Xu Zhiyong's Girlfriend Li Qiaochu Indicted (Full Translation)

Xu Zhiyong (许志永) was a lecturer at the Beijing University of Post and Telecommunications, a civil rights lawyer, and one of the founders of the civil society groups Open Constitution Initiative ("Gong Meng" 公盟) and the Chinese New Citizens' Movement (中国新公民运动). In the August 2009 edition of China's Esquire Magazine (时尚先生) Xu said:

I hope that our country can be a free and happy one. No person need betray their conscience. Everyone needs only rely on their talent and character to find their position in life. A simple and happy society, where the goodness of humanity may find its apex, and its malice finds its nadir, where honesty, trust, kindness, and helping one another becomes commonplace, where there is not so much anger and anxiety, and there is a pure smile on every face.

我希望我们是个自由、幸福的国家。每个人不需要违背良心，只要靠自己的才能和品德就可以找到合适的位置；一个简单而幸福的社会，人性的善得到最大的张扬，恶得到最大的抑制；诚实、信用、友爱、互助将成为我们生活的常态，没有那么多烦恼和愤怒，每一个人脸上是纯真的笑容。

Soucre: "Mr. Fashion"  [时尚先生] official blog, archived at https://web.archive.org/web/20090809125245/http://blog.sina.com.cn/s/blog_47404fc70100efcv.html

In 2014, Xu was imprisoned for organizing small scale demonstrations to draw attention to the lack of educational opportunities for the children of migrant workers. This blog covered the censorship surrounding his detention, trial, and conviction:

• China's State Media Talks About Xu Zhiyong, While China's Social Media Bans Discussion
• As Two More New Citizens Movement Participants Are Convicted, Baidu and Sina Begin Censoring "New Citizens Movement" 
• Baidu Censors Results for Xu Zhiyong's Closing Statement to the Court 
• Xu Zhiyong Sentenced to 4 Years Imprisonment - A Chronicle of Recent Related Censorship 
• After Lawyer Xu Zhiyong is Detained His Baidu Encyclopedia Entry Disappears 
• Xu Zhiyong Detained (Again), China's Web Sites Censor It (Again)
• After Court Affirms Xu Zhiyong’s Conviction, New Citizens Movement Web Site Disappears From Baidu Search Results
  

A full translation of the court judgment in Xu's case can be found in "State Prosecutions of Speech in the People's Republic of China: Cases Illustrating the Application of National Security and Public Order Laws to Political and Religious Expression" (中華人民共和國政府對言論的訴追：有關國家安全及公共秩序相關法律適用於政治及宗教言論的案例彙編). Available for free download here: https://www.feichangdao.com/publications/state-prosecutions-vol-1.

Xu was released on July 15, 2017 following completion of his sentence.

On January 1, 2020, Xu published an article on his website titled "Change — A 2020 New Year’s Message" (改变 — 2020新年献词). Some excerpts:

Enter 2020 in the march of history: another wave of crackdown against civil society is sweeping across China: NGO worker Cheng Yuan (程渊) in Changsha has been arrested; Pastor Wang Yi (王怡) in Chengdu was handed a heavy nine-year prison sentence; the last few days have seen the detentions of Ding Jiaxi (丁家喜), Zhang Zhongshun (张忠顺), Dai Zhenya (戴振亚), Li Yingjun (李英俊), Huang Zhiqiang (黄志强).

Where is China heading? Can it sail through the historical gorges and move towards the broadway of modern civilization without upheaval? What choice is each Chinese going to make? Do we struggle in the quagmire of dictatorship, or rise to the call of a constitutional democracy? I ask each and every member of the Communist Party and each and every citizen to weigh an answer.
. . . .
What is the “China Dream”? What is the real intention behind its semantic mimicry of the dream of freedom that every American cherishes? Under its pretty appearance is disregard for institutions, values, and culture. The number of “Confidences” has grown from three to four, but is it real confidence? Its guiding ideology is nothing but bogus socialism. Its one-party system distorts the market and impedes economic development. Its path, defined by thirty years of class struggle and thirty years of economic development, is a self-contradiction. As for its culture, it embraces Marxism-Leninism, while thoroughly smashing the Confucian tradition and pillaging the Chinese civilization.

Personnel: Xi Jinping has chosen nepotism over talent, personal loyalty over integrity. His government endeavored to drive the “low-end” people out of the capital to the anger of hundreds and thousands of people; it tried to “clean” the cityscape by using force to remove signs of businesses, and was met with all-around condemnation. Without any sense of shame, his administration penned articles denouncing constitutionalism and beating the drum for one-man rule. No theory and no talent, he believes in the personal cult of himself. China has no shortage of capable men and women, how can he possibly enjoy popular support with such a narrow mindset?

程渊等被捕，王怡被重判，丁家喜、张忠顺、戴振亚、李英俊、黄志强等被抓捕，公民社会再次遭遇打压之际，历史迎来2020年。

中国向何处去？能否顺利走出历史的三峡，走向现代文明康庄大道？我们每个中国人要做出什么样的选择？继续在专制深渊中挣扎，还是奋起直追民主宪政现代文明？ 请每一个共产党员，每一个公民认真回答。
. . . .
中国梦，美国每个国民的自由梦，到了中国什么内容？美丽中国，只顾外表，不讲制度不讲价值不讲文化。自信三个变四个。真自信吗？理论，歪曲了本来的社会主义。制度，一党专制扭曲市场阻碍经济发展。道路，前三十年阶级斗争后三十年经济建设，前后互不否定？文化，砸烂孔庙浩劫中华文明，认西方马列为祖宗。

用人。之江新军，小兄小弟，无问才能品德，只顾个人效忠。驱逐低端，天怒人怨，天际线运动，蛇尾而终。公然撰文反对宪政，鼓吹定于一尊。无理论无才能，偏执大树个人崇拜。神州大地人才济济，如此格局胸怀怎能服众？

Translation: https://chinachange.org/2020/01/01/change-a-2020-new-years-message/
Chinese Original: https://cmcn.blog/2020/02/10/%e6%94%b9%e5%8f%98-2020%e6%96%b0%e5%b9%b4%e7%8c%ae%e8%af%8d/

Censorship began immediately. The screenshot on the left below was taken on January 2, 2020, and shows that a search for "Xu Zhiyong" returned over 230,000 results, including results from social media (blogchina.com, Sina Weibo) and foreign (canadainternational.gc.ca) websites. The screenshot on the right below was taken on January 3, 2020, and shows the same search on Baidu returns 84 results, all from about 10 websites operated by the central government.

On February 4, 2020, Xu Zhiyong published an open letter to Xi Jinping on his website (cmcn.blog) dated January 20 entitled "A Written Admonishment Urging Retirement" (劝退书). Xu signed the letter "written while on the run." Some excerpts:

China is not the land of peace, prosperity, self-congratulation, and rapid advancement that you imagine it to be in your dreams. I’m deeply concerned about our nation’s future; I am afraid that a system that is so tightly wound up is a dangerously brittle one; and, I’m worried that there is no meaningful or substantive form of civil society that can deal with the situation. For long years now, it has been evident that the responsible citizens of this country are builders. I only hope that the celebrated “inner Party democracy” you Communists talk about has not entirely disappeared. I hope that there is still some room for meaningful change [within the system], change that will give civil society a chance to evolve.

[Early in your tenure] you bemoaned the fact that the Soviet Union collapsed because no “True Man” stood up to protect the system. But how can you expect there to be a “True Man” when you, The Revered One, sits at the pinnacle with millions fawning at the foot of your throne? Autocracy encourages sycophants to crowd around the Emperor, but this particular Emperor’s new clothes are on full display for all to see. Yet, even now, the people of China dare not “comment inappropriately” about what is in front of them. Well, I’m like that kid who blurted out the truth—the Emperor has no clothes!

Sometimes I look up at the star-filled sky and ask myself: Who am I and why am I here? Have you ever asked yourself such questions? Occasionally, when I find myself at some vantage point, I look down at the world spread out below and think to myself: I am but a speck of dust. Have you ever done that? Life is so short, why delude yourself and cleave to folly? Have you ever stopped to ponder such things?

The Great Way is one that allows all to share in the bounty of the world. How can the Mountains and Rivers only be of one color—red? [Note: “Mountains and Rivers” is a poetic term for the geopolitical realm of China.] The roiling tides of the world are irresistible, why strain so strenuously and fight against them? Soon you’ll reach the end of your second [five-year] term in office. I submit that it is high time that you called it quits and just stay at home.

中国不是您梦中的高歌猛进，太平盛世。我为中国的未来深切忧虑，担心这越来越绷紧的体制突然脆断而公民社会尚没准备好。负责任的公民，我们是建设者，多年一直如此。希望贵党多年自诩的党内民主还没有彻底死去，还有点改良空间，也给公民社会多一点成长时间。

您慨叹苏共结束时，竟无一人是男儿。一尊高高在上，万人匍匐在地，专制体制决定了，皇帝身边云集奴才屁精，怎会有堂堂男儿？皇帝新装大游行，国民莫敢妄议。现在，我是那个说出真话的孩子。

有时仰望星空，我是谁，为什么来到这世上？您叩问过吗？有时站高处回望尘世间，渺如尘埃的自己。您回望过吗？生命如此匆匆，何苦执迷，何苦虚妄？您沉思过吗？

大道之行，天下为公，何来江山一色？世界潮流，浩浩荡荡，何苦逆流而动？两届期满，归家休息吧。

Translation: Geremie R. Barmé, https://www.chinafile.com/reporting-opinion/viewpoint/dear-chairman-xi-its-time-you-go
Chinese Original: https://cmcn.blog/2020/02/04/%e5%8a%9d%e9%80%80%e4%b9%a6/

On February 15, 2020, Beijing Public Security Bureau authorities took Xu into criminal detention on suspicion of inciting subversion of state power. On August 5, 2021, Xu was indicted for committing the crime of subverting state power. According the indictment:

In September 2017, defendant Xu Zhiyong directed his girlfriend Li Qiaochu (dealt with in a separate case) to establish a personal blog for Xu Zhiyong and arranged for Li to disseminate a large quantity of Xu Zhiyong’s inciting articles that promote ideas of subverting state power.

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。

Translation: https://chinachange.org/2021/10/06/indictment-of-citizens-movement-advocate-xu-zhiyong-a-full-translation/

On March 19, 2022 former Beijing-based civil rights lawyer Wang Yu (王宇) posted the following on her Twitter account:

Li Qiao has been indicted!

A kind young woman, because she was "deeply influenced by her lover's thoughts," "set up a personal website for him" and "uploaded her lover's articles" – can this serve as the basis for a conviction? Let alone for the crime of inciting subversion of state power!

This is naked conviction for  thoughts and words!

I'm speechless!

I just want to ask the prosecutors: Where are your professional ethics as persons of the law?

李翘楚被起诉！

一个善良的女孩，因为“深受恋人的思想的影响”“为他搭建了个人网站”“上传了他恋人的文章”——这能定罪吗？更别说是什么煽动颠覆国家政权罪！

这就是赤裸裸的以思想和言论定罪！

我已经无语了！

我就想问问检察官：你们的法律人的职业操守都哪里去了！

Source: https://twitter.com/wangyulawyer/status/1504986213933264898

Li Qiaochu. Source: Cmcn.blog.

Wang's post included images of the indictment, which is translated below.

People's Procuratorate of Linyi, Shandong

Indictment

Lin Procuratorate First Division Criminal Indictment (2022) No. 21

Defendant Li Qiaochu, female, born on January 13, 1991, ID number [OMITTED IN ORIGINAL], Han nationality, masters student education, from Yining, Xinjiang Uyghur Autonomous Region, unemployed, household registration and residence at [OMITTED IN ORIGINAL] Beijing,. On February 16, 2020 she was placed under residential confinement at a designated location at a location designated by the Public Security Bureau of Haidian, Beijing, and was released on bail pending trial on June 19 of the same year. On January 18, 2021, the Public Security Bureau of Haidian, Beijing, transferred the case to the Public Security Bureau of Linyi in accordance with the law. On February 6 of the same year, she was criminally detained by the Public Security Bureau of Linyi. With the approval of our office, her arrest was executed on March 14 of the same year.

The Public Security Bureau of Linyi concluded the investigation of the case, and defendant Li Qiaochu was transferred to this office for prosecution on August 13, 2021 on suspicion of inciting subversion of state power. After accepting the case, the office informed the defendant of the relevant legal provisions regarding her right to appoint defense counsel and to plead guilty and accept punishment, interrogated the defendant in accordance with the law, heard the opinions of the defense counsel, and reviewed all the case materials. On September 28 and December 13, 2021, this office returned the case to the investigation agency for supplementary investigation, and the investigation agency completed the supplementary investigations on October 28, 2021 and January 13, 2022, respectively, and transferred the case for prosecution. On September 14 and  November 29, 2021, and February 14, 2022, the court extended the review and prosecution period for 15 days.

An examination by this office ascertained:

Defendant Li Qiaochu and Xu Zhiyong (being handled in a separate case) were lovers, and she was deeply influenced by Xu Zhiyong's ideology of subverting state power. In September 2019, under the instruction of Xu Zhiyong, defendant Li Qiaochu set up a personal blog for Xu Zhiyong (with the domain name cmcn.home.blog, later changed to cncn.blog), uploaded a large number of articles written by Xu Zhiyong that subverted state power, and promoted the idea of subverting state power.

Evidence determining the aforementioned facts is as follows:

1. Physical evidence: laptop computer, U disk, etc.;

2. Documentary evidence: Case Registration Form, household registration information, etc.;

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

4. Defendant's confession and defense: Defendant Li Qiaochu's confession and defense;

5. Appraisal opinion: judicial appraisal opinion, etc.;

6. Inquiry, inspection, and identification records: remote inspection records, inspection records, identification records, etc.;

7. Electronic data.

This office believes that defendant Li Qiaochu incited to subvert state power and overthrow the socialist system, and her actions were the commission of an offense under the provisions of Article 105(2) of the "Criminal Law of the People's Republic of China." The criminal facts were clear and the evidence was reliable and copious, and she should be held criminally liable for the crime of inciting subversion of state power. This public prosecution is filed accordance with the provisions of Article 176 of the "Criminal Procedure Law of the People's Republic of China," and requests that she be sentenced in accordance with the law.

Respectfully,

Intermediate People's Court of Linyi, Shandong

Procurators     Tan Changzhi
                        Li Tao
                        Lu Xiaowei

Procurators' Assistant    Zhang Qingsong

February 28, 2022

Attachments:

1. Defendant Li Qiaochu is currently detained in Linyi City Detention Center, Shandong;
2. 20 volumes of case file materials.

山东省临沂市人民检察院
起诉书
临检一部刑诉(2022)21号

被告人李翘楚,女,1991年1月13日出生,公民身份号码[OMITTED IN ORIGINAL],汉族,硕士研究生文化,新疆维吾尔自治区伊宁市人,无业,户籍地、住所地[OMITTED IN ORIGINAL]。北京市因涉嫌煽动颠覆国家政权罪,于2020年2月16日被北京市公安局海淀分局指定居所监视居住,同年6月19日被取保候审。2021年1月18日因本案由北京市公安局海淀分局依法移送山东省临沂市公安局办理,同年2月6日被临沂市公安局刑事拘留,经我院批准,同年3月14日被执行逮捕。

本案由临沂市公安局侦查终结,以被告人李超楚涉嫌煽动颠覆国家政权罪,于2021年8月13日向本院移送起诉。本院受理后,于当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9月28日、12月13日将案件退回侦查机关补充侦查,侦查机关分别于2021年10月28日、2022年1月13日补充侦查完毕移送起诉。本院分别2021年9月14日、11月29日、2022年2月14日各延长审查起诉期限15日。

经依法审查查明:

被告人李翘楚与许志永(另案处理)系恋人关系,深受许志永颠覆国家政权思想影响。2019年9月,被告人李超楚在许志永的指使下,为许志永搭建个人博客(域名cmcn.home.blog,后更改为cncn.blog),上传许志永撰写的大量颠覆国家政权文章,宣扬颠覆国家政权思想。

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:受案登记表、戶籍信息等;3.证人证言:证人张忠顺等人的证言;4.被告人供述和辩解:被告人李翘楚的供述和辩解;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.电子数据。

本院认为,被告人李翘楚煽动颠覆国家政权、推翻社会主义制度,其行为触犯了《中华人民共和国刑法》第一百零五条第二封之规定,犯罪事实清楚,证据确实、充分,应当以煽动颠覆国家政权罪追究其刑事责任。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
                    陆晓炜

检察官助理张庆松

2022年2月28日

附:

1.被告人李翘楚现羁押于山东省临沂市看守所;
2.案卷材料20册。

Wu Gan's Self-Defense and Examples of His "Subversive" Writings

In the pantheon of China's early 21st century activist community, Wu Gan (吴淦) certainly ranks as amongst the most colorful. He dubbed himself the "super-vulgar butcher" (超级低俗屠夫) and described his protest activities as "performance art." 

Photo of Wu Gan shooting a "leg gun" from his Instagram account. For context, see p. 210 of "State Trials of Speech in the PRC."

 

Additional background on Wu Gan's case can be found on this blog:

•  Wu Gan Jailed for Insulting Judge, Baidu and Sina Weibo Censor Search Results for "Wu Gan"
• Chinese Police "Smash" "Criminal Gang" of "Rights Defense" Lawyers For "Hyping"
  
• After Arrest of "Rights Defense" Activist Wu Gan, State Media Launches Smear Campaign

On December 21, 2017, Wu Gan was sentenced to eight years imprisonment for committing the crime of subversion of state power. 

Below is translation of a document that was posted online on August 9, shortly before his trial commenced on August 14, purporting to be his statement in self-defense. The original Chinese version can be found at the end of this blog post.

Wu Gan: Statement Before Trial

The rights of speech, publication, religious belief, procession, assembly, supervision of the government and officials, and expression of dissatisfaction are all human rights endowed by nature. In addition, the "Constitution" (assuming it's real), grants and guarantees civil rights. Furthermore, these are universal values recognized and followed by all countries in the world. If someone is convicted for exercising these rights, it will be a disgrace to this country and this era, and it will surely be ridiculed and spurned by the world. To ask a person to defend whether or not they are guilty of exercising these rights is, I think, an insult to any normal person.

In mainland China, if one's ideology and beliefs do not comport with those in power, it is easy to end up persecuted by getting framed through "trumped-up" charges. Since the establishment of the Communist Party of China in 1949, during the Cultural Revolution and previous political campaigns, intellectuals, the 1989 and 1990s, democrats, Falun Gong practitioners, etc. have been persecuted. In recent years, citizens and human rights lawyers have been persecuted for defending their legitimate rights, and thousands of innocent people who have been retaliated against. Who among them is guilty? For decades it has been old wine in new bottles, and the essential nature has not changed.

The accusations they made against me have all been publicly visible over the past few years. They are nothing more than some remarks, writing the Three Classics, solidarity and assistance for innocent victims, and exposés and performance art expression targeting public power and government officials run amok. These are the legitimate rights of a citizen. At the same time, these civil rights should be defended by everyone.

I will be convicted, not because I am really guilty, but because I refuse to accept a government appointed lawyer, because I will not plead guilty and cooperate with the media propaganda, because I insist upon exposing their torture, abuse, and other atrocities against me; because I expose the procuratorate's cover-ups and derelictions of duty.

The task force once told me that in this case the leadership is calling the tune, and the procuratorate and the judiciary are just going through the motions. I will not defend what I have said or done under circumstances where I know that the trial is merely a farcical performance where I will be found guilty. The innocent need not defend themselves.

In addition, a trial is meaningless when the police procedures employed various illegal procedures, torture, abuse, embezzling my property, forcing me to accept their questions, and forcing me to give up my right to hire a lawyer, and none of these illegal acts were investigated and dealt with.

I know there will be a heavy sentence, but I will never regret what I did and the choices I made today. I only feel guilt and remorse at having involved my family and have done too little. The voice and support of the people, and the persistence and dedication of the lawyers are the best "verdict" for me. Right and wrong will not be reversed, and justice will eventually triumph over evil. The wheel of history rolls forward and will not stop when some people try to block it. Those who try to obstruct the progress of human civilization will eventually be nailed to history's pillar of shame.

Under the brutal rule of "The Great, The Glorious, The Correct,"1 it is embarrassing not to be "criminalized." If we don't keep getting "criminalized" we'll all grow old. It is a great honor for me to be convicted of subverting the CCP regime. On the journey to fight for democracy and freedom and defend the rights of citizens, a guilty verdict from an autocratic dictatorship is a golden trophy awarded to a fighter for democracy and freedom.

I refuse to make a defense, and merely take this opportunity to thank you for this award! Thank you!

Declarant: Wu Gan

[Month and Date Missing from Source Material], 2017  

Wu Gan's Pre-Trial Statement

 

In the judgment (see "State Trials of Speech in the PRC" pp. 192-229) the court cited 13 examples of Wu Gan's conduct that it determined formed the basis of his subversion. The first example the court gave in the judgment was "Utilizing Information Networks to Attack the State Regime and the Socialist System." (see State Trials of Speech in the PRC" pp. 197-200) According to the court "part of the content that Wu Gan posted on his Twitter account was: "The Butcher's Three Classics: 1: The Classic on Butchering Pigs for Petitioners. 2: The Classic on Drinking Tea. 3: The Classic on Petitioning Against Forced Demolitions and Land Appropriations." The court found that his publication of Three Classics were not protected speech under the PRC's Constitution:

Our country's Constitution grants citizens freedom of speech and the rights to criticize, suggest, and bring suit against State agencies and their staff. At the same time, it stipulates that when exercising their rights and freedoms citizens shall not harm the national, social, or collective interests and other legal freedoms of citizens. Wu Gan published articles and statements such as "Three Great Classics" on information networks that sensationalized hot-button case incidents, took advantage of issues to amplify contradictions, and fabricated rumors and distorted facts. This not only severely harmed the reputation of others, it also seriously disrupted social order and severely endangered state security. What purported to be reflecting complaints and demands was in reality subversion of state power that exceeded the legal limit of the legitimate exercise of rights and freedoms, and was the commission of an offense under relevant provisions of the criminal law.

Below is translation of "The Classic on 'Drinking Tea'" that Wu Gan posted on his Instagram on July 9, 2014. The original Chinese version can be found at the end of this blog post.

The Classic on "Drinking Tea"

Wu Gan

In a nation without democracy and freedom, "drinking tea" is the only way to truly become a citizen. "Drinking tea" usually refers to being interviewed by public security or state security officials because of your speech or your civic actions. In fact, most of the time there is no tea to drink, not even plain boiled water. I believe it is necessary to overcome the fear of "drinking tea," and learn to how to handle dealings with the machinery of dictatorship. After my initial experience of terror at "drinking tea," I have subsequently grown accustomed to it. Of course, this "Classic on Tea Drinking" is merely my personal opinion, and I am just sharing my experience with everyone who will be "drinking tea." The situation will vary depending on the person and the environment.

When "drinking tea" one is usually faced with two types of people, the State Defense Department of the Public Security Bureau (domestic security defense) and the Security Office of the State Security Bureau. One will be "invited to tea" by the Security Office only if matters are related to foreign countries, while the State Defense Department is responsible for domestic affairs. State Defense is the one generally making an appearance, while the Security Office remains relatively low-key and rarely makes an appearance. Because they are human beings, they are also divided into several categories, but they are all people who perform the tasks of the machinery of dictatorship, so they can be mainly divided into 3 categories:

1. Brutal Type: This kind of person is of low quality and generally has psychological problems. He regards power as a tool of violence, has no humanity, and enjoys persecution and violence. He proves his authority and existence by deriving pleasure and satisfaction from perpetrating evil and violence.

2. Understanding Type: This person knows that what they are doing is disgraceful work, and also clearly understands the nature of the machinery of dictatorship. He understands that the regime has no future, and so he will not take the initiative to commit violence and evil. He takes his job as a way to earn a living, and undertakes those duties that are required of him.

3. Mechanical Type: This person has been deeply brainwashed, and their thinking conforms to the machinery of dictatorship. He treats what is wrong as what is right, and believes he is doing a very honorable job.

"Drinking tea" usually involves them coming to you or letting you go to them. Usually, it mostly means a warning. They uses warnings, instilling fear, and creating burdens to make you retreat and give up fighting for civil rights. They will also teach you political lessons, imbuing viewpoints that they think are correct, such as:

• "You have a good life, why do you care about those things?"

• "Now that the country has been making progress, you must also believe in the government and the Party. In the reform process, there will be such and such problems, It's normal, I believe the Party can solve it."

• "So-and-so is a hostile element, a bad person, you have to be vigilant and don't associate with him."

• "There is a deep water behind the so-and-so incident, and there are foreign forces involved, you have to be careful not to be used. ."

• "If you don't obey, we'll be welcome next time."

• "You have to think more about your family."

"Drinking tea" sometimes involves taking notes, investigations of the ins and outs of a certain event, and occasionally and demand for asks for a Letter of Assurance.

The foregoing are the types of people one must face when "drinking tea," as well as the main content of "drinking tea." What follows is my discussion about what to pay attention to when "drinking tea."

Since you can't escape the machinery of dictatorship, you can only choose to dance with wolves, so "drinking tea" sometimes requires wisdom and preparation. Before becoming a true citizen, you must do the following three things before "drinking tea":

1. Confirm that you can bear the consequences for what you have done, and whether you are prepared to be harassed and intimidated, be placed under house arrest, be "invited to tea," be re-educated through labor, or even be sentenced to prison.

2. When you fight for civil rights, you must act honorably, openly, and justly.

3. Have you prepared for the loss of of your freedom with information release channels, lawyers' assistance, family members and outside contact information, etc., because often you will be taken away and locked up after "drinking tea."

Points to note when "drinking tea":

1. Be neither humble nor arrogant, don't let your terror and fear show, and try not to be deceived and provoked in the face of violence or insults.

2. When you are asked something, only discuss your own part, try not to talk about others, try to pretend to be confused. The best way to plead your case is to say "I can't remember," "I forget", "I don't understand", and "I don't follow."

3. Tell them that what you are doing is upright, honorable, and just, and that you have made various arrangements.

4. Do your utmost not to have personal grievances with them, and tell them clearly that if you decide to something, you will bear the consequences yourself. Also ask them not to turn public affairs into personal animus. The spirit of contract remains a necessity.

5. Do your utmost not to insult their person, try not to be antagonistic, and try not to humiliate the people you deal with on the Internet unless they humiliate you.

6. If an individual holds a personal grudge, it is recommended to investigate them privately. As you well know, I personally have no objection to exacting justice and revenge through original blood relatives.

7. Under no circumstances believe their words, let alone try to persuade them. Never believe that there is anything they won't do.

8. Whether or not to write a Letter of Assurance is dependent on your own situation. Sometimes you can write one in order to end an unnecessary entanglement,. The Letter of Assurance is generally used by them show their leadership that they have completed a task. The Letter of Assurance you write when you are under duress does not bind you, and there is no need to abide by it.

9. When getting involved in public affairs it is best to do so from an external location in order to avoid unnecessary troubles caused by local interests.

10. They will sometimes find your employer, family, and friends to create pressure and put burdens in your lap. Dealing with this kind of burden is the most difficult, but also the most necessary. So try to let the people around you know what you're doing. Let them know you're doing the right thing, not something shady. It is difficult to get their support, but by striving for their understanding and respect it can reduce stress and misunderstandings.

On the road to becoming a citizen, you are either "drinking tea" or on the way to "drinking tea." When everyone no longer fears "drinking tea," but regards "drinking tea" as a kind of honor, then society will progress.

Example No. Seven in the court judgment was "Sensationalizing the Case of Yu Shiwen and Others Disturbing the Peace" (see State Trials of Speech in the PRC" pp. 209-211), which involved Wu Gan traveling to the city of Zhengzhou to protest the detention of Yu Shiwen (于世文) and several others (referred to online collectively as the "Ten Gentlemen") who had themselves been in Zhengzhou protesting the wrongful convictions of four individuals for murder (the four would indeed eventually be exonerated by a PRC court, see Killer Linked with Notorious Jiangxi Murder gets Death Penalty, China Daily). One of the targets of Wu Gan's "performance art" was Huang Baowei (黄保卫), who testified that while he was serving as the Director of the Public Security Bureau of Zhengzhou, Wu Gan "denigrated and cast aspersions about him on the Internet for no reason. He successively produced 'citations' on the Internet, and mobilized Internet users to engage in the 'performance art' of shooting leg guns at [him]." 

Below is translation of a "citation" that Wu Gan posted on his Instagram on July 9, 2014. The original Chinese version can be found at the end of this blog post.

Instagram Text: Seeing the warriors from all walks of life who came to support the ten gentlemen, I admire their bravery and determination! They are ready to be here. If the ten gentlemen are not freed, they will not give up. This time, I mainly commend the leaders of the Zhengzhou Public Security Bureau. One of the citations:

CITATION

Zhengzhou Public Security Bureau [TEXT OBSCURED IN ORIGINAL]

In view of the outstanding performance of you and your bureau in protecting the Zhengzhou Royal No. 1 Club, I hereby confer upon you the honorary title of "Guardian of the Dark Evil Forces of the Universe." I hope you will continue to work hard and continue to escort the evil forces in Zhengzhou and generate more income and protection fees.

Pig Slaughtering Office of the Super Vulgar Butcher 

July 10, 2014

Wu Gan's Citation for Huang Baowei as posted on Wu Gan's Instagram account.

Coincidentally, on May 7, 2020, the website of the Supreme People's Procuratorate published an article titled "Henan Procuratorate Prosecutes Huang Baowei's Suspected Bribery and Corruption Cases" (河南检察机关依法对黄保卫涉嫌受贿、贪污案提起公诉). According to that article:

A few days ago, the People's Procuratorate of Anyang filed a public prosecution with the Intermediate People's Court of Anyang in accordance with the law regarding the case of former Party Secretary and Chairman of the Zhengzhou Municipal Political Consultative Conference in Henan, Huang Baowei (at the department level), being suspected of bribery and corruption.
During the review and prosecution stage, the procuratorate informed defendant Huang Baowei of his procedural rights, interrogated the defendant in accordance with the law, and heard the opinions of defense counsel. The People's Procuratorate of Anyang charged:

Defendant Huang Baowei took advantage of his positions as Secretary and Director of the Party Committee of Public Security Bureau of Sanmenxia, Secretary and Director of the Party Committee of the Public Security Bureau of Zhengzhou, Member of the Standing Committee of the CPC Zhengzhou Municipal Committee, and Secretary of the Political and Legal Committee of the Communist Party of China, to seek benefits for others, ask for and illegally accept other people's property, The amounts involved are particularly large.
He took advantage of his positions as the Party Secretary and Director of the Public Security Bureau of Sanmenxia, the Party Secretary and Director of the Public Security Bureau of Zhengzhou, to take illegal possession of public property. The amounts involved were large.
He should be charged with the crime of accepting bribes and embezzlement and bear criminal liability in accordance with the law.

Procuratorate's Announcement that Huang Baowei is Under Investigation

Wu Gan's Self Defense Statement Before Trial

吴淦：开庭前声明（附 影印件）

2017年08月09日

言论、出版、宗教信仰、游行、集会，对政府、官员的监督、表达不满等权利，这些都是天赋人权。也是"宪法"（假设它是真的），赋予和保障的公民权利。更是世界各国所认可和遵循的普世价值。如果因有人行使这些权利而遭入罪，都是这个国家与时代的耻辱，也必将为世人所耻笑与唾弃。叫一个人对行使这些权利是否有罪去作辩护，我认为这是对一个正常人的侮辱。

在中国大陆，若意识形态与信仰与当权者不符，很容易遭罗织"莫须有"的罪名迫害。1949年中共建政以来，在文化大革命和历次政治运动中，遭迫害的知识分子、八九一代、民主党人、法轮功学员等。到近几年，因捍卫正当权利而遭迫害的公民、人权律师，千千万万遭打击报复的无辜者，他们哪一个是有罪的？几十年来换汤不换药，本质一直没有变。

他们对我的指控，都是这些年大家公开看到的亊。无非是一些言论，写了三个宝典；对无辜受害者的声援与帮助；对胡作非为公权力和官员的揭蕗及行为艺术表达。这些都是一个公民在正当地行使权利。同时，这些公民权利，也是每一个人都应当去捍卫的。

我将被判有罪，不是因为我真的有罪，而是因为我不肯接受官方指定律师；不认罪及上媒体配合宣传；坚决揭露他们对我的酷刑、虐待等各种暴行；揭露检察院包庇、渎职行为。

专案组曾告知我，此案是领导定调，检、法走个程序过场。在我知道开庭只是为了判我有罪而演出的一场闹剧的情况下，本人不对我所言所行作辩护。无罪的人无需为自己辩护。

另外，在公安各种程序违法、酷刑、虐待、侵占我财物、强迫我采访、强迫我放弃自己请律师的权利，这些违法行为没有得到査处情况下，开庭没有任何意义。

我知道将被重判，但我永远不会为自己的所做所为，及今天的选择而后悔。只为连累家人，只为自己做的太少，而愧疚自责。民众的声接与支持，律师们的坚持与付出，就是对我最好的"判决"。黑白是非不会被颠倒，正义终将战胜邪恶。历史车轮滚滚向前，不会因一些人阻挡而停住。那些企图阻挡人类文明进程的人，终将被钉在历史的耻辱柱上。

在"伟光正"的残暴统治下，不被"犯罪"都不好意思。再不"犯罪"我们都老了。被判颠覆中共政权罪于我是莫大荣誉，在争取民主自由、捍卫公民权利的征途中，一份出自独栽专制政权的有罪判决书，就是颁给民主自由战士的一座金光闪闪的奖杯。

我拒绝辩护，仅借此机会感谢颁奖！谢谢！；

声明人：吴淦（签名）
二0一七年月曰

Wu Gan's Classic on Drinking Tea

"喝茶"宝典 

吴淦

在没有民主自由的国度，"喝茶"是想成为一个真正公民的必经之路，"喝茶"通常指因为你的言论或你的公民行动被警察、国安约谈，其实多数时候是没有茶喝的，甚至连白开水都没有。战胜"喝茶"恐惧，学会跟专政机器打交道我觉得很有必要，我也是从起初的"喝茶"恐惧到经历到后来习以为常的。当然这个"喝茶宝典"只是我个人的一些看法，只是把经验与各位即将被"喝茶"的人一起分享，情况会因为自身和所处的环境不同而异。

"喝茶"通常是面对公安局国保（国内安全保卫）和安全局国安两类人，如果和外国有关联，才会被国安"喝茶"，国保负责国内的事。国保一般都在台面上，国安比较低调和不常露面。因为是人，所以他们也分好几类，但他们都是执行专政机器任务的人，故主要可以分为3类：

（1）残暴型：这种人素质低，一般心理有问题，把权力当成施暴工具，没有人性，以迫害和施暴为乐，通过作恶和施暴以此来证明自己的权威和存在，从作恶施暴中得到快感和满足。

（2）明白型：知道自己所从事的是一种不光彩的工作，也清醒地明白这专政机器本质，也知这政权来日不多，所以不会主动施暴和主动作恶，把这工作当混饭，有任务就执行。

（3）机器型：被洗脑灌输很厉害，思维和专政机器一致，会把错误的东西当正确来做，认为自己在从事很光荣的工作。

"喝茶"通常是他们上门找你或让你去他们那里，一般是警告意味比较多，通过警告、制造恐惧、制造包袱让你退却和放弃争取公民权利，他们也会对你上政治课，灌输他们认为正确的观点，比如："你自己生活好了，去管那些事情干嘛？""现在国家一直在进步，你也要相信政府和党。在改革进程中会出现这样那样的问题，很正常，相信党能解决。""某某人是敌对分子，是坏人，你要警惕，不要和他交往。""某某事件背后水很深，有外来势力参与，你要注意不要被利用。""你如果再不听话，下次我们就不客气了。""你要为家人多考虑着想"等等。"喝茶"有时会做笔录，调查某一件事的来龙去脉，有时还要求写保证书。

以上是"喝茶"要面对的人的类型和"喝茶"的主要内容，下面我谈谈"喝茶"要注意哪些东西。

既然你无法摆脱专政机器，只能选择与狼共舞，所以"喝茶"有时也需要智慧和做好准备。成为真正公民前，在"喝茶"前你要做好以下3点：

（1）确认你所做的事情是你所能承担的、是否做好了准备，比如被骚扰恐吓、被软禁、被"喝茶"、被劳教甚至被判刑。

（2）你在做那些公民权利争取时，一定要做到阳光、公开、正义。

（3）你是否做好了你如果失去自由后信息发布的渠道、律师帮助、家属和外界联系方式等等准备，因为很多时候"喝茶"完就被带走关起来。

"喝茶"中要注意的事项：

（1）不卑不亢，不要显示出你恐惧害怕心态，面对暴力或侮辱，尽量不要上当被激怒。

（2）问你事情的时候，只说你自己的部分，别人的尽量不要去说，尽量装糊涂。"记不清"、"忘记了"、"不了解"、"搞不懂"都是最好的托词。

（3）告诉他们，自己所从事的事情是光明磊落、阳光的，是正义的，自己也做好了各种准备。

（4）尽量不要和他们个人结下个人恩怨，明白告诉他，如果你决定要做，自己会承担后果，也请他们个人不要把公事变私仇，有些契约精神还是需要的。

（5）尽量不要去侮辱他们人格，尽量不要对立，尽量不要在网上去羞辱和你打交道的人，除非他们羞辱了你。

（6）如果个人结下私仇，建议去私下了解调查他，原始血亲正义复仇我个人不反对，这你懂得。

（7）千万不要相信他们的话，更不要试图去说服他们。千万不要相信他们有什么事做不出来。

（8）写不写保证书，根据你自己的情况而定，有时为了结束无谓的纠缠，可以写。保证书一般是他们拿去交差用，你在被胁迫情况下所写的保证书，不对你有约束作用，没有必要去遵守。

（9）介入公共事务，最好是异地介入，避免地方利益引起的不必要麻烦。

（10）他们有时会找你单位、家人、朋友，制造压力，让你有包袱，对这类包袱处理是最难的，也是必须面对的，所以你尽量让你身边的人知道你在做什么，让他们知道你在从事阳光正义的事情，而不是见不得人的事情。得到他们支持是很难的，但要争取他们的理解和尊重，这样可以减轻压力，减少误会。

成为公民的道路上，你不是在"喝茶"，就是即将要去"喝茶"的路上，每个人都不怕"喝茶"了，都把"喝茶"当成一种荣光，这社会就进步了。

Wu Gan's Citation to Huang Baowei

见到来声援十君子的各路勇士,他们的勇敢和决心让我佩!他们准备在此,十君子不自由,他们就不罢休,我这次主要来表扬郑州公安局领导,嘉奖令之一:

嘉奖令

郑州市公安局局

鉴于你和你局在保护郑州皇家一号会所的杰出表现,特授予:「宇宙黑暗邪恶势力保护神」,荣誉称号,希望你们再接再励,继续为郑州邪恶势力保驾护航,多创收保护费。


超级低俗屠夫杀猪办

2014年7月10日

Government Statement: Henan Procuratorate Prosecutes Huang Baowei's Suspected Bribery and Corruption Cases

https://www.spp.gov.cn/spp/qwfb/202005/t20200507_460552.shtml

河南检察机关依法对黄保卫涉嫌受贿、贪污案提起公诉
时间：2020-05-07作者：来源：高检网

日前，河南省郑州市政协原党组书记、主席黄保卫（正厅级）涉嫌受贿罪、贪污罪一案，经河南省人民检察院指定管辖，由安阳市人民检察院依法向安阳市中级人民法院提起公诉。

检察机关在审查起诉阶段依法告知了被告人黄保卫享有的诉讼权利，依法讯问了被告人，听取了辩护人的意见。安阳市人民检察院起诉指控：被告人黄保卫利用其担任三门峡市公安局党委书记、局长，郑州市公安局党委书记、局长，中共郑州市委常委、政法委书记的职务便利，为他人谋取利益，索取、非法收受他人财物，数额特别巨大；利用其担任三门峡市公安局党委书记、局长，郑州市公安局党委书记、局长的职务便利，非法占有公共财物，数额巨大，依法应当以受贿罪、贪污罪追究其刑事责任。

PRC Lawyer Proposes Abolishing "Disturbing the Peace" Offense

On March 1, 2022 an article titled "National Committee of the Chinese People's Political Consultative Conference Member Zhu Zhengfu: A Proposal to Abolish the Crime of Disturbing the Peace in Due Course" was published on page 12 of the "People's Political Consultative Daily" (人民政协报). The full article was published by Baidu (https://baijiahao.baidu.com/s?id=1726079190961095864), and a shorter version was published on the website of the People's Political Consultative Conference (http://www.rmzxb.com.cn/c/2022-03-04/3064649.shtml). A full translation of the Baidu version is included below.

Translator's Notes: This is not the first time someone has noted problems with the crime of Disturbing the Peace (寻衅滋事, also commonly literally translated as "picking quarrels and provoking troubles" for more on why I have chosen to translate this as "disturbing the peace," see "State Prosecutions of Speech in the People's Republic of China: Cases Illustrating the Application of National Security and Public Order Laws to Political and Religious Expression, pp. 21-22, https://www.feichangdao.com/publications/state-prosecutions-vol-1). For example, Liu Zhiqiang (刘志强) and Song Haichao (宋海超),  two academics at the Guangzhou University Institute for Human Rights, noted:

Most of those in domestic academic circles have either resolutely opposed, or hold a very negative attitude toward, the crime of disturbing the peace. Many scholars in criminal law circles have published papers discussing the flaws associated with determining what constitutes the crime of disturbing the peace, including determining the standard for the offense, the difficulty of judicial application, and generally focusing on opposing the existence of the crime of disturbing the peace and restricting the scope of application of the crime. (国内学界对寻衅滋事罪的态度大多都持坚决反对或者十分消极的态度,刑法学界很多学者都曾发表论文论述寻衅滋事罪的犯罪构成缺陷、罪名认定标准、司法适用困境,总体上以反对寻衅滋事罪的存在和限制该罪名适用范围两方面为主.)

"Three Characteristics of the 'Judicial Interpretation of the Crime of Disturbing the Peace.'" (寻衅滋事罪司法解释"三性"审视), Academics (学术界), Issue No. 5, May, 2020. See http://blog.feichangdao.com/2020/09/prc-scholars-judicial-interpretation-on.html.

While not mentioned in the reporting about Zhu's proposal, the crime of disturbing the peace is often used to prosecute political speech, both online and in physical venues. The following examples are all from 2019:

• A court found Dong Zehua & Yuan Shuai guilty of disturbing the peace on the grounds that Dong "wore a T-shirt with sensitive markings on it and took photos in Tiananmen Square and posted the photos online" and Dong and Yuan "interviewed foreigners in Tiananmen Square and made inquiries into sensitive topics." See "State Prosecutions," pp. 513-515).
• A court found Jie Ruixue guilty on the grounds that she "stood in an area crowded with tourists in the vicinity of the national flag pole in Tiananmen Square wearing a white t-shirt upon which was written 'Freedom of Speech, Vindicate June Fourth, Oppose Repeating the Tragedy.'" See "State Prosecutions," pp. 516-18).
• A court found an individual surnamed Wang guilty of disturbing the peace on the grounds that he used Twitter to repost, like, and comment on a large number of posts relating to major domestic incidents, including: 
• Hu Wei proves the authenticity of Guo Wengui's revelations;
• The Communist Party of China controls all the resources . . . the working people can only get a piece of the pie;
• If China has the best socialist system in the world, why is the quality of each generation lower than the last?;
• The Communist Party seizes power in order to kill people;
• The Communist Party of China will never open the Internet . . . their end is at hand;
• The Communist Party of China has become an interest group and will devour the private sector;

as well as content about 'June Fourth,' 'Tibet,' and 'The Mirror Group.' See "State Prosecutions," p. 715.

• A court found an individual surnamed Cheng guilty of disturbing the peace on the grounds that he used Twitter to post and repost 471 tweets on the Internet that denigrated and berated others, and denigrated the image of the Party and the government. See "State Prosecutions," p. 717.
• A court found an individual surnamed Xu guilty of disturbing the peace on the grounds that he used Twitter to post and repost content that "berated Party and State leaders, and assailed the socialist system, soldiers, and police groups." See "State Prosecutions," pp. 717-718.
  

National Committee of the Chinese People's Political Consultative Conference Member Zhu Zhengfu: A Proposal to Abolish the Crime of Disturbing the Peace in Due Course

The crime of disturbing the peace is a crime derived from the crime of hooliganism in the 1979 Criminal Law. Article 293 of our country's Criminal Law:

Where one of the following acts of disturbing the peace has been committed that undermines social order, it shall be punished with a fixed term imprisonment, penal detention, or surveillance of no more than five years:

    1. Assaulting another party without cause under offensive circumstances;
    2. Pursuing, obstructing, berating, or intimidating another party under offensive circumstances;
    3. Extorting or willfully damaging or appropriating public or private property where the circumstances are severe; or
    4. Creating a disturbance in a public venue, causing severe chaos in public venue order.

Bringing together other parties on several occasions to engage in the aforementioned acts shall, where there is a severe undermining of social order, be punished with a fixed term imprisonment of not more than five years, and may be further punished with a fine.

Lawyer Zhu Zhengfu, a member of the National Committee of the Chinese People's Political Consultative Conference, said that in practice, the crime has gradually become a new "pocket crime" similar to the crime of hooliganism. The reason is that there are obvious defects in this crime, and many concepts related to this crime are too vague, which not only creates confusion in judicial practice, but also is easily abused, resulting in excessive criminalization in society. To this end, Zhu Zhengfu will submit a proposal for the "Timely Repeal of the Crime of Disturbing the Peace" at the Two Sessions this year.

Zhu Zhengfu believes that the constitutive elements of the crime of disturbing the peace lack of clarity. Clarity is the basic requirement of a legally prescribed punishment. However, it is difficult to accurately define the expression of specific criminal conduct constituting the crime of disturbing the peace. For example, what kind of "pursuing, obstructing" conduct in public venues has the characteristics of undermining social order?  In addition, he believes that the expressions "without cause," "willfully," "severe circumstances" and "causing severe chaos in public venue order" in the crime of disturbing the peace are too vague, and these are the key elements of the crime.

Although the Supreme People's Court and Supreme People's Procuratorate have issued a relevant judicial interpretation (N.B. This is a reference to the Interpretation of the Supreme People's Court and Supreme People's Procuratorate Regarding Certain Issues on the Handling of Cases Applying the Crime of Disturbing the Peace, 最高法、最高检关于办理寻衅滋事刑事案件适用若干问题的解释, which became effective on July 22, 2013) clarifying, for example, that a perpetrator shall have subjective motives such as "seeking excitement, venting emotions, behaving in an arrogant and overbearing manner, or being deliberately provocative," nevertheless in specific cases differing opinions may exist when it comes to subjective judgments about a perpetrator. In practice, some people have been convicted of the crime of "disturbing the peace" because of excessive debt recovery methods. How does one judge subjectively whether a reaction to the recovery of legal debts is being deliberately provocative or done with just cause? The judicial interpretation is still unable to eliminate the ambiguity of the line that demarcates this crime.

In addition, the crime of disturbing the peace overlaps with various other provisions of the criminal law. The behavioral characteristics of this crime stipulated in Article 2 of the Two Supremes' 2013 Judicial Interpretation (N.B. see text of that article included below) overlaps with the crime of intentional injury (If the crime of intentional injury is constituted, the starting point of sentencing can be determined within the corresponding range according to the following different situations: if intentional injury causes one person to be slightly injured, the starting point of sentencing can be determined within the range of fixed term imprisonment of not more than two years and penal detention . . .), Article 3 with the crime of berating, Article 4 with crimes of robbery and intentional destruction of property, and Article 5 with crime of gathering crowds to disrupt public venue order.

Furthermore, there are logical defects in the nature of the crime of disturbing the peace. On the one hand, some of the same acts would not meet the standards for establishing a case under the laws that directly punish those acts, but they can constitute the crime of disturbing the peace. For example:

• Intentional injury causing minor injury does not constitute the crime of intentional injury, but it may constitute the crime of disturbing the peace;
• Causing property loss of 2,000 yuan does not meet the standard to establish a case for the crime of intentional destruction of property (the standard is 5,000 yuan), but it can constitute the crime of disturbing the peace (the standard for filing a case is 2,000 yuan).
  

On the other hand, the starting point for sentencing the crime of disturbing the peace is five years or less, which results in acts that do not constitute an offense with a lighter punishment, but that may constitute the crime of disturbing the peace with a heavier punishment. Zhu Zhengfu said that in this example, something may not constitute the crime of intentional injury or the crime of intentional destruction of property, both of which are punished with sentences of less than three years, but may constitute the crime of disturbing the peace with heavier penalties. This is not only a paradox in the legislative system, it also does not conform to the principle of the degree of punishment being proportional to the degree of culpability.

The most important thing is that the harmful behaviors targeted by the crime of disturbing the peace have been dealt with by corresponding laws, and the abolition of this crime there will not result in any legal gaps. Much of the conduct covered by this crime is covered in the Public Security Administration Punishments Law. For example, Articles 42, 43, and 49 of that law stipulate the punishment standards for insulting, threatening others, intentionally injuring others, and intentionally destroying public or private property. From this it can be seen that "administrative penalties can also be imposed on conduct that does not constitute crimes and endangers the society, and the law will let them go unchecked. Criminal law is not the only means to crack down on conduct that endangers society. Therefore, rejecting the use of vague provisions to gather more conduct within the scope of the criminal law is not only required under the principle that there must be a specific crime for any legally prescribed punishment, it is also the embodiment of restraint in the application criminal law.

The existence of the crime of disturbing the peace to a certain extent is conducive to punishing conduct that endangers social order and maintaining social stability, but the various drawbacks of this crime are also obvious. The selective enforcement of the law by the government agencies ultimately damages the legitimate interests of the people and detracts from the people's respect for, and faith in, the law. Therefore, Zhu Zhengfu proposes that the crime of disturbing the peace should be abolished in due course.

Interpretation of the Supreme People's Court and Supreme People's Procuratorate Regarding Certain Issues on the Handling of Cases Applying the Crime of Disturbing the Peace, Article 2:

Assaulting another party and undermining social order shall, where one of the following situations exists, be deemed to "offensive circumstances" as provided by Article 293(1)(i) of the Criminal Law:

(1) causing minor injuries to more than one person or minor injuries to two or more people;
(2) causing serious consequences such as mental disorder or suicide;
(3) assaulting another party without cause multiple times;
(4) assaulting another party without cause with a lethal weapon;
(5) assaulting without cause the mentally ill, the disabled, vagrants and beggars, the elderly, pregnant women and minors, causing an offensive social influence;
(6) assaulting another party without cause in a public venue, causing severe chaos in public venue order;
(7) other situations with offensive circumstances.

全国政协委员朱征夫：建议适时取消寻衅滋事罪

人民政协网
发布时间: 2022-03-01 14:49人民政协网
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全国政协委员朱征夫：建议适时取消寻衅滋事罪

寻衅滋事罪是从1979年刑法流氓罪中分解出的罪名。我国刑法第293条：有下列寻衅滋事行为之一，破坏社会秩序的，处五年以下有期徒刑、拘役或者管制：(一)随意殴打他人，情节恶劣的；(二)追逐、拦截、辱骂、恐吓他人，情节恶劣的；(三)强拿硬要或者任意损毁、占用公私财物，情节严重的；(四)在公共场所起哄闹事，造成公共场所秩序严重混乱的。纠集他人多次实施前款行为，严重破坏社会秩序的，处五年以上十年以下有期徒刑，可以并处罚金。

全国政协委员朱征夫律师表示，在实践中，该罪名逐渐沦为类似于流氓罪的新的“口袋罪”。原因在于该罪名存在明显缺陷，许多与该罪名有关的概念过于模糊，不仅对司法实践构成困扰，也极易被滥用，造成社会过度刑法化。为此，朱征夫将于今年两会提交《适时取消寻衅滋事罪》的提案。

朱征夫认为，寻衅滋事罪的构成要件缺乏明确性。明确性是罪刑法定原则的基本要求，然而，寻衅滋事罪中对于具体犯罪行为的表述难以准确界定。例如，在公共场所怎样的“追逐、拦截”行为才具有破坏社会秩序的特征？另外，他认为，寻衅滋事罪中“随意”“任意”“情节严重”“造成公共场所秩序严重混乱”等表述过于模糊，而这些又是该罪关键的构成要件。虽然两高出台了相关的司法解释，如明确行为人要有“寻求刺激、发泄情绪、逞强耍横等，无事生非”等主观动机，但具体案件中对行为人主观上的判断又可能存在不同意见。实践中就有人因追讨债务方式过激被判寻衅滋事罪，追讨合法债务是无事生非还是事出有因，主观怎么判断？司法解释仍无法消除该罪在犯罪界限上的模糊性。

此外，寻衅滋事罪与多个刑法法条存在竞合。按2013年两高的司法解释规定的该罪的行为特征，第二条（随意殴打他人，破坏社会秩序，具有下列情形之一的，应当认定为刑法第293条第一款第一项规定的“情节恶劣”：①致一人以上轻伤或者二人以上轻微伤的；②引起他人精神失常、自杀等严重后果的；③多次随意殴打他人的；④持凶器随意殴打他人的；⑤随意殴打精神病人、残疾人、流浪乞讨人员、老年人、孕妇、未成年人，造成恶劣社会影响的；⑥在公共场所随意殴打他人，造成公共场所秩序严重混乱的）与故意伤害罪（构成故意伤害罪的，可以根据下列不同情形在相应的幅度内确定量刑起点：故意伤害致一人轻伤的，可以在二年以下有期徒刑、拘役幅度内确定量刑起点……)、第三条与侮辱罪、第四条与抢劫罪、故意毁坏财物罪，第五条与聚众扰乱公共场所秩序罪等均存在竞合。“一个法条惩治的行为与多个法条存在重叠，有重复立法之嫌。”朱征夫说。

再者，寻衅滋事罪存在体系上的逻辑缺陷。一方面，某些同样的行为达不到直接惩治该行为的法条的立案标准，却可以构成寻衅滋事罪。例如，故意伤害致人轻微伤不构成故意伤害罪，但却有可能构成寻衅滋事罪；造成财物损失2000元达不到故意毁坏财物罪立案标准（立案标准为5000元），却可以构成寻衅滋事罪（立案标准为2000元）。另一方面，寻衅滋事罪起刑点为五年以下，这也导致了一个不构成刑罚较轻的罪名的行为，却可能构成刑罚更重的寻衅滋事罪。朱征夫说，正如前例，不构成刑罚均为三年以下的故意伤害罪和故意毁坏财物罪，却可以构成刑罚更重的寻衅滋事罪。这不仅是立法体系上的一个悖论，也不符合罪责刑相适应原则。

最为重要的是，寻衅滋事罪所打击的危害行为，已有相应法律予以处理，取消该罪不会出现法律的空白。朱征夫表示，该罪表述的多种行为，在治安管理处罚法中均有规定，例如该法第42条、第43条、第49条，规定了侮辱、威胁他人、故意伤害他人、故意毁坏公私财物行为的处罚标准，由此可见，“对于不构成犯罪的危害社会的行为，还可以施加行政处罚，法律并非听之任之。对于危害社会的行为，刑法并非唯一打击手段。因此，拒绝利用模糊的规定将更多的行为纳入刑法的考量，这既是罪刑法定原则的要求，也是刑法谦抑性的体现。”

寻衅滋事罪的存在一定程度上有利于惩治危害社会秩序的行为，维护了社会稳定，但该罪名的种种弊端也是显而易见的，其模糊性不仅影响人民群众对权利义务的合理预期，也可能使得执法机关选择性执法，最终损害人民群众的合法利益，减损人民群众对法律的尊重和信仰。因此，朱征夫建议适时取消寻衅滋事罪。

来源：《人民政协报》（2022年03月01日 第12版）

记者：徐艳红

版面编辑：王天奡

新媒体编辑：莫愁

审核：周佳佳