People's Court of Jimei, Fujian
Administrative Judgment
(2017) Min 0211 Administrative First No. 156
Plaintiff Feng Zhouguan, male, Han ethnicity, born October 26, 2917, residing in Zhou County, Xi'an, Shaanxi.
Defendant Public Security Bureau of Xiamen, Siming Precinct, located at No. 678 Xia Road, Siming District, Xiamen, Fujian, Unified Social Credit No. 11350200004155341D.
Litigation representative Huang Weidong, Director.
Appearing in court to respond to the suit is Chen Zhihuang, Deputy Director.
Appointed representatives Cai Jianren and Zhuang Chengpeng are staff members of the bureau.
Defendant Public Security Bureau of Xiamen, located at No. 45 Xinhua Road, Siming District, Xiamen, Fujian, Unified Social Credit No. 1135020000413900XC.
Appointed representative Lu Lin is a staff member of the bureau.
Plaintiff Feng Zhouguan sued defendant Public Security Bureau of Xiamen, Siming Precint (hereinafter referred to as the "Siming Police Department") and Public Security Bureau of Xiamen (hereinafter referred to as the "Municipal Public Security Bureau") in a public security punishments case, and filed a lawsuit with this Court on September 30, 2017.
Based on an investigation, this Court docketed the case on October 10, 2017, and on October 15, 2017 a copy of the complaint and the Notice to Respond to the Lawsuit were served on the two defendants. This Court formed a collegial panel in accordance with the law, and on January 29, 2018 tried this case in open court. Plaintiff Feng Zhouguan, Chen Zhihuang as the individual responsible for responding on behalf of defendant Siming Police Department and its appointed representatives Cai Jianren and Zhuang Chengpeng, and defendant Municipal Public Security Bureau's appointed representative Lu Lin appeared in court to participate in the proceedings. The trial in this case has now concluded.
On June 3, 2017, defendant Siming Police Department issued the Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196 administrative punishment decision. It was found that at about 12:46 pm on June 1st, 2017, offender Feng Zhouguan was in Xiamen City’s ×××× room and used his personal mobile phone to send messages through the Wechat group named "Peach Blossom Island * Utopia" using innuendo to insult the country's leader: "Teenagers use the name Big Xi, and little kids use the name Grandpa Xi. My names are fat pig, bun, and spendthrift." On June 3 of the same year he was taken into custody. In accordance with the provisions of Article 26(4) of the "Public Security Administrative Punishments Law" it was decided to subject Feng Zhouguan to five days administrative detention. Plaintiff Feng Zhouguan refused to accept the decision on administrative punishment, and applied to defendant Municipal Public Security Bureau for administrative reconsideration. On October 24, 2017, defendant Municipal Public Security Bureau issued the Xia Public Reconsideration Decision (2017) No. 036 administrative reconsideration decision upholding the Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196 administrative punishment decision made by defendant Siming Police Department.
Plaintiff Feng Zhouguan's lawsuit states that at 12:46 pm on June 1st, 2017, he posted information through a Wechat group named "Peach Blossom Island * Utopia" referring to the country's leader "Fat Pig, Bun, and Spendthrift." On June 3 the Siming Police Department took him into custody on the grounds that his insult to the country's leader disrupted social order and was an act of disturbing the peace, and in accordance with the provisions of Article 26(4) of the "Public Security Administrative Punishments Law" he would be subjected to five days administrative detention, which would begin on June 4 and would be completed on June 9.
The plaintiff does not think that he is guilty of any violation of law. This was a normal exercise of his Constitutional right as a citizen to freedom of speech. Even if his words were improper, at most he owes an apology to the country's leader. If the defendants must believe that the plaintiff is guilty, then the defendant must notify the country's leader or his appointed attorneys to come the designated people’s court to sue the plaintiff for his illegal actions, instead of subjecting the plaintiff to compulsory detention without a legal trial and without the plaintiff having been able to offer any legal defense. Everyone is equal before the law, and what the defendant did was obviously contrary to the spirit of the Constitution and the spirit of the legal system. This is using power to imprison a citizen who asserted his power in a cage designed by those in power.
The spirit of the legal system should be procedural justice above all. If the defendant deems that the plaintiff insulted a third party by posting "Fat Pig, Bun, and Spendthrift" in a Wechat group, then it should be a case of infringment of a personal right of reputation, and the litigation should between one individual and another. If the country's leader or his appointed attorneys want to play at litigation with the plaintiff then the defendants should maintain a neutral stance because the defendants are agents of the country's judiciary. They are the patron saints of 1.4 billion Chinese citizens, not the armed palace guards or personal retainers of the country's leader.
The plaintiff categorically denies that he acted to disrupt social order and disturb the peace. First, the plaintiff believes that the term "social order" is too broad, general, and difficult to define. The plaintiff's "Fat Pig, Bun, and Spendthrift" were merely online statements, and there was no act that encouraged violent vandalism, arson, or gathering mobs to attack government agencies, schools, private enterprises or public venues. There was no act calling for religious extremism or harming national security, nor were there any malicious attacks on the personal reputation or property of third parties. The plaintiff has no criminal record of theft, robbery, fraud, etc.
As for whether it was a mistake for the plaintiff to make the "Fat Pig, Bun, and Spendthrift" statement, the plaintiff believes that it was a joke shared among friends and neighbors who are just a bunch of average people in Guanzhong, Shaanxi, and he was not cursing anyone. Everyone in Shaanxi, including those current State leaders who are also from Guanzhong, Shaanxi, should be recognize this. The defendants could assemble Shaanxi people's online "collected curses," and "fat pig" would absolutely not be on the list. Here the plaintiff declares that the plaintiff respects the leaders of the country.
Second, "Bun" is a nickname given to the current State leader in 2013 when he went to the Beijing Qingfeng Baopu for dinner in his personal capacity. After it was reported in the news, Internet users came up with the nickname. This is practically a commonplace occurance in Chinese people's lives, and the plaintiff also has a nickname at home.
Finally, "spendthrift" refers to the Chinese government's financial assistance to its neighbors in South America and the South China Sea that was reported in various government press releases and diplomatic bulletins. The government calls it economic assistance and says it is fulfilling its responsibility to the international community. The people of China mostly understand it to refer spendthrift diplomacy and financial assistance, and therefore it cannot be said that the term "spendthrift" is an insult to the country's leader.
The plaintiff requests:
1. Rescind the Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196 administrative punishment decision issued by defendant Siming Police Department；
2. Rescind the Xia Public Reconsideration Decision (2017) No. 036 administrative reconsideration decision issued by defendant Municipal Public Security Bureau.
The plaintiff provided the following evidence in support of his contentions:
1. Administrative Punishment Decision;
2. Administrative Reconsideration Decision;
3. Certificate of Release from Detention;
4. Two copies of witness testimony;
5. Two copies of textual materials.
Defendant Siming Police Department argued:
1. At 10:14 am on June 02, 2017, the Siming Police Department received "Instructions to examine and verify Feng Zhouguan insulting Party and State leaders in a WeChat group" from the Municipal Public Security Bureau. After receiving this instruction, at 10:30 on June 3, 2017, police from the the Siming Police Department's Hecuo Border Precinct served a written summons at [INTENTIONALLY DELETED IN THIS CASEBOOK], Siming District, Xiamen to Feng Zhouguan, who was suspected of the offense of spreading statements that disturbed public order, to appear at the Public Security Bureau of Xiamen's Hecuo Border Precinct to be investigated. Based on questioning it was determined that at 12:46 pm on June 01, 2017 the suspected offender, Feng Zhouguan, was in the WeChat group named "Peach Blossom Island * Utopia" on his cell phone at ×××× in Xiamen, and saw that some people were posting some information about current events in the group chat, and extemporaneously summarized and organized language that insulted the Party and the country's leader. In accordance with Article 26(4) of the Public Security Administrative Punishments Law, Feng Zhouguan was ordered to serve five days administrative detention for violating the law.
2. The facts it used to determine that Feng Zhouguan's action constitutes other provactive acts were clear, and the evidence was reliable and copious. An investigation conducted in accordance with the law determined: At 12:46 pm on June 01, 2017 the suspected offender, Feng Zhouguan was in Xiamen City’s ×××× room and used his personal mobile phone to send messages through the Wechat group named "Peach Blossom Island * Utopia" using innuendo to insult the country's leader. He was taken into custody on June 3rd of the same year. The foregoing facts are confirmed by evidence including The statements and defenses of the offender Feng Zhouguan, household registration history information and the history inquiry forms, screenshots of WeChat on a mobile phone, and the process of how the defendant came into police custody. Feng Zhouguan's actions constitute other provacative acts, and there is enough to determine an offense was committed.
3. Its decision to subject Feng Zhouguan to five days of administrative detention was legal and justified by law, and the punishment was appropriate. Feng Zhouguan was in Xiamen City’s ×××× room and used his personal mobile phone to send messages through the Wechat group named "Peach Blossom Island * Utopia" using innuendo to insult the country's leader, and afterwards he was taken into custody by the Siming Police Department at 11:48 on June 3, 2017 in the ×××× room in Xiamen. In accordance with the law the civil police issued a written summons for him to appear at the Siming Police Department Hecuo Border Precinct for further investigation. Feng Zhouguan had already been informed of the reason, basis and administrative rights and obligations of the summons, and Feng Zhouguan was notified of the basis and his administrative rights. During the investigation of the case, due to the complexity of the case and possible detention penalties, after reporting to leadership at the Hecuo Border Precinct for approval, in accordance with the law, the time limit for Feng Zhouguan's questioning and investigation was extended 24 hours. In the process of the investigation, in order to collect evidence, police from the Siming Police Department's Hecuo Border Precinct issued an inspection certificate to inspect the mobile phone that Feng Zhouguan used to publish the WeChat statements, and informed Feng Zhouguan of the reasons, basis, and administrative rights and obligations of the inspection, and Feng Zhouguan was notified of the basis and his administrative rights.
An investigation found that Feng Zhouguan's action constituted other provacative acts, and prior to rendering its penalty decision on Feng Zhouguan, in accordance with the law police from the Siming Police Department informed Feng Zhouguan of the facts, reasons, and legal basis on which it intended to base its penalty decision on Feng Zhouguan. They also informed Feng Zhouguan of his rights in accordance with the law, and Feng Zhouguan did not offer any statement or defense. In summary, Feng Zhouguan used information networks to insult third parties and disrupted social order in a manner that did not justify criminal punishment. His action constituted other provacative acts, and in accordance with Article 26(4) of the "Public Security Administrative Punishments Law" its decision to punish the offender Feng Zhouguan with five days administrative detention was legal and reasonable, and the procedures were proper.
To sum up, Siming Police Department subjected Feng Zhouguan to five days administrative detention, the facts of the specific administrative actions were clear, the evidence was conclusive, the applicable grounds were correct, the procedures were legal, and the punishment was appropriate. It urges the court to reject the plaintiff's claim.
Defendant Siming Police Department provided the following evidence in support of its contentions.
1. Administrative Punishment Decision (Feng Zhouguan);
2. Report of petition for approval of public security administrative punishment (sub-county bureau);
3. Case registration form;
4. Case acceptance receipt (Feng Zhouguan);
5. Summons (Feng Zhouguan);
6. Report of petition for summons approval;
7. Notice to the family members of the summoned person;
8. Inspection certificate;
9. Report of petition for inspection approval;
10. Report of petition for approval to extend the time limit for questioning;
11. Record of questioning (Feng Zhouguan);
12. Investigation record and three screenshots of WeChat content;
13. Transcript of Questioning (Feng Zhouguan second time);
14. The process of how the defendant came into police custody;
15. Notice of rights and obligations in administrative cases;
16. Transcript of notification of administrative punishment (Feng Zhouguan);
17. Notification to family members of administrative detention (Feng Zhouguan);
18. Administrative detention receipt (Feng Zhouguan);
19. Staff information (Feng Zhouguan);
20. Explanation of the circumstances of the criminal experience (Feng Zhouguan).
Defendant Municipal Public Security Bureau argued:
1. Its proceedures in handling the administrative reconsideration case were legal. The plaintiff refused to accept the Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196 administrative punishment decision issued by the Siming Police Department on June 3, 2017, and on July 26, 2017 applied to the Municipal Public Security Bureau for administrative reconsideration. After conducting a review the Municipal Public Security Bureau accepted the case on the same day, and on July 26, 2017 notified the Siming Police Department to respond, and the Siming Police Department responded and submitted relevant evidence on July 28, 2017. After conducting a review and obtaining requisite approvals, on September 20, 2017, the Municipal Public Security Bureau issued the Xia Public Reconsideration Decision (2017) No. 036 administrative reconsideration decision upholding the Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196 administrative punishment decision, and on September 22, 2017 delivered the reconsideration decision to the plaintiff. It strictly complied with the relevant provisions of the "Administrative Reconsideration Law of the People's Republic of China" on the acceptance, review, approval, and delivery of administrative reconsideration cases, and the case-handling procedures were legal.
2. The content of the administrative reconsideration decision it rendered was correct and the law was properly applied. The Municipal Public Security Bureauit ascertained at trial that at 12:46 pm on June 01, 2017 the plaintiff was at ×××× in Qianbu, Xiamen, Fujian, and used his personal cell phone to log into WeChat (WeChat name: Fengsir, WeChat ID No.: ××××) and posted the information "Teenagers use the name Big Xi, and little kids use the name Grandpa Xi. My names are fat pig, bun, and spendthrift" in a group named "Peach Blossom Island * Utopia." Plaintiff's names "fat pig, bun, and spendthrift" contained an implied insult of the country's leader, and on June 3 he was taken into custody by the civil police. On June 3, 2017, the Siming Police Department ordered the plaintiff to serve five days administrative detention in accordance with the provisions of Article 26(4) of the "Public Security Administrative Punishments Law." The plaintiff argued in his application for administrative reconsideration that his statement in his posts referring to the country's leader as "Bun," "Spendthrift," etc., were entirely with the scope of freedom of expression, the upper limit of which is satire and sarcasm, and he should not have been detained. The Municipal Public Security Bureau believed, however, the plaintiff clearly knew that there were as many as 396 members in the WeChat group "Peach Blossom Island * Utopia," and this group mainly commented and chatted about current affairs, and yet he still made insinuations that insulted the country's leader, posted inappropriate statements, and created a pernicious social influence, which constituted an illegal act of disturbing the peace. The plaintiff's justifications, such as the one relating to freedom of expression, misconsture the law, and should not be sustained. The facts affirmed in the original decision were clear, the evidence was copius, the law was applied correctly, the proceedures were legal, the content was appropriate, and its decision to uphold the administrative punishment decision was in accordance with the provisions of Article 2(1) of the "Administrative Reconsideration Law of the People's Republic of China."
To sum up, with respect to the plaintiff's administrative reconsideration case, the Municipal Public Security Bureau's procedures were legal, the content of the administrative reconsideration decision was correct, and the law was properly applied. They implore the court to reject the plaintiff's claims.
Defendant Municipal Public Security Bureau provided the following evidence in support of its contentions:
1. The administrative reconsideration application and ID card copy submitted by Feng Zhouguan；
2. The Public Security Bureau of Xiamen's Notice to Submit a Response to an Administrative Reconsideration (Xia Public Response (2017) No. 037))；
2. Certificate of Service;
4. Administrative Reconsideration Response;
5. Administrative Reconsideration Decision;
6. Certificate of Service.
Following an examination of the evidence in court, the plaintiff had no objections to the authenticity of the evidence submitted by defendant Siming Police Department, and mainly offered the following opinions of the following evidence that he examined:
Evidence No. 5. He believed that the defendant civil police entered his residence to serve a verbal summons, and did not produce a summons certificate;
Evidence No. 7. The signature on the notice was his own signature, but he rejected the public security agency informing his family members of the summons;
Evidence No. 8. At that time, a civil police and two auxiliary police removed him from his residence, and took him to the police precinct without producing a police officer's card or taking him in a police car;
Evidence No. 10. He believed that he has no knowledge of whether there was an extension of the time for his questioning;
Evidence No. 12. He confirmed that the WeChat (WeChat name: Fengsir, WeChat ID No.: ×××) belonged to him and that he used it, and the relevent statements in the WeChat group "Peach Blossom Island * Utopia," were also posted by him;
Evidence No. 16. He believed that he signed the notification transcript in circumstances where his personal liberty had been restricted, and it does represent what he meant;
Evidence No. 17. He believed that he has clearly rejected the public security agency informing his family members of the circumstances of his detention.
The plaintiff had no objections to the authenticity, legality, or relevance of the evidence submitted by defendant Municipal Public Security Bureau.
Neither defendant had any objections to the evidence submitted by the other party.
The defendants had no objections to the authenticity, legality, or relevance of Evidence 1, 2, and 3 submitted by the plaintiff. They were unable to make a determination as to the authenticity and relevance of Evidence 4 and 5. They believe that the determination of whether "fat pig, bun, and spendthrift" are insulting to others should be based on the relevant linguistic context.
This Court's evidentiary determinations are as follows:
Regarding the evidence provided by the two defendants and Evidence 1, 2, and 3 provided by the plaintiff, the parties have no objection to the authenticity of the evidence, and they can be used as the basis for the judgment, and this Court affirms them.
Regarding Evidence 4 provided by the plaintiff, the content of the two certificates merely reflects the understanding of the term "fat pig" by citizens in a specific region. The public security agency in this case punished the plaintiff for his inappropriate statements in a WeChat group, and the WeChat group was not composed of citizens limited to a specific geographic region, so that evidence is not relevant to this case; Regarding Evidence 5 provided by the plaintiff, that is written material provided by the plaintiff, and the source of the evidence itself cannot be verified. Therefore, Evidence 4 and 5 provided by the plaintiff are not affirmed by this Court.
It was ascertained at trial that:
1. At approximately 12:46 pm on June 01, 2017, plaintiff Feng Zhouguan used his WeChat account Fengsir (WeChat ID No.: ××××) and posted this information in a group named "Peach Blossom Island * Utopia": "One governing Party, one leader. One gathering of lackeys, one fat pig;" "These kids, so young and inexperienced, you fucking indoctrinate your children with communism, shit if that isn't just too bad;" and "Teenagers use the name Big Xi, and little kids use the name Grandpa Xi. My names are fat pig, bun, and spendthrift." There were 396 WeChat members in that WeChat group, with topics such as current affairs, science, and culture. The WeChat group does not reflect the composition of citizens of a specific region.
2. On June 3, 2017, after receiving an intelligence order from the Public Security Bureau of Xiamen, defendant Siming Police Department's Hecuo Border Police Precinct filed a case on the plaintiff’s alleged mass posting of insults to Party and State leaders on WeChat. On the same day, defendant Siming Police Department's Hecuo Border Police Precinct issued a written summons for the plaintiff to appear at the Siming Police Department's Hecuo Border Precinct for further investigation and questioning. Due to the complexity of the case and the possibility of administrative detention, extended the time limit for questioning the plaintiff to 24 hours. On the same day, defendant Siming Police Department served the Transcript of the Administrative Punishment Notice to the plaintiff, and issued an administrative penalty decision (Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196), and decided to punish the plaintiff with five days administrative detention. That day, defendant Siming Police Department delivered the decision to the plaintiff, and at the same time mailed a Notice of Administrative Detention to his family members by registered letter.
3. The plaintiff refused to accept the punishment decision, and applied to the Municipal Public Security Bureau for administrative reconsideration on July 26, 2017. After conducting a review, the Municipal Public Security Bureau accepted the case on the same day. On July 26, 2017 it notified the Siming Police Department to respond, and on July 28, 2017 the Siming Police Department responded and submitted relevant evidence. On September 20, 2017 the Municipal Public Security Bureau issued the Xia Public Reconsideration Decision (2017) No. 036 administrative reconsideration decision that determined to uphold the Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196 administrative punishment decision, and on September 22, 2017 it delivered the reconsideration decision to the plaintiff. The plaintiff did not object to the the Municipal Public Security Bureau's reconsideration procedures in this case.
4. Plaintiff Feng Zhouguan was sent to the Xiamen No. 1 Detention Center and served five days of detention from June 4, 2017 to June 9, 2017.
The focus of the dispute in this case is whether defendant Siming Public Security Bureau's administrative punishment decision in the case had a factual and legal basis, and whether the procedures were legal.
Plaintiff Feng Zhouguan believes that citizens enjoy the right to freedom of speech. If the victim had any objections, he could sue the plaintiff through civil litigation channels. This case is not under the jurisdiction of the public security agency, and the public security agency cannot impose penalties on the plaintiff just because of the counterparty's special status. The administrative punishment decision and the reconsideration decision rendered by the defendants were unclear and the evidence was insufficient, and should be rescinded.
Defendant Siming Police Department believes that online spaces fall within the category of public spaces, and the plaintiff’s inappropriate statement in the WeChat group was not the only fact they uncovered, and prior to that two other statements that insulted the country's leader were posted, and that already constituted acts that disturbed the peace, and it was not improper to investigate and deal with those acts.
Defendant Municipal Public Security Bureau agrees with the opinions of defendant Siming Police Department.
This Court finds in accordance with the provisions of Article 7 of the "Public Security Administrative Punishments Law": "The department of public security under the State Council shall be responsible for administration of public security throughout the country. The public security organs of the local people’s governments at or above the county level shall be responsible for administration of public security within their respective administrative areas." Defendant Siming Police Department has the statutory authority to conduct public security work within its jurisdiction. Compared with general public spaces, the nature of online public spaces is faster information transmission, and audiences that are both broader and less identifiable. Citizens should use civilized language and maintain a certain degree of rationality and restraint when they make statements online. After the plaintiff posted the statements "One governing Party, one leader. One gathering of lackeys, one fat pig;" and "These kids, so young and inexperienced, you fucking indoctrinate your children with communism, shit if that isn't just too bad," he took the addition step of posting the statement "Teenagers use the name Big Xi, and little kids use the name Grandpa Xi. My names are fat pig, bun, and spendthrift." The place where the plaintiff made the aforementioned statements was a WeChat group named "Peach Blossom Island * Utopia." This WeChat group belongs to the category of an online public space, and covers topics with content relating to current affairs. The members of that WeChat group are not all citizens of Shaanxi, and therefore the plaintiff’s statements should be interpreted as they would be understood by ordinary people. Based on the plaintiff’s statements in this case, the number of people in the group, and the language environment, the plaintiff’s language represented insinuations that insulted the country's leader and constituted an act of disturbing the peace. The facts ascertained by defendant Siming Police Department were clear.
Regarding the questions of the plaintiff’s description of the summons service by defendant Siming Police Department's civil police as having been done without showing the summons certificate or the police officers' card, the plaintiff did not provide corresponding evidence to prove his claim, and the summons certificate involved in the case was signed by the plaintiff. This Court does not give credence to the plaintiff's preceding claims.
Regarding the plaintiff’s claim that defendant Siming Police Department informed his close relatives of the fact that he was detained without his consent, this Court finds that in accordance with the provisions of Article 151 of the "Procedures for the Handling of Administrative Cases by Public Security Agencies," if an administrative detention punishment decision is rendered, the family of the punished person shall be notified of the punishment and the place of execution in a timely manner. In this case, defendant Siming Police Department notified the family of the fact that the plaintiff had been detained, and the case-handling procedures did not violate the provisions of laws and regulations.
In summary, defendant Siming Police Department issued the Xia Public Si (He Bian) Administrative Punishment Decision (2017) No. 00196 administrative punishment decision to plaintiff Feng Zhouguan in accordance with Article 26(4) of the "Public Security Administrative Punishments Law," and it is determined that the facts were clear, the law was applied correctly, and the procedures were legal. The Municipal Public Security Bureau accepted the plaintiff's reconsideration application, and after conducting a review in accordance with legally determined procedures issued the Xia Public Reconsideration Decision (2017) No. 036 administrative reconsideration decision, and it is determined that the facts were clear, the law was applied correctly, and the procedures were legal. The plaintiff's claims lacks factual and legal basis, amd this Court does not sustained them. In accordance with the provisions of Article 69 of the "Administrative Procedure Law of the People's Republic of China," the judgment is as follows:
Plaintiff Feng Zhouguan's claims are rejected.
The case acceptance fee of 50 yuan in this case shall be borne by plaintiff Feng Zhouguan.
If any party does not accept this judgment, they may within 15 days after receiving this written judgment submit appeal briefs through this Court, along with a number of copies equal to the number of parties, and appeal through the Intermediate People's Court of Xiamen.
Chief Adjudicator Ding Yaoshuang
Adjudicator Lan Yufeng
People's Assessor Chen Taoping
March 23, 2018
Judge's Assistant Xie Zhengyan
Stenographer Chen Rongqiang
厦门市集美区人民法院
行政判决书
（2017）闽0211行初156号
原告冯周管，男，汉族，1973年10月26日出生，住陕西省西安市周至县。
被告厦门市公安局思明分局，住所地福建省厦门市思明区厦禾路678号，统一社会信用代码11350200004155341D。
诉讼代表人黄卫东，局长。
出庭应诉负责人陈志煌，副局长。
委托代理人蔡建仁、庄程鹏，该局工作人员。
被告厦门市公安局，住所地福建省厦门市思明区新华路45号，统一社会信用代码1135020000413900XC。
诉讼代表人林锐，局长。
委托代理人卢琳，该局工作人员。
原告冯周管诉被告厦门市公安局思明分局（以下简称“思明公安分局”）、厦门市公安局（以下简称“市公安局”）治安行政处罚一案，于2017年9月30日向本院提起诉讼。经审查，本院于2017年10月10日受理，并于2017年10月15日向两被告送达了起诉状副本及应诉通知书。本院依法组成合议庭，于2018年1月29日公开开庭审理了本案。原告冯周管，被告思明公安分局机关应诉负责人陈志煌及委托代理人蔡建仁、庄程鹏，被告市公安局委托代理人卢琳到庭参加诉讼。本案现已审理终结。
被告思明公安分局于2017年6月3日作出厦公思（何边）行罚决字[2017]00196号行政处罚决定书，查明2017年6月1日12时46分许，违法行为人冯周管在厦门市××××室通过自己手机微信上面的名为“桃花岛*乌托邦”微信群内发送信息，用“青年人称呼习大大，小朋友称呼习爷爷。我的称呼肥猪，包子，撒币”的语言含沙射影辱骂国家领导人。同年6月3日查获。根据《中华人民共和国治安管理处罚法》第二十六条第（四）项之规定，决定对冯周管处以行政拘留五日。原告冯周管不服该行政处罚决定，向被告市公安局申请行政复议。被告市公安局于2017年10月24日作出厦公复决字〔2017〕036号行政复议决定书，维持被告思明公安分局作出的厦公思（何边）行罚决字[2017]00196号行政处罚决定书。
原告冯周管诉称，其于2017年6月1日12时46分在微信群“桃花源*乌托邦”发布消息称呼国家领导人为“肥猪，包子，撒币”，6月3日被思明公安分局以辱骂国家领导人破坏社会秩序，属于寻衅滋事行为，依据《中华人民共和国治安管理处罚法》二十六条第四项之规定，处行政拘留5日，并6月4日至6月9日执行完毕。原告不认为其行为有违法之嫌，其是正常行使宪法赋予公民的言论自由权力，即使言论不当，顶多向国家领导人道歉而已，如果被告非得认为原告有罪，那也得被告通知国家领导人或其委托代理律师到指定人民法院，起诉原告违法行为，而不是被告在未经法律审判，原告未进行司法辩解的情况下，强制把原告关进拘留所。法律面前人人平等，被告的所作所为明显违背宪法精神和法制精神，是用权力把行使权力的公民关进权力享有者设计的笼子里。法制精神应该是程序正义为首位，原告在微信群内发布信息“肥猪，包子，撒币”，被告称为辱骂他人，那应该是个人名誉侵权案，是个人对个人的诉讼。即国家领导人或其代理律师与原告之间的博弈诉讼，被告应该保持中立，因为被告是国家的司法人员，是十四亿中国人民的保护神，而不是国家领导人的武装护院队、家丁。关于破坏社会秩序，寻衅滋事的行为，原告坚决否认。首先原告认为，社会秩序这个称谓，过于庞大，笼统，不好界定。原告的“肥猪，包子，撒币”仅仅是网络言论，没有鼓动暴力打砸、纵火、聚众冲击政府机关、学校、企事业办公场所，没有鼓吹极端宗教行为，没有散布危害国家安全，恶意攻击他人人身财产、名誉等行为，原告也没有盗窃、抢劫、诈骗等违法前科。关于原告称的“肥猪，包子，撒币”言论的过与错。原告认为“肥猪”是陕西关中一带百姓熟人之间、朋友之间邻里之间一种玩笑话，不是骂人的话，这个凡是陕西人，包括现在的国家领导人也是陕西关中人，应该是广为认同的，被告可以在网上收集陕西人“骂人话集锦”，“肥猪”绝不在列，在此原告声明原告是尊重国家领导人的。其次，“包子”是现国家领导人于2013年某日，以私人身份去北京庆丰包子铺就餐，被曝光后，网络给予的绰号，这在中国人的生活中，几乎是司空见惯的，原告在家中也有绰号。再次，“撒币”是中国政府对南美洲，南海邻国的金钱援助行为，政府各种新闻公报，外交公报都有消息留存。政府称为经济援助，尽国际社会的责任，而中国百姓大多理解为撒币外交，金钱援助，故不能说“撒币”一词是辱骂国家领导人。原告诉请：一、撤销被告思明公安分局作出厦公思（何边）行罚决字[2017]00196号行政处罚决定书；二、撤销被告市公安局作出的厦公复决字〔2017〕036号行政复议决定书。
原告为支持其主张，提供如下证据材料：证据1、行政处罚决定书；证据2、行政复议决定书；证据3、解除拘留证明书；证据4、证人证言2份；证据5、文字资料2份。
被告思明公安分局辩称，一、2017年6月02日10时14分，思明公安分局接市公安局《关于核查冯周管在微信群辱骂党和国家领导人的工作指令》。接此指令后，思明公安分局何厝边防派出所民警于2017年6月3日10时30分许，在厦门市思明区前埔村前埔社27号201室将涉嫌散布言论干扰公共秩序的违法嫌疑人冯周管书面传唤至厦门市公安局何厝边防派出所接受调查。经询问，2017年6月01日12时46分许，违法嫌疑人冯周管在厦门市××××室通过自己手机微信上面的名为“桃花源*乌托邦”微信群，看到有人在群聊里面发一些时事评论的信息，临时总结和组织语言辱骂党和国家领导人。根据《中华人民共和国治安管理处罚法》第二十六条第（四）项之规定，对违法行为人冯周管处以行政拘留五日。二、其认定冯周管的行为已构成其他寻衅滋事行为的事实清楚，证据确实充分。经依法调查查明：2017年6月1日12时46分许，违法行为人冯周管在厦门市××××室通过自己手机微信上面的名为“桃花源*乌托邦”微信群内发送信息，含沙射影辱骂国家领导人。同年6月3日被查获。以上事实有违法行为人冯周管的陈述和申辩、户籍前科资料及前科查询表、缴获的手机微信截图、到案经过等证据证实。冯周管的行为已构成其他寻衅滋事行为，违法行为足以认定。三、其对冯周管处以行政拘留五日的决定，程序合法，于法有据，量罚适当。冯周管于2017年6月1日12时46分许在厦门市××××室通过自己手机微信上面的名为“桃花源*乌托邦”微信群内发送信息，含沙射影辱骂国家领导人，后于2017年6月3日11时48分在厦门市××××室家中被思明公安分局民警查获，民警依法将其书面传唤至思明公安分局何厝边防派出所进一步调查，并已将传唤的原因、依据及行政权利义务告知了冯周管；在案件的调查过程中，因案情复杂，且可能适用拘留处罚，在报何厝边防派出所领导批准后，依法对冯周管的询问查证时限延长至二十四小时；在调查过程中，为收集证据，思明公安分局何厝边防派出所民警开具检查证对冯周管发布微信言论的手机进行检查并已将检查的原因、依据及行政权利义务告知了冯周管。经调查，冯周管的行为已构成其他寻衅滋事行为，在对冯周管作出处罚决定之前，思明公安分局民警依法告知了冯周管拟对其作出处罚决定所依据的事实、理由和法律依据，并告知了冯周管依法享有的权利，冯周管对此未提出陈述和申辩。综上，冯周管利用信息网络辱骂他人，破坏社会秩序，尚不够刑事处罚，其行为符合其他寻衅滋事行为，其根据《中华人民共和国治安管理处罚法》第二十六条第（四）项之规定，对违法行为人冯周管处以行政拘留五日的决定合法合理,程序正当。综上所述，思明公安分局对冯周管处以行政拘留五日，做到了具体行政行为认定事实清楚，证据确凿，适用依据正确，程序合法，量罚适当，恳请法院驳回原告的诉讼请求。
被告思明公安分局为支持其主张，提供如下证据材料：证据1、行政处罚决定书（冯周管）；证据2、呈请公安行政处罚审批报告分县局；证据3、受案登记表；证据4、受案回执（冯周管）；证据5、传唤证（冯周管）；证据6、呈请传唤审批报告书；证据7、被传唤人家属通知书；证据8、检查证；证据9、呈请检查审批报告书；证据10、呈请延长询问时限审批报告；证据11、询问笔录（冯周管）；证据12、检查笔录及三份微信内容截图；证据13、询问笔录（冯周管第二次）；证据14、到案经过；证据15、行政案件权利义务告知书；证据16、行政处罚告知笔录（冯周管）；证据17、行政拘留家属通知书（冯周管）；证据18、行政拘留执行回执（冯周管）；证据19、人员信息（冯周管）；证据20、违法犯罪经历查询情况说明（冯周管）。
被告市公安局辩称，一、其办理行政复议案件程序合法。原告不服思明公安分局于2017年6月3日作出厦公思（何边）行罚决字[2017]00196号行政处罚决定书，于2017年7月26日向市公安局申请行政复议，市公安局经审查于同日受理，2017年7月26日通知思明公安分局答复，2017年7月28日思明公安分局答复并提交相关证据，经审查并逐级审批，市公安局于2017年9月20日作出厦公复决字〔2017〕036号行政复议决定书，决定维持厦公思（何边）行罚决字[2017]00196号行政处罚决定，并于2017年9月22日向原告送达该复议决定。其严格依照《中华人民共和国行政复议法》关于行政复议案件受理、审查、报批、送达等有关规定，办案程序合法。二、其作出的行政复议决定内容正确、适用法律准确。市公安局经审理查明2017年6月1日12时46分许，原告在福建省厦门市××前埔村××室用自己的收集登入微信（微信名：冯sir,微信号：×××）,在名为“桃花源*乌托邦”的微信群内发送消息“青年人称呼习大大，小朋友称呼习爷爷。原告称呼肥猪，包子，撒币”，含沙射影辱骂国家领导人，6月3日被民警查获。思明公安分局于2017年6月3日根据《中华人民共和国治安管理处罚法》第二十六条第四项之规定对原告处以行政拘留五日，原告在行政复议申请书中辩称，其在网上发表的关于国家领导人为包子、撒币等言论均为言论自由的范围内，最高上限是讽刺或者挖苦，不应该被拘留。但市公安局认为，原告明知“桃花源*乌托邦”微信群内有396人之多，且该群主要对时事评论、聊天，仍含沙射影辱骂国家领导，发布不当言论，造成不良社会影响，已经构成寻衅滋事违法行为，原告关于言论自由等的辩解属于法律认识错误，不予以支持。原决定认定的事实清楚，证据充分，适用法律正确，程序合法，内容适当，其遂根据《中华人民共和国行政复议法》第二十八条第一款第一项的规定，决定维持该行政处罚决定。综上所述，市公安局对原告行政复议案件中，程序合法，作出行政复议决定内容正确，适用法律准确，恳请法院驳回原告的诉讼请求。
被告市公安局为支持其主张，提供如下证据材料：证据1、冯周管提交的行政复议申请书及身份证复印件；证据2、厦门市公安局行政复议提交答复通知书（厦公复答字[2017]037号）；证据3、送达证；证据4、行政复议答复书；证据5、行政复议决定书；证据6、送达证。
经庭审质证，原告对被告思明公安分局所提供的证据的真实性均无异议，主要针对以下证据提出质证意见：证据5、其认为被告民警进入其住所进行口头传唤，并未出具传唤证；证据7、该通知书上的签名系其本人签字，但其拒绝公安机关将其被传唤之情况告知其家属；证据8、当时系由一民警及两辅警将其从住所处带出，在未出示警官证、未乘坐警车的情况下将其带至派出所；证据10、其认为其对于是否延长询问期限并不知情；证据12、其确认该微信（微信名：冯sir，微信号：×××）属于其所有并使用，同时在桃花源*乌托邦微信群中的相关言论亦系其发表；证据16，其认为该告知笔录系其在被限制人身自由的情况下签字的，不是其意思表示；证据17、其认为其已经明确拒绝了公安机关将其被拘留之情形告知其家属。原告对于被告市公安局所提供证据的真实性、合法性、关联性均无异议。两被告对于各自提交的证据均无异议，对于原告所提供证据1、2、3的真实性、合法性、关联性均无异议，对于证据4、证据5的真实性及关联性均无法确认，其认为“肥猪、包子、撒币”是否具有侮辱他人的性质应当根据相关语境进行判断。
本院认证如下，关于两被告所提供的证据及原告所提供的证据1、2、3，双方当事人对于证据的真实性均无异议，可作为定案依据，本院予以认证。关于原告所提供的证据4，该两份证明的内容仅体现特定地域的公民对“肥猪”一词的理解，本案公安机关所处罚的是原告在微信群的不当言论，该微信群并非特定地域公民所组成的微信群，该证据与本案不具有关联性；关于原告提供的证据5，系原告提供的书面材料，且证据本身的来源亦无法查证，故对原告提供的证据4、5本院不予认证。
经审理查明，1、2017年6月1日12时46分左右，原告冯周管使用其所有的微信号冯sir（微信号：×××）在名为“桃花源*乌托邦”的微信群内发送消息，分别为“一个政党，一个领袖。一群奴才，一头肥猪。”“小小年龄，少不更事，你他妈的给孩子灌输共产主义，狗日的，太坏了。”“青年人称呼习大大、小朋友称呼习爷爷。我的称呼肥猪，包子，撒币”。该微信群的微信成员为396人，以时政、科学、文化为主题，该微信群并未体现为特定地域公民所组成。2、2017年6月3日，被告思明公安分局何厝边防派出所接到厦门市公安局情报指令后对原告涉嫌在微信群发辱骂党和国家领导人一案予以立案。同日，被告思明公安分局何厝边防派出所传唤原告至所内进行调查询问，因案情复杂且可能适用行政拘留，被告思明公安分局对原告延长询问时限至二十四小时。同日，被告思明公安分局向原告送达行政处罚告知笔录，并作出行政处罚决定书（厦公思（何边）行罚决字[2017]00196号），决定对原告处以行政拘留五日之处罚，被告思明公安分局当日将该决定书送达至原告，同时将行政拘留家属通知书以挂号信形式向其家属邮寄。3、原告不服该处罚决定，于2017年7月26日向市公安局申请行政复议，市公安局经审查于同日受理，2017年7月26日通知思明公安分局答复，2017年7月28日思明公安分局答复并提交相关证据。市公安局于2017年9月20日作出厦公复决字〔2017〕036号行政复议决定书，决定维持厦公思（何边）行罚决字[2017]00196号行政处罚决定，并于2017年9月22日向原告送达该复议决定，原告对于市公安局在本案中的复议程序不持异议。4、原告冯周管已于2017年6月4日至2017年6月9日被送至厦门市第一拘留所执行拘留五日。
本案的争议焦点在于被告思明公安分局作出的案涉行政处罚决定书有无事实和法律依据，程序是否合法。
原告冯周管认为，公民享有言论自由的权利，受害方若有异议，可通过民事诉讼途径起诉原告，本案并不属于公安机关管辖，不能够因为相对人身份特殊就由公安机关对原告进行处罚，被告所作出的行政处罚决定及复议决定认定事实不清，证据不足，应予撤销。
被告思明公安分局认为，网络空间亦属于公共空间之范畴，原告方在该微信群中所发表的不当言论并不只有其查明事实中的一条，在此之前亦有发表过两条辱骂国家领导人的言论，其已经构成了寻衅滋事之行为，其对于该行为进行查处并无不当。
被告市公安局同意被告思明公安分局的意见。
本院认为，根据《中华人民共和国治安管理处罚法》第七条规定：“国务院公安部门负责全国的治安管理工作。县级以上地方各级人民政府公安机关负责本行政区域内的治安管理工作。治安案件的管辖由国务院公安部门规定。”被告思明公安分局具有管理辖区治安工作的法定职权。网络公共空间较一般公共空间而言，其在信息传递上具有快速性，传递对象的广泛性及不确定性等特点。公民在网络空间发表言论应当使用文明用语，并保持一定的理性及克制。原告在发表“一个政党，一个领袖。一群奴才，一头肥猪。”“小小年龄，少不更事，你他妈的给孩子灌输共产主义，狗日的，太坏了。”的言论后，更进一步的发表“青年人称呼习大大、小朋友称呼习爷爷。我的称呼肥猪，包子，撒币”之言论。原告发表前述言论的场所为名为“桃花源*乌托邦”的微信群，该微信群属于网络公共空间之范畴，且以时政等相关内容为主题，该微信群群成员并未体现为均为陕西地区公民，故对原告相关言论应以普通人的认知予以理解。综合原告在本案中所发表的言论及该群内人数及语言环境，原告的语言已属于含沙射影辱骂国家领导人，已经构成寻衅滋事之行为，被告思明公安分局所认定的事实清楚。
关于原告所述被告思明公安分局民警在未出示传唤证及警官证的情况对其进行传唤的问题，原告并未提供相应的证据证明其主张，且案涉传唤证亦经原告签字，本院对原告的前述主张不予采信。关于原告主张的被告思明公安分局未经其同意的情况下将其被拘留的事实告知其近亲属的问题，本院认为，根据《公安机关办理行政案件程序规定》第一百五十一条之规定，作出行政拘留处罚决定的，应当及时将处罚情况和执行场所通知被处罚人家属，本案中被告思明公安分局将原告被拘留的事实通知其家属，办案程序未违反法律法规之规定。
综上，被告思明公安分局根据《中华人民共和国治安管理处罚法》第二十六条第（四）项的规定，对原告冯周管作出厦公思（何边）行罚决字[2017]00196号行政处罚决定书，认定事实清楚，适用法律正确，程序合法。市公安局受理原告的复议申请，依照法定程序审查后作出厦公复决字〔2017〕036号行政复议决定，认定事实准确，程序合法。原告的诉请缺乏事实与法律依据，本院不予支持。依照《中华人民共和国行政诉讼法》第六十九条之规定，判决如下：
驳回原告冯周管的诉讼请求。
本案案件受理费人民币50元由原告冯周管负担。
如不服本判决，可在判决书送达之日起十五日内提起上诉，向本院递交上诉状，并按对方当事人的人数递交上诉状副本，上诉于福建省厦门市中级人民法院。
审判人员
审判长丁耀霜
审判员蓝水凤
人民陪审员陈涛平
二〇一八年三月二十三日