There are major flaws in the rationality of the Judicial Interpretation of the Crime of Disturbing the Peace. . . .From its legislative subject matter to its legislative content and legislative procedures the Judicial Interpretation of the Crime of Disturbing the Peace is "substantive legislation" that completely fails to comply with the provisions of the Legislation Law." . . . . It not only does not conform to the principles of the Constitution, it also violates the basic spirit of the Constitution and the spirit of the rule of law.This is not the first time criticisms of this nature have been raised. For example:
寻衅滋事罪司法解释的合理性存在重大缺陷，不符合刑法整体谦抑性的发展趋势，也不符合社会主义法治的法理需要。其合法性的要求在依法治国的环境下要求更加严格，寻衅滋事司法解释的“实质立法”从立法主体到立法内容、立法程序完全不符合《立法法》的规定。其合宪性从根本上否定了寻衅滋事司法解释存在的意义，不仅不符合宪法的原则，更违背宪法的基本精神和法治精神。
- In 2005, Beijing University law professor He Weifang, Chengdu University law professor Wang Yi, and journalist Wang Guangze, and some 200 others signed a draft "opinion" calling on the State Council and National People's Congress Standing Committee to review the constitutionality and legality of the Rules on the Administration of Internet News Information Services (Rules). The draft opinion argued that the Rules, which went into effect in late September and which prohibit anyone from using the Internet to post news reports without prior government authorization, violated the Chinese Constitution and national laws. The opinion made the following arguments:
- Articles 2, 33, 35, and 41 of China's Constitution provide respectively that (a) all power in China belongs to the people, and it is they who administer state affairs and manage economic, cultural, and social affairs; (b) the state respects and safeguards human rights; (c) Chinese citizens enjoy freedom of speech; and (d) Chinese citizens have the right to criticize and make suggestions to any state organ or functionary.
- Article 54 of China's Criminal Law states that the deprivation of political rights includes the deprivation of the right of freedom of speech. Therefore, the right to expression is a political right of the citizens.
- On the foregoing grounds, citizens have a constitutionally protected right with respect to "reporting and commentary relating to politics, economics, military affairs, foreign affairs, and social and public affairs, as well as reporting and commentary relating to fast-breaking social events."
- Articles 2, 5-12, and 16 of the Rules prohibit citizens from exercising this right on the Internet, and restrict this type of expression to government authorized websites.
- Article 8 of China's Legislation Law states that the deprivation of a citizen's political rights may only be done through a national law, and that the State Council and its subordinate agencies lack the authority to adopt a rule to this effect.
- The Rules, which were promulgated by the State Council Information Office and the Ministry of Information Industry, therefore violate China's Constitution and national laws.
The original website version is no longer available, but an archived version is available here: https://web.archive.org/web/20060118235101/https://www.gmwq.org/web/news_view.asp?newsid=198.
- In 2006, several groups petitioned the Legislative Review and Filing Office of the National People's Congress Standing Committee to consider the constitutionality and legality of a rule that the Chinese government used to shut down their Web sites. That petition asserted that Articles 5 and 8 of the Provisions on the Administration of Internet News Information Services violated the Administrative Licensing Law and the Constitution. The original website version is no longer available, but an archived version is available here: https://web.archive.org/web/20060614182400/https://www.qian-ming.org/gb/default.aspx?dir=scp&cid=75. An English translation is available here: “Petition On Behalf of the Aegean Sea Web Site et. al. to Repeal Provisions on the Administration of Internet News Information Services” https://www.cecc.gov/publications/commission-analysis/petition-on-behalf-of-the-aegean-sea-web-site-et-al-to-repeal
- Also in 2006, an article published in Journalist Monthly, a joint publication of the Shanghai Communist Party Central Committee and the Shanghai Academy of Social Sciences, raised questions as to whether the authority of the General Administration of Press and Publication and the State Administration of Radio, Film, and Television to regulate China's news media through "administrative rules they have formulated themselves" violated the provisions of Article 71 of China's Legislation Law which stipulated that "A matter on which an administrative rule is enacted shall be a matter which is within the scope of implementing national law, administrative regulations, and decisions or orders issued by the State Council." The original version (entitled “我国新闻领域法律体系的构成与缺陷”) is no longer available, but an archived version is available here: https://web.archive.org/web/20060613194501/https://xwjz.eastday.com/eastday/xwjz/node114414/node114416/userobject1ai1838632.html.
- https://www.cecc.gov/publications/commission-analysis/groups-petition-government-to-review-constitutionality-of-internet
- https://www.cecc.gov/publications/commission-analysis/chinese-media-scholars-criticize-lack-of-legal-protections-for
- https://www.cecc.gov/publications/commission-analysis/activist-li-jian-campaigns-against-government-restrictions-on
The crime of disturbing the peace was a crime derived from the crime of hooliganism stipulated in Article 160 of the 1979 Criminal Law. It was a response to the development trend of statutory crimes and punishments in China, and was intended to solve the problem of the vagueness associated with the crime of hooliganism and the excessive discretion of judges. However, the crime of disturbing the peace as derived did not solve the essential problems of that crime. It still retains the characteristics of the vagueness of the crime of hooliganism and is widely used in judicial judgments. As of October 2019, a search of the cases published on the China Judgment Documents Online found 170,436 disturbing the peace-related cases, and they have shown an upward trend year by year. Most of those in domestic academic circles have either resolutely opposed or hold a very negative attitude toward the crime of disturbing the peace. Many scholars in criminal law circles have published papers discussing flaws associated with determining what constitutes the crime of disturbing the peace, including determining the standard for the offense, the difficulty of judicial application dilemma, and generally focusing on opposing the existence of the crime of disturbing the peace and restricting the scope of application of the crime.
. . . .
In September 2013, the Supreme People’s Court and the Supreme People’s Procuratorate issued the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Defamation through Information Networks and Other Criminal Cases" [Judicial (2013) No. 21], in which paragraphs 1 and 2 of Article 5 both deal with improper words and deeds on the Internet which, after reaching a certain level, will be investigated for criminal responsibility as a crime of disturbing the peace.
. . . .
In the Judicial Interpretation of the Crime of Disturbing the Peace the provision “Where false information is fabricated or where information is clearly known to be fabricated and false, and it is disseminated on information networks, or persons are organized and incited to disseminate it on the internet, to stir up trouble and cause grave chaos of social order” can be compared with this provision of Article 293 of the Criminal Law: “creating disturbances in a public place, thus causing serious disorder in such place.” The Judicial Interpretation redefines public places, and thereby brings new subject matter of online public opinion within the scope of the criminal law. The Internet, as a space for social interaction, has the nature of public space, but it is not a public place under Article 293 of the Criminal Law. What was needed was rigorous legislative debate and discussion, and not just an expansion of the scope of penalties under the criminal law through a judicial interpretation.
. . . .
China’s Constitution and the Legislation Law establish the legislative powers of the National People’s Congress and the Standing Committee of the National People’s Congress. Article 62(3) of the Constitution stipulates that the National People’s Congress shall exercise the following powers: formulating and amending criminal, civil, state structure, and other basic laws. Article 67 (2) (3) stipulates that the Standing Committee of the National People's Congress shall exercise the following functions and powers: formulating and amending laws other than those that should be enacted by the National People's Congress. When the National People's Congress is not in session, some supplements and amendments may be made to the laws formulated by the National People's Congress, but they must not conflict with the basic principles of those laws.
Article 7 of the "Legislation Law" stipulates that the National People's Congress formulates and revises criminal, civil, state structure, and other basic laws. The Standing Committee of the National People’s Congress enacts and revises laws other than those that should be enacted by the National People’s Congress. The Standing Committee of the National People’s Congress enacts and revises laws other than those that should be enacted by the National People’s Congress. When the National People’s Congress is not in session, some supplements and revisions may be made to the laws enacted by the National People’s Congress, but they must not conflict with the basic principles of those laws. In particular, clauses 4, 5, and 9 of Article 8 of the Law stipulates that criminal offenses and penalties, compulsory measures and penalties involving deprivation of a citizen's political rights or restriction of personal freedom, and litigation and the arbitration system shall only be governed by laws. In enacting criminal laws and in the administration of criminal justice, the aforementioned principles, rights, and powers must be regulated by the Constitution.
The Supreme People’s Court and the Supreme People’s Procuratorate’s judicial interpretation power originally came from the National People’s Congress’ June 10, 1981 “Resolution of the Standing Committee of the National People's Congress Providing an Improved Interpretation of the Law” which stipulated:
In cases where the limits of articles of laws and decrees need to be further defined or additional stipulations need to be made, the Standing Committee of the National People's Congress shall provide interpretations or make stipulations by means of decrees.
Interpretation of questions involving the specific application of laws and decrees in court trials shall be provided by the Supreme People's Court. Interpretation of questions involving the specific application of laws and decrees in the procuratorial work of the procuratorates shall be provided by the Supreme People's Procuratorate. [http://www.lawinfochina.com/display.aspx?id=28&lib=law]
The "People's Court Organization Law" stipulates that the Supreme People's Court shall interpret the specific application of laws and decrees in the trial process. According to Shu Guoying [law professor at China University of Political Science and Law], the above-mentioned provisions mean that China’s Supreme People’s Court has the authority to make judicial interpretations in the course of its trial activities with respect to how to specifically apply the law and how to apply legal provisions so that they are more in line with the original intent of the law. The law does not give the Supreme People's Court the authority to make abstract interpretations of the law.
. . . .
The crime of disturbing the peace was successor to the crime of hooliganism. It was essentially formulated to handle real-life small-time gangsters. The spread of rumors and rumors on the Internet can only be resolved through legislation enacted by the National People's Congress. The Judicial Interpretation of the Supreme People’s Court and Procuratorate represents an encroachment on the National People’s Congress’ legislative authority, and its enlargement of scope and the irregularity of its procedures clearly violate the provisions of the Legislation Law.
寻衅滋事罪是从1979年刑法第160条规定的流氓罪中分解出来的一种罪，是为了回应我国罪刑法定的发展趋势，解决流氓罪的不确定性以及法官自由裁量权力过大的问题。但是，分解出来的寻衅滋事罪却没有解决这一罪名的本质问题，依然保留了流氓罪不确定性的特征，并在司法裁判中广泛的应用，截止到2019年10月，在中国裁判文书网上公布的案例中，搜索寻衅滋事相关案由的案件已经有170436件，而且呈现出逐年上升的趋势。国内学界对寻衅滋事罪的态度大多都持坚决反对或者十分消极的态度，刑法学界很多学者都曾发表论文论述寻衅滋事罪的犯罪构成缺陷、罪名认定标准、司法适用困境，总体上以反对寻衅滋事罪的存在和限制该罪名适用范围两方面为主。
. . . .
2013年9月最高人民法院、最高人民检察院发布《关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释》[法释（2013）21号]，其中第5条第1款和第2款都把网络上的不当言行，在达到“一定程度”后以寻衅滋事罪追究刑事责任 . . . .
. . . .
寻衅滋事罪的司法解释中“编造虚假信息，或者明知是编造的虚假信息，在信息网络上散布，或者组织知识人员在信息网络上散布、起哄闹事，造成公共秩序严重混乱的”，与刑法293条规定的：“在公共场所起哄闹事，造成公共场所严重混乱的”的情况对比，司法解释属于重新定义了公共场所，把网络舆论这一新事物纳入了刑法的规制范围，而网络作为社会交往的空间，是有公共空间的性质，但是不是刑法293条的公共场所，就需要更加严谨的立法论证，而不是仅仅以司法解释的方式进行刑法处罚范围的扩大化。
. . . .
我国《宪法》与《立法法》确立了全国人民代表大会与全国人民代表大会常务委员会的立法权，《宪法》第62条第(3)项规定，全国人大行使下列职权: 制定和修改刑事、民事、国家机构的和其他的基本法律。第67条第(2)(3)项规定全国人大常务会行使下列职权: 制定和修改除应当由全国人民代表大会制定的法律以外的其他法律; 在全国人大闭会期间，对全国人大制定的法律进行部分补充和修改，但是不得同该法律的基本原则相抵触。《立法法》第7条规定，全国人大制定和修改刑事、民事、国家机构的和其他的基本法律。全国人大常委会制定和修改除应当由全国人大制定的法律以外的其他法律; 在全国人大闭会期间，对全国人大制定的法律进行部分补充和修改，但是不得同该法律的基本原则相抵触。特别是该法第8条第(4) (5) (9) 项规定，有关犯罪和刑罚，对公民政治权利的剥夺、限制人身自由的强制措施和处罚，对非国有财产的征收，诉讼和仲裁制度，必须只能制定法律。上述这些原则、权利与权限，在刑法立法与刑事司法中，必须受到宪法的规制。最高人民法院、最高人民检察院的司法解释权最初来自全国人大1981年6月10日《关于加强法律解释工作的决议》，规定了：一，凡法律、法令本身需要进一步明确界限或作补充规定的，由全国人民代表大会常委委员会进行解释或用法令加以规定。二，凡属于法院审判工作中具体应用法律、法令的问题，由最高法院进行解释。凡属于检察院检察工作中具体应用法律、法令的问题，由最高检进行解释。《人民法院组织法》规定最高人民法院对于在审判过程中如何具体应用法律、法令的问题，进行解释。按照舒国滢的观点，上述规定，是指我国的最高人民法院有权在其审判活动过程中，对于如何具体应用法律、法条怎样适用更加符合法律原意来进行司法解释，法律没有赋予最高人民法院对法条制定抽象性解释的权利。
. . . .
寻衅滋事罪前身是流氓罪，其本质上是对现实生活中小混混为对象而制定，对网络上的造谣、传谣，只能通过人大立法来解决，两高的司法解释属于僭越人大的立法权限，内容的扩大化，以及程序的不规范，明显违背《立法法》的规定。