Sunday, October 31, 2021

Translation: New York Times v. Sullivan with PRC Characteristics

Intermediate People's Court of Yulin, Shaanxi


Administrative Decision


(2020) Shaan 08 Administrative Final No. 521


Translator's Summary: The court found that police did not violate Yuan's rights when they subjected him to administrative detention for reposting an article to his personal social media accounts that police determined defamed a Communist Party cadre. The court held that as a journalist Yuan had a duty to verify the contents of the article.

Appellant (plaintiff in the original trial) Yuan Jianmeng, male, born [INTENTIONALLY OMITTED], 1982, Han ethnicity, born in Taiyuan, Shanxi, residing in Yingze District, Taiyuan.

Entrusted representative Zhang Jinzhen is a lawyer at the Shanxi Wenying Law Firm.

Appellee (defendant in the original trial) Public Security Bureau of Yulin, Hengshan Division.Address: Shaanxi Yulin, Huancheng North Road, Hengshan District, Unified Social Credit Code: 1161080001******.

Legal representative He Guoyu, director.

Person in charge of the court appearance Lu Jianjiang, deputy director.

Entrusted representative Luo Bin, a police officer at the Division's Legal Department.

Entrusted representative Hui Hao, a police officer at the Division's cyber security brigade.

Appellee (defendant in the original trial) Public Security Bureau of Yulin. Address: Shaanxi Yulin, No. 4, Fushi Road, Yuyang District. Unified Social Credit Code: 11610800016*******.

Legal representative Qiu Zuman, Director.

Entrusted representative Zhang Hao and Wang Long are police officers at the Bureau's Legal Department.

In relation to a public security administrative punishment case, appellant Yuan Jianmeng did not accept the People's Court of Yuyang, Yulin's (2019) Shaan 0802 Administrative First Instance No. 70 administrative judgment, and filed an appeal with this Court. After this Court docketed the case, it formed a collegial panel in accordance with the law and tried this case. The trial has now concluded.

In his lawsuit appellant Yuan Jianmeng requested the court in the trial of first instance:

1. Rescind the Heng Public (Cyber Security) Administrative Punishment Decision (2019) No. 67 administrative punishment decision rendered by defendant Public Security Office of Hengshan on January 29, 2019;

2. Rescind the Yu Public Reconsideration Decision (2019) No. 11 reconsideration decision rendered by the Public Security Bureau of Yulin on April 28, 2019; and

3. The litigation costs in this case be born by defendant No. 2.

The court in the original trial ascertained at trial that: Plaintiff Yuan Jianmeng was a reporter for the Shanxi Newspaper Group's Development Herald New Horizons Weekly. On January 25, 2019, the plaintiff did, without undertaking any verification, repost an article with the title "The 'Big Knife Brigade' In Hengxing Township, Did the King of the District Committee Really Serve the People?" from the Wechat public account "Brilliant City Recommendations" to his own registered Sina Weibo blog "Understanding Chang'an Street" and also pushed it to his personal Weibo account "Understanding Baiwan Zhuang," where it was clicked on over 1,300 times. This constitutes illegal defamatory facts.

In accordance with Article 42(2) of the "Public Security Administrative Punishments Law," on January 29, 2019, defendant Public Security Office of Hengshan rendered the Heng Public (Cyber Security) Administrative Punishment Decision (2019) No. 67 administrative punishment decision, imposing a punishment on the plaintiff of eight days administrative detention. The plaintiff did not accept this, and applied to the defendant Public Security Bureau of Yulin for reconsideration. On April 28, 2019 that office rendered the Yu Public Reconsideration Decision (2019) No. 11 reconsideration decision, and in accordance with the provisions of Article 28(1)(i) of the "Administrative Reconsideration Law of the People's Republic of China" (hereinafter referred to as the "Administrative Reconsideration Law"), sustained the aforementioned Administrative Punishment Decision rendered by the defendant Public Security Office of Hengshan. The plaintiff still did not accept this, and filed a lawsuit with this Court, raising the aforementioned claims.

The court in the original trial held that, in accordance with the provisions of Article 7 of the "Public Security Administration Punishment Law," the public security agency of the local people's governments at or above the county level are responsible for the administration of public security within their administrative area. The jurisdiction of public security cases are stipulated by the public security department of the State Council. Article 9 of the "Procedures for the Handling of Administrative Cases by Public Security Agencies" of the Ministry of Public Security stipulates that administrative cases shall be under the jurisdiction of the public security agency in the place where the illegal act occurs. Hengshan District is the primary place where the consequences of the offense in this case occurred, which is under the jurisdiction of the Public Security Division of Hengshan. Therefore, that office has the statutory authority to investigate and handle violations of public security administration that are implicated in this case.

Article 12 of the "Administrative Reconsideration Law" stipulates that if someone is dissatisfied with a specific administrative action of a working agency of a local people's governments at or above the county level, the individual may choose to apply for administrative reconsideration to the people's government at the same level as the department, or apply for administrative reconsideration to the competent department at the next higher level. The Public Security Bureau of Yulin, as the upper-level competent department of the Public Security Division of Hengshan, has the statutory authority to accept the plaintiff’s administrative reconsideration application, and to conduct a corresponding review and processing of administrative actions made by the Public Security Division of Hengshan.

The point of dispute in this case is whether or not the appellant's conduct constitutes a fabrication of facts to defame a third party under Article 42(2) of the "Public Security Administrative Punishments Law of the People's Republic of China." This Court interprets what is meant by the illegal act of "a fabrication of facts to defame a third party" as that offense is set forth in Article 246 of the "Criminal Law of the People's Republic of China" "(hereinafter referred to as the "Criminal Law"), and with reference to the provisions of Article 1 of 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" (hereinafter referred to as the "Interpretation").

According to Article 1 of the "Interpretation" and the identified actions of the plaintiff that have been punished, the key to resolving the point of dispute in this case lies in whether the plaintiff, when reposting the article with the content about Wang Xiaoli, acted in a matter that consistent with the second paragraph of that article: "with clear knowledge that facts are fabricated that will harm the reputation of a third party." In this regard, the plaintiff claimed that the evidence of the second defendant was not sufficient to meet the clear knowledge requirement, and the plaintiff verified the authenticity of the article by looking up the source on the Internet. The second defendant argued that the plaintiff was a journalist and had a higher duty of verification with respect to reposting content, and failing to fulfill that duty amounts to having clear knowledge.

This Court finds that clear knowledge is the subjective mental state of the actor, and includes both "knew" and "should have known." The defendant’s evidence on facts did not show that the plaintiff knew exactly that the content of Wang Xiaoli in the reposted article was fabricated, so it is necessary to examine whether the plaintiff "should have known." "Should have known" is a conjecture as to the plaintiff's subjective attitude. It must be comprehensively judged based on various evidentiary materials, including the information that was disseminated, as well as the identity, occupation, and life experience of the actor.

First, the content about Wang Xiaoli that was posted was "Wang Chengbao long oppressed the masses and harmed one party, under the protective umbrella and the inaction of the Secretary of the Hengshan District Committee, Wang Hao…" and "The Secretary of the Hengshan District Committee, Wang Hao...served as a protective umbrella for underworld forces." Those are charges that Wang Xiaoli is suspected of serious crimes, but suspicions of citizens' crimes have to be based on investigations and determinations made by relevant State law enforcement agencies in the fulfillment of their authorized duties. If the plaintiff fails to verify with relevant departments and there is no judgment from law enforcement agencies in the reposted article, then on the basis of common legal knowledge one could recognize that the authenticity of this charge is unreliable.

Second, the plaintiff is a journalist. According to Article 18 of the "Administrative Measures for Journalist Accreditation," which stipulates the professional standards of journalists, "Journalists who use journalist accreditation to engage in news gathering activities shall abide by laws and regulations and journalistic professional ethics, and ensure that news reports are true, comprehensive, objective, and fair. They shall not compile and distribute false reports,  publish false news, or conceal news facts that should be reported." He should have a higher level of awareness and judgment regarding the authenticity and objectivity of the information published, so he has a greater ability to recognize the baselessness of the charges against Wang Xiaoli in the forwarded article. Although the plaintiff claimed that his forwarding behavior was not an act done his professional capacity, this fact does not affect his cognitive ability, and the defense is not sustained.

Finally, the plaintiff admitted that the blog account he used to repost the article was registered at his place of work, which also indicates that the plaintiff had a higher duty of caution in disseminating information through this account.

In summary, if the plaintiff has the capability and qualifications to verify the charge of the suspected crime that he reposted, but does not use basic verification methods, it can be determined that he should have known that the charge was not true.
Defendant Public Security Office of Hengshan lawfully reached the same conclusion based on the evidence collected during the administrative punishment process.

After receiving the reconsideration application from the plaintiff, the Public Security Bureau of Yulin fulfilled the procedures of acceptance, notification response, and verification, and ultimately rendered a reconsideration decision and served it in accordance with the law.

It was ascertained at trial that the Bureau’s administrative reconsideration procedure complied with the law and was not improper, and this determination was sustained by the court. The plaintiff's request to revoke the defendant's reconsideration decision lacked corresponding basis, and the court did not sustain it.

Accordingly, after discussion and decision by the court's adjudicative committee, in accordance with the provisions of Articles 69 and 79 of the "Administrative Procedure Law of the People's Republic of China," the judgment was: All of plaintiff Yuan Jianmeng's claims were rejected. The case acceptance fee of 50 yuan would be borne by plaintiff Yuan Jianmeng.

Appellant Yuan Jianmeng did not accept the aforementioned judgment and appealed making the following requests:

1. Rescind the judgment in the trial of first instance, and render a judgment rescinding the Heng Public (Cyber Security) Administrative Punishment Decision (2019) No. 67 administrative punishment decision and the Yu Public Reconsideration Decision (2019) No. 11 reconsideration decision rendered by the appellees.

2. All litigation fees to be borne by the defendant in the original trial承担.

Facts and Reasoning:

1. The facts determined in the judgment of the trial of first instance lacked evidentiary support. At 7:55 pm on January 25, 2019, appellant found the article titled "The 'Big Knife Brigade' In Hengxing Township, Did the King of the District Committee Really Serve the People?" while browsing the WeChat public account "Brilliant City Recommendations." Appellant the reposted the article on his Sina Weibo blogs "Understanding Chang'an Street" and "Understanding Baiwan Zhuang," and it was subsequently clicked on and viewed by others. Appellant was not the original author of the article involved. He just reposted an existing article from a website to his own blog, and he conducted searches on Baidu and other websites before collecting it on the blog to confirm that it was an article that had already been publicly disseminated, reposted, and transmitted, and that it was information known to the public-at-large. He had already fulfilled the duty of verification of the reposted article involved in the case, and Beijing Online, Zhejiang Online, domestic news and other websites, as well as the "Democracy and Law" magazine, had also reported some of the facts described in the article.

Therefore, appellant does not have a subjective motive to intentionally infringe on the reputation of others. The court of first instance, however, inferred the existance of appellant's subjective intent based on his identity as a journalist. This is contrary to legal common sense.

Everyone is equal before the law, and the law does not expressly stipulate that citizens who are journalists must have the obligation to verify when reposting and collecting articles. The court of first instance committed an error when it applied different legal treatment based on a citizen's identity.

In addition, the judgment in the original trial clearly determined that "the defendant's evidence about facts did not show that the plaintiff knew exactly that the content about Wang Xiaoli in the reposted article was fabricated." Appellee, as an administrative organ, had the legal obligation to produce evidence of illegal conduct. It is obviously not in accordance with laws and regulations for appellee to determine that appellant violated the law and impose administrative punishment when evidence was insufficient. Furthermore, the court in the trial of first instance cannot use a citizen's identity to infer that the appellee's administrative punishment was legal

2. The judgment in the trial of first instance applied the law incorrectly. Article 42(2) of the "Public Security Administrative Punishments Law of the People's Republic of China" and 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" stipulate that the fabrication of facts to defame a third party must be "with clear knowledge that facts are fabricated that will harm the reputation of a third party." This stipulation makes it clear that the subjective aspects of the illegal conduct must be intentional. The evidence provided by appellee clearly proves that appellant checked this article on other websites before reposting. Appellant fulfilled his duty of verification for that article, and subjectively there existed no intent to infringe on the reputation of others and no knowledge that there were fabricated false facts, and appellant did not anticipate the result. Intent means knowing subjectively and hoping that a result will occur. It is obvious that there is an inconsistency between the appellant's subjectivity and objectivity, and it does not constitute an intentional violation of law. The court of first instance's finding that the appellant "should have known" was a conjecture regarding the subjective attitude of the appellant.

Appellant believes that "should know" is what the individual "should have known" according to an individual's age, occupation, social life experience level, etc. Where an individual "should have known" but did not actually do not know, at most it can only constitute careless negligence, and not intent with clear knowledge. Where an actor should have known but there is insufficient evidence to prove their knowledge, it should not be regarded as what the individual "should have known."

The court of first instance only determined that the appellant "knew or should have known" based on  his identity as a journalist. It only inferred that the appellant had the capability and qualifications to verify the article he is suspected of having reposted in violation of the law, but failed to adopt basic verification measures, from the fact that he registered a blog and an account at his place of work. From the foregoing it incorrectly concluded the appellant should have known that the subject of the charges were untrue. Appellant doesn't know Wang Xiaoli, has never been to Shaanxi, and lacks the basic qualifications to conduct a verification as far as geography and interpersonal relationships are concerned. What's more, Appellant only reposted and collected on his own blog, and did not subjectively deliberately spread or disseminate. As far as that article is concerned, appellant in fact subjectively did not know it to be false, and appellee has no evidence proving what exactly the appellant knew, and therefore it should not be regarded as something he "should have known."

The court in the trial of first instance made reference to the provisions of Article 18 of the "Administrative Measures for Journalist Accreditation," but the object of these administrative measures applies to journalists in their use of their press cards to engage in news interviews and news broadcasts. It does not specifically regulate individual journalists who collect articles on their own blogs in their personal capacity. The court of first instance's application of the law was inappropriate.


The Heng Public (Cyber Security) Administrative Punishment Decision (2019) No. 67 administrative punishment decision rendered by the Public Security Bureau of Yulin, Hengshan Division and the Yu Public Reconsideration Decision (2019) No. 11 reconsideration decision rendered by the Public Security Bureau of Yulin have no legal basis. In accordance with the provisions of Article 70(2) of the Administrative Litigation Law, the people's court should rule to rescind the administrative acts of the Appellee.

Appellee Public Security Bureau of Yulin, Hengshan Division argues:

1. The facts determined by the court in the trial of first instance were clear and the evidence was copious. Appellant Yuan Jianmeng was a reporter for the Shanxi Newspaper Group's Development Herald New Horizons Weekly. On January 25, 2019, he did, without undertaking any verification, repost an article with the title "The 'Big Knife Brigade' In Hengxing Township, Did the King of the District Committee Really Serve the People?" from the Wechat public account "Brilliant City Recommendations" to the Sina Weibo blog "Understanding Chang'an Street" registered and used by him, and also pushed it to his personal Weibo account "Understanding Baiwan Zhuang," where it was clicked on 1,168 and 183 times, respectively. Yuan Jianmeng, as someone who worked as a journalist, spread the unverified information on a blog and a Weibo account that greatly affected the normal work and life of the Hengshan District Communist Party Committee Secretary Wang Xiaoli himself.

2. Yuan Jianmeng disseminated fact that he clearly knew harmed the reputation of third party but that had yet to be proven to be factual through an investigation. His actions constitute defamation. Yuan Jianmeng reposted an article with the title "The Big Knife Brigade"In Hengxing Township, Did the King of the District Committee Really Serve the People??" that made a connection between "The Big Knife Brigade," which was suspected of committing crimes, and Wang Xiaoli, the Hengshan District Party Committee Secretary. His goal in doing so was grab eyeballs and increase clicks. The content in the article "Wang Chengbao long oppressed the masses and harmed one party, under the protective umbrella and the inaction of the Secretary of the Hengshan District Committee, Wang Hao…" and "The Secretary of the Hengshan District Committee, Wang Hao...served as a protective umbrella for underworld forces" were charges that Wang Xiaoli was suspected of committing severe crimes.

Whether a citizen is suspected of a crime has to be based on investigations and determinations made by relevant State law enforcement agencies in the fulfillment of their authorized duties. Yuan Jianmeng failed to verify anything with relevant departments and there were no opinions from law enforcement agencies in the reposted article. He merely searched for an article titled "The Big Knife Brigade" on websites such as Baidu. Having naturally concluded that the contents of the article had been publicized by others, and had been reposted and disseminated, he naturally concluded that the content of this article was common knowledge among the public, and reposted this article on the Sina Weibo blog that he personally used and registered and his personal Weibo account.

An adult member of the general public can recognize that the authenticity of the charges against Comrade Wang Xiaoli in the article are unreliable based on common legal knowledge. As a journalist, Yuan Jianmeng had the duty to verify and identify the information he published and reposted, and he should have a higher level of awareness and judgment as to the authenticity and objectivity of information that he disseminates. He had a greater ability to recognize the baselessness of of the charges against Wang Xiaoli.

Yuan Jianmeng had the capability and qualifications to verify the suspected crimes charged in the article he reposted, but he failed to employ basic verification methods, and from this it can be determined that he should have known that the content of those charges was untrue. His act of reposting unverified information that damaged the reputation of a third party corresponds with the fabrication of facts to defame a third party in the offense of defamation in Article 246 of the "Criminal Law of the People's Republic of China" as interpreted in Article 1 of 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."

3. Our division applied the law correctly in this case, and the specific administrative penalties imposed were appropriate, fair. and just.  On January 25, 2019, Yuan Jianmeng did, without undertaking any verification, repost and disseminated an untruthful article, and his actions were suspected of being defamatory. Because his illegal actions did not constitute the commission of an offense under the "Criminal Law of the People's Republic of China," on January 29, 2019 our division subjected Yuan Jianmeng to eight days administrative detention in accordance with the provisions of Article 42(2) of the "Public Security Administrative Punishments Law of the People's Republic of China," and delivered him to the Hengshan District Detention Center to execute it on the same day.

In summary, the facts in the Heng Public (Cyber Security) Administrative Punishment Decision (2019) No. 67 administrative punishment decision rendered by our division are clear, the evidence is conclusive and copious, the law was applied correctly, and the procedures were lawful.

The judgment rendered by the court in the trial of first instance rejecting the appellant's claims was reasonable and lawful.

It is requested that the court in the trial of second instance reject the appeal in accordance with the law and uphold the judgment in the original trial.

Defendant Public Security Bureau of Yulin argued:

1. The facts of appellant's illegal actions facts are clear, the evidence is conclusive, and the Public Security Bureau of Yulin, Hengshan Division applied the law correctly, employed lawful proceedures, and applied appropriate punishment. The facts determined by the court in the trial of first instance were clear, and the evidence was copious.

2. The procedures of our bureau in rendering the administrative reconsideration decision were lawful, and the law was applied correctly. In accordance with the provisions of Articles 17 and 23 of the "Administrative Reconsideration Law of the People's Republic of China," on March 26, 2019 our bureau accepted Yuan Jianmeng's administrative reconsideration application in which he maintained he did not accept the Heng Public (Cyber Security) Administrative Punishment Decision (2019) No. 67 administrative punishment decision rendered by the Public Security Bureau of Yulin, Hengshan Division on January 29, 2019, and in accordance with the law notified the Public Security Bureau of Yulin, Hengshan Division to respond and submit relevant materials.

In accordance with the provisions of Article 22 of the "Administrative Reconsideration Law of the People's Republic of China," after the Public Security Bureau of Yulin, Hengshan Division sent the case files and written responses to our bureau, the police from the legal department of our bureau reviewed the case. On April 28, 2019, after legal department completed its review, the person in charge of the city's public security bureau convened the Law Enforcement Management Committee to discuss and study the matter, and determined that the facts regarding the Public Security Bureau of Yulin, Hengshan Division's handling of the case were clear, the evidence was copious, the procedures were lawful, and the law was applied correctly. It rendered a decision to sustain, and in accordance with the law, mailed the administrative reconsideration decision to appellant Yuan Jianmeng.

In summary, the administrative penalty decision rendered by the Public Security Bureau of Yulin, Hengshan Division and the administrative reconsideration decision rendered by our bureau have clear facts, copious evidence, lawful procedures, and correctly applied laws. The judgement in the trial of first instance had clear facts and correctly applied laws. It is requested that the appeal be rejected and the judgment in the original trial be upheld.

During the trial of second instance appellant Yuan Jianmeng produced a screenshot of a web page in order to prove: There existed actual facts relevant to the case, which were affirmed with the signatures and fingerprints of ordinary people. Appellant had fulfilled his duty of verification, and it should be deemed authentic content.

The opinion of appellee the Public Security Bureau of Yulin, Hengshan Division with respect to the evidence examined is: The time of the screenshot report is not clear, and the portion that is clearly visible is not related to the article the appellant reposted. The villagers' fingerprints cannot prove the authenticity of the content. The authenticity should be have been acknowledged by an official agency, and journalists should go to the scene to verify the authenticity of news. It does not acknowledge the probative value of the evidence.

The opinion of appellee the Public Security Bureau of Yulin with respect to the evidence examined is: It does not acknowledge the authenticity, relevance, and probative value of the evidence.

This Court certifies the aforementioned evidence as follows: The content contained in the screenshot was not issued by a statutory authority. Moreover, the content contained in the screenshot is not consistant with the content of the article reproduced by Appellant, and it is insufficient to substantiate the authenticity of the content of the article reproduced by Appellant. It is also insufficient to prove that appellant fulfilled his duty of verification, and it is not accepted as probative.

The facts ascertained in the trial of second instance were consistent with the facts ascertained at the trial of first instance, and are affirmed by this Court.

This Court finds: The point of dispute in this case is whether or not the appellant's conduct constitutes a fabrication of facts to defame a third party under Article 42(2) of the "Public Security Administrative Punishments Law of the People's Republic of China." With respect to this, pursuant to the provisions of Article (1) of 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 Interpretation(2013) No. 21), if the conduct of an actor involves fabricated facts that damage the reputation of others which are disseminated on information networks, it may be regarded as fabricating facts to defame others. In determining the authenticity of information, the disseminator shall bear the necessary burden of proof, especially in circumstances where the disseminated information may have an adverse effect on others and the public interest. This is the boundary for citizens' freedom of speech, and it is also the boundary for citizens to exercise their rights of supervision and criticism. It is also necessary to safeguard the legitimate rights and interests of others, social stability, and public order and fair practice.

According to the facts ascertained in this case, on January 25, 2019, the appellant reposted an article with the title "The 'Big Knife Brigade' In Hengxing Township, Did the King of the District Committee Really Serve the People?" from the Wechat public account "Brilliant City Recommendations" to the Sina Weibo blog "Understanding Chang'an Street" registered and used by him, and also pushed it to his personal Weibo account "Understanding Baiwan Zhuang," where it was clicked on over 1,300 times. The reprinted article alleged that "Wang Chengbao long oppressed the masses and harmed one party, under the protective umbrella and the inaction of the Secretary of the Hengshan District Committee, Wang Hao…" and "The Secretary of the Hengshan District Committee, Wang Hao...served as a protective umbrella for  underworld forces." The dissemination of the aforementioned information would obviously lower the reputation and social evaluation of the government agencies and personnel involved. When publishing the aforementioned assertions, however, appellant did not provide any authoritative corroborating determinations rendered by law enforcement agencies such as supervisory agencies, judicial agencies, prosecutorial agencies, etc. During the investigation by the public security agency and subsequent litigation, appellant also failed to provide probative evidence on which to base a judgment. Under these circumstances, the information released by him cannot be said to be true, and it is difficult to establish the reason why he believes that he has fulfilled his obligation to verify the content of the reposted content. Appellant should bear the corresponding adverse consequences for his own behavior.

Based on the facts it had ascertained, appellee Public Security Bureau of Yulin, Hengshan Division determined that Appellant’s behavior constituted a defamation, and in accordance with Article 42(2) of the "Public Security Administrative Punishments Law of the People's Republic of China" it imposed an administrative penalty of five days detention.2 There is nothing improper in its determination of the facts, its application of the law, or the degree of punishment it imposed.

The Public Security Bureau of Yulin reconsideration upholding the punishment decision was correct.

In summary, appellant’s claims lack a factual and legal basis, and the original judgment is rejecting appellant’s claims was correct, and is sustained by this Court.

Therefore, in accordance with the provisions of Article 89(1) 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 case acceptance fee of 50 yuan in the trial of second instance shall be borne by appellant Yuan Jianmeng.

This judgment shall be the final judgment.

Chief Adjudicator  Ma Yurong
Adjudicator  Wang Jing
Adjudicator  Liu Hongmei

May 29, 2020

Clerk  Kou Yanyan

 陕西省榆林市中级人民法院


行政判决书


(2020)陕08行终52号


上诉人(原审原告)原建猛,男,1982年 [INTENTIONALLY OMITTED]出生,汉族,山西省太原市人,住太原市迎泽区。


委托代理人张晋珍,山西文英律师事务所律师。

被上诉人(原审被告)榆林市公安局横山分局。住所地:陕西省榆林市横山区环城北路,统一社会信用代码:1161080001******。

法定代表人贺国钰,局长。

出庭负责人鲁建江,副局长。

委托代理人罗斌,系该局法制大队民警。

委托代理人惠浩,系该局网络安全保卫大队民警。

被上诉人(原审被告)榆林市公安局。住所地:陕西省榆林市榆阳区肤施路4号。统一社会信用代码:11610800016*******。

法定代表人邱祖满,局长。

委托代理人张皓、王龙,系该局法制支队民警。

上诉人原建猛因治安行政处罚一案,不服陕西省榆林市榆阳区人民法院(2019)陕0802行初70号行政判决,向本院提起上诉。本院受理后,依法组成合议庭审理了本案。现已审理终结。

上诉人原建猛向一审法院起诉请求:一、撤销被告横山公安分局2019年1月29日作出的横公(网安)行罚决字〔2019〕67号行政处罚决定书;二、撤销被告榆林市公安局2019年4月28日作出的榆公复决〔2019〕11号复议决定书;三、本案诉讼费用二被告承担。

原审法院经审理查明:原告原建猛为山西报业集团发展导报新视界周刊记者。2019年1月25日,原告在未经核实的情况下,将微信公众号“城市精彩推荐”上的题为《“大刀队”横行乡里,区委王效力真的为民效力了吗?》的文章转载在自己注册的新浪博客“长安街知事”并同步推送至其个人微博账号“百万庄知事”,点击量达到1300多次,构成诽谤违法事实。被告横山公安分局根据《治安处罚法》第四十二条第(二)项之规定,于2019年1月29日作出横公(网安)行罚决字〔2019〕67号行政处罚决定,对原告处以行政拘留八日的处罚。原告不服,向被告榆林市公安局申请复议,该局于2019年4月28日作出榆公复决〔2019〕11号复议决定书,依据《中华人民共和国行政复议法》(以下简称《行政复议法》)第二十八条第一款第(一)项之规定,维持了被告横山公安分局作出的前述行政处罚决定书。原告仍不服,向本院提起诉讼,提出前述诉讼请求。

原审法院认为,依据《治安管理处罚法》第七条的规定,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。公安部《公安机关办理行政案件程序规定》第九条规定,行政案件由违法行为地的公安机关管辖。横山区系本案违法行结果主要发生地,属横山公安分局管辖地,故该局对涉案违反治安管理的行为具有进行调查、处理的法定职权。

《行政复议法》第十二条规定,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。榆林市公安局作为横山公安分局的上一级主管部门,具有受理原告的行政复议申请,针对横山公安分局作出的行政行为进行相应审查并进行处理的法定职权。

本案的争议焦点在于原告转载文章的行为是否构成《治安管理处罚法》第四十二条第(二)项规定的捏造事实诽谤他人。对该违法行为的含义,本院参照《最高人民法院、最高人民检察院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》(以下称《解释》)第一条对《中华人民共和国刑法》(以下称《刑法》)第二百四十六条规定的诽谤罪中“捏造事实诽谤他人”的解释。

根据《解释》第一条和已查明的原告被处罚的行为,解决本案争议焦点的关键在于原告在转发文章时对其中关于王效力的内容是否符合该条第二款:“明知是捏造的损害他人名誉的事实”。对此,原告称二被告证据不足以证明该要件,且原告通过网络检索出处的方式核实了文章的真实性。而二被告辩称原告是记者,对转载内容有更高的核实义务,但未尽该义务,属于明知。本院认为,明知是行为人的主观心态,包括“知道”和“应当知道”两种情形。被告关于事实方面的证据中没有显示原告确切知道转发文章中关于王效力的内容系被捏造,故需要审查原告是否“应当知道”。“应当知道”是对原告主观态度的推测,必须依据各方面的证据材料,综合被传播的信息、行为人的身份、职业、生活经历等多方面的因素,综合评判。首先,被传播的王效力的内容为“王成宝长期欺压群众、为害一方,而他背后的保护伞,横山区委书记王效力的不作为……”、“横山区委书记王效力……充当黑恶势力的保护伞”,是对王效力的涉嫌严重犯罪行为的指控,而公民的犯罪嫌疑需要以国家相关执法部门的职权行为作为调查和认定的前提,原告在不向相关部门核实,且被转发文章中亦无执法部门判定意见的情况下,根据一般法律常识能够认识到此种指控的真实性不可靠。其次,原告是记者,参照《新闻记者证管理办法》第十八条“新闻记者使用新闻记者证从事新闻采访活动,应遵守法律规定和新闻职业道德,确保新闻报道真实、全面、客观、公正,不得编发虚假报道,不得刊播虚假新闻,不得徇私隐匿应报道的新闻事实”对记者职业准则的规定,其应当具有对所传播信息的真实性、客观性更高的认知水平和判断能力,故对被转发文章中对王效力指控的不真实性有更强的辨识能力。虽原告称其转发行为非职务行为,但此节事实对其认知能力并无影响,该抗辩不成立。最后,原告承认其转发文章所用博客账户在其单位注册,该情节同样表明原告通过该账户传播信息有更高的谨慎义务。综上,原告有能力和条件对其转发的涉嫌犯罪的指控进行核实的情况下,而未采用基本的核实手段,可以判定其应当知道该指控不真实。被告横山公安分局依据其在行政处罚程序中搜集的证据作出相同判断合法。

榆林市公安局在接到原告的复议申请后,履行了受理、通知答复、核查等程序,最终作出复议决定并依法送达,经审查该局履行行政复议程序符合法律规定,并无不当,本院予以支持。原告要求撤销被诉复议决定的请求事项缺乏相应依据,本院亦不予支持。

据此,经本院审判委员会讨论决定,依照《中华人民共和国行政诉讼法》第六十九条、第七十九条之规定,判决:驳回原告原建猛的全部诉讼请求。案件受理费50元,由原告原建猛负担。

上诉人原建猛不服上述判决,上诉请求:一、撤销一审判决,并判决撤销被上诉人作出的横公(网安)行罚决字〔2019〕67号行政处罚决定书和榆公复决〔2019〕11号复议决定书。二、本案诉讼费由原审被告承担。事实与理由:一、一审判决认定事实缺少证据支持。2019年1月25日晚上19点55分,上诉人在浏览微信公众号“城市精彩推荐”网站时发现了题为《“大刀队”横行乡里,区委王效力真的为民效力了吗?》的文章,于是上诉人将该文转载在自己的新浪博客“长安街知事”和“百万庄知事”,后被人点击查看。上诉人并非涉案文章的原创者,只是将网站上已有的文章转载于自己博客之中,并在收藏博客之前已在百度等网站上进行搜索,证实早已被人公开发表,已被转发、传播的文章,是大众所知的信息,对涉案文章的转载已尽到了核实义务,而且北京在线、浙江在线、国内新闻等网站以及《民主与法制》杂志也曾对该文章中所叙述部分事实进行过报道,因此,上诉人在主观方面不具有故意侵害他人名誉的动机,但原审法院根据上诉人是记者身份推断上诉人主观存在故意有违法律常识。法律面前人人平等,法律也并未明文规定记者身份的公民转载收藏文章必须有核实义务,原审法院依据公民身份,适用法律上差别对待是错误的。而且原审判决中已明确认定:“被告关于事实方面的证据中没有显示原告确切知道转发文章中关于王效力的内容系被捏造”,被上诉人作为行政机关,对于该违法行为有举证的法定义务,被上诉人在证据不足的情况下认定上诉人违法并给予以行政处罚显然不符合法律规定,一审法院更不能运用公民身份推断判决被上诉人行政处罚行为合法。二、一审判决适用法律错误。《治安管理处罚法》第四十二条第(二)项规定和《最高人民法院、最高人民检察院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》的捏造事实诽谤他人必须是“明知是捏造的损害他人名誉的事实”,该规定明确了违法行为主观方面必须是故意。被上诉人提供的证据中明显证明上诉人在转发之前在其它网站上查阅有此文章,上诉人对该文章已尽到了核实义务,主观不存在故意侵害他人名誉,也不知道是捏造的虚假事实,对于造成的结果上诉人并未预知到。故意是指主观方面知道,也希望结果的发生。显然上诉人主观方面与客观方面不一致,不构成故意违法。原审法院认定上诉人“应当知道”是对上诉人主观态度的推测。上诉人认为“应当知道”是按照行为的年龄、职业、社会生活经验水平等“本应知道”,对于“本应知道”但实际上确不知道的,至多也只能构成疏忽大意的过失,而非明知的故意。对于行为人本应知道但无充分证据证明其知道的,不应认定为“应当知道”。原审法院只是以上诉人是记者身份认定“知道或应当知道”,并以上诉人在单位注册博客、账号,就推断上诉人有能力和条件对其转发的涉嫌犯罪的文章进行核实的情况下,而未采用基本的核实手段,断定上诉人应当知道所指控不真实是错误的。上诉人不认识王效力,也从未去过陕西省,从地理和人际关系上均不具备基本的核实条件。更何况上诉人只是转发收藏于自己博客中,并不是主观故意散布或传播。对于该文章上诉人主观上确实不知其为虚假,而且被上诉人确无证据证明上诉人确切知道,故不应当认定为“应当知道”。一审法院参照《新闻记者证管理办法》第十八条的规定,但该管理办法适用对象是记者使用记者证从事新闻采访刊播新闻的规定,并末对记者个人以个人名义收藏文章到自己博客行为作具体规定,一审法院明显适用法律不当。榆林市公安局横山分局横公(网安)行罚决字〔2019〕67号行政处罚决定书和榆林市公安局作出的榆公复决〔2019〕11号行政复议决定书没有法律依据,依照行政诉讼法第七十条第二项的规定,人民法院应当判决撤销被上诉人作出的行政行为。

被上诉人榆林市公安局横山分局辩称:一、一审法院认定事实清楚,证据充分。上诉人原建猛系山西报业集团发展导报新视界周刊记者。2019年1月25日,原建猛在未经核实的情况下,将微信公众号“城市精彩推荐”上的题为《“大刀队”横行乡里,区委王效力真的为民效力了吗?》的文章转载在自己注册使用的新浪博客“长安街知事”并同步推送至其个人微博账号“百万庄知事”,点击量分别为1168次和183次。原建猛作为一名新闻工作者,将未经核实的信息发布在博客和微博账号上进行扩散,给中共横山区委及王效力本人正常工作、生活造成较大影响。二、原建猛明知是未经查证属实的损害他人名誉的事实仍然进行传播,其行为构成诽谤。原建猛转载的题为《“大刀队”横行乡里,区委王效力真的为民效力了吗?》的文章将涉嫌违法犯罪的“大刀队”与横山区委书记王效力联系到一起,以达到博人眼球增加点击量的目的。文章中“王成宝长期欺压群众、为害一方,而他背后的保护伞,横山区委书记王效力的不作为……”;“横山区委书记王效力……充当黑恶势力的保护伞”等内容,是对王效力的涉嫌严重犯罪行为的指控。公民有无犯罪嫌疑需要国家执法部门的职权行为作为调查和认定的前提。在未向有关部门核实,且被转发文章中无执法部门判定意见的情况下,原建猛仅仅是在百度等网站上进行搜索标题为“大刀队”的文章,就当然认为该文章中的内容被人公开发表,已被转发、传播,当然认为该篇文章中的内容是大众所知的信息,将该篇文章转载在自己注册使用的新浪博客和其个人微博账号上。一般的成年大众根据一般法律常识都能认识到文章中对王效力同志指控的真实性不可靠。原建猛作为一名新闻工作者,有对自己发表、转发的信息核查辨认的义务,应当具有对所传播信息的真实性、客观性更高的认知水平和判断能力,故对被转发文章中对王效力指控的不真实性有更强的辨识能力。原建猛在有能力和条件对其转发的涉嫌犯罪的指控进行核实的情况下,未采用基本的核实手段,可以判定其应当知道该指控内容不真实,其转发未经查实的损害他人名誉信息的行为符合《最高人民法院、最高人民检察院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》第一条对《中华人民共和国刑法》第二百四十六条规定的诽谤罪中捏造事实诽谤他人的解释。三、我局办理本案适用法律正确,作出的具体行政处罚适当,公平、公正。2019年1月25日,原建猛将未经核实的不实文章进行转载扩散,其行为涉嫌诽谤。因其违法行为尚未触犯《中国人民共和国刑法》,2019年1月29日,我局根据《中华人民共和国治安管理处罚法》第四十二条第二项之规定对原建猛给予行政拘留八日的处罚,当日送达横山区拘留所执行。综上所述,我局作出横公(网安)行罚决字〔2019〕67号行政处罚决定,事实清楚,证据确凿充分,适用法律正确,程序合法。一审法院作出驳回上诉人诉讼请求的判决合理合法。请求二审法院依法驳回上诉,维持原判。

被告榆林市公安局辩称:一、上诉人违法行为事实清楚、证据确凿,榆林市公安局横山分局适用法律正确、程序合法、处罚适当,一审法院认定事实清楚、证据充分。二、我局作出行政复议决定程序合法,适用法律法规正确。根据《中华人民共和国行政复议法》第十七条、第二十三条之规定,我局于2019年3月26日受理原建猛不服榆林市公安局横山分局2019年1月29日作出的横公(网安)行罚决字〔2019〕67号行政处罚决定提起的行政复议申请,依法通知榆林市公安局横山分局答复和提交相关材料。根据《中华人民共和国行政复议法》第二十二条之规定,榆林市公安局横山分局将案卷材料和书面答复送往我局后,我局法制支队民警对该案进行阅卷审查,2019年4月28日,法制支队审查后,经市公安局负责人主持召开执法管理委员会议研究,认为榆林市公安局横山分局办理此案认定事实清楚,证据充分,程序合法,适用法律正确,作出维持决定,并依法将行政复议决定书邮寄送达上诉人原建猛。综上,榆林市公安局横山分局作出的行政处罚决定和我局作出的行政复议决定,事实清楚,证据充分,程序合法,适用法律正确,一审判决认定事实清楚,适用法律正确,请求驳回上诉,维持原判。

上诉人原建猛在二审期间提举了网页截图一份,用于证明:确实有案涉事实存在,有普通民众签字按手印确认。上诉人已尽核实义务,应为真实内容。

被上诉人榆林市公安局横山分局对该份证据的质证意见为:截图报道时间看不清楚,能看清楚的部分与上诉人转载文章没有关联性,村民按手印不能证明内容的真实性,真实性应经过官方认可,且新闻记者应当对新闻的真实性去现场核实。对其证明目的不予认可。

被上诉人榆林市公安局对该份证据的质证意见为:对证据的真实性、关联性、证明目的均不予认可。

本院对上述证据认证如下:截图所载内容并非法定有权机关发布,且截图所载内容与上诉人所转载文章的内容不一致,不足以证实上诉人所转载文章内容的真实性,亦不足以证明上诉人已尽核实义务,对其证明目的不予采纳。

二审经审理查明的事实与一审一致,本院予以确认。

本院认为:本案的争议焦点在于上诉人的行为是否构成《中华人民共和国治安管理处罚法》第四十二条第二项规定的捏造事实诽谤他人。对此,参照《最高人民法院、最高人民检察院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)第一条第一项之规定,行为人的行为如具备捏造损害他人名誉的事实,在信息网络上散布这一特征,即可认定为捏造事实诽谤他人。而在信息真实性的判定上,应当由散布者承担必要的证明责任,特别是所散布信息对他人和公共利益可能造成不良影响的情况下,更是如此。这是公民言论自由的边界,也是公民行使监督、批评权利的界限,更是维护他人合法权益、社会稳定及公序良俗所必须。根据本案查明的事实,上诉人于2019年1月25日将微信公众号“城市精彩推荐”上的题为《“大刀队”横行乡里,区委王效力真的为民效力了吗?》的文章转载在自己注册的新浪博客“长安街知事”并同步推送至其个人微博账号“百万庄知事”,点击量达到1300多次。该转载文章指称“王成宝长期欺压群众、为害一方,而他背后的保护伞,横山区委书记王效力的不作为……”;“横山区委书记王效力……充当黑恶势力的保护伞”等情形,上述信息的散布显然会对所涉政府机关及人员的名誉及社会评价造成贬损。然而上诉人在发布上述论断性信息的同时,却并未提供监察机关、审判机关、检察机关等执法部门发布的权威认定予以佐证,在公安机关调查及之后的诉讼过程中,上诉人也未提供据以作出论断的有效证据。在此情况下,其发布的信息难谓真实,其认为自己对所转载内容已尽核实义务的理由亦难以成立,上诉人应当对自己的行为承担相应的不利后果。被上诉人榆林市公安局横山分局基于查明的事实,认定上诉人的行为构成诽谤,进而根据《中华人民共和国治安管理处罚法》第四十二条第二项之规定,对其作出拘留五日的行政处罚,在事实认定、法律适用及量罚幅度方面,均无不当。榆林市公安局复议维持该处罚决定正确。综上,上诉人的诉请缺乏事实根据与法律依据,原审判决驳回上诉人的诉讼请求正确,本院予以维持。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。

二审案件受理费50元,由上诉人原建猛负担。

本判决为终审判决。

审判长  马玉荣

审判员  王 静

审判员  刘红梅

二〇二〇年五月二十九日

书记员  寇艳艳

 

 

Wednesday, September 15, 2021

Baidu Increases Censorship of "Xi Jinping"

 China's search engines have censored the names of leaders of the Communist Party of China and the PRC government for over a decade (see: http://blog.feichangdao.com/2012/12/how-other-websites-are-censoring.html). They typically do this by restricting search results to a white list of around 20 websites under their own control or under the direct control of the central government and the Communist Party. This is illustrated below with a screenshot showing that a search for "Xi Jinping" in Chinese characters (习近平) on Baidu returns millions of results (left), but the same search limited to educational websites returns no results (right).


Paging through the result one finds that the only websites shown are Party and government mouthpieces such as Xinhua, the People's Daily, the China Daily, CCTV (the state controlled television broadcaster), CRI (the state controlled radio broadcaster), etc. This censorship is done for searches of leaders names in Chinese characters and in pinyin romanization (e.g. "Xi Jinping"). 

The screenshots below show that some time between April 2020 (left) and September 2021 (right)  Baidu changed how it was censoring search results for "Xi Jinping" in pinyin romanization. Whereas in April 2020 Baidu was limiting results to the Party/Government white list, it claimed to have found almost 6 million results. In September, Baidu was still limiting search results to that white list, but was only displaying nine results. 

At least Baidu is showing something. As the screenshots below show, China's two other major search engines - Qihoo (left) and Sogou (right) return no results whatsoever.

 

Interestingly, it is still possible to "trick" Sogou into showing search results containing "Xi Jinping" by entering his name in Chinese characters into its English language search engine. The screenshot below shows that in that case Sogou returns dozens of results (again, from the Party/Government white list).



Monday, August 23, 2021

Translation: Court Judgment in Li Doe Disturbing the Peace Case

Translator's Summary: The court found Li guilty on the grounds that he "made inappropriate statements in posts through WeChat Moments or in writings on paper hung on the office building of the People's Government of Tanxi that insulted Party and State leaders and supported 'Hong Kong Independence.'" The court sentenced Li to prison notwithstanding what it characterized as his "mild mental retardation" and "limited criminal capacity for the illegal actions."

People's Court of Pingchang County, Sichuan


Criminal Judgment


(2020) Chuan 1923 Criminal First Instance No. 15


The public prosecution agency was the People's Procuratorate of Pingchang.

Defendant Li Doe, male, born [INTENTIONALLY OMITTED], Han ethnicity, junior high school education, laborer, household registration in Pingchang, Sichuan, currently residing in Pingchang. Taken into criminal detention by the Public Security Bureau of Pingchang on September 5, 2019 on suspicion of committing the crime of disturbing the peace. An arrest was executed on September 30 of the same year. Currently being held in detention at the Pingchang Detention Center.

Guardian Li Doe2, male, born [INTENTIONALLY OMITTED], Han ethnicity, junior high school education, household registration in Pingchang, Sichuan, currently residing in Pingchang, father of defendant Li Doe.

Assigned defense counsel He Yongbi, a lawyer at the Sichuan Baijian Law Firm.

In the Ping Procuratorate Public Prosecution Criminal Indictment (2019) No. 223 indictment the People's Procuratorate of Pingchang charged defendant Li Doe with committing the crime of disturbing the peace, and on January 7, 2020 it filed a public prosecution with this Court. After this Court docketed the case in accordance with the law it applied normal procedures, formed a collegial panel and  convened public hearings to try this case. The People's Procuratorate of Pingchang assigned Procurator Zeng Chaofeng to appear in court in support of the public prosecution, and defendant Li Doe, guardian Li Doe2, and his assigned defense counsel He Yongbi appeared in court to participate in the proceedings. The trial has now concluded.

The People's Procuratorate of Pingchang's indictment charged: From July to August 2019, defendant Li Doe, in order to vent his private anger, repeatedly made inappropriate statements in posts through WeChat Moments or in writings on paper hung on the office building of the People's Government of Tanxi that insulted Party and State leaders and supported "Hong Kong Independence." In addition, he repeatedly insulted others by sending short messages or writing notes, which seriously damaged the reputation of the Party and the country, and hurt the feelings of others.

A forensic examination by the Sichuan Southwest Judicial Forensic Center found that defendant Li Doe suffered from mild mental retardation. He had limited criminal capacity for the illegal actions from July to August 2019.

A forensic examination by the Sichuan Southwest Judicial Forensic Center found that the illegal content of defendant Li Doe's writings was written by him.

On September 5, 2019, defendant Li Doe was summoned to address the case by phone and truthfully stated his criminal facts. During the pre-prosecution examination, defendant Li Doe confessed his guilt and accepted punishment, and admitted his criminal facts and willingness to accept punishment.

In order to prove the aforementioned facts, the public prosecution agency produced in court documentary evidence, witness testimony, the defendant's statement, forensic opinions, identification records, and other evidence. The public prosecution agency alleged defendant Li Doe insulted others in order to vent his private anger, causing a pernicious social influence and disrupting social order. His actions were the commission of an offense under the provisions of Article 293 of the "Criminal Law of the People's Republic of China" and should be subjected to criminal liability for the crime of disturbing the peace.

Li Doe is an individual with limited criminal capacity, and surrendered voluntarily, and in accordance with the law may be given a reduced sentence or a lighter punishment. Li Doe confessed his guilt and accepted punishment, and in accordance with the law may be shown leniency. It is recommended that Li Doe be sentenced to a fixed term imprisonment of no more than one year. It is requested this Court pass sentence in accordance with the law.

Defendant Li Doe had no objection to the facts and offense charged by the public prosecution agency, and voluntarily confessed his guilt and accepted punishment.

Guardian Li Doe2 had no objection to the facts and offenses charged by the public prosecution agency against Li Doe, and requested he be shown leniency.

Assigned defense counsel He Yongbi had no objection to the facts and offenses charged by the public prosecution agency against Li Doe, and his main defense was that Li Fe is an individual with limited criminal capacity, he surrendered voluntarily, confessed his guilt and accepted punishment, and asks that Li Doe be shown leniency.

It was ascertained at trial that the facts were consistent with the facts charged by public prosecution agency.

The aforementioned facts were supported by the following evidence, which was sufficient to reach a determination: case registration form, Decision to Open a Case, permanent resident and information forms, the process of how the defendant came into police custody, testimony of witnesses Zhao 1, Li Doe2, Tang, Xiao, Yang, Zhao 2, Zhang 1, Zhang 2 and others, defendant Li Doe's statement and justification, search records, physical evidence in the form of three sheets of paper, screenshots of mobile phone text messages and images of WeChat Moments, the Sichuan Xiaoluyuan Electronic Data Judicial Forensic Institute's Xiaoluyuansijian 2019 (Electronic Examination) No. 188 "Judicial Forensic Opinion Report," the Sichuan Mingzheng Judicial Forensic Institute's Chuanmingzheng (2019) Document Examination No. 7 Judicial Forensic Opinion Report, the Sichuan Southwest Judicial Forensic Center's Chuanxinanjian (2019) Precision Examination No. 0763 Judicial Forensic Opinion Report, defendant Li Doe's typed and handwritten situation explanation and social endangerment situation explanation form, crime scene investigation transcripts and photos, and identification photos.

This Court finds defendant Li Doe insulted others in order to vent his private anger, causing a pernicious social influence and disrupting social order. His actions constitute the crime of disturbing the peace. The offense charged by the public prosecution agency is established.

Defendant Li Doe is an individual with limited criminal capacity, and therefore in accordance with the law he can be shown leniency.

Defendant Li Doe truthfully stated his criminal facts after he was summoned to answer for the case, truthfully confessed his criminal facts and surrendered himself, and therefore in accordance with the law he can be shown leniency.

In order to combat crime and maintain public order, in accordance with the provisions of Articles 293, 18, and 67 of the "Criminal Law of the People's Republic of China" and Article 3(1) of the Supreme People's Court's and People's Procuratorate's "Interpretation on Issues Concerning the Application of Law for Criminal Cases of Disturbing the Peace," the judgment of this Court is as follows:

Defendant Li Doe committed the crime of disturbing the peace, and is sentenced to a fixed term imprisonment of ten months. (The prison term is to be calculated starting on the day the judgment is executed, and each day in custody prior to the execution of the judgment shall count as one day of the prison term, that is from September 5, 2019 to July 4, 2020.)

If any party does not accept this judgment, they may within 10 days after the second day after receiving this written judgment bring an appeal through this Court or directly to the Intermediate People's Court of Baozhong. A written appeal should be submitted with one original and two copies of the appeal brief

Chief Adjudicator    He Zhongzheng
People's Assessor    Mao Mingrong
People's Assessor    Wang Xinhui

April 28, 2020

Clerk            Wu Min 


四川省平昌县人民法院


刑事判决书


(2020)川1923刑初15号


公诉机关四川省平昌县人民检察院。

被告人李某,男,生于[INTENTIONALLY OMITTED],汉族,初中文化,务工,户籍所在地四川省平昌县,现住平昌县。因涉嫌寻衅滋事罪,于2019年9月5日被平昌县公安局刑事拘留,同年9月30日被执行逮捕,现羁押于平昌县看守所。

监护人李某2,男,生于[INTENTIONALLY OMITTED],汉族,初中文化,户籍所在地四川省平昌县,现住平昌县,系被告人李某之父。

指定辩护人何永碧,四川百坚律师事务所律师。

四川省平昌县人民检察院以平检公诉刑诉〔2019〕223号起诉书指控被告人李某犯寻衅滋事罪一案,于2020年1月7日向本院提起公诉,本院受理后依法适用普通程序,组成合议庭公开开庭进行了审理。平昌县人民检察院指派检察员曾朝烽出庭支持公诉,被告人李某、监护人李某2及其指定辩护人何永碧到庭参加诉讼,现已审理终结。

四川省平昌县人民检察院起诉指控:2019年7月至8月,被告人李某为泄私愤,多次在通过微信朋友圈发布或书写在纸上悬挂在坦溪镇人民政府办公楼等方式辱骂党和国家领导人、支持“港独”等不正当言论,并多次以发送短信息或书写字条等方式辱骂他人,严重损害了党和国家的声誉,伤害了他人的情感。经四川西南司法鉴定中心鉴定被告人李某患有轻度精神发育迟滞,对其2019年7月至8月的违法行为为限制刑事责任能力。经四川明正司法鉴定中心鉴定被告人李某所书写的违法内容系本人书写。

2019年9月5日,被告人李某经电话传唤到案,并如实供述了自己的犯罪事实。在审查起诉期间,被告人李某认罪认罚,承认自己的犯罪事实,愿意接受处罚。

为证明上述事实,公诉机关当庭出示了书证;证人证言;被告人的供述;鉴定意见;辨认笔录等证据。公诉机关认为被告人李某为泄私愤随意辱骂他人,造成了恶劣的社会影响,破坏了社会秩序,其行为已触犯《中华人民共和国刑法》第二百九十三条之规定,应当以寻衅滋事罪追究其刑事责任。李某系限制刑事责任能力人,并有自首情节,依法可以减轻或者从轻处罚,李某认罪认罚,依法可从宽处罚。建议判处李某一年以下有期徒刑。提请本院依法判处。

被告人李某对公诉机关指控的事实及罪名均无异议,自愿认罪认罚。

监护人李某2对公诉机关指控李某的事实及罪名均无异议,请求从轻处罚。

指定辩护人何永碧对公诉机关指控李某的罪名及事实均无异议,主要辩护称李某系限制刑事责任能力人,有自首情节并认罪认罚,请求对李某从轻处罚。经审理查明的事实与公诉机关指控的事实一致。

上述事实,有受案登记表、立案决定书、常住人又信息表、到案经过;证人赵某1、李某2、唐某、肖某、杨某、赵某2、张某1、张某2等人的证言;被告人李某的供述及辩解;搜查笔录;物证纸片三张;手机短信截图、微信朋友圈照片;四川效率源电子数据司法鉴定所效率源司鉴2019(电鉴)188号《司法鉴定意见书》、四川明正司法鉴定所川明正[2019]文鉴字第7号司法鉴定意见书、四川西南司法鉴定中心川西南鉴[2019]精鉴字第0763号司法鉴定意见书;被告人李某书写的字迹及情况说明、社会危险性情况说明表;现场勘验笔录及照片、指认照片等证据在案,足以认定。

本院认为,被告人李某为泄私愤随意辱骂他人,造成了恶劣的社会影响,破坏了社会秩序,其行为已经构成寻衅滋事罪,公诉机关指控的罪名成立。被告人李某系限制刑事责任能力人,依法可以从轻处罚。被告人李某经又头传唤到案,并如实供述了自己的犯罪事实,系自首,依法可以从轻处罚。本院为打击犯罪,维护社会公共秩序,依照《中华人民共和国刑法》第二百九十三条、第十八条、第六十七条、最高人民法院、最高人民检察院《关于办理寻衅滋事刑事案件适用法律若干问题的解释》第三条第(一)项之规定,判决如下:

被告人李某犯寻衅滋事罪,判处有期徒刑十个月。

(刑期从判决执行之日起计算。判决执行以前先行羁押的,羁押一日折抵刑期一日。即自2019年9月5日起至2020年7月4日止。)

如不服本判决,可在接到判决书的第二日起十日内,通过本院或者直接向四川省巴中市中级人民法院提出上诉。书面上诉的,应当提交上诉状正本一份,副本二份。

审判长    何中正
人民陪审员    毛明蓉
人民陪审员    王心会

二〇二〇年四月二十八日

书记员    吴敏

Friday, August 6, 2021

Translation: Xu Zhiyong's 2021 Indictment for Subversion of State Power

People's Procuratorate of Linyi, Shandong

Indictment

Linyi First Criminal Prosecution (2021) No. Z43

Defendant Xu Zhiyong (who previously used the name Xu Zhiyong), male, born on [OBSCURED IN ORIGINAL] 1973, citizen ID number [OBSCURED IN ORIGINAL], Han ethnicity, graduate student education, lecturer at Beijing University of Posts and Telecommunications, currently unemployed, household registration [OBSCURED IN ORIGINAL] ], residing in [OBSCURED IN ORIGINAL], Changping District, Beijing. On January 26, 2014 he was sentenced to a fixed term imprisonment of four years by the First Intermediate People’s Court of Beijing for gathering crowds to disrupt public venue order. He was released after completion of his sentence on July 15, 2017. On February 15, 2020, he was taken into criminal detention by the Public Security Bureau of Haidian, Beijing on suspicion of committing the crime of inciting subversion of state power, and transferred to residential confinement at a designated location the following day. On May 7, 2020, in accordance with the law the Public Security Bureau of Haidian, Beijing transferred this case to the Public Security Bureau of Yantai, Shandong. On the same day, he was placed under residential surveillance at a designated residence by the Public Security Bureau of Yantai. On June 19, 2020, his arrest was approved by this Court, and the arrest was carried out by the Public Security Bureau of Linyi on the same day.

On January 19, 2021 the investigation was closed by the Public Security Bureau of Linyi, defendant Xu Zhiyong was suspected of subverting state power, and the case was transferred to this Court for prosecution. After this Court docketed the case on January 21, 2021, it informed the defendant of his right to entrust defense counsel and the legal provisions relevant to pleading guilty and accepting punishment, and in accordance with the law interrogated the defendant, heard the opinions of defense counsel, and reviewed all case materials. This Court returned the case to the investigating agency for supplementary investigation on March 6 and May 21, 2021 respectively. The investigating agency completed its supplementary investigation on April 6 and June 21, 2021, respectively, and transferred the case for prosecution. This Court has extended the pre-prosecution examination period by 15 days on February 19, May 6, and July 21, 2021 respectively.

Upon review in accordance with the law it was found that:

From 2012 to 2013, out of dissatisfaction with our country's socialist system and the ruling status of the Communist Party of China, defendant Xu Zhiyong, together with Ding Jiaxi (handled in another case) and others, established and developed the "New Citizens Movement" illegal organization and engaged in criminal activities. In 2017, after Xu Zhiyong was released following the completion of his sentence for gathering crowds to disrupt public venue order he did, with the purpose of overthrowing our country's current political system, collaborate with Ding Jiaxi to recruit Wang Jiangsong, Zhang Zhongshun, Dai Zhenya, Chang Weiping (each handled separately) as key members to establish the "Citizens Movement" illegal organization with Xu Zhiyong and Ding Jiaxi as organizers and leaders, write and spread a large number of inciting articles, shoot illegal videos called "Politicians," carry out "non-violent" color revolution training, build and operate the "Chinese Citizens Movement Network" and Xu Zhiyong's personal blog and other websites, repeatedly hold secret meetings of the "Citizens Movement" illegal organization in Yantai and Xiamen, and organize, plan, and carry out criminal activities of subversion of state power and the overthrow the socialist order, which severely jeopardized national security and social stability. The specific facts are as follows:

1. From 2012 to 2013, defendant Xu Zhiyong, together with Ding Jiaxi and others, organized "citizen dinner" and "cocktail party" activities in Beijing, Xuzhou, Wuhan and other cities through communication software to develop members of the "New Citizens Movement" illegal organization.

In 2017, after defendant Xu Zhiyong was released from prison, he and Ding Jiaxi continued to collude with Wang Jiangsong, Liu Jiacai and members of the "New Citizens Movement" illegal organization, and went to Yantai, Xiamen and other cities to join forces with Zhang Zhongshun, Dai Zhenya and others, rename the "New Citizens Movement" to the "Citizens Movement," establish the "Citizens Movement" illegal organization, and organize, plan, and implement a series of criminal activities to subvert state power.

2. Since 2012, defendant Xu Zhiyong wrote and spread a large number of inciting articles such as "The People's Country," "Citizen Initiative: Campaign for 2021," "Non-Violence," and "Glorious China," which attacked and denigrated our country's political system, advocated ideology that subverted state power ideas, engaged in demagoguing, incited others to oppose the socialist system, proposed the establishment of "political opposition" and the achievement of a so-called "constitutional transformation," and other political goals.

In 2017, after defendant Xu Zhiyong was released from prison, he jointly operated the website "China Citizens Movement Network" with Ding Jiaxi and foreign organization member Hua Ze, added new columns to the website, appointed website reporters and editors, and raised website operating funds. The website spread a large number of inciting articles written by Xu Zhiyong that advocated an ideology that subverted state power.

In September 2019, defendant Xu Zhiyong instructed his girlfriend Li Qiaochu (handled in a separate case) to set up Xu Zhiyong's personal blog, and arranged for Li Qiaochu to spread on the blog a large number of inciting articles written by Xu Zhiyong that advocated an ideology that subverted state power.

3. In 2018, defendants Xu Zhiyong and Ding Jiaxi established a Telegram group for the "Citizens Movement" illegal organization. Ding Jiaxi and foreign organization member Wu Ming successively served as group leaders for the illegal organization platform for subversive activities. Wang Jiangsong, Zhang Zhongshun, Dai Zhenya, Hua Ze and more than 20 key members used the group to communicate and conduct exchanges. Xu Zhiyong and Ding Jiaxi also organized key members to use Zoom software to hold illegal online meetings and trainings, and plan activities to subvert state power.

From 2018 to 2019, defendants Xu Zhiyong and Ding Jiaxi instigated Hua Ze to use Zoom software to regularly conduct "non-violent" color revolution training for members of the "Citizens Movement" illegal organization, allowing members of the organization to master the methods of "non-violent" color revolution and subversion of state power.

4. From March to May 2019, defendant Xu Zhiyong, together with Chen Yong (alias Chen Jiaping, handled in a separate case) and others, filmed the illegal video "Politician." Xu Zhiyong used his prison experience, "education equality" and other topics to attack our country's judicial, education, petitioning and other systems, denigrate our country's political system, and advocate ideologies that subverted state power.

5. From September 22 to 23, 2018, defendant Xu Zhiyong, together with Ding Jiaxi, organized 13 people including Zhang Zhongshun, Chang Ping, Wang Jiangsong, and Wu Ming to hold a secret meeting at Zhang Zhongshun’s villa at the Yinhe Yihai Tianyuewan Community, High-tech Zone, Yantai, Shandong to organize and plan activities to  subvert state power activities, summarize the experience and lessons of the subversive activities of the previous "New Citizens Movement" and "Citizens Movement," analyze the current problems faced by the "Citizens Movement," require  organization members to penetrate into grassroots communities and adopt "non-violent" color revolutions in order to subvert state power.

6. From December 7 to 8, 2019, defendant Xu Zhiyong, together with Ding Jiaxi, organized 20 people including Zhang Zhongshun, Dai Zhenya, Wang Jiangsong, to hold a secret meeting at the Naisi Home Party Villa, Mohe Xiaoyuan, Jimei District, Xiamen, Fujian. Wu Ming and Liu Shu participated in the meeting online. Xu Zhiyong and Ding Jiaxi summarized the activities of the "Citizen Movement" illegal organization in 2019 and proposed an activity plan for 2020. At the meeting, they planned for organizational development, confrontation with the government, fund raising, social transformation and other issues, and clearly defined ways and methods to subvert state power. The goal was to penetrate communities, control grassroots political power through "non-violent" color revolutions, develop so-called "civil society" and a "national citizen community," and ultimately subvert state power.

The evidence determining the aforementioned facts is as follows:

1. Physical evidence: laptops and USB flash drives;

2. Documentary evidence: articles such as "The People's Country," "Citizen Initiative: Campaign for 2021," "Non-Violence," "Glorious China," the case registration form, and the criminal judgment form;

3. Witness testimony: testimony of witness Wang Jiangsong, Zhang Zhongshun and others;

4. Defense statements and justifications: the defense statements and justifications of defendant Xu Zhiyong;

5. Forensic opinion: a judicial forensic opinion report;

6. Crime scene investigation and inspection and identification transcripts: remote crime scene investigation records, investigation records, and identification records;

7. Audio-visual materials: surveillance videos.

This office finds that defendant Xu Zhiyong organized, planned, and carried out subversion of state power and the overthrow of the socialist order, and his actions were the commission of an offense under Article 105(1) of the "Criminal Law of the People's Republic of China." It is stipulated that if the criminal facts are clear and the evidence is reliable and copious, he should bear criminal liability for the crime of subversion of state power. Defendant Xu Zhiyong is a recidivist and should be punished pursuant to the provisions of Article 65(1) of the "Criminal Procedure Law of the People's Republic of China.” In accordance with the provisions of Article 176 of the "Criminal Procedure Law of the People's Republic of China," a public prosecution has been filed, and it is requested that sentence be passed in accordance with the law.

Respectfully Submitted

Intermediate People's Court of Linyi, Shandong

Prosecutors Tan Changzhi
Li Tao
Huang Zheng

August 5, 2021

Assistant Prosecuting Officer Li Mengli


山东省临沂市人民检察院

起诉书

临检一部刑诉[2021]Z43号

被告人许志永(曾用名许志勇),男,1973年[OBSCURED IN ORIGINAL]出生,公民身份号码[OBSCURED IN ORIGINAL],汉族,研究生文化,北京邮电大学讲师,现无业,户籍地[OBSCURED IN ORIGINAL],住北京市昌平区[OBSCURED IN ORIGINAL]。因犯聚众扰乱公共场所秩序罪,于2014年1月26日被北京市第一中级人民法院判处有期徒刑四年,2017年7月15日刑满释放。因涉嫌煽动颠覆国家政权罪,于2020年2月15日被北京市公安局海淀分局刑事拘留,次日变更为指定居所监视居住,2020年5月7日因本案由北京市公安局海淀分局依法移送山东省烟台市公安局办理,同日被烟台市公安局指定居所监视居住,2020年6月19日经本院批准逮捕,同日由临沂市公安局执行逮捕。

本案由临沂市公安局侦查终结,以被告人许志永涉嫌颠覆国家政权罪,于2021年1月19日向本院移送起诉。本院受理后,于2021年1月21日告知被告人有权委托辩护人及认罪认罚的相关法律规定,依法讯问了被告人,听取了辩护人的意见,审查了全部案件材料。本院分别于2021年3月6日、5月21日将案件退回侦查机关补充侦查,侦查机关分别于2021年4月6日、6月21日补充侦查完毕移送起诉。本院分别于2021年2月19日、5月6日、7月21日各延长审查起诉期限15日。

经依法审查查明:

2012年至2013年,被告人许志永出于对我国社会主义制度和中国共产党执政地位不满,伙同丁家喜(另案处理)等人成立、发展“新公民运动”非法组织,实施犯罪活动。2017年,许志永因犯聚众扰乱公共场所秩序罪刑满释放后,以推翻我国现行政治制度为目的,伙同丁家喜吸纳王江松、张忠顺、戴振亚、常玮平(均另案处理)等人为骨干成员,成立以许志永、丁家喜为组织者、领导者的“公民运动”非法组织,撰写、传播大量煽动性文章;拍摄名为“政治家”的非法影片;开展“非暴力”颜色革命培训;搭建、运营“中国公民运动网”、许志永个人博客等网站;先后在烟台、厦门召开“公民运动”非法组织秘密会议,组织、策划、实施颠覆国家政权,推翻社会主义制度的犯罪活动,严重危害国家安全和社会稳定。具体事实如下:

1.2012年至2013年,被告人许志永伙同丁家喜等人通过通讯软件,在北京、徐州、武汉等城市组织“公民聚餐”“同城饭醉”活动,发展“新公民运动”非法组织成员。

2017年,被告人许志永出狱后,伙同丁家喜继续与“新公民运动”非法组织成员王江松、刘家财等人勾连,到烟台、厦门等城市与张忠顺、戴振亚等人串联,将“新公民运动”改名为“公民运动”,成立“公民运动”非法组织,组织、策划、实施一系列颠覆国家政权的犯罪活动。

2.2012年以来,被告人许志永撰写、传播《人民的国家》《公民倡议:竞选2021》《非暴力》《美好中国》等大量煽动性文章,攻击、诋毁我国政治制度,宣扬颠覆国家政权思想,蛊惑、煽动他人反对社会主义制度,提出建立“政治反对派”、实现所谓“宪政转型”等政治目标。

2017年,被告人许志永出狱后,伙同丁家喜、境外组织成员华泽共同运营网站“中国公民运动网”,增设网站新栏目、选任网站报道员和编辑、筹集网站运营经费,传播许志永撰写的大量煽动性文章,宣扬颠覆国家政权思想。

2019年9月,被告人许志永指使其女友李翘楚(另案处理)搭建许志永个人博客,并安排李翘楚在该博客上传播许志永撰写的大量煽动性文章,宣扬颠覆国家政权思想。

3.2018年,被告人许志永伙同丁家喜建立“公民运动”非法组织的Telegram群组,作为颠覆活动的非法组织平台,丁家喜、境外组织成员吴明先后担任群主,王江松、张忠顺、戴振亚、华泽等20余名骨干成员使用该群组进行联络、交流;许志永、丁家喜还组织骨干成员使用Zoom软件召开线上非法会议和培训,策划颠覆国家政权活动。

2018年至2019年,被告人许志永伙同丁家喜指使华泽使用Zoom软件,定期为“公民运动”非法组织成员开展“非暴力”颜色革命培训,让组织成员掌握“非暴力”颜色革命的方式,颠覆国家政权。

4.2019年3月至5月,被告人许志永伙同陈勇(别名陈家坪,另案处理)等人拍摄非法影片“政治家”,许志永以自己监狱服刑经历、“教育平权”等话题,攻击我国司法、教育、信访等制度,诋毁我国政治制度,宣扬颠覆国家政权思想。

5.2018年9月22日至23日,被告人许志永伙同丁家喜组织张忠顺、常平、王江松、吴明等13人,在山东省烟台市高新区银和怡海天越湾小区张忠顺的别墅内召开秘密会议,组织、策划颠覆国家政权活动,总结前期“新公民运动”“公民运动”颠覆活动的经验教训,分析目前“公民运动”面临的问题,要求组织成员向基层社区渗透,采取“非暴力”颜色革命的方式,颠覆国家政权。

6.2019年12月7日至8日,被告人许志永伙同丁家喜组织张忠顺、戴振亚、王江松等20人,在福建省厦门市集美区奈斯轰趴别墅、墨和小院召开秘密会议,吴明、刘书通过网络参会。许志永、丁家喜总结2019年“公民运动”非法组织的活动情况,提出2020年的活动计划,会上针对组织发展、对抗政府、经费筹集、社会转型等议题进行策划,明确颠覆国家政权的方式、方法和目标,即通过“非暴力”颜色革命渗透社区、把持基层政权,发展所谓的“公民社群”“全国公民共同体”,最终颠覆国家政权。

认定上述事实的证据如下:

1.物证:笔记本电脑、U盘等;2.书证:《人民的国家》《公民倡议:竞选2021》《非暴力》《美好中国》等文章,受案登记表、刑事判决书等;3.证人证言:证人王江松、张忠顺等人的证言;4.被告人供述和辩解:被告人许志永的供述和辩解;5.鉴定意见:司法鉴定意见书等;6.勘验、检查、辨认笔录:远程勘验笔录、检查笔录、辨认笔录等;7.视听资料:监控视频等。

本院认为,被告人许志永组织、策划、实施颠覆国家政权、推翻社会主义制度,其行为触犯了《中华人民共和国刑法》第一百零五条第一款之规定,犯罪事实清楚,证据确实、充分,应当以颠覆国家政权罪追究其刑事责任。被告人许志永系累犯,应依照《中华人民共和国刑事诉讼法》第六十五条第一款之规定处罚。根据《中华人民共和国刑事诉讼法》第一百七十六条的规定,提起公诉,请依法判处。

此致

山东省临沂市中级人民法院

检察官 谭长志
李涛
黄政

2021年8月5日

检察官助 理孟丽

Friday, July 9, 2021

The 7.09 Prosecutions: Zhu Chengzhi Criminal Judgment

Intermediate People's Court of Suzhou, Jiangsu


Criminal Ruling


(2020) Su 05 Criminal Final No. 6601

 ****

Translator's Summary: The court found Zhu guilty on the grounds that he "used foreign Internet platforms to disseminate a large amount of false information relating to significant domestic events that seriously damaged the image of the country and seriously harmed national interests, creating a disturbance, confusing public opinion, causing severe disruption of public order." The court specifically cited Zhu for using "Twitter and Facebook to maliciously sensationalize major domestic events such as the "Jiansanjiang Incident," "Qing'an Incident," and the "Lei Yang Incident," all of which occurred at least two years prior to Zhu's arrest.

****

The original public prosecution agency was the People's Procuratorate of Wuzhong District, Suzhou.

Appellant (defendant in the original trial) Zhu Chengzhi, male, born [INTENTIONALLY DELETED], 1950, resident registration ID No. [INTENTIONALLY DELETED], Han ethnicity, junior high school education, unemployed, residing at [INTENTIONALLY DELETED] Baoqing East Road, Baodong Community Residents Committee, Shuangqing District, Shaoyang, Hunan. On June 8, 2012, he was subjected to 10 days administrative detention by the Public Security Bureau of Shaoyang, Daxiang Division for obstructing a government agent in the execution of their duties. On October 11, 2016, he was subjected to seven days administrative detention by the Public Security Bureau of Shaoyang, Shuangqing Division for disrupting public order. On April, 30, 2018 he was placed under residential confinement at a designated location (having been taken into custody on the 29th of the same month) by the Public Security Bureau of Suzhou, Wuzhong Division on suspicion of committing the crime of disturbing the peace. On October 29, 2018 he was taken into criminal detention by the Public Security Bureau of Suzhou, Wuzhong Division on suspicion of committing the crime of inciting subversion of state power. On November 12, 2018 he was arrested on suspicion of committing the crime of disturbing the peace. He is currently being held in detention at the Suzhou No. 1 Detention Center.

Defense counsel Zhang Lei is a lawyer at the Beijing Tongzhenghan Law Firm.

Defense counsel Liu Hai is a lawyer at the Huayi Law Firm, Beijing.

The People's Court of Wuzhong, Suzhou tried the case of the People's Procuratorate of Wuzhong, Suzhou charge that the defendant in the original trial Zhu Chengzhi committed the crime of disturbing the peace, and on July 31, 2020 issued the (2019) Su 0506 Criminal First Instance No. 537 criminal judgment. After the judgment was announced, the defendant in the original trial Zhu Chengzhi did not accept it, and submitted an appeal. After this Court docketed the case it formed a collegial panel in accordance with the law. Based on a reading of the case file, interrogatories with the appellant, and hearing the opinions of the People's Procuratorate of Suzhou and defense counsel, found the facts in this case are clear, and decided not to hold hearings at trial. The trial has now concluded.

The judgment in the original trial held that, since 2010, defendant Zhu Chengzhi used the foreign Internet platforms Twitter and Facebook to disseminate a large amount of false information that seriously damaged the image of the country and seriously harmed national interests, created a disturbance, confused public opinion, and caused a severe disruption of public order. The specific facts are as follows:

1. Since March 2010, over a long period of time defendant Zhu Chengzhi used his registered account on the foreign Internet platform Twitter, to denigrate China's political system, publishing false statements and pictures that seriously damaged the image of the country and seriously endangered national interests. These included more than 140 posts with false information directly attacking China's State leaders and political system, which were reposted more than 700 times and liked more than 1,290 times.

2. Since 2014, over a long period of time defendant Zhu Chengzhi used his registered account on the foreign Internet platform Facebook to denigrate China's political system, publishing false statements and pictures that seriously damaged the image of the country and seriously endangered national interests. These included more than 50 posts with false information directly attacking China's State leaders and political system, which were shared and commented on more than 40 times and liked more than 150 times.

3. Defendant Zhu Chengzhi used his aforementioned registered accounts on the foreign Internet platforms Twitter and Facebook to maliciously sensationalize major domestic events such as the "Jiansanjiang Incident," "Qing'an Incident," and the "Lei Yang Incident," and after official information had been publicized he still fabricated rumors, distorted facts, and posted a large number of false statements and pictures.

Among these, on April 28, 2016, defendant Zhu Chengzhi went to Mudu Town, Wuzhong District, Suzhou and logged in to his Facebook account in Mudu Town, Wuzhong District on the 30th of the same month, and published posts attacking state agencies.

The original trial found that evidence of the aforementioned facts included the apprehension process, seize materials, document lists, electronic evidence investigation work records, electronic data investigation work records, collection records, remote crime scene investigation work records, the testimony of witnesses Wang Mingxian and Ni Jinfang, proof of household registration, and the Administrative Punishment Decision. The court in the original trial found defendant Zhu Chengzhi used foreign Internet platforms to disseminate a large amount of false information relating to significant domestic events that seriously damaged the image of the country and seriously harmed national interests, creating a disturbance, confusing public opinion, causing severe disruption of public order, and his actions constitute the commission of the crime of disturbing the peace. In accordance with the provisions of Article 293(1)(iv) of the "Criminal Law of the People's Republic of China," it sentenced defendant to a fixed term imprisonment of three years and six months for committing the crime of disturbing the peace.

The appeal rationales and defense opinions of appellant Zhu Chengzhi and defense counsel are:

1. The Suzhou Wuzhong District judiciary does not have jurisdiction in this case.

2. There were no eyewitnesses to the remote crime scene investigation in this case, there were no approval procedures for some of the remote crime scene investigation, and the procedures for collecting evidence violated the provisions of the Criminal Procedure Law and should not be used as a basis for a judgment.

3. Appellant did not fabricate information or continue to spread it knowing that it is false information, and the content posted falls within the category of freedom of speech. Facebook and Twitter are not not public venues with respect to the crime of disturbing the peace. Appellant's actions did not cause serious chaos in public order.

To sum up, it is requested that the judgment for appellant Zhu Chengzhi be changed to not guilty.

The opinion produced by the People's Procuratorate of Jiangsu holds that the facts determined in the judgment in the original trial were clear, the evidence was reliable and copious, the trial procedures were legal, the sentence was appropriate, and the appeal grounds for appeal are not established. It recommends the appeal be rejected and the judgment in the original trial be upheld.

The facts ascertained by the trial of second instance are consistent with the facts found in the original judgment, and all of the evidence that was produced and examined in court in the original trial can be mutually corroborated, and are therefore probative, and are affirmed by this Court.

With respect to the opinions raised by Appellant and defense counsel, based on a comprehensive review of facts and evidence of the whole case, this Court's comprehensive evaluation is as follows:

With respect to the relevant opinions raised by Appellant and defense counsel that "The Wuzhong District judiciary did not have jurisdiction in this case," an investigation found that appellant Zhu Chengzhi logged in to his Facebook account on April 30, 2016 and made a post attacking State agencies. The location was displayed in the city of Wuzhong District, Mudu Township. Wuzhong District was the location where appellant Zhu Chengzhi's accessed the network to commit a cybercrime.

In accordance with the provisions of the "Criminal Procedure Law of the People's Republic of China" and the "Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Application of Criminal Procedures in the Handling of Cybercrime Cases," Wuzhong District was the location of the criminal activity in this case, and the local judiciary has jurisdiction in this case.

With respect to the relevant opinions raised by Appellant and defense counsel that "the evidence collection procedure in this case violated the provisions of the Criminal Procedure Law and cannot be used as the basis for a judgment," this Court finds:

First, the issue of the approval of the remote crime scene investigation. An investigation found that during hearings in the trial of first instance, the public prosecutor produced as evidence the corresponding petition approval report for the remote crime scene investigation work record used to produce evidence.

Second, the issue of remote crime scene investigation eyewitnesses. In accordance with the provisions of the "Provisions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Collection, Examination, and Assessment of Electronic Data Collected in Criminal Cases," if it is not possible for a qualified person to act as a witness for objective reasons, a note as to the circumstances shall be made in the relevant transcripts, and a video recording of the entire process of impounding the original storage medium shall be made.

This Court finds, because the information involved in this case related to the denigration of the national Party and government system, the presence of eyewitnesses would inevitably cause unnecessary secondary dissemination, which falls within the category of "objective reasons" as set forth in the "Provisions."

The aforementioned situation has been recorded and explained in the work record of the remote crime scene investigation in this case. At the same time, the entire process of the remote crime scene investigation was carried out in conjunction with synchronized screen recordings, with verification established using checksums, which is able to ensure the authenticity of the remote crime scene investigation process and collected data. Therefore, there is nothing in the remote crime scene investigation that "affected the authenticity of electronic data" under Article 28 of the "Provisions," and it can be used as the basis for a judgment.

Regarding the relevant opinions of Appellant and defense counsel that "the content posted falls under the scope of freedom of speech, and online platforms are not public venues with respect to the crime of disturbing the peace," this Court finds that freedom of speech is a basic right of citizens under China's Constitution, but the exercise of any rights must not exceed the boundaries of the law. Although network platforms are virtual spaces, their primary function is the interaction between people, which is inseparable from real society. Actions taken in cyberspace must necessarily also map to real society. Cyberspace and cyber-order are forms of public venues and public order. Over an extended period of time appellant Zhu Chengzhi used foreign Internet platforms to disseminate a large amount of false information relating to significant domestic events that seriously damaged the image of the country and seriously harmed national interests, creating a disturbance and confusing public opinion. This far exceeded the scope of freedom of speech, and can be deemed to have caused a severe disruption of public order.

This Court finds that the facts in the judgment in the original trial were clear, the evidence was reliable and copious, and the law was applied accurately, and the sentence was appropriate. Appellant's appeal rationale and defense counsel's defense opinions cannot be established, and are not accepted. The written opinions of the People's Procuratorate of Suzhou are correct and shall be sustained. In accordance with the provisions of Article 236(1)(i) of the "Criminal Procedure Law of the People's Republic of China, the ruling is as follows:

The appeal is rejected and the judgment in the original trial is upheld. This ruling shall be the final ruling.

Chief Adjudicator    Jia Zan
Adjudicator        Wang Meixin
Adjudicator        Wang Hao

December 19, 2000

There are no discrepancies between this copy and the original.

Clerk            Shen Qi

江苏省苏州市中级人民法院


刑事裁定书


(2020)苏05刑终660号


原公诉机关苏州市吴中区人民检察院。

上诉人(原审被告人)朱承志,男,1950年[INTENTIONALLY DELETED]生,居民身份证号码[INTENTIONALLY DELETED],汉族,初中文化,无业,住湖南省邵阳市双清区宝东社区居民委员会[INTENTIONALLY DELETED]。因阻碍执行职务于2012年6月8日被邵阳市公安局大祥分局行政拘留十日;因扰乱公共秩序于2016年10月11日被邵阳市公安局双清分局行政拘留七日。因涉嫌犯寻衅滋事罪,于2018年4月30日被苏州市公安局吴中分局指定居所监视居住(同月29日到案),2018年10月29日以涉嫌犯煽动颠覆国家政权罪被苏州市公安局吴中分局刑事拘留,2018年11月12日以涉嫌犯寻衅滋事罪被逮捕。现羁押于苏州市第一看守所。

辩护人张磊,北京市同正函律师事务所律师。
辩护人刘海,北京市华一律师事务所律师。

苏州市吴中区人民法院审理苏州市吴中区人民检察院指控原审被告人朱承志犯寻衅滋事罪一案,于2020年7月31日作出(2019)苏0506刑初537号刑事判决。宣判后,原审被告人朱承志不服,提出上诉。本院受理后,依法组成合议庭,通过阅卷,讯问上诉人,听取江苏省苏州市人民检察院检察员及辩护人的意见,认为本案事实清楚,决定不开庭审理。现已审理终结。

原判决认定,2010年以来,被告人朱承志通过境外网络平台Twitter和Facebook,大量散布严重损害国家形象、严重危害国家利益的虚假信息,起哄闹事,混淆视听,造成公共秩序严重混乱。具体事实如下:

1. 2010年3月以来,被告人朱承志利用其在境外网络平台Twitter注册的账号,长期诋毁我国政治制度,发布严重损害国家形象、严重危害国家利益的虚假言论或图片。其中直接攻击我国国家领导人和政治制度的虚假信息达140余条,累计转发700余次,累计点赞1290余次。

2. 2014年以来,被告人朱承志利用其在境外网络平台Facebook注册的账号,长期诋毁我国政治制度,发布严重损害国家形象、严重危害国家利益的虚假言论或图片。其中直接攻击我国国家领导人和政治制度的虚假信息达50余条,累计被分享、评论40余次,累计被点赞150余次。

3. 被告人朱承志利用上述其在境外网络平台Twitter和Facebook注册的账号,恶意炒作“建三江事件”、“庆安事件”、“雷洋事件”等国内重大事件,在官方消息公布之后,仍编造谣言、歪曲事实,发布大量虚假言论和图片。

其中,2016年4月28日,被告人朱承志至江苏省苏州市吴中区木渎镇,同月30日在吴中区木渎镇登录Facebook账号,并发出攻击国家机关的帖子。

原审认定上述事实的证据有抓获经过、扣押物品、文件清单、电子证物检查工作记录、电子数据检查工作记录、提取笔录、远程勘验工作记录、证人王明贤、倪金芳的证言、户籍证明、行政处罚决定书等。
原审法院认为,被告人朱承志在境外社交网络上大量散布涉及国内重大事件、严重损害国家形象、严重危害国家利益的虚假信息,起哄闹事,混淆视听,造成公共秩序严重混乱,其行为已构成寻衅滋事罪。依照《中华人民共和国刑法》第二百九十三条第一款第(四)项之规定,以寻衅滋事罪判处被告人朱承志有期徒刑三年六个月。

上诉人朱承志及辩护人的上诉理由及辩护意见为:1.苏州市吴中区司法机关对本案不具有管辖权。2.本案的远程勘验没有见证人,部分的远程勘验没有审批手续,收集证据的程序违反刑事诉讼法的规定,不应作为定案依据。3.上诉人没有编造信息或者明知是虚假信息继续散布,所发内容属于言论自由的范畴,Facebook和Twitter也不是寻衅滋事罪中的公共场所,上诉人的行为没有造成公共秩序的严重混乱。综上,请求改判上诉人朱承志无罪。

江苏省苏州市人民检察院检察员出具书面意见认为,原判认定事实清楚,证据确实、充分,审判程序合法,量刑适当,上诉人的上诉理由不成立,建议驳回上诉,维持原判。

经二审审理查明的事实与原审判决认定的事实一致,且全部证据均经原审庭审举证、质证,证据之间能够相互印证,具有证明效力,本院予以确认。

对上诉人及辩护人提出的意见,综合全案事实及证据,本院综合评判如下:

对上诉人及辩护人提出“吴中区司法机关对本案不具有管辖权”的相关意见,经查,上诉人朱承志在2016年4月30日登陆Facebook账号发出攻击国家机关的帖子,定位显示在本市吴中区木渎镇,吴中区系上诉人朱承志实施网络犯罪的网络接入地,根据《中华人民共和国刑事诉讼法》及《最高人民法院、最高人民检察院、公安部关于办理网络犯罪案件适用刑事诉讼程序若干问题的意见》的规定,吴中区是本案的犯罪地,属地司法机关对本案具有管辖权。

对上诉人及辩护人提出“本案的证据收集程序违反刑事诉讼法的规定,不能作为定案依据”的相关意见,本院认为:

第一,对远程勘验审批的问题。经查,一审庭审时公诉人已对作为证据使用的远程勘验工作记录举证出示了相应的呈请审批报告书。

第二,对远程勘验见证人的问题。根据《最高人民法院、最高人民检察院、公安部关于办理刑事案件收集提取和审查判断电子数据若干问题的规定》的规定,由于客观原因无法由符合条件的人员担任见证人的,应当在笔录中注明情况,并对相关活动进行录像。

本院认为,因涉案的发文信息涉及诋毁国家党政制度,由见证人在场不可避免会造成不必要的二次传播,属于《规定》中的“客观原因”范畴。在案的远程勘验工作记录中已对上述情况进行了记载和说明,同时对远程勘验的全过程进行了同步屏幕录像,并设置了校验码以供核验,能够保证远程勘验过程及提取数据的真实性,故本案的远程勘验不具有《规定》第28条“影响电子数据真实性”的情形,可以作为定案的依据。

对上诉人及辩护人提出“所发内容属于言论自由范畴以及网络平台不是我国寻衅滋事罪中的公共场所”的相关意见,本院认为,言论自由是我国宪法规定的公民的一项基本权利,但是任何权利的行使都不得超出法律的边界。网络平台虽为虚拟空间,但其重要功能是人与人之间的交互,与现实社会密不可分,在网络空间的行为也必将映射、影响到现实社会中来,网络空间和网络秩序属于公共场所和公共秩序的一种形态,上诉人朱承志长期在境外网络平台上大量散布涉及国內重大事件、严重损害国家形象、严重危害国家利益的虚假信息,起哄闹事,混淆视听,已远超言论自由的范畴,可以认定造成公共秩序严重混乱。

本院认为,原审判决认定事实清楚,证据确实、充分,适用法律准确,量刑适当,审判程序合法,上诉人的上诉理由及辩护人的辩护意见不能成立,不予采纳。江苏省苏州市人民检察院检察员的书面意见正确,应予支持。依照《中华人民共和国刑事诉讼法》第二百三十六条第一款第(一)项之规定,裁定如下:

驳回上诉,维持原判。本裁定为终审裁定。

审判长    贾赞
审判员    王美新
审判员    王浩

二00年十二月十九日

本往与原本该对无异

书记员    沈琦
 

The 7.09 Prosecutions: Yu Wensheng Criminal Judgment

Intermediate Court of Xuzhou, Jiangsu

Criminal Judgment

(2019) Su 03 Criminal First Instance No. 201

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Translator's Summary: The court found Yu, a lawyer who represented Wang Quanzhang, guilty on the grounds that he "published open letters on the Internet through 'Twitter' and 'Facebook' to attack the State regime and the socialist system. He distorted and fabricated facts about, and sensationalized, hot-button domestic incidents in the name of 'rights defense.' He accepted foreign funds and interviews many times, denied the leadership of the Communist Party of China, denigrated China's governmental and judicial agencies, defamed China's rule of law as being in retreat and human rights as deteriorating, intentionally provoked people who did not know the truth to hate China's current political system, and incited subversion of China's State regime and the overthrow of the socialist order."
The public prosecution agency was the People's Procuratorate of Xuzhou.
 

****

Defendant Yu Wensheng, male, born [INTENTIONALLY DELETED], 1967, residential ID No. [INTENTIONALLY DELETED], Han ethnicity, undergraduate degree, unemployed, residing in [INTENTIONALLY DELETED], Shijingshan District, Beijing. On January 20, 2018, he was detained by the Public Security Bureau of Beijing, Shijingshan Division on suspicion of committing the crime of obstructing an official in the exercise of their duty. On January 24, 2018, he was taken into criminal detention by the Public Security Bureau of Tongshan District, Xuzhou on suspicion of committing the crime of inciting subversion of state power. On the 27th of that month he was ordered placed under residential confinement at a designated location. On April 19, 2018, the People's Procuratorate of Xuzhou authorized his arrest on suspicion of committing the crimes of inciting subversion of state power and obstructing an official in the exercise of their duty. On the same day the Public Security Bureau of Xuzhou carried out the arrest. He is currently being held in detention at the Xuzhou Detention Center.

Defense counsel Zhao Qiang is a lawyer at the Jiangsu Pengcheng Law Firm.

Defense counsel Yue Song is a lawyer at the Jiangsu Qianlong Law Firm.

In the Xu Procuratorate Prosecution Criminal Indictment (2019) No. 10 indictment, the People's Procuratorate of Xuzhou charged defendant Yu Wensheng with committing the crime of inciting subversion of state power, and filed a public prosecution with this Court. Following the Supreme People's Court's designation of jurisdiction, after this Court opened and docketed the case, on February 11, 2019, it formed a collegial panel in accordance with the law, and on May 9, 2019 tried this case in open court. The People's Procuratorate of Xuzhou assigned Procurator Deputy Director Bao Shuhua, and Procurators Li Qingquan and Rong Hui to appear in court in support of the public prosecution, and defendant Yu Wensheng and his defense counsels Zhao Qiang and Yue Song appeared in court to participate in the proceedings.

During the trial, an extension of time for the trial in this case was granted by the High People's Court of Jiangsu and the Supreme People's Court in accordance with the law. It was also researched by this Court's adjudicative committee. The trial has now concluded.

The People's Procuratorate of Xuzhou charged: Defendant Yu Wensheng, having been affected by the influence of the infiltration of anti-China forces, gradually formed the idea of subverting the State regime and overthrowing the socialist order. Between 2014 and January 2018, Yu Wensheng published open letters on the Internet through "Twitter" and "Facebook" to attack the State regime and the socialist system. He distorted and fabricated facts about, intervened in, and sensationalized sensitive domestic incidents in the name of "rights defense." He accepted foreign funds and interviews, discredited Party and State leaders, denied the leadership of the Communist Party of China, denigrated governmental and judicial agencies, defamed the rule of law as being in retreat and human rights as deteriorating, and incited subversion of China's State regime and the overthrow of the socialist order. The specific facts are described as follows:

1. From July 2014 to 2017, when defendant Yu Wensheng was practicing in Beijing Daoheng Law Firm he acted in several "Falun Gong" cases. Knowing that "Falun Gong" was a cult organization, Yu Wensheng gave interviews to the foreign media outlets "New Tang Dynasty" and "Voice of Hope," and publicly denied the cult nature of "Falun Gong," advocating on its behalf and portraying it in a positive light, and smearing China's persecution of Falun Gong."

2. From July 2015 to August 2017, while the Tianjin judiciary was, in accordance with the law, dealing with the case of lawyers Wang Yu, Wang Quanzhang and others who were suspected of inciting subversion of state power, defendant Yu Wensheng fabricated false facts about the judiciary's "illegal" handling of the case and published them via "WeChat," "Twitter," "Facebook" and other channels, maliciously denigrating China's judiciary.

3. Defendant Yu Wensheng joined the WeChat group of the China Human Rights Lawyers Group in 2014, and in 2015, 2016, and 2017 Yu Wensheng was interviewed three times by foreign media outlets such as "Radio Free Asia" and "New Tang Dynasty" in his capacity as the interview contact of that WeChat group, making false claims that China "has no legal order," and that "the rule of law is in retreat" and "human rights are in retreat," thereby distorting the current status of rule of law in China.

4. From 2015 to 2017, defendant Yu Wensheng used "Twitter" and gave interviews to foreign media outlets to fabricate false statements that he was on "death row" and attacked China's governmental and judicial agencies.

5. From 2014 to 2018, defendant Yu Wensheng gave interviews several times to foreign media outlets such as "Radio Free Asia" and "Voice of America" in which he smeared the government's image and rejected China's political system and legal system. During this period, Yu Wensheng received funding from foreign organizations many times.

6. On the afternoon of October 18, 2017, defendant Yu Wensheng's "Lawyer Yu Wensheng's Open Letter" was posted on foreign websites such as "Facebook" and "Twitter." It denigrated Party and State leaders, and rejected the Party's leadership. The following morning, Yu Wensheng deleted the posts after being interviewed by the Justice Bureau of Shijingshan District, Beijing. On January 16, 2018, Yu Wensheng once again posted the article on "Facebook" and "Twitter." In the early morning of January 18, 2018, Yu Wensheng concocted the "Yu Wensheng's Open Letter on a Proposal to Amend the Constitution" and published it on "Facebook" and "Twitter," rejecting the organizational form of China's existing regime and the leadership of the Party and the socialist system. As of February 1, 2018, the aforementioned two articles were retweeted and liked by hundreds of people, and were reposted and disseminated by many foreign websites such as "Bannedbook.org," "wqw2010.blogspot.com," and "Boxun.com.

In order to prove the aforementioned charged facts, the public prosecution agency provided documentary evidence including the articles published by defendant Yu Wensheng that incited subversion of state power, and a detailed record of bank cards receiving foreign funding; testimony of witnesses Sha Lin, Chen Min, Ji Aihua and others; defendant Yu Wensheng's statement; the voiceprint forensic opinion produced by the Public Security Office of Jiangsu's Material Forensics Center; the remote crime scene investigation, investigation experiments and other records produced by the Public Security Bureau of Xuzhou; audio-visual materials of Yu Wensheng giving interviews to foreign media outlets collected by the Public Security Bureau of Xuzhou, and electronic data.

The People's Procuratorate of Xuzhou maintains that defendant Yu Wensheng used the spreading of rumors, defamation, and other means to incite subversion of state power and the overthrow of the socialist order abroad, that his actions constitute the commission of an offense under the provisions of Article 105(2) of the "Criminal Law of the People's Republic of China," and he should be subject to criminal liability for inciting subversion of state power. At the same time they point out that the subjective malice of defendant Yu Wensheng's subversion of state power was relatively significant, the circumstances of the crime were malicious and involved resisting arrest and violence towards civil police, and in accordance with the law should be subjected to severe punishment.

Defendant Yu Wensheng did not raise any objections to the charged criminal facts and offense, pleaded guilty and repented in court and requested leniency.

The main defense opinions put forward by the defense counsels were: After being taken into police custody Yu Wensheng made truthful statements about the criminal facts and spoke openly about the circumstances. From the time he was taken into police custody through the trial Yu Wensheng showed a good attitude in pleading guilty and repenting in court. They requested leniency.

It was ascertained at trial that, over a long period of time defendant Yu Wensheng, having been affected by the influence of the infiltration of anti-China forces, gradually formed the idea of subverting China's State regime and overthrowing the socialist order. Between 2014 and January 2018, Yu Wensheng published open letters on the Internet through "Twitter" and "Facebook" to attack the State regime and the socialist system. He distorted and fabricated facts about, and sensationalized, hot-button domestic incidents in the name of "rights defense." He accepted foreign funds and interviews many times, denied the leadership of the Communist Party of China, denigrated China's governmental and judicial agencies, defamed China's rule of law as being in retreat and human rights as deteriorating, intentionally provoked people who did not know the truth to hate China's current political system, and incited subversion of China's State regime and the overthrow of the socialist order. The specific facts are described as follows:

I. From July 2014 to 2017, defendant Yu Wensheng, knowing that "Falun Gong" was a cult organization, gave many interviews to the foreign media outlets "New Tang Dynasty" and "Voice of Hope," and publicly denied the cult nature of "Falun Gong," flagrantly advocated on its behalf and portrayed it in a positive light, denigrated China's laws and policies, smeared the image of the government, and vainly attempted to incite subversion of China's State regime.

The aforementioned facts are confirmed by evidence submitted by the public prosecution agency and cross-examined in court, and the following evidence is hereby confirmed by this Court:

1. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "New Tang Dynasty" on September 13, 2016 retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: Yu Wensheng gave an interview to New Tang Dynasty, saying that "The authorities' suppression of Falun Gong for 17 years is completely wrong and it is a political persecution. Now the behavior of the police, procuratorate, and judiciary is a crime."

2. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "Voice of Hope" on December 15, 2016 (with the title"Innocent Falun Gong Practitioners are Being Released in Many Places, the Persecution has Reached the End of the Road") retrieved by the public security agency through remote crime scene investigation, and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: Yu Wensheng gave an interview to the "Voice of Hope," and when the "Voice of Hope" said "Some people continue to suppress Falun Gong", Yu Wensheng responded, "The police, prosecutors, and law enforcement agencies are pushing each other on the Falun Gong issue. This is a good thing. After all, some people are starting to wake up."

3. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "New Tang Dynasty" on October 4, 2017 (with the title "People in Mainland China Respectfully Wish Master Li Hongzhi and Students a Happy Mid-Autumn Festival") retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: Yu Wensheng gave an interview to "New Tang Dynasty" and said "The Falun Gong group is a very kind-hearted group, which only brings benefits to society, it is not harmful."

4. Defendant Yu Wensheng's statement: The statements he made when he gave interviews to "New Tang Dynasty" and "Voice of Hope" did in fact deny "Falun Gong's" cult qualities had no basis in truth, was an attack on China's legal system, confused public opinion, and made more people dissatisfied with the Party and government and China's legal system. He utilized foreign media outlets because they can incite more people to believe that the Party and government's suppression of "Falun Gong" is wrong, and thereby attack and smear the Party and Government.

II. From July 2015 to August 2017, while the Tianjin judiciary was, in accordance with the law, dealing with the case of lawyers Wang Yu, Wang Quanzhang and others who were suspected of inciting subversion of state power, defendant Yu Wensheng fabricated false facts such as "Wang Yu has been forcibly disappeared and his family has not received any legal documentation," "the public security agency is conducting mass arrests and terrorizing lawyers, its a violation of law and order," and " "the judiciary is illegally blocking meetings." He used "Twitter" and "Facebook" to post, denigrating China's judiciary and intentionally inciting individuals who did not know the truth to become dissatisfied and confrontational, all in order to achieve the goal of inciting subversion of China's State regime.

The aforementioned facts are confirmed by evidence submitted by the public prosecution agency and cross-examined in court, and the following evidence is hereby confirmed by this Court:

1. The article about sending a complaint letter and the article and images regarding the lawyer Wang Quanzhang posted by Yu Wensheng on his "Twitter" account on August 1, 2015 and March 6, 2017, and the article about his lawyer's professional annual inspection and Wang Quanzhang's case he posted on his "Facebook" account on July 29, 2017 retrieved by the public security agency through remote crime scene investigation proved: In an effort to sensationalize the Wang Quanzhang and other cases, Yu Wensheng concocted a complaint letter saying that "The Ministry of Public Security violated the law and government order, forcibly disappearing Chinese citizens, creating an atmosphere of terror, and committing evil acts against humanity." It was mailed to multiple agencies and spread through "Twitter."

2. The "Yu Wensheng and His Wife Xu Yan: Statement on the Criminal Detention of Lawyer Wang Yu" published on the foreign website "wqw2010.blogspot.com" on July 19, 2015 and the electronic version of that "Statement" extracted from the computer of Yu Wensheng, the article "The Family Members and Lawyers of the Parties Implicated in the 709 Mass Arrests Went to the Tianjin Hexi Detention Center to Demand a Meeting, Terminate the Cases, and Release the People" published on "wqw2010.blogspot.com" on January 8, 2016, and the complaint letter regarding Yu Wensheng's handling of the 709 cases sent to 21 agencies published on "wqw2010.blogspot.com" and "New Tang Dynasty" on March 7 and 8, 2017, respectively, retrieved by the public security agency through remote crime scene investigation proved: Yu Wensheng's wife issued a statement slandering China Central Television and other media for "rendering judgment before the trial;" Yu Wensheng sent a complaint letter to multiple agencies regarding the Wang Quanzhang case, and used foreign media outlets such as "wqw2010.blogspot.com"and "New Tang Dynasty" to sensationalize it.

3. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "Mirror TV Rule of Law Channel" on August 20, 2017 retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: Yu Wensheng was interviewed by the "Mirror TV Rule of Law Channel" and said "The accusation is that they are inhuman. In fact, as far as fighting a counterattack against the 709 is concerned, it was really me who started the actual counterattack. I was the first person."

4. Defendant Yu Wensheng's statement: On July 19, 2015, he and his wife Xu Yan issued a statement for Wang Yu, condemning China Central Television and Xinhua Net, saying that they had stigmatized lawyer Wang Yu and others by rendering judgment before the trial. On July 31, 2015, they sent a statement to the National People's Congress, the State Council, etc. mailing a complaint letter, accusing the Ministry of Public Security of conducting mass arrests, intimidating lawyers and citizens, rendering judgment before the trial, and acting in an inhuman manner that violated the law and government order. They posted the accusation information on the "Twitter" website. The contents were all his distorted facts, fabricated out of nothing, and the purpose was to arouse people's dissatisfaction with the public prosecutors and the law. His interview with the "Mirror TV Rule of Law Channel" involved the 709 Wang Quanzhang case, and included content about dissatisfaction with China's legal system.

III. Defendant Yu Wensheng joined the "China Human Rights Lawyers Group" WeChat group in 2014, and for three years from 2015 to 2017 Yu Wensheng was interviewed by foreign media outlets such as "Radio Free Asia" and "New Tang Dynasty" in his capacity as the interview contact of that WeChat group, and he repeatedly made false claims that "There is no legal order in China, and inhuman oppression is the main problem," "China's legal system and human rights are regressing, and human rights in China are deteriorating, and human rights violations are on the increase," distorting the status of the rule of law in China, smearing the image of the Party and government, denying the achievements of socialist construction, and intending to overthrow China's current system.

The aforementioned facts are confirmed by evidence submitted by the public prosecution agency and cross-examined in court, and the following evidence is hereby confirmed by this Court:

1. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "Radio Free Asia" on September 13, 2015 retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: When Yu Wensheng gave an interview he said: "What we are facing is inhuman suppression without legal order by the authorities."

2. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "Radio Free Asia" on September 14, 2016 retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: When Yu Wensheng gave an interview he said: "The rule of law in China has not progressed, on the contrary it is increasingly in retreat."

3. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "New Tang Dynasty" on September 14, 2017 retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: When Yu Wensheng gave an interview he said:"The authorities are the ones undermining the rule of law."

4. The "Situation Explanation" produced by the Ministry of Civil Affairs proved: The Ministry of Civil Affairs has not registered the "China Human Rights Lawyers Group" or the "China Human Rights Lawyers Service Group."

5. Defendant Yu Wensheng's statement: Around January 2014, he joined the "China Human Rights Lawyers Group" WeChat group and gave many interviews to foreign media regarding the "Chinese Human Rights Lawyers Group." The statements he made were not based on facts, they distorted facts, spread rumors, and defamed, attacked, and smeared the government.

IV. From 2015 to 2017, defendant Yu Wensheng intentionally fabricated false facts that a "death row" system existed in China, used "Twitter" and accepted interviews with foreign media outlets to spread false statements that he was being held in custody on "death row," and attacked and smeared China's governmental and judicial agencies, intending to incite subversion of China's State regime.

The aforementioned facts are confirmed by evidence submitted by the public prosecution agency and cross-examined in court, and the following evidence is hereby confirmed by this Court:

1. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "Mirror TV Rule of Law Channel" on August 20, 2017 (with the title "Lawyer Without a Firm Yu Wensheng – There is No Safe Place in China"), retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: Yu Wensheng gave an interview to "Mirror TV Rule of Law Channel" and said: "I was imprisoned on death row for 61 days, and I used everything that was used by death row prisoners. Anyone who was put on death row would have succumbed."

2. Yu Wensheng's personal signature "Twitter" account retrieved by the public security agency through remote crime scene investigation proved: Yu Wensheng made "death row" his personal signature content.

3. The "Situation Explanation" produced by the Beijing No. 1 Detention Center proved: In 2014, Yu Wensheng was held in custody on suspicion of disturbing the peace at the Beijing No. 1 Detention Center, and that Center does not have any dedicated rooms specifically to holding condemned criminals in custody.

4. Defendant Yu Wensheng's statement: Foreign media outlets interviewed him many times. He fabricated the issue of "death row" and spread it to attack China's judiciary, and incite people’s dissatisfaction with the Party and government. He fabricated the existence of a "death row," and it was without factual basis.

V. From 2014 to 2018, defendant Yu Wensheng accepted interviews several times with foreign media outlets such as "Radio Free Asia," "Voice of America" and "New Tang Dynasty," during which he used means such as spreading rumors and defamation to spread statements that smeared the Party's and the government's image and rejected China's political system and legal system, all to achieve the goal of inciting subversion of China's State power and socialist system through international networks. During this period, Yu Wensheng accepted funding from foreign organizations such as Ireland's Front Line Defenders many times.

The aforementioned facts are confirmed by evidence submitted by the public prosecution agency and cross-examined in court, and the following evidence is hereby confirmed by this Court:

1. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "Radio Free Asia" on September 26, 2016 (with the title "The Ministry of Justice Issued a document to Ban Lawyers from Creating Pressure from Public Opinion, Triggering Strong Backlash from the Legal Profession") retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng proved: Yu Wensheng gave an interview to "Radio Free Asia" and said:"The Law Firm Management Measures are like the new National Security Law and Cyber-Security Law. They are all draconian laws and further oppress human rights lawyers."

2. The article and audio of the interview Yu Wensheng gave to the foreign media outlet "Voice of America" on September 21, 2017 (with the title "VOA Connects with Yu Wensheng: Beijing's Two Human Rights Law Firms Have Been Repeatedly Investigated, Is This a New Wave of Suppression of Human Rights Lawyers?") retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng, the testimony of witnesses Chen Min and Peng Mei, and documentary evidence of the 2017 investigation records of the Beijing Shijingshan District Justice Bureau and the Xicheng District Justice Bureau proved: In 2017 the Beijing Shijingshan District Justice Bureau and the Xicheng District Justice Bureau conducted inspections of many law firms such as the Beijing Mo Shaoping Law Firm and the Daoheng Law Firm, Yu Wensheng gave an interview to the "Voice of America" saying this inspection is a targeted suppression of the aforementioned two law firms, and that China's human rights situation continues to deteriorate, and the rule of law continues to deteriorate.

3. The article and audio of the interviews Yu Wensheng gave to the foreign media outlets "New Tang Dynasty" and "Radio Free Asia" on January 17 and 18, 2018 retrieved by the public security agency through remote crime scene investigation and the text material prepared based on the audio signed and confirmed by Yu Wensheng, the documentary evidence Proposal of the Beijing Shijingshan District Justice Bureau on the Cancellation of Yu Wensheng's Lawyer Professional Certificate, and the Decision of the Beijing Municipal Justice Bureau Canceling Yu Wensheng's Lawyer Professional Certificate proved: After his lawyer’s professional certificate was canceled in accordance with the law he was not employed by a law firm for six months, Yu Wensheng accepted interviews with "New Tang Dynasty" and "Radio Free Asia" and said "The cancellation of the lawyer’s certificate can only prove the regime is a rogue regime, and I will not be silent on this," and "China's political parties have not been legally registered and have no legal status. All political parties are illegal organizations."

4. Documentary evidence including an Ireland Front Line Defenders application for funding confirmation form signed and confirmed by Yu Wensheng, Yu Wensheng's Agricultural Bank of China account's receipt of a Western Union remittance from Ireland, a "receipt" for RMB 20,000 from the Hong Kong Human Rights Lawyers Concern Group received by Yu Wensheng for acting as counsel in the Zhu Yingdi case collected from Yu Wensheng's laptop computer, the chat records with Xiaojun VAL from the SKYPE account used by Yu Wensheng, transaction details of Yu Wensheng's China Construction Bank bank card, Xu Yan's immigration records from 2016 to 2017, and Yu Wensheng's statement proved: Yu Wensheng accepted financial assistance from the "Ireland Front Line Defenders" organization many times.

5. Defendant Yu Wensheng's statement: When he gave an interview to "Radio Free Asia" he mentioned that the National Security Law, Charity Law, and NGO related laws and regulations are all evil laws, and the new administrative measures were intended to suppress human rights lawyers, and China does not have human rights. This was actually him smearing the Party and the government, expressing his dissatisfaction with the Party and the government. He also said that all political parties in China are illegal organizations, which was a rejection of China's existing Party system. When he gave an interview to the "Voice of America" he said law firms would be purged before the 19th National Congress, and there will be no progress in human rights after the 19th National Congress. He gave an interview to "New Tang Dynasty" and said the cancellation of his lawyer's license was a way for the authorities to suppress him, which can only prove that this regime is a rogue regime.

VI. On the afternoon of October 18, 2017, defendant Yu Wensheng's "Lawyer Yu Wensheng's Open Letter" was posted on "Facebook" and "Twitter." It denigrated Party and State leaders, and rejected the Party's leadership. On January 16, 2018, Yu Wensheng once again posted that article on "Facebook" and "Twitter." In the early morning of January 18, 2018, Yu Wensheng concocted the "Yu Wensheng's Open Letter on a Proposal to Amend the Constitution" and published it on "Facebook" and "Twitter," rejecting the organizational form of China's existing regime and the leadership of the Party and the foundations of the socialist system. As of February 1, 2018, the aforementioned two articles were retweeted and liked by hundreds of people, and were reposted and disseminated by many foreign websites such as "Bannedbook.org," "wqw2010.blogspot.com," and "Boxun.com.

The aforementioned facts are confirmed by evidence submitted by the public prosecution agency and cross-examined in court, and the following evidence is hereby confirmed by this Court:

1. An article with the title "Lawyer Yu Wensheng's Open Letter" posted by Yu Wensheng on his Twitter and Facebook accounts on January 16, 2018, and an article with the title "Yu Wensheng's Open Letter on a Proposal to Amend the Constitution" posted by Yu Wensheng on his Twitter and Facebook accounts on January 18, 2018, which were reported on over 10 foreign websites including "wqw2010.blogspot.com," "Boxun.com," and "Bannedbook.org," and were retrieved by the public security agency through remote crime scene investigation proved: Yu Wensheng published two open letters via "Twitter" and "Facebook," which were reposted by many foreign websites.

2. The electronic evidence inspection records of the public security agency on Yu Wensheng’s two laptop computers, and the utilization investigation experiments of the "Twitter" and "Facebook" account registration proved that the "Twitter" and "Facebook" accounts that published statements that incited subversive were used by Yu Wensheng himself.

3. Testimony of witnesses Gao Weihua, Ji Aihua, Chen Min, and Sha Lin, staff of the of Shijingshan District Justice Bureau, and Lu Kai and Wang Weicivil police at the Public Security Bureau of Beijing, Shijingshan Division, audio and video recordings and written records of Shijingshan District Justice Bureau's interview with Yu Wensheng, and Yu Wensheng's Commitment Letter proved:On October 18, 2017 Yu Wensheng was interviewed by the Shijingshan District Justice Bureau, and admitted he posted the aforementioned opened letters.

4. Defendant Yu Wensheng's statement: At about two o'clock in the afternoon on October 18, 2017, he used his mobile phone to compose the article "Lawyer Yu Wensheng's Open Letter" at his home, and used wall-climbing software to post the article on "Facebook" and "Twitter." He wrote that since the 18th National Congress of the Communist Party of China, unjust imprisonment and corruption have been rampant. This was a rejection of the 97-year history of the founding of the Communist Party of China and the 68-year history of the founding of the government, and was a kind of making something out of nothing. The Lei Yang Incident, Qing'an Incident, and the suppression of the New Citizens that were listed were are all distortions of the facts. The goal was to reject China's existing system and smear the Party and the government. Regarding the articles on amending the Constitution on Facebook and Twitter, the purpose of proposing constitutional amendments was to deny the leadership of the Communist Party of China, deny the system of multi-party cooperation under the leadership of the Communist Party of China, deny the Party's leadership of the army, and deny China's electoral system.

In order to prove the charged criminal facts, the public prosecution agency submitted comprehensive evidence to this Court including evidentiary materials such as defendant Yu Wensheng's statement regarding his subjective intent to incite subversion of state power, Yu Wensheng's Statement of Repentance and remote crime scene investigation records, electronic evidence investigation records, voice identification forensic opinions, the description of the case resolution process, audio and video recording materials of Yu Wensheng's apprehension, testimony of witnesses Liu Yang, Fan Jingsheng, and other civil police officers, search records, list of seized items, and Permanent Residential Population Information Inquiry Forms, all of which were produced and examined in court, and their probative value is confirmed by this Court.

This Court finds defendant Yu Wensheng incited subversion of state power and the overthrow of the socialist order by spreading rumors and defamation and other means, his actions constitute the crime of inciting subversion of state power, the facts charged by the People's Procuratorate of Xuzhou that defendant Yu Wensheng committed the crime of inciting subversion of state power are clear, the evidence is reliable and copious, and the charged offense is established. The opinion proffered by the public prosecution agency the subjective malice was relatively significant, the circumstances of the crime were malicious and involved resisting arrest and violence towards civil police, and in accordance with the law should be subjected to severe punishment is sustained.

The opinion proffered by defense counsel that defendant Yu Wensheng was able to truthfully state criminal facts at all stages from investigation and pre-prosecution examination through the trial, has been frank about the circumstances, and showed a good attitude in pleading guilty and repenting in court, and in accordance with the law he should be shown leniency, is established.

Based on the principle that the punishment should be proportional to the crime and a comprehensive consideration of the criminal facts, nature, circumstances, and the degree of harm to society in this case, in accordance with the provisions of Articles 105(2), 55(1), 56(1), 67(3), and 64 of the "Criminal Law of the People's Republic of China," the judgment is as follows:

1. Defendant Yu Wensheng committed the crime of inciting subversion of state power, and is sentenced to a fixed term imprisonment of four years and three years deprivation of political rights.

(The prison term is to be calculated starting on the day the judgment is executed, and each day in custody prior to the execution of the judgment shall count as one day of the prison term, that is from April 19, 2018 to March 1, 2022.)

2. The relevant items used in the commission of the crime seized in this case shall be confiscated in accordance with the law and turned over to the national treasury.

If any party does not accept this judgment, they may within 10 days after the second day after receiving this written judgment bring an appeal through this Court or directly to the High People's Court of Jiangsu. A written appeal should be submitted with one original and two copies of the appeal brief.

Chief Adjudicator        Qiu Xuefeng
Adjudicator            Liu Mingwei
Adjudicator            Sun Xi

June 17, 2020

Judge's Assistant        Li Tongda
Clerk                           Wang Yan 

江苏省徐州市中级人民法院


刑事判决书


(2019)苏03刑初20号


公诉机关江苏省徐州市人民检察院。


被告人余文生,男,1967年[INTENTIONALLY DELETED]生,居民身份证号码[INTENTIONALLY DELETED],汉族,本科文化,无业,住北京市石景山区[INTENTIONALLY DELETED],因涉嫌犯妨害公务罪,2018年1月20日被北京市公安局石景山分局刑事拘留;因涉嫌犯煽动颠覆国家政权罪,2018年1月24日被徐州市铜山区公安局刑事拘留,当月27日被该局指定居所监视居住;因涉嫌犯煽动颠覆国家政权罪,妨害公务罪,2018年4月19日经江苏省徐州市人民检察院批准逮捕,同日由徐州市公安局执行逮捕,现羁押于徐州市看守所。


辩护人赵强,江苏彭城律师事务所律师。


辩护人岳松,江苏乾隆律师事务所律师。


江苏省徐州市人民检察院以徐检诉刑诉[2019]10号起诉书指控被告人余文生犯煽动颠覆国家政权罪,向本院提起公诉。经最高人民法院指定管辖,本院2019年2月11日立案受理后,依法组成合议庭,于2019年5月9日公开开庭审理了本案,江苏省徐州市人民检察院指派副检察长鲍书华,检察员李清泉,荣辉出庭支持公诉,被告人余文生及其辩护人赵强,岳松到庭参加诉讼。审理期间,本案经江苏省高级人民法院、最高人民法院批准,依法延长审限,并经本院审判委员会研究,现已审理终结。
江苏省徐州市人民检察院指控:被告人余文生受反华势力渗透影响,逐渐形成颠覆我国国家政权,推翻社会主义制度的思想,2014年至2018年1月间,余文生通过“推特”“脸书”等途径在互联网发布攻击国家政权和社会主义制度的公开信;以“维权”为名,歪曲,捏造事实,插手,炒作国内敏感案事件;接受境外资助和采访,抹黑党和国家领导人,否定中国共产党的领导,诋毁政府和司法机关,诽谤法治倒退,人权恶化,煽动颠覆我国国家政权,推翻社会主义制度,具体事实分述如下:


一、2014年7月至2017年,被告人余文生在北京市道衡律师事务所执业期间,代理多起“法轮功”案件,余文生在明知“法轮功”为邪教组织的情况下,接受“新唐人”“希望之声”等境外媒体采访,公开否定“法轮功”的邪教性质,对其进行宣扬和美化,污蔑中国迫害“法轮功”。


二、2015年7月至2017年8月,被告人余文生在天津市司法机关依法办理律师王宇,王全璋等人涉嫌煽动颠覆国家政权案期间,捏造司法机关“违法”办案等虚假事实,通过“微信”“推特”“脸书”等途径发布,恶意诋毁我国司法机关。


三、2014年被告人余文生加入中国人权律师团微信群,2015、2016、2017年余文生以该微信群采访联系人的身份三次接受“自由亚洲”“新唐人”等境外媒体采访,妄称中国“毫无法律秩序法治倒退人权倒退”,歪曲我国法治现状。


四、2015年至2017年,被告人余文生通过“推特”和接受境外媒体采访,捏造自己被羁押在“死囚牢”的不实言论,攻击我国政府和司法机关。


五、2014年至2018年,被告人余文生多次接受“自由亚洲”“美国之音”等境外媒体的采访,抹黑政府形象,否定我国政治制度和法律制度。期间,余文生多次接受境外组织资助。


六、2017年10月18日下午,被告人余文生地的“余文生律师的公开信”,在“脸书”“推特”等境外网站上发布,诋毁党和国家领导人,否定党的领导。次日凌晨,余文生被北京市石景山区司法局约谈后删帖,2018年1月16日,余文生再次将该文在“脸书”“推特”上发布,2018年1月18日凌晨,余文生炮制“余文生关于建议修改宪法的公开信”,在“脸书”“推特”上发布,否定我国现有政权组织形式,否定党的领导和社会主义制度。


截至2018年2月1日,上述两篇文章被数百人转推点赞,被“参与网”“维权网“博讯网”等多家境外网站转起,传播。


为证明上述指控事实,公诉机关提供了被告人余文生发表的煽动颠覆国家政权的文章,接受境外资助的银行卡明细记录等书证,证人沙霖,陈敏、纪爱华等人的证言,被告人余文生的供述,江苏省公安厅物证鉴定中心出具的声纹鉴定意见,徐州市公安局出具的远程勘验、侦查实验等笔录,徐州市公安局提取的余文生接受境外媒体采访的视听资料,电子数据等证据。


江苏省徐州市人民检察院认为,被告人余文生以造谣,诽谤等方式在境内外煽动颠覆国家政权,推翻社会主义制度,其行为触犯了《中华人民共和国刑法》第一百零五条第二款的规定,应当以煽动颠覆国家政权罪追究其刑事责任,同时提出被告人余文生煽动颠覆国家政权主观恶性较大,犯罪情节恶劣、为抗拒抓捕又暴力致伤民警,依法应予严惩。


被告人余文生对指控的犯罪事实及罪名均不持异议,当庭认罪悔罪,请求从轻处罚。


辩护人提出的主要辩护意见是:余文生到案后如实供述了法犯罪事实,具有坦白情节;余文生归案后直至庭审认罪悔罪态度好。请求从轻处罚。


经审理查明,被告人余文生长期受反华势力渗透影响,逐渐形成颠覆我国国家政权,推翻社会主义制度的思想。2014年至2018年1月间,被告人余文生通过“推特”“脸书”等途径,在互联网发布攻击我国国家政权和社会主义制度的公开信;以“维权”为名,歪曲、捏造事实,炒作社会热点案事件;多次接受境外媒体采访,否定中国共产党的领导,诋毁我国政府和司法机关,诽谤我国法治倒退,人权恶化,意图挑起不明真相的人仇视我国现行政治制度,煽动颠覆我国国家政权,推翻社会主义制度。具体犯罪事实分述如下:


一、2014年7月至2017年,被告人余文生在明知“法轮功”系邪教组织的情況下,多次接受“新唐人”“希望之声”等境外媒体采访,公开否定“法轮功”邪教性质,公然宣扬和美化“法轮功”,诋毁国家法律政策,抹黑政府形象,妄图煽动颠覆我国国家政权。


上述事实,有公诉机关提交并经庭审举证、质证,本院予以确认的下列证据证实:


1.公安机关通过远程勘验调取的境外媒体“新唐人”2016年9月13日报道采访余文生的文章和音频、余文生签字确认的根据该音频整理的文字材料证明:余文生接受“新唐人”采访,称“当局对法轮功十七年来的打压是完全错误的,是政治迫害,现在公检法的行为是犯罪”。


2.公安机关通过远程勘验調取的境外媒体“希望之声”2016年12月15日报道采访余文生的文章和音频(题目为“多地无罪释放法轮功学员,迫害已穷途末路”),余文生签字确认的根据该音频整理的文字材料证明:余文生接受“希望之声”采访,针对“希望之声“称“有些人对法轮功还是继续打压”,余文生回应“公检法部门在法轮功问题上互相推透,是一件好事,毕竟有些人在觉醒”。


3.公安机关通过远程勘验取的境外媒体“新唐人2017年10月4日报道采访余文生的文章和音频(题目为“大陆民众恭祝李洪志大师和学员中秋快乐”),余文生签字确认的根据该音频整理的文字材料证明:余文生接受“新唐人”采访,称“法轮功群体是一个非常善良的群体,对社会只有益处,没有害处”。


4.被告人余文生供述:其接受“新唐人”“希望之声”采访时发表的相关言论实际上是否定“法轮功”的邪教性质,没有依据本实,是对中国法制的攻击,混淆视听,让更多的人对党和政府及中国法制产生不满,其通过境外媒体传播能煽动更多的人认为党和政府对“法轮功”的打压是错误的,进而攻击、抹黑党和政府。


二、2015年7月至2017年8月,被告人余文生在天津市司法机关依法办理王宇,王全璋等人涉嫌犯煽动颠覆国家政权罪一案期间,捏造“王宇被强迫失联,家人未收到任何法律文书”“公安机关大规模抓捕,恐吓律师,违法乱政”“司法机关违法阻止会见”等虚假事实,通过“推特”“脸书”等公开发布,诋毁我国司法机关,意图煽动不明真相人员产生不满和对抗,达到煽动颠覆我国国家政权的目的。


上述事实,有公诉机关提交并经庭审举证、质证,本院予以确认的下列证据证实:


1.公安机关通过远程勘验调取的余文生2015年8月1日,2017年3月6日在其“推特”账号上发表的关于寄发控告函的文章,2017年8月16日发表的关于关注王全璋律师的文章及配图,2017年7月29日在其“脸书”上发表的关于其律师职业年检及王全璋案件的文章证明:余文生为炒作王全璋等案,炮制控告函,称“公安部违法乱政,强迫中国公民失踪制造恐怖气氛,行反人类之恶行”,向多部门邮寄,并通过“推特”等传播。


2.公安机关通过远程勘验调取的境外网站“维权网”2015年7月19日刊登的《余文生,许艳夫妇:关于王宇律师被刑事扣留的声明》,从余文生电脑提取到该《声明》电子版,“维权网”2016年1月8日刊登的文章《709大抓捕当事人家属,律师前往天津河西看守所要求会见,撒案,放人》,“维权网”“新唐人”分别于2017年3月7日,8日对余文生就709案向21家单位寄发控告函进行的报造证明:余文生夫妇发表声明诬蔑中央电视台等媒体“未审先判”;余文生此王全璋案多家单位寄发控告信,并通过“维权网”“新唐人”等境外媒体炒作。


3.公安机关通过远程勘验调取的境外媒体“明镜电视法治台”2017年8月20日报道采访余文生的文章和音视频,余文生签字确认的根据该音视察整理的文字材料证明:余文生接受“明镜电视法治合”采访,称“控告他们反人类,实际上打向了709的反击战,真正的反击战等于是我开始的,我是第一人”。


4.被告人余文生供述:2015年7月19日,其与妻子许艳一起为王宇发声明,谴责中央电视台和新华网,说他们未审先判污名王宇律师等。2015年7月31日共向全国人大、国务院等邮寄控告信,控告公安部大规模抓捕,恐吓律师,公民,未审先判,违法乱政的反人类行为,并把控告的信息发送到“推特”网站,这些內容都是其歪曲事实,无中生有捏造的,目的是引起人民对公检法的不满。其接受“明镜电视法治台”采访,涉及到709王全璋案,还有对中国法制不满等内容。


三、2014年被告人余文生加入“中国人权律师团”微信群,2015至2017年余文生连续三年以该微信群采访联系人的身份,接受“自由亚洲电台”“新唐人”等境外媒体采访,多次妄称“中国现在毫无法律秩序,反人类的打压是面临的主要问题”“中国法制倒人权倒退人权在中国越来越恶化,侵犯人权事件越来越多”,歪曲我国法治现状,抹黑党和政府形象,否定社会主义建设取得的成果,意图源动推翻我国现行制度。


上述事实,有公诉机关提交并经庭审举证、质证,本院予以确认的下列证据证实:


1.公安机关通过远程勘验调取的境外媒体“自由亚洲电台”2015年9月13日报道采访余文生的文章和音频,余文生签字确认的根据该音频整理的文字材料证明:余文生接受采访时称“所面临的就是当局毫无法律秩序的,人类的打压”。


2.公安机关通过远程勘验调取的境外媒体“自由亚洲电台”2016年9月14日报道采访余文生的文章和音频、余文生签字确认的根据该音频整理的文字材料证明:余文生接受采访时称“中国的法治没有进步,而且越来越倒退”。


3.公安机关通过远程勘验调取的境外媒体“新唐人2017年9月14日报道采访余文生的文章和音频,余文生签字确认的根据该音频整理的文字材料证明:余文生接受采访时称:“当局是法治破坏者”。
4.民政部出具的《情况说明》证明:民政部未登记“中国人权律师团”“中国保障人权律师服务团”。


5.被告人余文生供述:大约2014年1月,其加入“中国人权律师团”微信群,就“中国人权律师团”因年献辞多次接受境外媒估采访,所发表的言论没有事实依据,是歪曲事实,造谣诽谤,攻击,抹黑政府。
四、2015年至2017年,被告人余文生故意捏造中国存在“死半”制度的虚假事实,通过“推特”和接受境外媒体采访的方式,发表其被羁押在“死囚牢”的不实言论,攻击抹黑政府和司法机关,意图煽动颠覆我国国家政权。


上述事实,有公诉机关提交并经庭审举证、质证,本院予以确认的下列证据证实:


1.公安机关通过远程勘验调取的境外媒体“明镜电视法治台”2017年8月20日报道采访余文生的音视频(题目为“无所律师余文生——在中国没有安全的地方”),余文生签字确认的根器该音视频整理的文字材料证明:余文生接受“明镜电视法治台”采访,称“我关死囚牢里61天,用的都是死囚用过的东西,只要进了死囚牢,任何人都屈服”。


2.公安机关通过远程勘验取的余文生“推特“账号个性签名证明:余文生将“死囚牢”作为其个性签名內容。


3.北京市第一看守所出具的《情况说明》证明:2014年余文生因涉嫌寻衅滋事被羁押在北京市第一看守所,该所未设立死刑犯专门羁押室。


4.被告人余文生供述:境外媒体多次对其进行采访,其编造“死囚牢”问题进行传播,攻击中国司法机关,煽动人民对党和政府不满,其是编造存在“死囚牢”,没有事实依据。


五、2014年至2018年,被告人余文生多次接受“自由亚洲电台”“美国之音”“新唐人”等境外媒体采访,在采访过程中以造谣、诽谤方式发表抹黑党和政府形象,否定我国政治制度和法律制度的言论,通过国际互联网传播达到煽动颠覆我国国家政权和社会主义制度的目的。期间,余文生多次接受“爱尔兰前线卫士”等组织的资助。


上述事实,有公诉机关提交并经庭审举证,质证,本院予以确认的下列证据证实:


1.公安机关通过远程勘验调取的境外媒体“自由亚洲电台“2016年9月26日报道采访余文生的文章和音频(题目为“司法部发文禁律师制造舆论压力,引发律界强烈反弹”)、余文生签字确认的根据该音频整理的文字材料证明:余文生接受“自由亚洲电台”采访,称“律师事务所管理办法像新的国安法,网络安全法,它们都属于恶法,是进一步打压人权律师”。


2.公安机关通过远程勘验调取的境外媒体“美国之音”2017年9月21日报道采访余文生的文章和音频(题目为“VOA连线余文生:北京两人权律所連查,对人权律师的新一波打压?"),余文生签字确认的根器读音類整理的文字材料,证人陈敏,彭妹的证言,书证北京市石景山区司法局、西城区司法局2017年检查记录证明:2017年北京市石景山区司法局、西城区司法局对北京莫少平律师事务所、道衡律师事务所等多家律所的行检查,余文生接受“美国之音”采访,称此次检查是对上述两律所的针对性打压,中国的人权状况继续恶化,法治继续恶化。


3.公安机关通过远程勘验调取的境外媒体“新唐人”“自由亚洲电台"2018年1月17日,18日分别报道采访余文生的文章和音频、余文生签字确认的根据上述音频整理的文字材料,书证北京市石景山区司法局关于注销余文生律师职业证的建议书,北京市司法局关于注销余文生律师毕业证书的决定证明:因过六个月未被律所聘用被依法注销律师执业证书后,余文生先后接受“新唐人”“自由亚洲电台”采访,称“律师证被注销只能证明这个政权是个流氓政权,我不会就此沉寂”“中国的政党没有经过法律登记,在法律上没有地位,所有政党都属于非法组织”。


4.书证由余文生签字确认的爱尔兰前线卫士申请资助确认单,余文生农行账户收自爱尔兰的西联汇款收汇单,从余文生笔记本电脑中提取的余文生代理朱瑛娣案获得香港维权律师关注組资助人民币2万元的“收条”,余文生用其SKYPE账号和小君VAL的聊天记录,余文生建行卡交易明细,许艳2016年至2017年出入境记录,余文生的供述证明:余文生多次接受“爱尔兰前线卫士”等组织的资助。


5.被告人余文生供述:其接受“自由亚洲电台”采访时提到国安法、慈善法,NGO方面的法律規定都是恶法,新的管理办法是对人权律师的打压,中国没有人权,这实际上是其对党和政府的抹黑,表达其对党和政府的不满;其还说中国所有的政党都是非法组织,是在否定中国现有的政党制度。其接受“美国之音”采访时称十九大之前会对律师事务所进行整肃,十九大之后人权不会有什么进步,其接受“新唐人”采访称其律师证被注销是当局打压的一种方式,只能证明这个政权是个流氓政权。


六、2017年10月18日下午,被告人余文生炮制“余文生律师的公开信”,诋毁我国党和国家领导人,否定党的领导,分别在“脸书”“推特”上发布,2018年1月16日,余文生再次将该文在“脸书”“推特”上发布,2018年1月18日凌晨,余文生炮制“余文生关于建议修改宪法的公开信”,否定我国现有政权组织形式,否定党的领导和社会主义根本制度,分别在“脸书”“推特”上发布,截至2018年2月1日,上述两篇文章被数百人转推点赞,被“参与网维权网“博讯网”等多家境外网站转载、传播。


上述事实,有公诉机关提交并经庭审举证、质证,本荒予以确认的下列证据证实:


1.公安机关通过远程勘验调取的余文生2018年1月16日分别在其“推特“脸书”账号上发表的题为“余文生律师的公开信”的文章、余文生2018年1月18日分别在“推特”“脸书”账号上发表的题为“余文生关于建议修改宪法的公开信”的文章,“维权网”“博讯网”“参与网”等10余个境外网站对两篇公开信的报道证明:余文生通过“推特”“脸书”发表两篇公开信,境外多家网站行转载报道。


2.公安机关对余文生的两部笔记本电脑进行电子证据检查记录,“推特“脸书”账号注册使用侦查实验证明:发表煽动颠覆言论的“推特”“脸书”账号系余文生本人使用。


3.证人北京市石景山区司法局工作人员高维华,纪爱华、陈敏、沙霖,北京市公安局石景山分局民警凯、王伟的证言,北京市石景山区司法局约谈余文生的录音录像,笔录和余文生承诺书证明:2017年10月18日晚,余文生被北京市石景山区司法局约谈,承认发表上述公开信。


4.被告人余文生供述:2017年10月18日下午两点钟左右,其在家中用手机编辑了“余文生律师的公开信”一文,并用翻墙软件把文章发布到“脸书”“推特”上,其在文章中写到十八大以来冤狱横生,贪腐横行,这是对中国建党97年历史和建政68年历史的否定,是一种无中生有;列举的雷阳事件,庆安事件,镇压新公民等事件都是歪曲事实,目的是否定中国现有的体制,抹黑党和政府,关于修宪的文章其是在“脸书”“推特”上发布的,其建议修宪的目的是否定中国共产党的领导,否定中国共产党领导下的多党合作制度、否定党对军队的领导,否定中国的选举制度。


为证明指控的犯罪事实,公诉机关向法庭提交了被告人余文生关于煽动颠覆国家政权主观故意的供述,余文生自书悔过书以及远程勘验笔录,电子证据检查笔录,声音同一性鉴定意见,发破案经过说明,抓获余文生的录音录像资料,证人刘洋,樊京生等执法民警的证言,搜查笔录,扣押清单,常住人口信息查询表、证明材料等综合证据,均经庭审举证,质证,其证明效力本院予以确认。


本院认为,被告人余文生以造谣,诽谤等方式煽动颠覆国家政权,推翻社会主义制度,其行为已构成煽动颠覆国家政权罪,徐州市人民检察院指控被告人余文生犯煽动颠覆国家政权罪的事实清楚,证据确实、充分,指控罪名成立。公诉机关提出被告人余文生煽动颠覆国家政权主观恶性较大,犯罪情节恶劣,为规范抓捕又暴力致伤民警,依法应予严惩的意见成立;辩护人提出被告人余文生从侦查,审查起诉到审判各阶段均能够如实供述犯罪事实,具有坦白情节,当庭认罪悔罪态度好,依法从轻处罚的意见成立。根据罪责刑相适应原则,综合考虑本案犯罪事实、性质、情节以及对于社会的危害程度,依照《中华人民共和国刑法》第一百零五条第二款、第五十五条第一款、第五十六条第一款、第六十七条第三款、第六十四条之规定,判决如下:


一、被告人余文生犯煽动颠覆国家政权罪,判处有期徒刑四年,剥夺政治权利三年。
(刑期从判决执行之日起计算,判决执行以前先行羁押的,羁押一日折抵刑期一日;指定居所监视居住的,监视居住二日折抵刑期一日,即自2018年4月19日起至2022年3月1日止。)


二、扣押在案的供犯罪所用的相关财物依法予以没收,上缴国库。
如不服本判决,可在接到判决书的第二日起十日內,通过本院或者直接向江苏省高级人民法院提出上诉。书面上诉的,应当提交上诉状正本一份,副本二份。


审判长        邱学锋
审判员        刘明伟
审判员        孙析


二0二0年六月十七日


本件与原本核对无异


法官助理    李通达
书记员        汪艳

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...