Translator' Notes:
- The judgment was posted on the Twitter account of Cheng Yuan's wife: https://twitter.com/MindyShi227/status/1668491636026884097. Below I have also translated the tweets that she posted accompanying the judgment.
- The
Chinese text was generated by OCR'ing low-quality images of the
original court judgment posted online. I have attempted to identify and
correct the typographical errors that may have been introduced in the
OCR process.
The Tweets of Shi Minglei (Cheng Yuan's wife), posted on June 13, 2023.
The labor rights project -
996icu - was the trigger for the arrest of the Changsha Public
Interest 3.
Cheng Yuan has
devoted himself to
public welfare since
2008. He has
founded public welfare organizations such
as Nanjing
Tianxiagong, Guangzhou Pingji, and Changsha Funeng. He was once
the head of the Beijing Yirenping Agency.
|
劳工权益项目—996icu是长沙公益仨被抓的导火索。程渊于2008年投身公益，曾创办公益机构南京天下公、广州平机、长沙富能，曾任北京益
仁平机构负责人。
|
The projects he has worked
on include: equal rights for those
with hepatitis B,
equal rights for family planning victims, the
right to bear a second child,
the decoupling
of household registration and family planning, assistance and
rights protection for families who lost their only child, equal
rights for the disabled, and the
protection of LGBT
rights.
|
他做过的项目包括：乙肝平权、计生受害者平权、开放二胎、户籍与计划生育脱钩、失独家庭救助和权益保护、残障平权、LGBT权益保护。
|
Changsha Funeng's projects
included lawyers'
rights, labor rights, equal rights for the disabled, and trainer
projects. Lawyers are the last line of defense in
the protection of
human rights. Cheng Yuan has been thinking about how to protect
lawyers' rights and interests since the 709 arrests.
|
长沙富能项目包括长沙富能的项目包括律师权益、劳工权益、残障平权、培训师项目。律师是人权捍卫的最后一道防线，自709大抓捕程渊一直在思考如何开展律师权益保护的工作。
|
The allegations
of subversion by
public welfare organizations that focus on equal rights for
vulnerable groups also shows that the totalitarianism of the
Communist Party of China is not confident in the legitimacy of its
own regime. The government of
China has weapons,
high technology, big data, the strongest firewall in the world,
grid-based stability power precise
down to every individual,
and the placement
of two face recognition cameras every 1000 meters. But
they remain terrified. Afraid of workers
having
power. Afraid of
people behaving
like
citizens. Afraid
that average
individual might understand the law. Afraid of the power of truth.
|
专注弱势群体平权的公益机构被控颠覆也正说明了中共极权对自己政权合法性的不自信，中国政府他们拥有武器，拥有高科技，拥有大数据，拥有全世界最坚固的防火墙，拥有精确到每一个人的网格化的维稳力量，每1000米2个人脸识别摄像头的配置，但是他们仍然恐惧，他们最怕工人有力量，最怕人民做公民，最怕百姓懂法律，最怕真相的力量。
|
Cheng Yuan, Liu Dazhi, and
Wu Gejianxiong were arrested by Changsha State Security on July
22, 2019, and were held incommunicado for two years. The six
lawyers they hired were all forcibly dismissed by State Security
and were then
replaced with government-appointed
lawyers. The trial will be held in secret in 2021. Subsequently,
Cheng Yuan was sentenced to five years for subversion, Liu Dazhi
for two years, and Wu Ge Jianxiong for three years. The three of
them were cut off from all communication from the beginning to the
end, and were deprived of the right to a
legal defense. Even
lawyer Wu Youshui was forcibly dismissed for defending his son Wu
Gejianxiong.
|
程渊和刘大志、吴葛健雄于2019年7月22日被长沙国安抓走，遭遇单独羁押两年，所聘6位律师全部被国安强制解除后安插上官派律师，于2021年秘密开庭。随后程渊被判颠覆罪5年、刘大志2年、吴葛健雄3年。他们仨从始至终被隔绝一切通讯，被剥夺律师辩护权，甚至吴有水律师为自己儿子吴葛健雄辩护也遭强制解除。
|
This also shows that what
Cheng Yuan, Liu Dazhi, and Wu Gejianxiong did is what the CPC
regime fears most. They were so terrified that they did not even
dare to allow
a lawyer appear in court, did not dare to make the verdict public,
did not dare to notify the family members and lawyers of the
trial, held the trial
in secret, and did not even dare to share the verdict with the
family members or publicize it.
|
这也正说明了程渊，刘大志，吴葛健雄他们所做的，是中共政权最怕的。他们恐惧到连让律师上庭都不敢，判决结果不敢公开，开庭不敢通知家属和律师，偷偷摸摸开庭，连判决书都不敢给家属和公开。
|
Why is the CCP regime so
fearful? What are they afraid of? The
truth. They are afraid that the people will know the truth, that
the people will behave
like citizens, and
that citizens will have power.
|
为什么中共政权如此恐惧？他们到底恐惧什么？真相。他们害怕人民知道真相，害怕人民做公民，害怕公民有力量。
|
For a totalitarian
government that is so evil, disregarding human life, and
arbitrarily trampling on human rights and the rule of law, social
movements are unstoppable. Cheng Yuan is a practitioner of
non-violence and an active participant in social movements. He is
committed to pursuing equal rights and speaking for the
disadvantaged. NGOs are an indispensable force in society in any
democratic country. Only in China would one be charged with
subversion of state power. It's not that Cheng Yuan is wrong, but
that this totalitarian government should collapse.
|
对于如此邪恶，草菅人命，任意践踏人权和法治的极权政府，社会运动势不可挡。程渊是非暴力的践行者，是社会运动的积极参与者，他致力于追求平权，为弱势群体说话。NGO在任何一个民主国家，都是社会不可或缺的力量。只有在中国，才会被扣上颠覆国家政权的罪名。这不是程渊错了，而是这个极权政府该垮。
|
Court Judgment in the Subversion Trial of Cheng Yuan, Wu Gejianxiong, and Liu Dazhi
Intermediate People's Court of Changsha, Hunan
Criminal Judgment
(2020) Xiang
01Criminal First Instance No. 54
The public
prosecution agency was the People's Procuratorate of Changsha.
Defendant Cheng Yuan
(also known as Jiangnan and Mike), male, born in Nanjing, Jiangsu on [INTENTIONALLY OMITTED], 1973, citizenship ID No. [INTENTIONALLY OMITTED], Han
ethnicity, technical school education, legal representative of
Changsha Funeng Information Technology Co., Ltd., director of Hong
Kong Yuanzhong Information Communication Co., Ltd., household
registration at [INTENTIONALLY OMITTED],
Yuhuatai District, Nanjing, Jiangsu, renting at [INTENTIONALLY OMITTED], Longgang District, Shenzhen, Guangdong.
On July 22, 2019, he was taken into criminal detention on suspicion
of committing the crime of subversion of state power. He was arrested
on August 26 of the same year. He is currently being held at the
Hunan State Security Office detention center.
Defense counsel Wang
Xiang is a lawyer at the Jinzhou Hunan Law Firm.
Defense counsel Tang
Jie is a lawyer at the Jinzhou Hunan Law Firm .
Defendant Wu
Gejianxiong (also known as Wu Qifan and Nagi), male, born in Yongxiu
County, Jiangxi on [INTENTIONALLY OMITTED], 1995, citizenship ID No. [INTENTIONALLY OMITTED], Han ethnicity, college education, employee of
Changsha Funeng Information Technology Co., Ltd., household
registration at [INTENTIONALLY OMITTED],
Xiaoshan District, Hangzhou, Zhejiang, rental address [INTENTIONALLY OMITTED], Wangcheng District, Changsha, Hunan. On July 22, 2019, he was taken
into criminal detention on suspicion of committing the crime of
subversion of state power. He was arrested on August 26 of the same
year. He is currently being held at the Hunan State Security Office
detention center.
Defense counsel Chen
Hongyi is a lawyer at the Hongyi Hunan Law Firm.
Defense counsel Chen
Ruchao is a lawyer at the Hongyi Hunan Law Firm.
Defendant Liu Dazhi
(also known as Liu Yongze and Alvin), male, born on [INTENTIONALLY OMITTED], 1977 in
Xinhuang Autonomous County, Hunan, citizen ID No. [INTENTIONALLY OMITTED],
Han ethnicity, college education, employee of Changsha Funeng
Information Technology Co., Ltd., household registration at [INTENTIONALLY OMITTED], Huangzhou
Town, Xinhuang Dong Autonomous County, Hunan, rental address [INTENTIONALLY OMITTED], Wangcheng District, Changsha, Hunan. On July 22,
2019, he was taken into criminal detention on suspicion of committing
the crime of subversion of state power. He was arrested on August 26
of the same year. He is currently being held at the Hunan State
Security Office detention center.
Defense counsel Zhou
Tiequn is a lawyer at the Zhenze Hunan Law Firm.
Defense counsel Zeng
Jie is a lawyer at the Zhenze Hunan Law Firm.
On June 24, 2020, in
the Chang Procuratorate Second Criminal Indictment (2020) No. 42, the
People's Procuratorate of Changsha charged defendants Cheng Yuan, Wu
Gejianxiong , and Liu Dazhi with committing the crime of subversion
of state power, and filed a public prosecution with this Court. On
June 30, 2020, this Court opened and docketed the case, and formed a
collegial panel in accordance with the law. On July 14, 2020, it
convened a pre-trial conference, on September 3 of the same year
convened hearings to try this case. The People's Procuratorate of
Changsha assigned prosecutors Han Bingnan and Deng Feng, and
prosecutors assistant Li Aihua to appear in court in support of the
public prosecution. Defendant Cheng Yuan and his defense counsels
Wang Xiang and Tang Jiaojie, defendant Wu Gejianxiong and his defense
counsels Chen Hongyi and Chen Ruchao, and defendant Liu Dazhi and his
defense counsels Zhou Tiequn and Zeng Jiejun appeared in court to
participate in the proceedings. During this period, this Court in
accordance with the law reported to the High People's Court of Hunan
for a decision to extend the trial period for three months, and three
times in accordance with the law reported to the Supreme People's
Court for a decision to extend the trial period for three months. The
trial has now concluded.
The People's
Procuratorate of Changsha charged: On several occasions defendants
Cheng Yuan, Wu Gejianxiong, and Liu Dazhi accepted anti-China
training from foreign hostile organizations, and formed the idea of
subverting state power and overthrowing the State's current political
system. In January 2016, Cheng Yuan registered and established the
Hong Kong Yuanzhong Culture Communication Co., Ltd. (hereinafter
referred to as "Hong Kong Yuanzhong") in Hong Kong. In
March 2017, Cheng Yuan provided capital for the establishment of the
Changsha Funeng Information Technology Co. Ltd. (hereinafter referred
to as "Changsha Funeng"). From the first half of 2017 to
before the case was broken, Cheng Yuan applied to foreign
organizations to obtain funds for the "project" in the name
of the two companies. He acted in league with Wu Gejianxiong and Liu
Dazhi to carry out so-called "Protecting Lawyers' Right to
Practice," "Lawyers' Practice Rights Protection,"
"Training the Trainers," and "Labor Rights Protection"
projects in the name of "Changsha Funeng." Using this as a
cover, they denigrated and attacked our country's judicial system,
and provided foreign parties with materials attacking the status quo
of our country's rule of law. They maliciously sensationalized and
smeared the image of the State, they provoked and intensified
dissatisfaction with the government among those who did not know the
truth. They taught methods and techniques of confronting the
government, explored and cultivated hostile forces, and instigated
and launched so-called "social movements," with the intent
to subvert state power. The specific facts are as follows:
1. In the first half
of 2017, defendant Cheng Yuan applied for "Project" funds
totaling approximately US$135,000 from foreign organizations in the
names of "Hong Kong Yuanzhong" and "Changsha Funeng."
He implemented the "Protecting Lawyers' Right to Practice
Project" and "Lawyers' Practice Rights Protection Project,"
acted in league with Liu Dazhi and Wu Gejianxiong to hold salons,
seminars, and other activities, and in the form of interviews and
self-media dissemination attacked our country's judicial system, and
in the form of "Project Applications" and "Project
Reports" provided foreign parties with materials attacking the
status quo of our country's rule of law.
2. In November 2018,
defendant Cheng Yuan applied for more than RMB 140,000 in "Project"
funds from foreign organizations in the name of "Changsha
Funeng." He implemented the "Training the Trainers
Project," acted in league with Liu Dazhi and Wu Gejianxiong and,
through the development of training activities, taught the methods
and techniques of using socially sensitive incidents to instigate
relevant individuals to spread bad information through self-media and
manufacture factors of social instability, and cultivated resistance
forces.
3. In March 2019,
defender Cheng Yuan applied for US$18,000 in "Project"
funds of from foreign organizations in the names of "Hong Kong
Yuanzhong," and "Changsha Funeng." He implemented the
"Labor Rights Protection Project," and the " Project
Documentation" clearly stated that the purpose of implementing
the "Project" was to "directly influence the
legitimacy and stability of the central government regime."
Cheng Yuan, Wu Gejianxiong, and Liu Dazhi maliciously sensationalized
and smeared the image of the State through online and offline
activities, provoking Internet users who did not know the truth to
confront
and
oppose government agencies, and utilized a series of
activities to seek out "labor backbones," form "autonomous
labor unions," and instigate "labor movements" with
the intent to to change our country's current political system.
On July 22, 2019,
defendants Cheng Yuan, Wu Gejianxiong, and Liu Dazhi were apprehended
and brought to justice.
With respect to the
aforementioned facts charged in the indictment, the public
prosecution agency produced evidence to the court including photos of
physical evidence such as mobile phones and computers, entry and exit
records, bank statements, industrial and commercial information
registration inquiries, household registration information and other
documentary evidence, the witness testimony of Luo [OBSCURED IN
ORIGINAL], Hong [OBSCURED IN ORIGINAL], [OBSCURED IN ORIGINAL] and
others, audio-visual materials, electronic data, remote crime scene
investigation transcripts, identification transcripts, forensic
opinions, and the statements and justifications of defendants Cheng
Yuan, Wu Gejianxiong, and Liu Dazhi.
The public
prosecution agency alleged that the actions of defendants Cheng Yuan,
Wu Gejianxiong, and Liu Dazhi were carrying out subversion of state
power and the overthrow the socialist order, and were the commission
of an offense under the provisions of Article 105(1) of the "Criminal
Law of the People's Republic of China," and they should be
subject to criminal liability for the crime of subversion of state
power.
Defendants Cheng
Yuan, Wu Gejianxiong, and Liu Dazhi were all active participants, and
as regards the specific crimes that were committed together by these
three individuals,defendant Cheng Yuan played the main role, and was
the primary culprit. Defendants Wu Gejianxiong, Liu Dazhi played
secondary roles, and were accessories. After being taken into police
custody Cheng Yuan, Wu Gejianxiong, and Liu Dazhi were able to make
truthful statements of their own criminal facts. Cheng Yuan, Wu
Gejianxiong, and Liu Dazhi confessed their guilt and accepted
punishment, and it is recommended that defendant Cheng Yuan be
sentenced to a fixed term imprisonment of five years and five years
deprivation of political rights, that defendant Wu Gejianxiong be
sentenced to a fixed term imprisonment of three years and two years
deprivation of political rights, and that defendant Liu Dazhi be
sentenced to a fixed term imprisonment of two years and two years
deprivation of political rights. In accordance with the provisions of
Article 176 of the "Criminal Procedure Law of the People's
Republic of China," it requests this Court pass sentence in
accordance with the law.
Defendants Cheng
Yuan, Wu Gejianxiong, and Liu Dazhi did not object to the charged
facts, offense, and sentencing recommendation, signed an undertaking,
and did not have any objections during the hearing process.
Defendant Cheng
Yuan's defense counsel proffered these defenses:(1) In the "Labor
Rights Protection Project" Cheng Yuan mere played a secondary
role. The project's project documents were written, planned, and
carried out by Wu Gejianxiong. The project funding declarations were
done by Cheng Yuan. (2) In the "Protecting Lawyers' Right to
Practice Project" and "Lawyers' Practice Rights Protection
Project" Cheng Yuan did not himself cause any consequences that
severely endangered society. (3) Cheng Yuan has no criminal record
and has confession and other circumstances, and it is asked that he
be shown leniency .
Defendant Wu
Gejianxiong's defense counsel proffered these defenses: (1)Wu
Gejianxiong was not an active participant in the commission of the
crime of subversion of state power, and was just another
participating individual. (2) Wu Gejianxiong made truthful
statements, he confessed his guilt and accepted punishment, and it is
asked that he be shown leniency .
Defendant Liu
Dazhi's defense counsel proffered these defenses: (1) Liu Dazhi's
subjective malice was minor, and his ideological change was
influenced by hostile forces at home and abroad. (2) Although Liu
Dazhi participated in acts that carried out subversion of state power
actions, his actions did not have the harmful consequences Project
targets like the poisonous effects on targets of the Lawyer's
Project. (3) Liu Dazhi was an accessory, and should be given a
lighter and reduced punishment. (4) Liu Dazhi has shown frankness,
confessed his guilt and accepted punishment, and should be granted
leniency.
It was ascertained
at trial that on several occasions defendants Cheng Yuan, Wu
Gejianxiong, and Liu Dazhi accepted anti-China training from foreign
hostile organizations, and formed the idea of subverting state power
and overthrowing the State's current political system, and took
actions with respect thereto. In January 2016, Cheng Yuan registered
and established "Hong Kong Yuanzhong" in Hong Kong. In
March 2017, Cheng Yuan provided capital for the establishment of
"Changsha Funeng". From the first half of 2017 to before
the case was broken, Cheng Yuan applied to foreign organizations for
"projects" and funds in the name of the two companies. He
acted in league with Wu Gejianxiong and Liu Dazhi taken on "projects"
from foreign organizations, and carried out so-called "Protecting
Lawyers' Right to Practice," "Lawyers' Practice Rights
Protection," "Training the Trainers," and "Labor
Rights Protection" projects in the name of "Changsha
Funeng," and denigrated and attacked our country's judicial
system, and provided foreign parties with materials attacking the
status quo of our country's rule of law. They smeared the image of
the State, they provoked and intensified dissatisfaction with the
government among those who did not know the truth. They taught
methods and techniques of confronting the government, explored and
cultivated hostile forces, and instigated and launched so-called
"social movements," with the intent to subvert state power.
The specific facts are as follows:
1. In the first half
of 2017, defendant Cheng Yuan applied for "Project" funds
totaling approximately US$135,000 from foreign organizations in the
names of "Changsha Funeng" and "Hong Kong Yuanzhong."
He implemented the "Protecting Lawyers' Right to Practice
Project" and "Lawyers' Practice Rights Protection Project,"
acted in league with defendants Liu Dazhi and Wu Gejianxiong to hold
salons, seminars, and other activities, and in the form of interviews
and self-media dissemination attacked our country's judicial system,
and in the form of "Project Applications" and "Project
Reports" provided foreign parties with materials attacking the
status quo of our country's rule of law.
2. In November 2018,
defendant Cheng Yuan applied for more than RMB 140,000 in "Project"
funds from foreign organizations in the name of "Changsha
Funeng." He implemented the "Training the Trainers
Project." This "project" targeted certain lawyers who
were violating laws and regulations as trainees, through which they
trained and mobilize different interest groups to promote the
development of "social movements." Defendants Cheng Yuan,
Liu Dazhi and Wu Gejianxiong, through the development of training
activities, taught trainees methods and techniques of using socially
sensitive incidents to instigate relevant individuals to create
social instability, and cultivated resistance forces in order to
subvert state power.
3. In March 2019,
defendant Cheng Yuan applied for US$18,000 in "Project"
funds of from foreign organizations in the names of "Hong Kong
Yuanzhong," and "Changsha Funeng." He implemented the
"Labor Rights Protection Project," and the " Project
Documentation" clearly stated that the purpose of implementing
the "Project" was to "directly influence the
legitimacy and stability of the central government regime."
Defendants Cheng Yuan, Wu Gejianxiong, and Liu Dazhi maliciously
sensationalized hot-button topics, instigated lawsuits, expanded the
influence of disruptive activities abroad, smeared the image of the
State through online and offline activities, provoking Internet users
who did not know the truth to confront
and
oppose government agencies, and utilized a series of
activities to seek out "labor backbones," form "autonomous
labor unions," and instigate "labor movements" with
the intent to to change our country's current political system.
On July 22, 2019,
defendants Cheng Yuan, Wu Gejianxiong, and Liu Dazhi were apprehended
and brought to justice. After being taken into police custody the
three defendants made truthful statements of their own criminal
facts. The aforementioned facts have been proven by the following
evidence that was examined and determined to be true during trial:
I. Evidence of the
Process by which the Three Defendants Formed Their Subjective Intent
1. Defendant Cheng
Yuan's statement. In 2012, he went to Chiang Mai, Thailand and
Geneva, Switzerland to participate in two training sessions organized
by the "Rights Defense Network." He learned about the
concepts, cases, and methods of the "Nonviolent Non-Cooperation
Movement," and then participated in the lecture on "Eight
Stages and Four Roles of Social Movements." He gradually
mastered the methods of establishing social organizations and
launching social movements in order to overthrow our country's
existing political system, such as mobilizing various interest
groups, launching various rights defense movements, social movements,
and street revolutions from the bottom up, and carrying out a "color
revolution" in China. He successively established different
companies in different cities which were actually for the
implementation of the three steps of social movements in the form of
projects. He cultivated and explored social movement "leaders,"
encouraging them to establish their own organizations in different
groups in order to make organizational preparations for making
political demands in the future. "Hong Kong Yuanzhong" is a
shell company, and the main purpose of establish it was to accept
funds from foreign organizations, which were mainly used by "Changsha
Funeng" to carry out "projects" in China. His purpose
of establishing "Changsha Funeng" is to accept foreign
funds in a legal capacity, establish organizations in various groups,
carry out social movements, and overthrow the current state system
when the time is right. "Changsha Funeng" was also operated in this manner.
2. Defendant Wu
Gejianxiong's statement. His personal life and upbringing created
misunderstandings about, and hatred for, the policies of the
Communist Party. After joining "Changsha Funeng," he fell
under the influence of Cheng Yuan and Liu Dazhi and that, added to
his use of wall-climbing tools to browse foreign information about
"Occupy Central" issues, gave him the idea of overthrowing
the Communist Party. He mastered the methods and theories of
overthrowing the Communist Party by participating in foreign
training, which further strengthened this idea. In December 2017,
Cheng Yuan recommended that he participate in the training of "Human
Rights in China" in Hong Kong for the first time. In May 2018,
he assisted in giving lectures at the second "Human Rights in
China" cyber security technology training held in Hong Kong.
After the training, "Human Rights in China" invited him to
serve as a consultant and domestic contact person. The third time he
participated in the "Human Rights in China" training was
the network security technology training held at the Hong Kong Island
Pacific Hotel. In early December 2018, the fourth "Human Rights
in China" network security technical training was held at the
Hong Kong Island Pacific Hotel. In August 2018, he participated in
the training organized by the "China Labor Bulletin" and
got to know the person in charge of the "China Labor Bulletin."
In July 2018, he went to Hong Kong to participate in a TOT (Training
the Trainers) training. At the end of June 2019, he participated in
security training organized by foreigners. The theme was how to deal
with when the police came to arrest people.
3. Defendant Liu
Dazhi's statement. Influenced by the political concepts of the
Western bourgeoisie, he gradually came to question the legitimacy of
China's current political system. In 2012, he got to know Cheng Yuan
when he participated in a training by the "Rights Defense
Network" in Geneva, Switzerland, and he deeply agreed with Cheng
Yuan's work philosophy, that is, the legalization of political
issues, the socialization of legal issues, and the projectification
of social issues. He felt that he had found a lower-risk way engaging
in social movements, and joined Cheng Yuan’s Changsha team as a
full-time employee in November 2016. Since 2012, he participated in
training and exchange activities organized by foreign anti-China
forces. Having been influenced by western concepts of democracy and
human rights over a long period time, after returning to China, he
received funding from these organizations to carry out human rights
activities and was trained as an agent by western forces. The
activities he participated in were not simply legal rights
protection, but were using rights protection as an excuse to promote
the strategies and methods of social movement models, creating social
contradictions and conflicts, carrying out non-violent protest
actions, and stirring up public dissatisfaction with the ruling
party, laying the social foundation and accumulating strength in
order to launch a "Color Revolution." The reason for
establishing the "Changsha Funeng" was because the foreign
organization requested that the organization must be a legally
registered organization so that the fund account of the "Project"
funders could be audited. Establishing an organization like"Changsha
Funeng" allowed them to gain additional influence by having
legal place from which to operate. The foreign organizations funded
institutions like "Changsha Funeng" to carry out "Projects"
within mainland China in the name of legal rights protection, and
used man-made cases as breaches and smeared China's judicial system
to achieve the goal of consuming China's judicial resources. The
long-term goal of "Changsha Funeng" was to make use of
various groups with interests and appeals to realize group
organization through organizational appeals, and when the time was
ripe, to organize and launch movements to realize a Western
democratic political system.
4. The Hong Kong and
Macau permits, passports, travel permits to and from Taiwan, and
entry and exit records of defendants Cheng Yuan, Wu Gejianxiong, and
Liu Dazhi clearly indicate the circumstances in which the three
defendants went abroad to receive training from foreign hostile
organizations.
5. Documentation of
defendant Liu Dazhi's participation in trainings, ISHR (International
Service for Human Rights) Certificate, and "Nonviolent Struggle
Booklet" clearly indicate that in 2012, Liu Dazhi participated
in training organized by the hostile organization "Rights
Defense Network" in Geneva, Switzerland. At the beginning of
2014, Liu Dazhi participated in the non-violent struggle strategy
training organized by the hostile organization "New School for
Democracy" in Hong Kong.
6. The "Ministry
of State Security of the People's Republic of China Hostile
Organization Determination" clearly indicates that on July 9,
2019, "Rights Defenders," "Human Rights in China,"
"China Labor Bulletin," "New School for Democracy,"
and "China Rights in Action" were identified as hostile
organizations by the Ministry of State Security.
7. Identification
transcripts clearly indicate that under the organization of the
investigating agency, defendants Cheng Yuan, Wu Gejianxiong, and Liu
Dazhi identified each other, and identified Cheng Yuan as the person
in charge of "Changsha Funeng," and Wu Gejianxiong and Liu
Dazhi as members of "Changsha Funeng."
II. Evidence Proving
the Three Defendants Jointly Engaged in Actions to Subvert State
Power
1. Evidence Proving
the three defendants jointly implemented the "Protecting
Lawyers' Right to Practice Project," and the "Lawyers'
Practice Rights Protection Project" to attack our country's
judicial system with the intent to subvert state power.
(i) The statement of
defendant Cheng Yuan statement that in 2017 he applied to a foreign
organization for the "Protecting Lawyers' Right to Practice
Project" in the name of " Changsha Funeng." The total
amount of funds was about 90,000 US dollars, and all of it had been
received. The "Project" period was two years, from October
2017 to September 2019. He applied to a foreign organization for the
"Lawyers' Practice Rights Protection Project" in the name
of "Hong Kong Yuanzhong." The funding amount was 45,000 US
dollars, all of which had been received, and the "Project"
period was from May 2018 to April 2019. The aforementioned two
"Projects" were actually one, collectively referred to as
the "Lawyer Project," but the funding side of the
application was different. The activities carried out by the "Lawyer
Project" mainly included organizing lawyer salons, conducting
interviews with punished lawyers to understand the reasons for the
revocation of their lawyer's license, etc. At the beginning of 2018,
"Changsha Funeng" created the "Budding Legal
Awareness" WeChat public account. In the summer of 2018, that
public account was shut down, and then a "Budding Legal
Awareness II" was created. The activities mentioned in the
"Project" report submitted to the foreign organization were
carried out. The "Lawyer Project" was aimed at lawyers. It
encouraged lawyers to defend their rights and organize social
movements, and selected suitable lawyers to develop their
organizational capabilities, promoted them to become leaders in
various groups, lead and organize social movements of various groups,
and become a force to overthrow the Communist Party of China when the
time is right. He, Wu Gejianxiong, and Liu Dazhi participated in the
execution of the "Lawyer Project". He took the overall
responsibility, and Liu Dazhi and Wu Gejianxiong assisted in the
implementation. Zhang Yujuan and Wan Ya participated in part.
(ii) The statements
of defendants Liu Dazhi and Wu Gejianxiong that Cheng Yuan applied to
a foreign organization in October 2017 for the "Protecting
Lawyers' Right to Practice Project." Cheng Yuan was the
responsible person and wrote up the "Project Documentation"
for the "Project." Liu Dazhi was in charge of finances and
"Project" implementation, and Wu Gejianxiong assisted in
"Project" implementation. The first two semi-annual
"Project" reports were drafted by Cheng Yuan, Liu Dazhi
drafted the semi-annual report from October 2018 to March 2019, and
the last semi-annual report was drafted by Wu Gejianxiong. The
financial part of the report was compiled into the financial
statements by Liu Dazhi according to cash book's summary
expenditures. In the first year, Cheng Yuan took the lead in managing
Project, and in the second year, Wu Gejianxiong took the lead. Cheng
Yuan applied to a foreign organization for the"Lawyers' Practice
Rights Protection Project," Cheng Yuan was the responsible
person for the "Project" and was responsible for writing up
the "Project Documentation." Liu Dazhi was in charge of
finances and "Project" implementation, and Wu Gejianxiong
assisted in "Project" implementation. The Activities
Section in the Quarterly Reports were written up by Liu Dazhi and Wu
Gejianxiong separately. The financial part of the quarterly report
was compiled into the financial statements according to cash book's
summary expenditures, which was then summarized by Cheng Yuan and
submitted to the investors. He implemented the real purposes of the
"Lawyer Project," the first of which was was to address the
current situation of the suppression of human rights lawyers after
the "709 Incident" through training and activities, and to
artificially create influential lawsuits under the pretext of
maintaining lawyers' practice, arousing the attention of public
opinion, smearing China's current judicial system, and attacking the
management of lawyers by the judicial administrative departments. The
second of which was to realize the so-called Western democratic
political system by training human rights lawyers, discovering and
cultivating group leaders, supporting human rights lawyers to
establish non-governmental organizations, and forming political
parties to run to become the ruling party.
(iii) The testimony
of witnesses [OBSCURED IN ORIGINAL], [OBSCURED IN ORIGINAL], and
[OBSCURED IN ORIGINAL] and identification transcripts: From October
27 to 28, 2018, Cheng Yuan and Wu Gejianxiong convened more than 20
people including Chen Liang, Xu Lu, and Geng Jing in the name of
"Changsha Funeng" to conduct a seminar in Wuhan, Hubei. He
implemented the "Protecting Lawyers' Right to Practice Project."
In a mixed identification organized by the investigating agency,
[OBSCURED IN ORIGINAL], [OBSCURED IN ORIGINAL], and [OBSCURED IN
ORIGINAL] identified Cheng Yuan and Wu Gejianxiong.
(iv) "Lawyers'
Professional Rights Protection Project Contract," "Lawyers'
Professional Rights Protection Project Documentation,"
"Protecting Lawyers' Professional Rights Project Contract,"
and the "Protecting Lawyers' Professional Rights Project
Documentation" clearly indicate that Cheng Yuan applied to
foreign organizations in the names of " Changsha Funeng"
and " Hong Kong Yuanzhong" for the "Protecting
Lawyers' Right to Practice Project" and the "Lawyers'
Practice Rights Protection Project." The "Project
Documentation" had statements that used evaluations of our
country's rule of law to smear the current judicial system such as
"the 709 case has been criminally dealt with, which is the
government's full blown attack on human rights lawyers. Wen Donghai,
Lin Qilei and other lawyers who have been administratively punished
failed to pass the examination. The government made things difficult.
The newly added prohibitive regulations are not good for lawyers."
The strategy was to use sensitive cases to stir up public
dissatisfaction with the government, arouse public attention, and
create factors of social instability. The strategy was to publish and
disseminate negative information through self-media, and continue to
expand its influence, and to void legal risks by not directly
accepting foreign funds, not handling finances in mainland China,
etc.
(v) Documentary
evidence such as the "Lawyers' Practice Rights Protection
Project Quarterly Report," "Lawyers' Practice Rights
Protection Project Semi-Annual Report," "Lawyer Rights
Salon Activity Report" and "Interview Records" clearly
indicate that activities were carried out through the "Projects"
such as salons, seminars, and administrative litigation, and plans
were made to counter the punishment of the judiciary, and put
pressure on the government. They smeared our country's judicial
system by interviewing punished lawyers and attacking the
judiciary's handling of lawyers' violations. They distributed and
spread harmful information through WeChat public accounts, and
continue to expand its influence.
(vi) Emails
collected from defendant Cheng Yuan's hsxg@tutanota.com mailbox
clearly indicate that Cheng Yuan applied for the "Lawyer
Project" and funds from foreign organizations, and provided
"Project" reports to foreign organizations.
(vii) The "Lawyer's
Rights and Interests Project" Income and Expenditure Schedule:
The "Lawyer Rights Protection Project" income and
expenditure details from May 2018 to April 2019, the Project received
45,000 US dollars and was been fully spent. Income and expenditure
details of "Protecting Lawyers' Right to Practice Project"
from October 2017 to June 2019, the "Project" received
$89,980.69, all of which was spent.
(viii) Documents
proving that some lawyers had their licenses revoked issued by the
Justice Bureau of Changsha: On June 7, 2018, the Hunan Department of
Justice imposed administrative punishment on Wen Donghai by revoking
his lawyer's practice certificate. On October 26, 2018, the Guangdong
Department of Justice issued an "Administrative License
Revocation Decision" rescinding and canceling the lawyer's
practice certificate held by Chen Keyun.
2. Evidence proving
the three defendants implemented the "Training the Trainers
Project"(TOT) and fostered power with the intent to subvert
state power
(i) Statement of
defendant Cheng Yuan that the "Training the Trainers Project"
was a cooperation between "Changsha Funeng" and foreign
organizations, and the period was from December 2018 to June 2019."
The "Project" selected lawyers whose licenses had been
revoked or were about to be revoked. These lawyers had more need to
protect their own rights and were more motivated to participate in
actions to protect their own rights. This made it easier to train
them to take action. The specific implementation content was as
expressed in the "Project" final report, and the activities
in the final report were implemented. The primary purpose of
"Training the Trainers Project" was to enhance the training
ability of lawyers participating in the "Project" through
their training and mobilization to different interest groups, and to
promote the implementation of campaigns in different fields. The real
intention was to select lawyers to develop their organizational
capabilities, promote them to become "leaders" among
various groups, lead and organize social movements of various groups,
and become a force to overthrow the ruling status of the Communist
Party of China when the time was right. During the implementation of
"Project" he played a leading role, and Liu Dazhi and Wu
Gejianxiong assisted in the implementation.
(ii) Statement of
defendant Liu Dazhi that the "TOT Project" was discussed
between Cheng Yuan and foreign organizations, with a budget of about
140,000 RMB. Cheng Yuan was responsible for the "Project."
He was the executor of the "Project", and Wu Gejianxiong
assisted in recording trainees' training practice activities. The
"Project" held a preparatory meeting in December 2018, held
the first training meeting in January 2019, and carried out training
activities for different targets for trainees until June 2019. The
"Project" has ended, and"Project Reports" and
financial data have been sent by him to the foreign organizations.
The implementation of the "TOT Project" was intended to
discover activists in the group, carry out the indoctrination of
Western human rights values, recommend those who were particularly
active to receive training and study abroad, let these trainees
artificially create lawsuits, spread public opinion through the
media, and convey to the society false images such as prominent
social contradictions in China and judicial injustice, making the
public question the government's ability to govern. This was to
continue for a long time, and in the event of a major social event,
the affected and capable "community leaders" could form an
opposition political party and openly confront the ruling party in an
attempt to change the current political system.
(iii) Statement of
defendant Wu Gejianxiong that the "TOT Project" mainly
selected lawyers whose licenses had been revoked or were about to be
revoked, and those who participated in the "New Citizens
Movement" as targets for training. The purpose of the activity
was to discover "leaders" among different groups, and the
"leaders" would organize various groups to carry out social
movements.
(iv) The Police
Handling Report of the Public Security Bureau of Zhengzhou's
Changxing Road Branch recorded: On May 18, 2019, the public security
agency received reports from the public that there were suspicious
people entering and leaving the Jingshui Garden residential area of
Zhongzhou Avenue in Yuankou Township, Huiji District, Zhengzhou. The
public security agency went to the scene to investigate and found
about ten men gathering in a residence. The aforementioned
individuals claimed to be lawyers holding a meeting here to study
house demolition cases. The public security agency registered the
aforementioned individuals, and Cheng Yuan, Wu Gejianxiong, and Duan
Hanjie were present.
(v) The testimony of
witness Duan Hanjie: He once participated in a "lawyer activity"
in a residential area on Zhongzhou Avenue in Zhengzhou, about ten
lawyers participated, and the "709" incident was mentioned
at the scene.
(vi) The "TOT
Project Interim Report," "TOT Project Final Report"
and the "TOT Project Training Meeting Activity Report"
clearly indicate the "Project" spread so-called "rights
defense" legal tools and experience to trainees through training
activities, used socially sensitive events, encouraged relevant
individuals to spread negative information through self-media, and
created social instability. The party implementing the "Project"
was "Changsha Funeng," which held training sessions in
Guangzhou and Xianning, Hubei.
(vii) The TOT
Training Conference Budget and Expenditure Schedule: The "Project"
had a budget of RMB 146,000 and expenditures of RMB 146,000.
3. Evidence proving
the three defendants carried out the "Labor Rights Protection
Project" and formed a political party with the intent to subvert
state power
(i) Statement of
defendant Wu Gejianxiong that Cheng Yuan said that working on
"movements" was very risky and it was easy to get caught,
but it would shake the ruling foundation of the Chinese Communist
Party. Based on this, and coupled with the "996 Affair," it
officially decided to launch a "Labor Project," which would
make programmers realize the importance of the eight-hour working
system and fight for their own rights, using programmers as the seeds
of spreading these contents, further affecting all working classes,
and even overthrowing the Communist Party. He was very concerned
about the Shenzhen Jasic incident, and read the "China Labor
Bulletin" report that more and more labor movements would break
out in China in the future. In particular, in August 2018, "China
Labor Bulletin" director Han Dongfang said in a training that he
should not give up the hope of engaging in a "labor movement"
and overthrowing the Communist Party, so he was even more convinced
that a labor could can overthrow the Communist Party of China. On
April 2, 2019, he began writing the "Labor Rights Protection
Project Documentation." On two occasions on April 4 and 7, he
sent the "Labor Rights Protection Project Documentation" to
Cheng Yuan. On April 17, he, Cheng Yuan, and Liu Dazhi had a
discussion in the office. Cheng Yuan asked him to write a simplified
account of "996," and the financial manager of "Project"
was Liu Dazhi. The "Labor Rights Protection Project" was
Cheng Yuan's responsibility to apply for funds from foreign
organizations and lead the entire "Project." Cheng Yuan
asked Liu Dazhi to be in charge of project finances and instructed
him to be responsible for specific tasks. The amount of "Project"
funds was about 18,000 US dollars, and the period was from May to
September 2019. At present, three activities had been implemented,
namely submitting an application for information disclosure to the
government, sending the "Labor Law" to entrepreneurs, and
submitting proposals for revision of the "Labor Supervision
Regulations" to the government.
(ii) Statements of
defendants Cheng Yuan and Liu Dazhi that around March 2019, a foreign
organization suggested that Cheng Yuan could apply for a temporary
"Project" from May to September 2019. Cheng Yuan ordered Wu
Gejianxiong to write "Project Documentation" with labor
rights protection as its content. On April 4 and 7, Wu Gejianxiong
sent the "Labor Rights Protection Project Documentation" to
Cheng Yuan's mobile phone twice via WHAT'SAPP. On April 18, Cheng
Yuan asked Wu Gejianxiong to write an activity description of the
activity with labor rights protection as its content. Cheng Yuan also
asked Liu Dazhi to prepare a May-September budget and another
July-September budget based on the activity description Wu
Gejianxiong wrote. On the evening of April 18, Liu Dazhi sent the two
budgets and the activity description written by Wu Gejianxiong to
Cheng Yuan via WHAT'SAPP. Cheng Yuan then sorted out the event
description written by Wu Gejianxiong and titled it "Temporary
Activity Application Description" and sent it to Wan Yaqiu,
requesting that it be translated into English. Cheng Yuan sent the
English version of "Temporary Activity Application Description"
and two "Project" budgets to a foreign organization, and
emailed the "Project" budget of more than 17,000 US dollars
revised by Liu Dazhi to a foreign organization. On June 18, the
foreign organization stated that the "Project" budget had
been approved. Cheng Yuan was in charge of the "Project,"
Wu Gejianxiong assisted in the implementation, and Liu Dazhi ws in
charge of the financial work of the "Project."
(iii) The "Labor
Rights Protection Project Documentation" and the "Temporary
Activity Application Description" clearly indicate that the real
goal of the "Labor Rights Protection Project" was to
discover labor leaders, form autonomous labor unions, and directly
affect the legitimacy and stability of the central government's
regime. The "Project" set up two lines, the visible (A) and
the hidden (B). Goal A was to promote the eight-hour work system and
the two-day rest system by advocating against the "996"
work system. Goal B was to discover "labor leaders" and
form "autonomous labor unions" in the process of launching
labor movements in various places, disrupting the central
government's control over local governments, and influencing the
legitimacy and stability of the regime.
(iv) WHAT'SAPP chat
records between defendants Cheng Yuan and Wu Gejianxiong clearly
indicate that those two planned and discussed having Wu Gejianxiong
take over the 9961aw forum anonymously, sensationalized the "996"
work system, hired a lawyer to act on a case claiming "overtime
pay," accepted foreign media interviews, and publicized
anti-"996" actions.
(v) WHAT'SAPP chat
records among defendants Cheng Yuan, Liu Dazhi, and Wu Gejianxiong
and Wan Yaqiu discussing the "Labor Rights Protection Project"
clearly indicate that Cheng Yuan directed Wu Gejianxiong to write the
"Labor Rights Protection Project Documentation" and
"Temporary Activity Application Description." Cheng Yuan
directed Liu Dazhi to formulate " Project" budgets, and
instructed Wan Xinmei (Wan Yaqiu) to translate " Project"
applications into English.
(vi) Electronic data
collected from defendant Cheng Yuan's hsxg@tutanota.com
mailbox: Cheng Yuan sent the "Labor Rights Protection Project"
application and budget to a foreign organization several times
through this email address, and signed a "Project"
agreement with the foreign organization. The "Project"
budget was 17,775 US dollars, and the period was 5 months. The
"Project" was approved by the foreign organization.
(vii) Signal chat
records and certain emails of defendant Wu Gejianxiong clearly
indicate that Wu Gejianxiong gave interviews to foreign reporters
from the "New York Times," "People," and NHK,
which then spread the circumstances of the "Labor Rights
Protection Project" creation and development.
(viii) Documentary
evidence including Government Information Disclosure Application
Forms, Government Information Disclosure Application Notifications,
Administrative Indictments, Notices of Response to Litigation,
invoices issued to Hong Chaoqing by the Sichuan Zhuoyu Law Firm, and
Wu Gejianxiong's, designated reimbursement documents: On April 29,
2019, Hong Chaoqing mailed a government information disclosure
application form to the Chengdu Human Resources and Social Security
Bureau, and submitted 6 government information disclosure
applications. On May 6, the Chengdu Human Resources and Social
Security Bureau gave a written reply to Hong Chaoqing. On May 20,
Hong Chaoqing filed an administrative lawsuit with the People's Court
of the Chengdu High-tech Industrial Development Zone on the grounds
that the Chengdu Human Resources and Social Security Bureau "created
the grounds for refusing information disclosure without a clear legal
basis." On June 10, the court notified the Chengdu Human
Resources and Social Security Bureau to participate in the
proceedings. Hong Chaoqing commissioned Sichuan Zhuoyu Law Firm to
act on the case, and the 10,000 yuan lawyer's representation fee was
paid by "Changsha Funeng."
(ix) Testimony of
witness[OBSCURED IN ORIGINAL]: In April 2019, he met a person named
CPdogson on the open source code website GITHUP, and under his
instructions, he submitted information disclosure applications to the
human resources and social security bureaus of Shenzhen, Chengdu,
Suzhou, Nanjing, Hangzhou and other cities, and later decided to file
an administrative lawsuit against the human resources and social
security bureau of Chengdu. CPdogson introduced him to the lawyer
Yang Qing in Chengdu, and transferred 10,000 yuan to him to pay the
lawyer's representation fee by depositing without using a card. On
October 14, 2019, he entrusted representing lawyer Yang Qing to
conduct pre-trial mediation with the Chengdu Human Resources and
Social Security Bureau.
(x) Testimony of
witness[OBSCURED IN ORIGINAL]: On May 16, 2019, Cheng Yuan asked him
through a friend's introduction for help with representation to sue
the Chengdu Human Resources and Social Security Bureau in an
administrative lawsuit on the grounds that it did not disclose
information in accordance with the law. The actual applicant, Hong
Chaoqing, contacted him and paid 10,000 yuan as a lawyer’s
representation fee. Hong Chaoqing said that he had submitted a
similar application for information disclosure to the Hangzhou Human
Resources and Social Security Bureau. After reviewing the
documentation, he obtained the labor complaint case statistics. On
October 14, 2019, Hong Chaoqing entrusted him to conduct pre-trial
mediation with the Chengdu Human Resources and Social Security
Bureau.
(xi) Testimony of
witness[OBSCURED IN ORIGINAL] and defense transcripts: In May 2019,
he participated in a training on "social movements"
organized by the Taiwan Yunyou Studio. The training party believed
that the "996" affair in the mainland was a relatively
successful case of a social movement. During the training, Wu
Gejianxiong was both a trainee and a trainer. At the training
meeting, Wu Gejianxiong introduced the entire development process of
the "996" affair, focusing on how to "depoliticize,"
"aestheticize," and "diversify". In the mixed
identification organized by the investigating agency, Luo Meihua
identified Wu Gejianxiong.
(xii) Testimony of
witness[OBSCURED IN ORIGINAL]: On April 18, 2019, Cheng Yuan asked
him to translate the "996 Project" materials into English,
so as to facilitate their spread and promotion abroad and expand the
influence of "Project."
IV. Evidence Proving
Collective Facts
1. The household
registration of defendants Cheng Yuan, Wu Gejianxiong, and Liu Dazhi:
The three defendants have all reached the age of criminal liability
for committing crimes.
2. Hunan Pengcheng
Certified Public Accountants Forensic Accounting Forensic Opinion
Report: Circumstances of the funds receipt and payment for "Changsha
Funeng's" implementation of the "Project," which is to
say, the foreign organization funded the "Lawyers' Rights
Protection Project" with USD 89,980.69, the "Lawyers'
Practice Rights Protection Project" with USD 45,000, the
"Training the Trainers Project" with RMB 146,000, and the
"Labor Rights Protection Project" with USD 18,000. The main
mode of transfer of foreign funds to the domestic "Project"
was that after the foreign bank account received the foreign funds,
they withdraw them in the form of cash withdrawal, and then convert
them into RMB through a conversion shop in Hong Kong and transfer
them to the domestic personal accounts of Cheng Yuan, Zhang Yujuan,
Liu Dazhi and others designated by Cheng Yuan. After Cheng Yuan
accepted foreign funds, he would pay the funds required for "Project"
expenses to Zhang Yujuan, Liu Dazhi and other domestic "Project"
financial personnel, and the domestic "Project" financial
personnel would be responsible for the actual expenditure of the
"Project" in China. "Changsha Funeng" had no
other business activities and business income except accepting
foreign funds to carry out "Project" activities.
3. The Handwriting
Forensic Analyze Opinion Letter from the Judicial Forensic Center of
the Hunan State Security Bureau: The Chinese and English materials
written by Wu Gejianxiong were written in the same handwriting as
"Nagi" on the "reimbursement receipt cover,"
"labor expense voucher," "salary slip," and the
"overtime subsidy distribution form," which means that Wu
Gejianxiong and "Nagi" are the same person.
4. "Changsha
Funeng's" business license, account opening permit, enterprise
registration form, company registration application form, tax
registration form, declaration details query, shareholder meeting
resolution, and company articles of association: "Changsha
Funeng" was established on March 31, 2017, and its legal
representative was Liu Dazhi. On October 23, 2017, the legal
representative was changed to Cheng Yuan. On July 22, 2019, the legal
representative was changed from Cheng Yuan to Liu Dazhi. The company
had no normal legal operating income.
5. "Hong Kong
Yuanzhong's" registration documents, financial audit report,
bank account application information, and bank account information:
"Hong Kong Yuanzhong" was established on January 6, 2016.
6. Testimony of
witnesses [OBSCURED IN ORIGINAL] and [OBSCURED IN ORIGINAL]: After
"Changsha Funeng" was established, Cheng Yuan was in charge
of the approval of the company's funds in and out of the "Project"
work report, and played a leading role in the company. Liu Dazhi was
in charge of finances and "Project" execution, and Wu
Gejianxiong was in charge of "Project" execution.
Regarding the
defense opinions proffered by the defense counsels of each defendant,
based on the facts and evidence ascertained in the trial, this
Court's judgment as follows:
1. Regarding the
defense opinion proffered by the defense counsel for defendants
Cheng Yuan and Liu Dazhi that some of the "Projects" did
not create any severe jeopardizing consequences. An investigation of
the evidence in this case proved that Cheng Yuan acted in league with
Wu Gejianxiong and Liu Dazhi to carry out "Protecting Lawyers'
Right to Practice" and other "Projects" which attacked
our country's judicial system, continuously distributed and spread
negative information, provided foreign parties with materials
attacking the status quo of our country's rule of law, smeared the
image of the State, provoked and intensified dissatisfaction with the
government among those who did not know the truth, and manufactured
factors of social instability, and this brought about a realistic
danger of subversion of state power and the overthrow of our
country's currently existing socialist system, and severely
jeopardized national security and social stability. Therefore this
defense opinion cannot be established, and is not accepted by this
Court.
2. Regarding the
defense opinions proffered by the defense counsels for defendant
Cheng Yuan that Cheng Yuan played a secondary role in the "Labor
Rights Protection Project," and for defendant Wu Gejianxiong
that Wu Gejianxiong was not an active participant in the commission
of the crime of subversion of state power, and for defendant Liu
Dazhi that Liu Dazhi's subjective malice was relatively minor. An
investigation of the evidence in this case proved that, during the
application and implementation process of the "Labor Rights
Protection Project," Cheng Yuan instructed Wu Gejianxiong to
write "Project Documentation," "instructed Liu Dazhi
to formulate a financial budget, and he was responsible for the
application and implementation of the "Project," so he did
not play a secondary role in the "Project." Wu Gejianxiong
was a specific implementer of the "Project," assisted in
the implementation of the "Project," and was identified as
another participant. Liu Dazhi went abroad many times to participate
in relevant training, and he was a specific implementer of the
"Project," so it cannot be considered that his subjective
malice was relatively minor. Therefore the defense opinion proffered
by the defense counsel for defendant Wu Gejianxiong that Wu
Gejianxiong was another participant is established, and is adopted by
this Court. The other defense opinions cannot be established, and are
not accepted by this Court.
3. Regarding the
defense opinion proffered by the defense counsel for defendants Cheng
Yuan, Wu Gejianxiong, and Liu Dazhi requesting they be shown
leniency. Based on an investigation, after being taken into police
custody the three defendants were able to make truthful statements of
their own criminal acts, have shown frankness, and voluntarily
confessed their guilt and accepted punishment, and in accordance with
the law may be given a lighter punishment. Therefore the defense
opinion requesting they be shown leniency is establish, and is
adopted by this Court.
This Court finds
defendants Cheng Yuan, Wu Gejianxiong, and Liu Dazhi established
companies to apply for funds from foreign organizations, and in the
guise of implementing "Projects", carried out acts to
subvert state power and overthrow the socialist order, severely
jeopardizing national security and social stability, and their
actions constitute the crime of subversion of state power. With
respect to the public prosecution agency charge that Cheng Yuan, Wu
Gejianxiong, and Liu Dazhi committed the crime of subversion of
state power, the facts are clear, the evidence is reliable and
copious, and the charged offense is established. Based on the
positions and roles played by the three defendant in committing the
crime of subversion of state power, defendant Cheng Yuan was an
active participant, and defendants Wu Gejianxiong and Liu Dazhi were
his accomplices. After being taken into police custody defendants
Cheng Yuan, Wu Gejianxiong, and Liu Dazhi were able to make truthful
statements of their own criminal acts, voluntarily confessed their
guilt and accepted punishment, and may be be given a lighter
punishment. The sentencing recommendation of the public prosecution
agency is appropriate. Based on the facts, nature, circumstances and
degree of social endangerment of the three defendants' crime, and in
accordance with the provisions of Articles 105(1), 55(1), 56(1), and
67(3) of the "Criminal Law of the People's Republic of China"
and Article 200(1) of the "Criminal Procedure Law of the
People's Republic of China," the judgment is as follows:
1. Defendant Cheng
Yuan committed the crime of subversion of state power, and is
sentenced to a fixed term imprisonment of five years and five years
deprivation of political rights;
(The prison term is
to be calculated starting on the day the judgment is executed, with
one day of the sentence to be offset for each day of detention prior
to the execution of this judgment, that is from July 22, 2019 to July
21, 2024.)
2. Defendant Wu
Gejianxiong committed the crime of subversion of state power, and is
sentenced to a fixed term imprisonment of three years and two years
deprivation of political rights;
(The prison term is
to be calculated starting on the day the judgment is executed, with
one day of the sentence to be offset for each day of detention prior
to the execution of this judgment, that is from July 22, 2019 to July
21, 2022.)
3. Defendant Liu
Dazhi committed the crime of subversion of state power, and is
sentenced to a fixed term imprisonment off two years and two years
deprivation of political rights;
(The prison term is
to be calculated starting on the day the judgment is executed, with
one day of the sentence to be offset for each day of detention prior
to the execution of this judgment, that is from July 22, 2019 to July
21, 2021.)
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 Hunan. A written
appeal should be submitted with one original and two copies of the
appeal brief.
Chief Adjudicator
Xiaohong Zou
Adjudicator Zhao Zhe
Adjudicator Lu Xuan
July 20, 2021
Clerk Huang Zhen
湖南省长沙市中级人民法院
刑事判决书
(2020)湘01刑初54号
公诉机关湖南省长沙市人民检察院。
被告人程渊(化名江南、Mike),男,1973年1 [INTENTIONALLY OMITTED]出生于江苏省南京市,公民身份号码 [INTENTIONALLY OMITTED],汉族,中专文化,长沙富能信息科技有限公司法定代表人,香港源众信息传播有限公司董事,户籍所在地江苏省南京市雨花台区 [INTENTIONALLY OMITTED],租住地广东省深圳市龙岗区 [INTENTIONALLY OMITTED]。因涉嫌犯颠覆国家政权罪,于2019年7月22日被刑事拘留,同年8月26日被逮捕。现押湖南省国家安全厅看守所。
辩护人王翔,湖南金州律师事务所律师。
辩护人唐洁,湖南金州律师事务所律师。
被告人吴葛健雄(化名吴起帆、Nagi),男,1995年 [INTENTIONALLY OMITTED]出生于江西省永修县,公民身份号码 [INTENTIONALLY OMITTED],汉族,大学文化,长沙富能信息科技有限公司职员,户籍所在地浙江省杭州市萧山区 [INTENTIONALLY OMITTED],租住地湖南省长沙市望城区 [INTENTIONALLY OMITTED]。因涉嫌犯颠覆国家政权罪,于2019年7月22日被刑事拘留,同年8月26日被逮捕。现押湖南省国家安全厅看守所。
辩护人陈宏义,湖南弘一律师事务所律师。
辩护人陈汝超,湖南弘一律师事务所律师。
被告人刘大志(化名刘永泽、Alvin),男,1977年 [INTENTIONALLY OMITTED]出生于湖南省新侗族自治县,公民身份号码 [INTENTIONALLY OMITTED],汉族,大学文化,长沙富能信息科技有限公司职员,户籍所在地湖南省新晃侗族自治县晃州镇 [INTENTIONALLY OMITTED],租住地湖南省长沙市望城区 [INTENTIONALLY OMITTED]。因涉嫌犯颠覆国家政权罪,于2019年7月22日被刑事拘留,同年8月26日被逮捕。现押湖南省国家安全厅看守所。
辩护人周铁群,湖南真泽律师事务所律师。
辩护人曾杰,湖南真泽律师事务所律师。
湖南省长沙市人民检察院于2020年6月24日以长检二刑诉[2020]42号起诉书指控被告人程渊、吴葛健雄、刘大志犯颠覆国家政权罪,向本院提起公诉。本院于2020年6月30日立案受理,并依法组成合议庭,于2020年7月14日召开庭前会议,同年9月3日公开开庭进行了审理。湖南省长沙市人民检察院指派检察官韩冰囡、邓峰,检察官助理李爱华出庭支持公诉,被告人程渊及其辩护人王翔、唐佼洁,被告人吴葛健雄及其辩护人陈宏义、陈汝超,被告人刘大志及其辩护人周铁群、曾杰均到庭参加诉讼。期间,本院依法报湖南省高级人民法院决定延长审理期限三个月,三次依法层报最高人民法院决定分别延长审理期限三个月。现已审理终结。
湖南省长沙市人民检察院指控:被告人程渊、吴葛健雄、刘大志多次接受境外敌对组织的反华培训,形成了颠覆国家政权和推翻国家现行政治制度的想法。2016年1月,程渊在香港注册成立香港源众文化传播有限公司(以下简称“香港源众”),2017年3月,程渊出资成立长沙富能信息科技有限公司(以下简称“长沙富能”)。自2017年上半年至案发前,程渊以上述两家公司名义向境外组织申请“项目”方式获取资金,伙同吴葛健雄、刘大志以“长沙富能”名义先后执行了所谓“保障律师执业权利”、“律师执业权利保障”、“培训培训师”、“劳工权益保护”等“项目”,以此为幌子诋毁、攻击我国司法制度,并向境外提供抨击我国法治现状的材料;恶意炒作、抹黑政府形象,挑起,激化不明真相的人对政府的不满;传授与政府对抗的方法和技巧,发掘、培植敌对力量,策动发起所谓的“社会运动”,意图颠覆国家政权。具体事实如下:
1.2017年上半年,被告人程渊分别以“香港源众”、“长沙富能”的名义向境外组织申请“项目”资金共计约13.5万美元,实施“保障律师执业权利项目”、“律师执业权利保障项目”,伙同刘大志、吴葛健雄通过举办沙龙、研讨会等活动,以访谈、自媒体传播等形式,攻击我国司法制度,并以“项目申请书”、“项目报告”等形式向境外提供抨击我国法治现状的材料。
2.2018年11月,被告人程渊以“长沙富能”名义向境外组织申请“项目”资金人民币14万余元,实施“培训培训师项目”,伙同刘大志、吴葛健雄通过开展培训活动,传授利用社会敏感事件策动相关人员通过自媒体传播不良信息、制造社会不稳定因素的方法、技巧,培植对抗力量。
3.2019年3月,被告人程渊分别以“香港源众”、“长沙富能”的名义向境外组织申请“项目”资金1.8万美元,实施“劳工权益保护项目”。“项目书”明确提出实施该“项目”的目的为“直接影响中央政府政权的合法性和稳定性”。程渊、吴葛健雄、刘大志通过线上和线下活动,恶意炒作、抹黑政府形象,挑起不明真相的网民对抗政府机关,意图通过系列活动物色“劳工骨干”,组建“劳动者自治联盟”,策动“工人运动”,改变我国现行政治体制。
2019年7月22日,被告人程渊、吴葛健雄、刘大志被抓获归案。
公诉机关就起诉书指控的上述事实向法庭出示了手机、电脑等物证照片,出入境记录、银行流水、工商信息登记查询书、户籍信息等书证,证人罗美华、洪、杨青等人的证言,视听资料,电子数据,远程勘验笔录,辨认笔录,鉴定意见及被告人程渊、吴葛健雄、刘大志的供述和辩解等证据。公诉机关认为,被告人程渊、吴葛健雄、刘大志实施颠覆国家政权,推翻社会主义制度的行为,已触犯《中华人民共和国刑法》第一百零五条第一款之规定,应当以颠覆国家政权罪追究刑事责任。被告人程渊、吴葛健雄、刘大志均系积极参加者,在三人共同参与实施的具体犯罪中,被告人程渊起主要作用,系主犯;被告人吴葛健雄、刘大志起次要作用,系从犯。程渊、吴葛健雄、刘大志到案后能如实供述自己的犯罪事实。程渊、吴葛健雄、刘大志认罪认罚,建议对被告人程渊判处有期徒刑五年,剥夺政治权利五年,对被告人吴葛健雄判处有期徒刑三年,剥夺政治权利二年,对被告人刘大志判处有期徒刑二年,剥夺政治权利二年。根据《中华人民共和国刑事诉讼法》第一百七十六条之规定,提请本院依法判处。
被告人程渊、吴葛健雄、刘大志对指控事实,罪名及量刑建议没有异议且签字具结,在开庭过程中亦无异议。
被告人程渊的辩护人辩护提出:(1)程渊在“劳工权益保护项目”实施中仅起次要作用。该项目的项目书撰写、策划与实施都系吴葛健雄所为,项目资金申报是程渊所为。(2)程渊本人在“保障律师执业权利项目”和“律师执业权利保障项目”中没有造成严重的社会危害后果。(3)程渊没有前科,具有坦白等情节,请求从宽处罚。
被告人吴葛健雄的辩护人辩护提出:(1)吴葛健雄在颠覆国家政权犯罪中非积极参加者,而是其他参加人员。(2)吴葛健雄如实供述,且认罪认罚,请求从宽处罚。
被告人刘大志的辩护人辩护提出:(1)刘大志主观恶性小,其思想上的转变系受境内外敌对势力的影响。(2)刘大志虽参与实施颠覆国家政权行为,但其行为并未对项目对象如律师项目对象产生毒害影响的危害后果。(3)刘大志系从犯,应从轻减轻处罚。(4)刘大志具有坦白情节,且认罪认罚,应从宽处理。
经审理查明,被告人程渊、吴葛健雄、刘大志多次接受境外敌对组织的反华培训,形成了颠覆国家政权和推翻国家现行政治制度的想法并付诸行动。2016年1月,程渊在香港注册成立“香港源众”。2017年3月,程渊出资成立“长沙富能”。自2017年上半年至案发前,程渊以上述两家公司名义向境外组织申请“项目”及资金,伙同吴葛健雄、刘大志以“长沙富能”名义按境外组织下达的“项目”先后执行了所谓“保障律师执业权利项目”、“律师执业权利保障项目”、“培训培训师项目”、“劳工权益保护项目”等,诋毁、攻击我国司法制度,并向境外提供抨击我国法治现状的材料;抹黑政府形象,挑起,激化不明真相的人对政府的不满;传授与政府对抗的方法和技巧;发掘、培植敌对力量,策动发起所谓的“社会运动”,意图颠覆国家政权。具体事实如下:
1.2017年上半年,被告人程渊分别以“长沙富能”、“香港源众”的名义向境外组织申请“项目”资金共计约13.5万美元,实施“保障律师执业权利项目”、“律师执业权利保障项目”,伙同被告人刘大志、吴葛健雄通过举办沙龙、研讨会等活动,以访谈、自媒体传播等形式,攻击我国司法制度,并以“项目申请书”、“项目报告”等形式向境外提供抨击我国法治现状的材料。
2.2018年11月,被告人程渊以“长沙富能”名义向境外组织申请“项目”资金人民币14.6万元,实施“培训培训师项目”。该“项目”以部分违法违规律师为受训对象,通过他们向不同利益群体培训动员,促进“社会运动”开展。被告人程渊、刘大志、吴葛健雄通过开展培训活动,对受训对象传授利用社会敏感事件策动相关人员制造社会不稳定因素的方法、技巧,为颠覆国家政权培植对抗力量。
3.2019年3月,被告人程渊分别以“香港源众”、“长沙富能”的名义向境外组织申请“项目”资金1.8万美元,实施“劳工权益保护项目”。“项目书”明确提出实施该“项目”的目的为“直接影响中央政府政权的合法性和稳定性”。被告人程渊、吴葛健雄、刘大志通过线上和线下活动,恶意炒作热点话题、挑起诉讼案件,向境外扩大捣乱活动影响等,抹黑政府形象,挑起不明真相的网民对抗政府机关,通过系列活动物色“劳工骨干”,意图组建“劳动者自治联盟”以策动“工人运动”,改变我国现行政治体制。
2019年7月22日,被告人程渊、吴葛健雄、刘大志被抓获归案。三被告人到案后如实供述了自己的犯罪事实。上述事实,有下列经过庭审质证并查证属实的证据予以证明:
一、证明三被告人主观意形成过程的证据
1.被告人程渊供述,2012年,他赴泰国清迈、瑞士日内瓦参加“维权网”组织的两次培训,了解“非暴力不合作运动”的理念、案例和方法,后又参加了《社会运动的八个阶段和四种角色》的讲座。他逐渐掌握建立社会组织发起社会运动以达到推翻我国现有政治制度的方法,即动员各类有利益诉求的群体,自下而上发起各类维权运动、社会运动、街头革命,在中国实施“颜色革命”。他先后在不同的城市成立不同的公司,实际都以项目形式实施社会运动的三个步骤,培养、发掘社会运动“领袖”,鼓励他们在不同群体建立自己的组织,为将来提出政治诉求做组织准备。“香港源众”是空壳公司,成立的主要目的是接受境外组织资金,主要用于“长沙富能”在国内开展“项目”。他成立“长沙富能”的目的是以合法身份接受境外资金,在各类群体中建立组织,开展社会运动,待时机成熟推翻现行国家制度。“长沙富能”也是这么运作和实践的。
2.被告人吴葛健雄供述,他的个人生活和成长经历使对共产党的政策产生误解和仇视。加入“长沙富能”后,他受程渊、刘大志的影响,加上用翻墙工具查阅境外“占中”问题的资料,产生了推翻共产党的想法。他通过参加境外培训掌握推翻共产党的方法和理论,进一步坚定了想法。2017年12月,程渊推荐他第一次参加“中国人权”在香港的培训。2018年5月,他在香港举行的第二次“中国人权”网络安全技术培训中协助讲课。培训结束后,“中国人权”邀请他作为顾问及境内联络人。第三次参加“中国人权”的培训是在香港港岛太平洋酒店举行的网络安全技术培训。2018年12月初在香港港岛太平洋酒店举办了第四次“中国人权”网络安全技术培训。2018年8月,他参加“中国劳工通讯”组织的培训,认识“中国劳工通讯”负责人,该负责人的讲课对他启发很大,对他今后做劳工领域的活动产生重大影响。2018年7月,他去香港参加TOT(培训培训师培训。2019年6月底,他参加境外组织的安全培训,主题是当警察上门抓人该如何应对等。
3.被告人刘大志供述,他受西方资产阶级政治观念的影响,逐渐对中国现行政治制度的合法性产生质疑。他于2012年在瑞士日内瓦参加“维权网”培训时与程渊认识,并对程渊开展的工作理念深为认同,即政治问题法律化、法律问题社会化、社会问题项目化。他觉得找到了一条更低风险从事社会运动的途径,到2016年11月时以全职员工的方式加入程渊的长沙团队。他从2012年以来先后参加境外反华势力组织举办的培训、交流活动,长期受西方民主人权观念的影响,回国后接受这些组织的资助开展人权活动,被西方势力培养成代理人。他所参加的活动并不是简单的法律维权,而是以维权为借口,推广社会运动模式的策略、方法,制造社会矛盾和冲突,开展非暴力抗争行动,挑起民众对执政党的不满,为爆发“颜色革命”奠定社会基础积累力量。之所以要成立“长沙富能”,是因为当时境外组织提出要求,机构必须是合法注册的组织,“项目”资金方的资金账可查;成立“长沙富能”这样的机构能通过合法落地使得影响力越来越大。境外组织资助“长沙富能”这样的机构,是通过法律维权的名义在境内开展“项目”,以人为制造案件为突破口,抹黑中国司法制度,达到消耗中国司法资源的目的。“长沙富能”的长期目标是利用各类有利益诉求的群体,通过组织诉求实现群体的组织化,待时机成熟通过组织发动运动,实现西方民主政治制度。
4.被告人程渊、吴葛健雄、刘大志的港澳通行证、护照,往来台湾通行证及出入境记录,载明三被告人为接受境外敌对组织培训而赴境外的情况。
5.被告人刘大志参加培训的文件、ISHR(非政府组织国际人权服务处)证书、《非暴力抗争小手册》载明,2012年,刘大志参加敌对组织“维权网”在瑞士日内瓦组织的培训。2014年初,刘大志参加敌对组织“华人民主书院”在香港举办的非暴力抗争策略培训。
6.《中华人民共和国国家安全部敌对组织确认书》载明,2019年7月9日,“维权网”、“中国人权”、“中国劳工通讯”、“华人民主书院”、“中国权利在行动”被国家安全部认定为敌对组织。
7.辨认笔录载明,在侦查机关组织下,被告人程渊、吴葛健雄、刘大志进行了相互辨认,辨认出程渊系“长沙富“能”负责人,吴葛健雄、刘大志系“长沙富能”成员。
二、证明三被告人共同实施颠覆国家政权行为的证据
(一)证明三被告人共同实施“保障律师执业权利项目”、“律师执业权利保障项目”,攻击我国司法制度,意图颠覆国家政权的证据
1.被告人程渊供述,“保障律师执业权利项目”系他于2017年以“长沙富能”的名义向境外组织申请的,经费总额约9万美元,已全部到账,“项目”周期为两年即2017年10月至2019年9月。“律师执业权利保障项目”系他以“香港源众”的名义向境外组织申请的,资助金额4.5万美元,已全部到账,“项目”周期为2018年5月至2019年4月,上述两个“项目”实际上是一个,统称为“律师项目”,只是申请的资金方不同。“律师项目”开展的活动主要包括组织律师沙龙、对被处罚律师进行访谈以了解被吊销律师执业执照的原因等。2018年初,“长沙富能”创建“萌动律心”微信公众号。2018年夏该公众号曾被关停,后又创建“萌动律心二世”。向境外组织提交的“项目”报告中所提及的活动,都已实施。“律师项目”以律师为目标,通过鼓励律师维权发动组织社会运动,并从中选择合适律师发展他们的组织能力,推动他们在各类群体中成为领袖,领导组织各类群体的社会运动,待时机成熟成为推翻中国共产党的力量。“律师项目”参与执行人员有他,吴葛健雄、刘大志。他负总责,刘大志和吴葛健雄协助执行。张玉娟、万亚参与一部分。
2.被告人刘大志、吴葛健雄供述,“保障律师执业权利项目”系程渊于2017年10月向境外组织申请,程渊为“项目”负责人并负责“项目书”的撰写,刘大志负责财务及“项目”执行,吴葛健雄协助“项目”执行。前两次半年“项目”报告为程渊起草,刘大志起草了2018年10月至2019年3月的半年报告,最后一次半年报告由吴葛健雄起草。报告中的财务部分由刘大志根据现金日记账汇总开支,编制至财务报表中。第一年由程渊牵头管理“项目”,第二年由吴葛健雄牵头。“律师执业权利保障项目”系程渊向境外组织申请,程渊为“项目”负责人并负责“项目书”的撰写,刘大志负责财务及“项目”执行,吴葛健雄协助“项目”执行。季度报告中的活动部分由刘大志和吴葛健雄分别撰写,季度报告中的财务部分由刘大志根据现金日记账汇总开支,编制至财务报表中,程渊再汇总提交给出资方。实施“律师项目”的真实目的,一是针对“709事件”后维权律师群体被打压的现状,通过培训开展活动等方式,以维护律师执业为借口,人为制造影响力诉讼案件,引起舆论关注,抹黑中国现行司法制度,攻击司法行政部门对律师的管理方式;二是通过培训维权律师,发现和培养群体领袖人物,支持维权律师建立非政府组织,组建政党竞选执政党,实现所谓西方的民主政治制度。
3.证人[OBSCURED IN ORIGINAL]、[OBSCURED IN ORIGINAL]、[OBSCURED IN ORIGINAL]的证言及辨认笔录:2018年10月27日至28日,程渊、吴葛健雄以“长沙富能”的名义召集陈亮、徐璐、耿璟等20余人在湖北武汉开展研讨会,实施“保障律师执业权利项目”。在侦查机关组织的混杂辨认中，[OBSCURED IN ORIGINAL]、[OBSCURED IN ORIGINAL]、[OBSCURED IN ORIGINAL]辨认出程渊、吴葛健雄。
4.《保障律师职业权利项目合同》《保障律师职业权利项目书》《律师职业权利保障项目合同》《律师执业权利保障项目书》载明,程渊以“长沙富能”、“香港源众”的名义分别向境外组织申请“保障律师执业权利项目”、“律师执业权利保障项目”。“项目书”提出“已经被刑事处理709案,是政府对维权律师的全力打击,已被行政处罚的文东海、蔺其磊等律师未考核通过系政府刁难,新增的禁止性规定都对律师不利”等言论,通过对我国法治妄测评,抹黑现行司法制度;策划利用敏感个案挑起群众对政府的不满,引起與论关注,制造社会不稳定因素;计划通过自媒体发表并传播负面信息,持续扩大影响;通过不直接接受境外资金,不在中国内地处理财务等方式规避法律风险。
5.《律师执业权保护项目季度报告》《律师执业权保护项目半年报告》《律师权益沙龙活动报告》《访谈记录》等书证载明,通过“项目”实施开展沙龙、研讨、行政诉讼等活动,策划对抗司法部门处罚的方案,给政府施加压力;通过访谈被处罚律师,攻击司法部门对律师违法违规行为的处置方式,抹黑我国司法制度;通过微信公众号发表并传播不良信息,持续扩大影响。
6.从被告人程渊hsxg@tutanota.com邮箱中提取的电子邮件载明,程渊向境外组织申请“律师项目”及资金,并向境外组织提供“项目”报告。
7.“律师权益项目”收支明细表:“律师权利保障项目”自2018年5月至2019年4月的收支明细,该项目收到45000美元,已全部支出;“保障律师执业权利项目”自2017年10月至2019年6月的收支明细,该“项目”收到89980.69美元,已全部支出。
8.长沙市司法局出具的部分律师被吊销执业证的证明材料:2018年6月7日,湖南省司法厅给予文东海吊销律师执业证书的行政处罚;2018年10月26日,广东省司法厅作出《撤销行政许可决定书》,收回并注销陈科云持有的律师执业证书。
(二)证明三被告人实施“培训培训师项目”(TOT),培植力量,意图颠覆国家政权的证据
1.被告人程渊供述,“培训培训师项目”是“长沙富能”和境外组织合作的,周期为2018年12月至2019年6月。“项目”选择的标准是以被吊照或即将被吊照的律师为主,这些律师更有维护自身权利的需求,更有动力参与到维护自身权益的行动中,这样更容易在培训下采取行动。实施内容具体以“项目”终期报告中表述为准,终期报告中的活动都已实施。“培训培训师项目”的首要目的是提升参与“项目”律师的培训能力,通过他们向不同利益群体培训动员,促进不同领域的运动实施,真实意图是从中选择律师发展他们的组织能力,推动他们在各类群体中成为“领袖”,领导组织各类群体的社会运动,待时机成熟成为推翻中国共产党执政地位的力量。在“项目”实施过程中,他起主导作用,刘大志,吴葛健雄协助执行。
2.被告人刘大志供述,“TOT项目”系程渊与境外组织商量的,预算资金约14万元人民币,“项目”由程渊负责。他是该“项目”执行人,吴葛健雄协助记录学员的培训实践活动。“项目”于2018年12月召开筹备会,2019年1月召开第一次培训会议,至2019年6月对培训学员开展了针对不同对象的培训实践活动。该“项目”已结束,“项目报告”和财务数据已由他发送给境外组织。实施“TOT项目”,是为发现群体中的积极分子,开展西方人权价值观的灌输,对特别活跃的推荐到境外接受培训、学习,让这些受训者人为制造诉讼案件,通过媒体舆论传播,向社会传递中国社会矛盾突出、司法不公等假象,让民众对政府的治理能力产生质疑。长期持续下去,在遇到重大社会事件时,让受影响和具备行动力的“社群领袖”可以组建反对派政党,公开与执政党对抗,以图改变当前的政治制度。
3.被告人吴葛健雄供述,“TOT项目”主要选择被吊照或即将被吊照的律师,及参加“新公民运动”的人作为培训对象;活动目的是在不同群体中挖掘“领袖”,由“领袖”来组织各类群体开展社会运动。
4.郑州市公安局长兴路分局警情处置情况汇报记载:2019年5月18日,公安机关接群众反映情况称在郑州市惠济区园口镇中州大道京水花园住宅区有形迹可疑人员进出,公安机关到现场进行调查,在一住宅内发现约十名男性在此聚会。上述人员自称系律师,在此开会研究房屋拆迁案件。公安机关对上述人员进行了身份登记,程渊、吴葛健雄、段汉杰在场。
5.证人段汉杰的证言:其曾在郑州市中州大道一住宅区参加过一“律师活动”,约有十名律师参加,现场提到“709”事件。
6.《TOT项目中期报告》《TOT项目终期报告》《TOT项目培训会议活动报告》载明,该“项目”通过开展培训活动,向受训者扩散所谓“维权”的法律工具与经验,利用社会敏感事件,鼓动相关人员通过自媒体方式传播负面信息,制造社会不稳定因素。该“项目”执行方“长沙富能”在广州、湖北咸宁召开了培训会。
7.TOT培训会议预算与支出明细表:该“项目”预算14.6万元人民币,支出14.6万元人民币。
(三)证明三被告人实施“劳工权益保护项目”,组建政党,意图颠覆国家政权的证据
1.被告人吴葛健雄供述,程渊讲过做“运”风险很高,容易被抓,但会动摇中国共产党的执政根基。基于这一点,加之正好爆发“996事件”,其正式决定做“劳工项目”,让程序员这部分人认识到八小时工作制的重要性,并争取自己的权利,把程序员作为传播这些内容的种子,进一步影响到所有工人阶层,直至推翻共产党。他十分关注深圳佳士事件,且看了“中国劳工通讯”报告里称中国未来会爆发越来越多的工人运动,特别是2018年8月“中国劳工通讯”负责人韩东方培训中讲到不要放弃搞“工运”和推翻共产党的希望,故他更加坚信工人运动可推翻中国共产党。2019年4月2日,他开始撰写《劳工权益保护项目书》;4月4日、7日,他先后两次将《劳工权益保护项目书》发给程渊;4月17日,他、程渊、刘大志在办公室共同讨论,程渊让他写“996”精简版,“项目”财务是刘大志。“劳工权益保护项目”是程渊负责向境外组织申请资金,且主导整个“项目”。程渊叫刘大志负责项目财务,指使他负责具体工作。“项目”金额约1.8万美元,周期为2019年5月至9月。目前实施了三个活动,分别是向政府提出信息公开申请,向企业家寄送《劳动法》,向政府提出《劳动监察条例》修改建议等。
2.被告人程渊、刘大志供述,2019年3月左右,境外组织建议程渊可申请2019年5月至9月的临时性“项目”。程渊指令吴葛健雄撰写一份以劳工权益保护为内容的“项目书”。4月4日、7日,吴葛健雄先后两次通过WHAT'SAPP向程渊手机发送《劳工权益保护项目书》。4月18日,程渊要求吴葛健雄撰写一份以劳工权益保护为内容的活动说明。程渊还要求刘大志根据吴葛健雄撰写的活动说明编制一份5月至9月的预算和另一份7月至9月的预算。4月18日晚,刘大志将撰写的两份预算和吴葛健雄撰写的活动说明通过WHAT'SAPP向程渊发送。程渊随即将吴葛健雄撰写的活动说明整理后命名为《临时活动申请说明》并发送给万亚球,要求翻译成英文。程渊向境外组织发送《临时活动申请说明》英文版和两份“项目”预算,并将刘大志修订过的17000多美元“项目”预算通过电子邮件发给境外组织。6月18日,境外组织表示“项目”预算已审批通过。程渊负责该“项目”,吴葛健雄协助执行,刘大志负责“项目”的财务工作。
3.《劳工权益保护项目书》《临时活动申请说明》载明,“劳工权益保护项目”的真实目标为发掘劳动者领袖,组建劳动者自治联盟,直接影响中央政府政权的合法性和稳定性。该“项目”设置明(A)暗(B)两条线,目标A是通过宣传反对“996”工作制,来宣传八小时工作制和双休制;目标B是在过程中发掘“劳动者领袖”,组建“劳动者自治联盟”,在各地发起工人运动,瓦解中央政府对地方政府的控制力,影响政权的合法性和稳定性。
4.被告人程渊与吴葛健雄的WHAT'SAPP聊天记录载明,二人策划讨论由吴葛健雄以匿名身份接手9961aw版块,炒作“996”工作制;付费聘请律师代理以“加班费”为诉求的案件,接受境外媒体采访,宣传反“996”行动。
5.被告人程渊、刘大志、吴葛健雄、万亚球通过WHAT'SAPP讨论“劳工权益保护项目”的聊天记录载明,程渊指使吴葛健雄撰写《劳工权益保护项目书》《临时活动申请说明》。程渊指使刘大志制定“项目”预算,并指使万信美(万亚球)将“项目”申请文件翻译成英文。
6.从被告人程渊hsxg@tutanota.com电子邮箱中提取的电子资料:程渊通过该电子邮箱多次向境外组织发送“劳工权益保护项目”申请及预算,与境外组织签署“项目”协议,“项目”预算17775美元,周期5个月。该“项目”获境外组织批准。
7.被告人吴葛健雄的Signal聊天记录及部分电子邮件载明,吴葛健雄接受境外媒体《纽约时报》《人物》、NHK记者的采访,传播“劳工权益保护项目”的实施及进展情况。
8.政府信息公开申请表、政府信息公开申请告知书、行政起诉状、应诉通知书、四川卓宇律师事务所出具给洪潮清的发票、吴葛健雄指认的报销单据等书证:2019年4月29日,洪潮清向成都市人力资源与社会保障局邮寄政府信息公开申请表,提出6项政府信息公开申请;5月6日成都市人社局书面答复洪潮清;5月20日,洪潮清以成都市人社局“在没有明确法律依据的情况下,自行创设拒绝信息公开的事由不具有合法性”为由向成都市高新技术产业开发区人民法院提起行政诉讼;6月10日,法院通知成都市人社局参加诉讼。洪潮清委托四川卓宇律师事务所代理该案件,1万元律师代理费由“长沙富能”支付。
9.证人[OBSCURED IN ORIGINAL]的证言:2019年4月,他在开源代码网站GITHUP上认识一网名叫CPdogson的人,并在其指示下向深圳、成都、苏州、南京、杭州等城市人社局提交信息公开申请,后决定对成都市人社局提起行政诉讼。CPdogson向他介绍成都的杨青律师,并通过无卡存款的方式向他转账1万元用于支付律师代理费。2019年10月14日,他委托代理律师杨青与成都市人社局进行庭前调解。
10.证人[OBSCURED IN ORIGINAL]的证言:2019年5月16日,程渊通过朋友介绍请他帮忙代理起诉成都市人社局未依法进行信息公开的行政诉讼案件。实际申请人洪潮清与他联系,并支付1万元律师代理费,洪潮清说已向杭州市人社局也提交了类似的信息公开申请,复议后拿到了劳动者投诉案件统计表;2019年10月14日,洪潮清委托他与成都市人社局进行庭前调解。
11.证人[OBSCURED IN ORIGINAL]的证言、辨认笔录:2019年5月,他参加台湾云游工作室组织的关于“社会运动”的培训,培训方认为大陆的“996”事件活动是比较成功的社会运动案例,活动过程比较隐蔽,对发起者和组织者起到了很好的保护。培训期间,吴葛健雄既是受训者又兼培训者。在培训会上,吴葛健雄重点介绍了“996”事件的整个发展过程,重点讲了怎样“去政治化”“艺术化”“多样化”的问题。在侦查机关组织的混杂辨认中,罗美华辨认出了吴葛建雄。
12.证人[OBSCURED IN ORIGINAL]的证言:2019年4月18日,程渊让他将“996项目”资料翻译成英文,便于在国外传播、推广,扩大“项目”影响力。
三、证明综合事实的证据
1.被告人程渊、吴葛健雄、刘大志的户籍资料:三被告人犯罪时均已达到刑事责任年龄。
2.湖南鹏程会计师事务所司法会计鉴定意见书:“长沙富能”实施“项目”的资金收付情况,即境外组织资助“保障律师权利项目”89980.69美元,资助“律师执业权利保障项目”45000美元,资助“培训培训师项目”人民币146000元,资助“劳工权益保护项目”18000美元。境外资金流转到境内“项目”的主要模式为境外银行账户收到境外资金后,以提现方式取款,再通过香港的转换店兑换成人民币转入程渊指定的程渊、张玉娟、刘大志等人的境内个人账户。程渊接受境外资金后,再向张玉娟、刘大志等境内“项目”财务人员支付“项目”开支所需资金,由境内“项目”财务人员负责“项目”在境内的实际开支。“长沙富能”除接受境外资金开展“项目”活动外,没有其他经营活动和经营收入。
3.湖南省国家安全厅司法鉴定中心笔迹鉴定检验意见书:吴葛健雄书写的中文、英文对照材料字迹与“报销单据封面”、“劳务费支出凭单”、“工资表”、“加班补贴发放表”上的“Nagi”是同一笔迹,即吴葛健雄与“Nagi”系同一人。
4.“长沙富能”的营业执照、开户许可证、企业登记情况表,公司登记申请书、税务登记表、申报明细查询、股东会决议、公司章程:“长沙富能”于2017年3月31日成立,法定代表人刘大志;2017年10月23日法定代表人变更为程渊;2019年7月22日法定代表人由程渊变更为刘大志。公司无正常合法的营业收入。
5.“香港源众”的注册文件、财务审计报告、申请银行账户资料、银行账户信息:“香港源众”于2016年1月6日成立。
6.证人[OBSCURED IN ORIGINAL]、[OBSCURED IN ORIGINAL]的证言:“长沙富能”成立以来,程渊负责公司的资金进出“项目”工作报告的审定,在公司中起主导地位,刘大志负责财务及“项目”执行,吴葛健雄负责“项目”执行。
针对各被告人的辩护人提出的辩护意见,根据庭审查明的事实和证据,本院评判如下:
1.关于被告人程渊、刘大志的辩护人所提部分“项目”没有造成严重危害后果等辩护意见。经查,在案证据证明,程渊伙同吴葛健雄、刘大志实施的“保障律师执业权利”等“项目”,攻击我国司法制度,持续发表并传播负面信息,向境外提供抨击我国法治现状的材料,抹黑政府形象,挑起,激化不明真相的人对政府的不满,制造社会不稳定因素,已产生颠覆国家政权,推翻我国现行社会主义制度的现实危险,已严重危害到国家安全和社会稳定。故该辩护意见不能成立,本院不予采纳。
2.关于被告人程渊的辩护人所提程渊在“劳工权益保护项目”中起次要作用,被告人吴葛健雄的辩护人所提吴葛健雄在颠覆国家政权犯罪中非积极参加者,以及被告人刘大志的辩护人所提刘大志主观恶性较小等辩护意见。经查,在案证据证明,在“劳工权益保护项目”的申请实施过程中,程渊指使吴葛健雄撰写“项目书”,指使刘大志制定财务预算,其本人负责该“项目”申请及实施,故其在该“项目”中并非起次要作用。吴葛健雄系“项目”的具体执行者,协助“项目”实施,认定为其他参加者。刘大志多次赴境外参加相关培训,系“项目”的具体执行者,不能认定为主观恶性较小。故被告人吴葛健雄的辩护人所提吴葛健雄是其他参加者的辩护意见成立,本院予以采纳;其他辩护意见不能成立,本院不予采纳。
3.关于被告人程渊、吴葛健雄、刘大志的辩护人所提请求从宽处罚的辩护意见。经查,三被告人到案后能如实供述自己的罪行,具有坦白情节,且自愿认罪认罚,依法可从轻处罚。故请求从宽处罚的辩护意见成立,本院予以采纳。
本院认为,被告人程渊、吴葛健雄、刘大志通过成立公司向境外组织申请资金,披着执行“项目”的外衣,实施颠覆国家政权,推翻社会主义制度的行为,严重危害国家安全和社会稳定,其行为均已构成颠覆国家政权罪。公诉机关指控程渊、吴葛健雄、刘大志犯颠覆国家政权罪的事实清楚,证据确实、充分,指控罪名成立。根据三名被告人在颠覆国家政权犯罪中的地位、作用,被告人程渊系积极参加者,被告人吴葛健雄、刘大志系其他参加者。被告人程渊、吴葛健雄、刘大志到案后能如实供述自己的罪行,自愿认罪认罚,可从轻处罚。公诉机关的量刑建议适当。根据三被告人犯罪的事实、性质、情节和对社会的危害程度,依照《中华人民共和国刑法》第一百零五条第一款、第五十五条第一款、第五十六条第一款、第六十七条第三款及《中华人民共和国刑事诉讼法》第二百条第(一)项之规定,判决如下:
一、被告人程渊犯颠覆国家政权罪,判处有期徒刑五年,剥夺政治权利五年;
(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,即自2019年7月22日起至2024年7月21日止。)
二、被告人吴葛健雄犯颠覆国家政权罪,判处有期徒刑三年,剥夺政治权利二年;
(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,即自2019年7月22日起至2022年7月21日止。)
三、被告人刘大志犯颠覆国家政权罪,判处有期徒刑二年,剥夺政治权利二年;
(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,即自2019年7月22日起至2021年7月21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湖南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 邹啸弘
审判员 赵喆
审判员 鲁璇
二〇二一年七月二十日
书记员 黄真
