Sunday, June 27, 2021

Translation: Court Judgment in Case of Man Acquitted for Spreading Rumors, Disturbing the Peace, with "Patriotic" Intent

Translator's Summary: Police subjected Wang Doe to five days administrative detention for posting the following "factually incorrect statements" in a QQ chat room: 
 
"There has just been a riot in Xinjiang, Muslim Uyghurs killed Han people in Xinjiang. The Hui, who are also Muslims, go to Xinjiang and are subjected to high levels of interrogation and investigation by the police. Is that a problem?" 
 
A court rescinded that punishment on the grounds that "the subjective purpose of the plaintiff’s posting of the aforementioned statements was to persuade Internet users in the same chat group, not to spread rumors." Wang's stated intent was to post "patriotic and government-loving statements in the hope that during these extraordinary times Hubei people would understand and cooperate with the actions of the government." 
 
Even though the police stated in their administrative punishment decision that Wang had "disrupted the order of a public venue," the court said the police's decision was "lacking in primary evidence" and: 
 
"Although the statements contain sensitive words and language, they were not sufficient to constitute the circumstances of an illegal action that should be subjected to a public security administrative punishment."

Compare the results of this case with these cases where individuals were found guilty based on similar fact patterns:
  • Ilham Tohti Criminal Judgment as Summarized by the Supreme People's Court, http://blog.feichangdao.com/2021/03/Ilham-Tohti-Uyghur-Criminal-Judgment.html - Ilham Tohti was found guilty based in part on the grounds that "On April 24, 2013, an ordinary case of assault among ethnic and Han students occurred at the Central University for Nationalities. After learning about the case, Ilham Tohti instructed the group members to distort the facts and wrote articles such as 'A Group of Han Students Assaulted Uyghur Students at the Central University for Nationalities," maliciously creating ethnic tension.'"
  • Man Claims He Intended to Insult Republican, Not Communist, Party; Still Gets 5 Days In Jail, http://blog.feichangdao.com/2020/08/man-claims-he-intended-to-insult.html - the Court upheld the police's decision to jail a man, even though he claimed "I was referring to the current United States President and Republican Party leader Donald Trump's government's supporting "Hong Kong Independence" activists, damaging "One Country Two Systems," bring chaos to my China, and furthering the realization of global hegemonism. The statements I posted online had nothing to do with China's governing party or government, and what was online was referring to the United States Republican Party government."
  • Man Given Ten Days in Jail for Tencent QQ Posts That "Openly Insulted Leaders of the Party and the State," http://blog.feichangdao.com/2017/02/man-given-ten-days-in-jail-for-tencent.html - The court upheld administrative punishment for someone who posted the following statement: "Seven wolves will convene the 18th street burial clock plenary session; the meeting will discuss the liberalization of the lambs being put out to pasture; local  beasts of prey will be responsible for a portion of the flock's expenditures; give the sheep more sovereignty over their grazing; continue reducing the approvals required for being put out to pasture; resolve the problem of mutton allotment; reform the sheep registration system, with no division between black mountain sheep and plains sheep, they are one and the same; demarcate the reform routes for Xi big wolf and Li little wolf; bring universal happiness for the shepherds,  and keep the sheep ignorant of their fate; let the chorus ring out: Fuck your mother, Damn!"
  • At Least 10 People Convicted in China in 2019 for Twitter Posts that "Disturbed the Peace," http://blog.feichangdao.com/2020/05/at-least-10-people-convicted-in-china.html.

 Intermediate People's Court of Yinchuan, Ningxia Hui Autonomous Region

Administrative Judgment

(2020) Ning 01 Administrative Final No. 282


Appellant (plaintiff in the original trial) Wang Doe #1, male, born December 12, 1979, Han ethnicity, refused to answer question regarding profession, living in Yinchuan, Ningxia Hui Autonomous Region.

Appellee (defendant in the original trial) Public Security Bureau of Yinchuan, Xingqing Division, domiciled at Yinzuo Road, Lijing Street, Xingqing District, Yinchuan, Ningxia Hui Autonomous Region.

Legal Representative Wang Jianrong, Director.

Retained Counsel Zhou Jianing, police officer of the bureau (upon special authorization).

Appellee (the defendant in the original trial)the Public Security Bureau of Yinchuan, domiciled at Helan Middle Road, Nanfeng District, Yinchuan, Ningxia Hui Autonomous Region.

Legal Representative Wu Qidong, Director.

Retained Counsel Liang Qiufeng, police officer of the bureau (upon special authorization).

Appellant Wang Doe #1 filed an appeal with this Court on the grounds that he did not accept the administrative punishment and administrative reconsideration cases by appellees the Public Security Bureau of Yinchuan Xingqing Division (hereinafter the Xingqing Division) and the Public Security Bureau of Yinchuan Public Security, and did not accept the Yinchuan Railway Transportation Court (2020) Ning 8601 Administrative Punishment No. 145 administrative judgment. This Court formed a collegial panel in accordance with the law, and held hearings in this case. The trial has now concluded.

During the trial of first instance the court found that at about 4:35 pm on March 5th, 2020, a user named "Natural Bastard" posted statements in the chat history of the QQ group "K-PAX": "There has just been a riot in Xinjiang, Muslim Uyghurs killed Han people in Xinjiang. The Hui, who are also Muslims, go to Xinjiang and are subjected to high levels of interrogation and investigation by the police. Is that a problem?" and "He said that he heard that the Hui people went to Xinjiang and were ordered by Xinjiang police to lay down on the ground and be searched."

Around 3:58 pm on March 9, 2020, the Public Security Bureau of Yinchuan, Xingqing Division, Fenghuang North Street Police Precinct received this 911 call:"An Internet user in our city ‘Natural Bastard’ (QQ No.:×××, Name: Wang Doe #1, male, Han ethnicity, ID No.:×××, Household Registration: ×× District, Yinchuan, Ningxia) posted sensitive statements that implicated terrorism in Xinjiang in the QQ group "K-PAX" (Group No.: 64621635, Members: 6)." Later, the Public Security Bureau of Yinchuan Xingqing Division, Fenghuang North Street Police Precinct determined that plaintiff Wang Doe #1 was in fact suspected of having posted non-factual information in a QQ group, and issued the Yin Xing Public (Fenghuang) Case Acceptance (2020) No. 10124 "Case Acceptance Registration Form," and decided to bring the plaintiff back to the precinct for investigation, and accept it as an administrative case.

On the same day, the Public Security Bureau of Yinchuan, Xingqing Division, Fenghuang North Street Police Precinct issued the Yin Xing Public (Fenghuang) Administrative Summons (2020) No. 10007 "Summons," summoning the plaintiff to appear at the precinct before 4:40 pm on March 9, 2020 for questioning. It also issued the Yin Xing Public (Fenghuang) Administrative Summons (2020) No. 10009 "Notice to Family Members of Summons," notifying Wang Quanyi, father of the plaintiff, that the plaintiff had been summoned to the Public Security Bureau of Yinchuan, Xingqing Division, Fenghuang North Street Police Precinct on suspicion of disturbing order in a public venue.

At about 4:40 pm on March 9, 2020, the plaintiff arrived at the Public Security Bureau of Yinchuan,  Xingqing Division, Fenghuang North Street Police Precinct to be questioned. At 11:08 pm on March 9, 2020, the defendant Xingqing Division made an "Administrative Penalty Notification Record" informing the plaintiff of the facts, reasons, and basis for the administrative penalty, and informed him of his right to make a statement and proffer a defense. The plaintiff raised an objection in that record. Later, the Public Security Bureau of Yinchuan, Xingqing Division, Fenghuang North Street Police Precinct in accordance with the provisions of Article 83(1) of the "Public Security Administrative Punishments Law of the People's Republic of China" issued the Yin Xing Public (Fenghuang) Extension Summons Authorization (2020) No. 10002 "Authorization for an Extension to the Time for Questioning and Verification," deciding to exten the time to question the plaintiff and verify evidence.

On March 10, 2020, the defendant Xingqing Division issued the Yin Xing Public (Fenghuang) Administrative Punishment Decision (2020) No. 10186 "Administrative Punishment Decision," which read: ……, It is a fact that at about 4:00 pm on March 5, 2020, Wang Doe #1 posted in the QQ group "K-PAX" that "There has just been a riot in Xinjiang, Muslim Uyghurs killed Han people in Xinjiang. The Hui, who are also Muslims, go to Xinjiang and are subjected to high levels of interrogation and investigation by the police. Is that a problem?,..." and other factually incorrect statements, ... It has been established that Wang Doe #1's illegal actions disrupted the order of a public venue. In accordance with the provisions of Article 25(1) of the "Public Security Administrative Punishments Law of the People's Republic of China" it is decided to impose an administrative punishment on Wang Doe #1 of five days administrative detention.…….and proceeded to serve it on the plaintiff. Later the plaintiff left the Public Security Bureau of Yinchuan, Xingqing Division, Fenghuang North Street Police Precinct. On the same day, the defendant Xingqing Division issued the Yin Xing Public (Fenghuang) Suspend Detention Decision (2020) No. 10069 "Decision on the Suspension of Administrative Detention" deciding to temporarily suspend carrying out the plaintiff's administrative detention (Original Document Number (2020) No. 10186).

On March 10, 2020, the plaintiff did not accept the defendant's Yin Xing Public (Fenghuang) Administrative Punishment Decision (2020) No. 10186 "Administrative Punishment Decision," and applied to the defendant Public Security Bureau of Yinchuan for administrative reconsideration. The Defendant, the Public Security Bureau of Yinchuan, submitted a "Notice of Reply" to the defendant Xingqing Division on the same day, requesting the defendant Xingqing Division to file a written defense within 10 days from the date of receipt, and submit the evidence and basis for the original administrative act and other related materials.

On April 15, 2020, the Public Security Bureau of Yinchuan issued the Yin Public Administrative Reconsideration Decision (2020) No. 11 "Administrative Reconsideration Decision" deciding to uphold the Yin Xing Public (Fenghuang) Administrative Punishment Decision (2020) No. 10186 "Administrative Punishment Decision" issued by the defendant Xingqing Division. The plaintiff did not accept this and filed a lawsuit with the court requesting that a judgment in accordance with the law ordering:

1. Rescission of the Yin Public Administrative Reconsideration Decision (2020) No. 11 "Administrative Reconsideration Decision" issued by the defendant the Public Security Bureau of Yinchuan;

2. Rescission of the Yin Chuan Public (Fenghuang) Administrative Punishment Decision (2020) No. 10186 "Administrative Punishment Decision" issued by the defendant Xingqing Division; and

3. The litigation costs in this case be borne by the defendants.

The court in the trial of first instance held: Article 25(1) of the "Public Security Administrative Punishments Law of the People's Republic of China" that intentionally disturbing public order by spreading rumors, making false reports of dangerous situations and epidemic situations or raising false alarms or by other means may be punished by detention of not less than 5 days but not more than 10 days and, in addition, a fine not more than 500 yuan; and if the circumstances are relatively minor, detention for not more than 5 days or a fine of not more than 500 yuan. The court held that so-called "spreading rumors" refers to the subjective and deliberate act of fabricating and spreading lies without facts to confuse members of the public who do not know the actual situation and disrupt the public order of society. In this case, the facts on which the defendant Xingqing Division made the decision on administrative punishment involved in the case were based on this post by the plaintiff in a QQ group: "There has just been a riot in Xinjiang, Muslim Uyghurs kill Han people in Xinjiang. The Hui, who are also Muslims, go to Xinjiang and are subjected to high levels of interrogation and investigation by the police. Is that a problem?" and other statements.

The aforementioned statement is not able to indicate clearly whether or not the plaintiff had the intent to spread rumors, and combined with the QQ chat records submitted by the plaintiff and the facts uncovered in the case, it can be determined that the subjective purpose of the plaintiff’s posting of the aforementioned statements was to persuade Internet users in the same chat group, not to spread rumors.

Although the statements contain sensitive words and language, they were not sufficient to constitute the circumstances of an illegal action that should be subjected to a public security administrative punishment in accordance with the law under the provisions of Article 95(1) of the "Public Security Administrative Punishments Law of the People's Republic of China." In summary, the administrative punishment decision issued by the defendant Xingqing Division and the administrative reconsideration decision issued by the defendant the Public Security Bureau of Yinchuan are lacking in primary evidence and should be rescinded.

In accordance with Article 70(1) of the "Administrative Procedure Law of the People's Republic of China" the judgment is:

1. The Yin Xing Public (Fenghuang) Administrative Punishment Decision (2020) No. 10186 "Administrative Punishment Decision" issued by the defendant the Public Security Bureau of Yinchuan, Xingqing Division on March 10, 2020 is rescinded;

2. The Yin Public Administrative Reconsideration Decision (2020) No. 11 "Administrative Reconsideration Decision" issued by the defendant the Public Security Bureau of Yinchuan on April 15, 2020 is rescinded.

The case acceptance fee of 50 yuan shall be borne by the Public Security Bureau of Yinchuan, Xingqing Division.

After the judgment was announced Wang Doe #1 did not accept it, and filed an appeal with this Court claiming:

1. Appellant submitted the reconsideration application and related materials to the Administrative Reconsideration Committee of Yinchuan Municipal People's Government on March 10, 2020, and the staff of the Yinchuan Judicial Bureau received the materials. On March 11, 2020, appellant received the Yin Public Administrative Reconsideration Acceptance (2020) No. 6 "Administrative Reconsideration Acceptance Notice" mailed by Yinchuan City Judicial Bureau. On April 17, 2020, appellant received Yin Public Administrative Reconsideration Decision (2020) No. 11 "Administrative Reconsideration Decision" from the Yinchuan Judicial Bureau. Therefore, the agency that accepted the application for administrative reconsideration of appellant was the Reconsideration Committee of the People's Government of Yinchuan, and appellant had not applied for administrative reconsideration to appellee the Public Security Bureau of Yinchuan. But was received was an administrative review decision made by appellee the Public Security Bureau of Yinchuan.

2. The trial of first instance judgment stated that appellant's remarks were just to persuade some Internet users in the same group, but that was not entirely correct. What appellant posted was patriotic and government-loving statements in the hope that during these extraordinary times Hubei people would understand and cooperate with the actions of the government during these extraordinary times.

3. Appellant's name appears in neither the Yin Xing Public (Fenghuang) Administrative Summons (2020) No. 10009 "Notice to Family Members of Summons" nor the Yin Xing Public (Fenghuang) Suspend Detention Decision (2020) No. 10069 "Decision on the Suspension of Administrative Detention" and they are based on illegal procedures. In summary, the facts found in the trial of first instance judgment were wrong and the procedure was illegal. It is requested that the court in the trial of second instance:

(i) Rescind the Yinchuan Railway Transportation Court (2020) Ning 8601 Administrative Punishment No. 145 administrative judgment, conduct a full retrial of this case jointly adjudicating criminal and civil liability;
(ii) Rescind the Yin Xing Public (Fenghuang) Criminal1 Punishment Decision (2020) No. 10186 "Administrative Punishment Decision," issued by appellee Xingqing Division;
(iii) Rescind the Yin Public Administrative Reconsideration Decision (2020) No. 11 "Administrative Reconsideration Decision" issued by appellee the Public Security Bureau of Yinchuan;
(iv) Compensate appellant for all financial losses and emotional suffering in this case.

Appellee Xingqing Division argued that the facts as determined in the judgment of the trial of first instance were clear and the law was applied correctly. It requests the court in the trial of second instance reject the appeal and uphold the judgment in the original trial.

Appellee the Public Security Bureau of Yinchuan argued that the facts as determined in the judgment of the trial of first instance were clear and the law was applied correctly. It requests the court in the trial of second instance reject the appeal and uphold the judgment in the original trial.

During the trial of second instance in this Court, the parties submitted evidence around the appeal request in accordance with the law. This Court organized the parties to conduct exchanges and cross-examination of evidence. Appellant submitted the following evidence to this Court:

Evidentiary Material One: One photograph. The contents show the "Administrative Punishment Decision"(Yin Chuan Public (Fenghuang) Criminal Punishment Decision (2020) No. 10186) issued by appellee Xingqing Division. Probative value: There is no appellant’s signature, stamp, and date of signature on the decision letter, and it is not legally valid. On March 10, 2020, the Public Security Bureau of Yinchuan, Xingqing Division, Fenghuang North Street Police Precinct only gave the appellant a copy, it did not give him an original.

Evidentiary Material Two: Two videos. Probative value: Appellant only obtained the original of the March 10, 2020 "Administrative Punishment Decision" from the Public Security Bureau of Yinchuan, Xingqing Division, Fenghuang North Street Police Precinct on April 20, 2020.

Evidentiary Material Three: One photograph. Probative value: The Yinchuan Municipal People's Government arbitrarily made a complaint to the police in a manner that violated human rights.

Evidentiary Material Four: Seven photographs. Probative value: Appellant objects to the identification of law enforcement officers. There is no person named Ma Yuelei at the Public Security Bureau of Yinchuan, Xingqing Division, Fenghuang North Street Police Precinct.

Evidentiary Material Five: One audio recording. Probative value: Appellant suffered emotional distress as a result of the overall case.

Evidentiary Material Six: Two screenshots of the new web page of the Public Security Bureau of Yinchuan. Probative value: There is a problem with the identity of law enforcement officer Ma Yuelei.

Appellee Xingqing Division believes that the cross-examination opinions for evidentiary material one in the trial of first instance should prevail. It has no objections to the authenticity, legality, or relevance of evidentiary material two, but it objects to its probative value. It believes that evidentiary material three is unrelated to the appellee, and did not cross-examine it. It did not cross-examine evidentiary material four. It has no objections to the authenticity, legality, relevance, or the probative value of evidentiary materials five or six.

Appellee the Public Security Bureau of Yinchuan believes that evidentiary material one is not new evidence, and the cross-examination opinions in the trial of first instance should prevail. It has no objections to evidentiary material two. It believes evidentiary material three is not relevant to this case.  It believes evidentiary material four is not relevant to this case, and the staff who made the posting may not have been updated, and it fails to provide the proof sought by the appellant. It has no objections to the authenticity, legality, relevance, or the probative value of evidentiary materials five or six.

Based on the evidence produced and examined in the trial of second instance, this Court finds that the first, second, and third evidentiary materials produced by the appellant cannot be deemed "new evidence" under the provisions of Article 12 of the "Supreme People's Court Rules Regarding Certain Questions Relating Evidence in Administrative Procedure," and the fourth, fifth, and sixth evidentiary items failed to achieve the appellant's probative goals, and this Court does not give them credence.

The facts uncovered in the trial of second instance were identical the facts uncovered in the trial of first instance, and are affirmed by this Court.

This Court finds, according to the provisions of Article 12(1) of the "Administrative Reconsideration Law of the People's Republic of China:" "An applicant who refuses to accept a specific administrative act of the departments under local people's governments at or above the county level may apply for administrative reconsideration to the people's government at the same level; an applicant may also apply for administrative reconsideration to the competent authority at the next higher level." Appellant Wang Doe #1 did not accept the "Administrative Penalty Decision" issued by appellee Xingqing Division and could apply for administrative reconsideration to either the People’s Government of Xingqing District, Yinchuan or to appellee the Public Security Bureau of Yinchuan. In this case, appellee the Public Security Bureau of Yinchuan acknowledge receipt of appellant’s application for administrative reconsideration and issued an "Administrative Reconsideration Decision." It is a qualified defendant for administrative reconsideration in this case.

The judgment in the trial of first instance found that the statements posted by the appellant in the QQ group were not able to indicate clearly whether or not the plaintiff had the intent to spread rumors, and that they were were not sufficient to constitute the circumstances of an illegal action that should be subjected to a public security administrative punishment in accordance with the law under the provisions of Article 95(1) of the "Public Security Administrative Punishments Law of the People's Republic of China." There was no error in its rescission of the "Administrative Punishment Decision" issued by appellee Xingqing Division in this case and the " Administrative Punishment Decision" issued by appellee the Public Security Bureau of Yinchuan in this case on the grounds of insufficient primary evidence. Therefore, appellant's appeal rationale cannot be sustained.

Appellant's first appeal request is not upheld by this Court. His second and third appeal requests have already been upheld by the court in the trial of first instance, and this Court need not review them again. His fourth appeal request was not raised during the trial of first instance, and can be raised in a separate cause of action, and will not be processed by this Court.

In summary, the facts in the judgment of the trial of first instance are clear, the law was applied correctly, and the procedures were legal. In accordance with the provisions of Article 19(1)(i) of the "Administrative Procedure Law of the People's Republic of China," the judgment is as follows:

The appeal is rejected, and the judgment in the original trial is upheld.

The trial of second instance case acceptance fee of 50 yuan shall be borne by appellant Wang Doe #1.

This judgment shall be the judgment of final instance.

Chief Adjudicator     Ding Jin
Adjudicator         Liu Yushan
Adjudicator         Ma Jianfei

October 14th, 2020

Clerk             Wu Jiamin


宁夏回族自治区银川市中级人民法院
行政判决书

(2020)宁01行终282号


上诉人(原审原告)王某1,男,1979年12月12日出生,汉族,拒绝回答职业信息,住宁夏回族自治区银川市。

被上诉人(原审被告)银川市公安局兴庆区分局,住所地宁夏回族自治区银川市兴庆区丽景街银佐路**。

法定代表人王建荣,局长。委托代理人周佳宁,该局民警(特别授权)。

被上诉人(原审被告)银川市公安局,住所地宁夏回族自治区银川市金凤区贺兰山中路**。

法定代表人吴琦东,局长。

委托代理人梁秋枫,该局民警(特别授权)。

上诉人王某1因与被上诉人银川市公安局兴庆区分局(以下简称兴庆区分局)、银川市公安局治安行政处罚及行政复议一案,不服银川铁路运输法院(2020)宁8601行初145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。

一审法院审理查明,2020年3月5日16时35分许,网名为“天生混蛋”的用户在QQ群“K-PAX”的聊天记录中发表了发布了“新疆刚发生暴乱了,穆斯林维族人在新疆杀汉人,同是穆斯林的回族,去新疆被警察高度盘查,有错吗?”、“他说,听说回族去新疆,被新疆的警察要求爬在地上被搜身检查”的言论。

2020年3月9日15时58分许,银川市公安局兴庆区分局凤凰北街派出所接110指派警情:“我市网民‘天生混蛋’(QQ号:×××,姓名王某1,男,汉族,身份证号:×××,户籍登记住址:宁夏银川市××区)在QQ群“K-PAX”(群号:64621635,群成员:6人)发布涉疆涉恐敏感言论。”后,银川市公安局兴庆区分局凤凰北街派出所以原告王某1涉嫌在QQ群散布不实言论属实,作出银兴公(凤凰)受案字行政复议[2020]10124号《受案登记表》,决定将原告带回所内接受审查,并受理为行政案件。同日,银川市公安局兴庆区分局凤凰北街派出所作出银兴公(凤凰)行传字[2020]10007号《传唤证》,传唤原告于2020年3月9日16时40分前到该所接受询问。并作出银兴公(凤凰)行传字[2020]10009号《被传唤人家属通知书》,将原告涉嫌扰乱公共场所秩序被传唤到银川市公安局兴庆区分局凤凰北街派出所接受调查一事告知了原告父亲王全义。

2020年3月9日16时40分许,原告到银川市公安局兴庆区分局凤凰北街派出所接受询问。2020年3月9日23时08分,被告兴庆区分局作出《行政处罚告知笔录》,将作出行政处罚的事实、理由及依据告知了原告,并告知其有陈述、申辩的权利。原告在此笔录中提出异议。后银川市公安局兴庆区分局凤凰北街派出所根据《中华人民共和国治安管理处罚法》第八十三条第一款之规定,作出银兴公(凤凰)延传审字[2020]10002号《延长询问查证时间审批表》,决定对原告延长询问查证时间。2020年3月10日,被告兴庆区分局作出银兴公(凤凰)行罚决字[2020]10186号《行政处罚决定书》,内容为:......,2020年3月5日16时许,王某1在QQ群“K-PAX”散布“新疆刚发生暴乱了,穆斯林维族人在新疆杀汉人,同是穆斯林的回族,去新疆被警察高度盘查,有错吗,......”等不实言论,情况属实,......王某1扰乱公共场所秩序的违法行为成立。依据《中华人民共和国治安管理处罚法》第二十五条第(一)项之规定,决定给予王某1行政拘留五日的行政处罚。......。并向原告进行了送达。后原告离开银川市公安局兴庆区分局凤凰北街派出所。同日,被告兴庆区分局作出银兴公(凤凰)缓拘决字[2020]10069号《暂缓执行行政拘留决定书》,决定对原告暂缓执行行政拘留(原文书文号[2020]10186号)。

2020年3月10日,原告不服被告银兴公(凤凰)行罚决字[2020]10186号《行政处罚决定书》,向被告银川市公安局申请行政复议。被告银川市公安局于同日受理后,向被告兴庆区分局作出《提出答复通知书》,要求被告兴庆区分局收到之日起10日内提出书面答辩,并提交作出原行政行为的证据、依据和其他有关材料。2020年4月15日,被告银川市公安局作出银公行复决字[2020]11号《行政复议决定书》,决定维持被告兴庆区分局作出的银兴公(凤凰)行罚决字[2020]10186号《行政处罚决定书》。原告不服,诉至法院,请求依法判令:1.撤销被告银川市公安局作出的银公行复决字[2020]11号《行政复议决定书》;2.撤销被告兴庆区分局作出的银川公(凤凰)行罚决字[2020]10186号《行政处罚决定书》;3.本案诉讼费由被告承担。

一审法院认为,《中华人民共和国治安管理处罚法》第二十五条第(一)项规定,散布谣言,谎报险情、疫情、警情或者其他方法故意扰乱公共秩序的,处五日以上十日以下拘留,可以并处五百元以下罚款;情节较轻的,处五日以下拘留或者五百元以下罚款。法院认为,所谓“散布谣言”,是指主观上出于故意,捏造并散布没有事实根据的谎言用以迷惑不明真相的群众,扰乱社会公共秩序的行为。本案中,被告兴庆区分局据以作出涉案行政处罚决定的事实依据是原告在QQ群中发布的“新疆刚发生暴乱了,穆斯林维族人在新疆杀汉人,同是穆斯林的回族,去新疆被警察高度盘查,有错吗?”等的言论,上述言论不能表明原告具有散布谣言的故意,且结合原被告提交的涉案QQ聊天记录及查明的事实,可认定原告发布上述言论的主观目的是为了劝说同群的网友,并非散布谣言。该言论虽含有敏感词语,但尚不足以构成《中华人民共和国治安管理处罚法》第九十五条第(一)项规定的确有依法应当给予治安管理处罚违法行为的情形。综上,被告兴庆区分局作出的涉案行政处罚决定和被告银川市公安局作出的涉案行政复议决定主要证据不足,应当予以撤销。依照《中华人民共和国行政诉讼法》第七十条第(一)项的规定,判决:一、撤销被告银川市公安局兴庆区分局于2020年3月10日作出的银兴公(凤凰)行罚决字[2020]10186号《行政处罚决定书》;二、撤销被告银川市公安局于2020年4月15日作出的银公行复决字[2020]11号《行政复议决定书》。案件受理费50元,由被告银川市公安局兴庆区分局负担。

宣判后,王某1不服,向本院提起上诉称,一、上诉人于2020年3月10日向银川市人民政府行政复议委员会提交复议申请书及相关材料,银川市司法局工作人员接收材料。2020年3月11日,上诉人收到银川市司法局邮寄的银公行复受字[2020]6号《行政复议受理通知书》。2020年4月17日,上诉人收到银川市司法局送达的银公行复决字[2020]11号《行政复议决定书》。故受理上诉人行政复议申请的机关是银川市人民政府复议委员会,上诉人并未向被上诉人银川市公安局申请行政复议。拿到的却是被上诉人银川市公安局作出的行政复议决定书。二、一审判决称上诉人的言论只是劝说同群的网友,也不完全正确。上诉人发表的是希望湖北人在特殊时期理解、配合一下政府在特殊时期一些行为的爱国、爱政府的言论。三、银兴公(凤凰)行传字[2020]10009号《被传唤人家属通知书》及银兴公(凤凰)缓拘决字[2020]10069号《暂缓执行行政拘留决定书》上均无上诉人签字,均是建立在不合法的程序之上。综上,一审判决认定事实错误,程序违法。请求二审法院:1.撤销银川铁路运输法院作出的(2020)宁8601行初145号行政判决,全面重新审理此
案,附带民事、刑事责任;2.撤销被上诉人兴庆区分局作出的银川公(凤凰)刑罚决字[2020]10186号《行政处罚决定书》;3.撤销被上诉人银川市公安局作出的银公复决字[2020]11号《行政复议决定书》;4.赔偿上诉人此案一切经济损失和精神伤害。

被上诉人兴庆区分局辩称,一审判决认定事实清楚、适用法律正确。请求二审法院驳回上诉,维持原判。

被上诉人银川市公安局辩称,一审判决认定事实清楚、适用法律正确。请求二审法院驳回上诉,维持原判。

本院二审期间,当事人围绕上诉请求依法提交了证据。本院组织当事人进行了证据交换和质证。上诉人向本院提交以下证据:证据一、照片一张。拍摄内容为被上诉人兴庆区分局作出的《行政处罚决定书》(银川公(凤凰)刑罚决字[2020]10186号)。证明目的:该决定书上没有上诉人的签名、手印及签署日期,是不具法律效力的文书。2020年3月10日,银川市公安局兴庆区分局凤凰北街派出所只给了上诉人复印件,没有给原件。证据二、视频两段。证明目的:2020年4月20日,上诉人才从银川市公安局兴庆区分局凤凰北街派出所拿到2020年3月10日本该给上诉人的《行政处罚决定书》原件。证据三、照片一张。证明目的:银川市人民政府以侵犯人权的形式乱报警。证据四、照片七张。证明目的:上诉人对执法人员的身份有异议,银川市公安局兴庆区分局凤凰北街派出所就没有马跃雷此人。证据五、录音一段。证明目的:上诉人因整个案件受到精神伤害。证据六、银川市公安局网页新闻截屏两张。证明目的:执法人员马跃雷身份有问题。

被上诉人兴庆区分局对证据一的质证意见以一审意见为准。对证据二的真实性、合法性、关联性无异议,但对其证明目的有异议。认为证据三与被上诉人无关,不予质证。对证据四不予质证。对证据五、六的真实性、合法性、关联性及证明目的均有异议。

被上诉人银川市公安局认为证据一不属于新证据,质证意见以一审意见为准。对证据二无异议。认为证据三与本案无关。证据四与本案无关,张贴的工作人员可能是没有更新,不能达到上诉人的证明目的。对证据五、六的真实性、合法性、关联性及证明目的均有异议。

经二审举证、质证,本院认为,上诉人提交的证据一、二、三不属于《最高人民法院关于行政诉讼证据若干问题的规定》中第五十二条规定的“新的证据”的情形,证据四、五、六不能达到上诉人的证明目的,本院均不予采信。

二审查明的事实与一审查明的事实相同,本院予以确认。

本院认为,根据《中华人民共和国行政复议法》第十二条第一款:“对县级以上地方各级人民政府工作部门的具体行政行为不服的,由申请人选择,可以向该部门的本级人民政府申请行政复议,也可以向上一级主管部门申请行政复议。”的规定,上诉人王某1对被上诉人兴庆区分局作出的涉案《行政处罚决定书》不服,可以向银川市兴庆区人民政府或被上诉人银川市公安局申请行政复议。本案中,被上诉人银川市公安局认可收到上诉人的行政复议申请并作出涉案《行政复议决定书》,系本案行政复议行为的适格被告。一审判决认为上诉人在QQ群中发表的言论不能表明上诉人具有散布谣言的故意,不足以构成《中华人民共和国治安管理处罚法》第九十五条第(一)项规定的确有依法应当给予治安管理处罚违法行为的情形,以主要证据不足为由撤销被上诉人兴庆区分局作出的涉案《行政处罚决定书》及被上诉人银川市公安局作出的涉案《行政复议决定书》,并无不当。故上诉人的上诉理由不能成立。上诉人第一项上诉请求,本院不予支持。其第二、三项上诉请求,一审法院已经予以支持,本院无需重复处理。其第四项上诉请求一审审理时并未提出,可另案主张,本院不予处理。综上,一审判决认定事实清楚,适用法律正确,程序合法。依照《中华人民共和国行政诉讼法》第八十九条第一款第(一)项的规定,判决如下:

驳回上诉,维持原判。

二审案件受理费50元,由上诉人王某1负担。

本判决为终审判决。

审判长        丁瑾
审判员        刘煜姗
审判员        马建菲

二〇二〇年十月十四日

书记员        吴佳敏

Translation: Huang Xuqin and Wang Jianbing Inciting Subversion Indictment

On June 14, 2024, the Twitter account "Free Huang Xueqin & Wang Jianbing 释放雪饼" (@FreeXueBing)  posted a copy of the last two p...