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


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