根据。

本院认为,上诉人金安迪、原审被告人吕加平、于钧艺以推翻我国人民民主专政的国家政权和社会主义制度制度为目的,先后编写十余篇煽动性文章进行造谣、诽谤,并分别采用邮寄信件、发送电子邮件和上传至个人主页等方式进行传播,宣传煽动他人推翻我国国家政权和社会主义制度,三人的行为均已构成煽动颠覆国家政权罪,依法应予惩处。吕加平、金安迪、于钧艺编写文章的时间长,上述煽动性文章被多家网站登载,并被多人浏览,危害严重,煽动颠覆国家政权罪行重大。吕加平、金安迪在共同犯罪中起主要作用,系主犯,依法均应予惩处。因吕加平供认犯罪事实,认罪态度较好等情节,对其酌予从轻处罚。于钧艺在共同犯罪中起辅助作用,系从犯,依法予以减轻处罚。由于于钧艺供认犯罪事实,有悔改表现,对其酌予从轻处罚,并可适用缓刑。经查,在案证据证明金安迪犯煽动颠覆国家政权罪的事实清楚,足以认定,金安迪所提上诉理由不能成立,应予驳回。北京市第一中级人民法院根据吕加平、金安迪、于钧艺犯罪的事实,犯罪的性质、情节和对于社会的危害程度所作的判决,定罪及适用法律正确,量刑适当,审判程序合法,应予维持。据此,本院依照《中华人民共和国刑事诉讼法》第一百八十九条第(一)项的规定,裁定如下:

驳回金安迪的上诉,维持原判。

本裁定为终审裁定。



审 判 长 赵德云
代理审判员 于同志
代理审判员 肖江峰

二0一一年 五 月 三十 日 (章)

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