Background:
Lawyer Yuan Yulai Sues Government For Confiscating Books
Administrative Lawsuit in the Hong Kong Taiwan Book Confiscation Case
Plaintiff:
Yuan Yulai, Male, Born May 18, 1966, Han ethnicity, Star of Zhejiang
Law Firm, Residing at 4th Floor, Meibai Apartments, No. 655 Zhongxing
Road, Ningbo.
Defendant: Administration for Culture and
Radio, Television, News, and Publishing of Jiangdong District, Ningbo,
Located at No. 8 Yanwu Street, Ningbo.
Legal Representative: Wang Yu, Director.
Request for Relief:
Rescind
the (Yongdong) Culture\Broadcasting\News Cert. Doc. (2016)#1 Notice of
Preliminary Registration and Retention of Evidence issued by Defendant
on March 4, 2016, and order Defendant to immediately return the 14
confiscated books to Plaintiff.
Statement of Facts:
At
around 11:00 am on March 4, 2016, five individuals comprising the
Defendant accompanied by the police did, without permission of the
Plaintiff, suddenly enter the Plaintiff's office. Only one individual
carried any law enforcement credentials, while the others did not
produce any law enforcement credentials. One of these was a police
officer with whom the Plaintiff had had previous work-related contact.
The
Defendant and law enforcement agents said that during a joint law
enforcement action it was discovered that the Plaintiff was suspected of
purchasing and storing illegal publications, and afterwards produced a
package, saying that it contained illegal publications.
When
the Defendant decided to unseal it, they met with the stern refusual of
the Plaintiff, and the Plaintiff demanded the Defendant produce their
legal basis. Nevertheless, over the express objections of the Plaintiff,
the policies officers forced the package to be opened.
Afterwards,
after the Defendant had finished writing out a record, they produced
the (Yongdong) Culture\Broadcasting\News Cert. Doc. (2016)#1 Notice of
Preliminary Registration and Retention of Evidence and a Preliminary
Statement of Evidence Registration and Retention, and confiscated the 14
books that were in the package.
The Plaintiff believes
that the actions of the Defendant in confiscating the Plaintiff's books
was without factual or legal basis, and severely infringed upon the
rights of the Plaintiff:
(1) Lack of Factual Basis.
(i)
The Defendant claims that the books discovered during the joing law
enforcement inspection were illegal publications. The Plaintiff's
package had not, however, been opened, and there was no way for the
Defendant to have determined the contents were illegal publications.
When
being interviewed the Defendant claimed, "Specifically, there were
other clues there, you should ask the police, as it was the police that
called us to go over there with them and take joint action." This is a
dereliction of duty and an abuse of authority. The Defendant should have
acted in accordance with the facts and the law, and not blindly follow
or submit to the will of another agency.
(ii) Even if
the books in question were illegal publications, the Defendant and the
police conducted an illegal inspection by forcefully opening the
Plaintiff's package to obtain evidence, and it cannot be used to prove
the legality of the administrative action that is the subject of this
lawsuit.
In this case the criteria for a fored
inspection and search of the Plaintiff's package were lacking, as the
Plaintiff was not under suspicion of endangering state security or
committing a crime. Article 40 of the Constitution of the People's
Republic of China clearly states: "The freedom and privacy of
correspondence of citizens of the People's Republic of China are
protected by law. No organization or individual may, on any ground,
infringe upon the freedom and privacy of citizens' correspondence except
in cases where, to meet the needs of state security or of investigation
into criminal offenses, public security or procuratorial organs are
permitted to censor correspondence in accordance with procedures
prescribed by law."
Clause 3 of Article 43 of the
Administrative Litigation Law clearly states: "Evidence that has been
obtained illegally may not be used as the basis for determining facts in
a case."
(iii) The Books in Case Were not Illegal Publications
First,
the books were published legally by Hong Kong and Taiwan publishers,
and the Plaintiff purchased them legally from a Taobao website
bookstore, and the online bookstore should have had an operating
license. The latter should have been examined by Taobao, and based on
the Plaintiff's understanding, Taobao should also have been inspected.
In the Plaintiff's own defense, the Defendant's law enforcement officers
themselves did not know whether mainland Chinese online and
brick-and-mortar book stores could legally sell books published in Hong
Kong or Taiwan. Their ignorance is shocking.
Second,
looking only at the title of the books, there is no problem with the
content of these books, and they are no so-called banned books. Several
can be seen as being a positive force, and the Plaintiff had closely
reviewed them prior to purchase.
"A Guide to
Understanding the Bible's Old and New Testaments" and "The 100 Bible
Events That Influenced the World" relate to the Bible.
"The
Girl With Seven Names," "The Man With No Name," "I Want to Live Like a
Man," and "Heaven" all discuss matter in North Korea.
"The Flowing Waters Never Revealed the Truth" is about the Cultural Revolution.
"Hidden Power" discusses historical events.
"Night: A Memoir of a Nazi Concentration Camp" is about Nazis.
"Thoughts on Law Enforcement" is the recollections of the judicial reform period by Taiwan prosecutor.
"Team of Rivals: The Political Genius of Abraham Lincoln" is a story about Lincoln.
"Heeding
Marx in the Face of the Capitalist Catastrophe," "Who Says Democracy is
not Subjugating," "Cai Yingwen Cannot Get Around the Republic of China"
can be seen as being positive forces. The first promotes Marxist
thought, the second opposes placing excessive faith in democracy, and
the third is, after all, anti-Taiwan independence.
Nevertheless, the Defendant confiscated all of them over the express objections of the Plaintiff.
(2) Lack of Legal Basis
In
its Notice of Preliminary Registration and Retention of Evidence the
Defendant determined that the Plaintiff was suspected of "purchasing and
storing illegal publications," but failed to clarify which law
stipulates investigation and prosecution of consumers who purchase
so-called banned books. This is a classic example of misapplication of
the law. As far as the Plaintiff is aware, there is no such legal
provision.
This lawsuit is filed based on the
foregoing. It must be explained that this case implicates issues of
extreme importance. First, if individuals' letters and packages can be
inspected arbitrarily and capriciously and forced open, then people will
be unable to go about their work and lives, and no one in our society
will feel secure.
Second, if books from Hong Kong and
Taiwan may be arbitrarily and capriciously deemed to be illegal
publications and prohibited from being purchased by people in the
mainland, then cultural exchanges across the strait will not be able to
continue in a normal fashion, which will have an impact on the grand
enterprise of the unification of the fatherland.
港台图书被查扣事件行政起诉状
原告袁裕来，男 ，1966年5月18日出生，汉族，浙江之星律师事务所律师，住宁波市中兴路655号梅柏公寓四楼。
被告宁波市江东区文化广播新闻出版局，住所地宁波市演武街8号。
法定代表人王昱，局长。
诉讼请求：
撤销被告2016年3月4日作出的（甬东）文广新证通字（2016）第01号先行登记保存证据通知书，责令其及时将扣押的14本书籍返还给原告。
事实和理由：
2016年3月4日11时许，被告偕同公安民警共计5人，未经原告准许，忽然进入原告办公室。只有一位佩戴着执法证，其余几位未出示执法证。 其中一位系公安局民警，原告曾经有过工作上的接触。
被告执法人员说是在联合执法中，发现原告涉嫌购买贮存非法出版物，然后有人拿进来一个包裹，说里面是非法出版物。
被告决定拆封时，遭到原告严词拒绝，原告要求被告出具法律依据。但是，在原告的抗议声中，同行的公安民警还是强行拆开了包裹。
随后，被告在制作笔录后，出具了（甬东）文广新证通字（2016）第01号先行登记保存证据通知书和先行登记保存证据清单，扣押了包裹内的14本书。
原告认为，被告查扣原告书籍行为没有事实和法律依据，严重侵犯了原告的权利：
一、没有事实依据。
1、被告称是在联合执法检查中发现包裹里的书是非法出版物，可是原告的包裹尚未打开，被告根本无法认定其中是非法出版物。
被告在接受记者采访时称，“具体的，还有线索那边，要问公安，是公安叫我们一起过去，联合行动”，这是玩忽职守、滥用职权。被告应该根据事实和法律依法行政，而不应该盲从或者屈从其他机关的意志。
2、即使涉案书籍是非法出版物，被告或者公安民警非法检查、强行拆封原告包裹取得的证据，也不能用来证明所诉行政行为的合法性。
本
案不具备强行检查、搜查原告包裹的条件，原告并无危害国家安全也未涉嫌刑事犯罪。《中华人民共和国宪法》第40条明确规定：“中华人民共和国公民的通信自
由和通信秘密受法律的保护。除因国家安全或者追查刑事犯罪的需要，由公安机关或者检察机关依照法律规定的程序对通信进行检查外，任何组织或者个人不得以任
何理由侵犯公民的通信自由和通信秘密。”
《行政诉讼法》第43条第3款明确规定：“以非法手段取得的证据，不得作为认定案件事实的根据。”
3、涉案书籍并非非法出版物。
首先，这些书是港台出版社合法出版的，原告是从淘宝网上的书店依法购买的，网上书店应该是有经营许可证的。后者应该由淘宝网进行审查，据原告了解，淘宝网也是经过审查的。
在原告申辩过程中，被告执法人员竟然不知道大陆的网上书店和实体书店可以依法出售港台书籍，其无知实在让人震惊。
其次，单从书名来看，这几本书的内容都没有问题，也不是所谓的禁书。有几本则堪称是正能量，原告下单之前是经过认真审查的。
《新
旧约圣经轻松读》、《影响世界的圣经100大事件》是有关圣经的，《拥有七个名字的女孩》、《没有名字的人》、《我想活得像个人》 、《天堂》讲的是朝鲜
的事情，《流水何曾洗是非》是反思文革的，《隐动力》讲的历史故事，《夜：纳粹集中营回忆录》讲的是纳粹，《执法所思》是一位台湾检察官对司法改革年代的
回顾，《无敌：林肯不以任何人为敌人创造了连政敌都同心效力的团队》讲的是林肯的故事。
《在资本主义带来浩劫时聆听马克思》、《谁说民主不亡国》、《蔡英文绕不绕得过中华民国》三本则堪称正能量，第一本是弘扬马克思思想的，第二本是反对过分迷信民主，第三本则显然是反台独的。
可是，被告在原告的异议声中，竟然全部都扣押了。
二、没有法律依据。
被告在先行登记保存证据通知书认定原告涉嫌的是“购买贮存非法出版物”，但没有明确什么法律规定了消费者购买所谓的禁书可以予以查处，这是典型的适用法律错误。而根据原告所知，也没有这样的法律规定。
综
上所述，特提起诉讼。不能不说明的是，本案涉及的问题特别重要，首先个人的信函和包裹如果能够随便检查、强行拆封，人们就无法正常生产、生活，社会就会人
人自危。其次，如果随便将港台书籍认定为非法出版物而不准在大陆民众购买，两岸的文化交流就无法正常，进而会影响祖国统一大业。
此致
宁波市北仑区人民法院
原告：袁裕来
2016年3月7日
This screenshot shows, however, that the same search with the final character removed returns many results.
A full translation of Yuan's complaint is available here: http://blog.feichangdao.com/2016/03/translation-lawyer-yuan-yulais.html
