Wednesday, August 23, 2023

Supreme People's Court Finds Problems With Application of the Crime of "Disturbing the Peace"

This blog has documented several examples of legal professionals, academics, and officials, calling for the PRC government to address problems with the application of 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://ssrn.com/abstract=4168412). For example:

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.

Now the Supreme People's Court has weighed in with their own complaints. On August 16, 2023, the Supreme People's Court website reposted an article that originally appeared in the People's Court Daily titled "Research Report on the Subject of 'The Impact of Rural Criminal Crimes on Rural Revitalization Strategy in the New Era' and 'Criminal Regulation of Disturbing the Peace' in Zhejiang and Fujian" (关于“新时代农村刑事犯罪对乡村振兴战略的影响”暨“寻衅滋事行为的刑事规制”课题在浙江、福建的调研报告). Below is my translation of the portion of the report address the crime of disturbing the peace.

In practice, the crime of disturbing the peace is both commonly seen and frequently occurring. In recent years, there has been a tendency for the over-generalized application of this crime. In order to apply the law accurately, the application of the crime was investigated.

Over the past ten years, the number of cases of disturbing the peace in the rural areas of Zhejiang and Fujian ranked among the top of all crimes. Most of the defendants are young people, and most of them are migrant workers or people without proper occupations, and offenses arising from drunkenness and gambling are common. Cases of being prosecuted for criminal responsibility arising from illegal petitioning have also occurred from time to time.

During the investigation, it was found that the following problems existed in the determination of the crime. First, it is difficult to grasp the subjective motives of the defendant, and it is easy to mired down in objective imputation. Second, there are different understandings of whether the act of illegally petitioning can be punished under this crime. Third, these unclear boundaries makes it easy for it to be applied in an over-generalized manner. Fourth, it is difficult to distinguish it from other related crimes. Fifth, in execution the links in the process are not smooth, which can easily lead to administrative violations being elevated to criminal offenses.

In view of the aforementioned practical problems, we suggest that we increase the trial guidance for criminal cases involving disturbing the peace, and guide local courts in the form of judicial documents or typical cases to accurately apply the law. 

寻衅滋事罪是实践中常见多发犯罪,近年来该罪名有被泛化适用的倾向。为准确适用法律,对该罪适用情况进行了调研。

过去十年中,浙闽两地农村寻衅滋事案件数量均排在各类罪名的前列。被告人绝大部分系年轻人,其中又以外来务工人员或无正当职业者居多,因酒后肇事、赌博引发的犯罪常见多发。因违法上访而被以该罪名追究刑事责任的案件也时有发生。

调研中发现,该罪认定中存在以下问题。一是被告人的主观动机难把握,容易陷入客观归责;二是对违法信访行为能否以本罪论处认识不一;三是因边界不清导致容易被泛化适用的倾向明显;四是与其他相关罪名的区分较难;五是行刑衔接不畅,容易导致行政违法行为被拔高作为刑事犯罪处理。

针对实践中存在的上述问题,我们建议,要加大对寻衅滋事犯罪案件的审判指导,以司法文件或典型案例的形式,指引地方法院准确适用法律;审慎处理因信访、上访而引发的寻衅滋事案件。


Thursday, August 10, 2023

Translation: Law Firm's Petition to Abolish Offense Used to Prosecute Pure Speech Crimes

 On August 6, 2023, this document was posted on Twitter.

The document was titled "Legislative Proposal on Abolishing the Crime of Disturbing the Peace," and the image of the envelope posted along with it indicated it was sent by Yu Zhaoyan of the Shandong Xiaolin Law Firm to the "Legislative Affairs Commission of the National People's Congress Standing Committee."

The NPC is the only governmental body with the power to interpret the Constitution and supervise its enforcement. PRC courts do not have the power either to apply constitutional provisions in the absence of concrete implementing legislation or to strike down laws or regulations that are inconsistent with the Constitution. Therefore, anyone who believes that courts are applying laws in a manner that violates the Constitution have no recourse other than to petition the NPC, as the Xiaolin Law Firm has done here.

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://ssrn.com/abstract=4168412) 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;
    • 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.

This is not the first time someone has noted problems with the crime of disturbing the peace. For example:

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.

The Shandong Xiaolin Law Firm

To: The Legislative Affairs Commission of the National People's Congress Standing Committee

Legislative Proposal on Abolishing the Crime of Disturbing the Peace

Legislative Affairs Commission of the National People's Congress Standing Committee

Director Shen Chunyao:

In the course of many years of practice we have handled several disturbing the peace cases, among which there have been at least three cases where we did not think it constituted a crime, but which were nevertheless ruled to have constituted a crime with sentences of probation imposed. In another case, after the court session, the procuratorate withdrew the prosecution and made a decision not to prosecute without prejudice.

We deeply feel that the ambiguity of the crime of disturbing the peace has seriously affected the public's reasonable expectations of rights and obligations, and has damaged the authority and credibility of the criminal law. In accordance with the "Legislation Law of the People's Republic of China" (hereinafter referred to as the "Legislation Law") and the principle of legally prescribed crimes and punishments, we proffer this legislative proposal to your committee, proposing that the crime of disturbing the peace be abolished.

1. Problems Found in Judicial Practice

The crime of disturbing the peace originated from the crime of hooliganism stipulated in Article 160 of the 1979 Criminal Law. After it was separated from the crime of hooliganism, it gradually replaced the crime of hooliganism and became a new "crime of hooliganism." In current judicial practice, the existence of the crime of disturbing the peace is one of the main reasons for the selective law enforcement by law enforcement agencies. Disturbing the peace is used as a catch-all clause to punish certain behaviors in the gray area between administrative punishment and criminal punishment. For example, those engaging in actions such as publishing negligent remarks on the Internet, petitioning, appealing, and making accusation are often accused of disturbing the peace. In fact, such an accusation not only deprives citizens of their right to freedom of speech and their power of supervision, it also violates the principle of restraint in criminal law.

Calls for the abolition of the crime of disturbing the peace continues to be voiced in criminal law academic and judicial practice circles. Zhu Zhengfu and other deputies to the National People's Congress have been calling for the abolition of the crime of disturbing the peace. Luo Xiang and other university professors also believe that this crime will inevitably be abused in judicial practice because of the enormous conflict between the ambiguity of the provisions and the principle of legal certainty, and suggest that the crime of disturbing the peace be abolished.

2. Model Cases That Raise Issues

Case 1. Zhu Yuzhen's family in Huainan disturbed the peace. Zhu Yuzhen and her ex-husband were charged with the crime of disturbing the peace because they reported on the Internet that the Huainan government had illegally expropriated land and undertaken violent demolitions. It was understood that Zhu Yuzhen's family had no choice but to appeal after resorting to legal procedures against the government's forced demolition. Later, Zhu Yuzhen's ex-husband posted several videos on Douyin reflecting the illegal forced demolitions and his situation during his stay in Beijing. He was charged with the crime of disturbing the peace, and Zhu Yuzhen was also subsequently charged with the crime of disturbing the peace. Prior to this, Zhu Yuzhen's nearly 80-year-old parents were also convicted of disturbing the peace for defending their son.

Case 2. a villager was sentenced to the crime of disturbing the peace for collecting tolls on a pontoon bridge. Huang Deyi, a villager in Taonan City, Jilin Province, and 18 others were convicted of disturbing the peace for charging fees for building a pontoon bridge. The court ruled that Huang Deyi and others built a pontoon bridge to collect bridge tolls, and intercepted passing vehicles to collect bridge tolls. This is a case of taking other people’s property by force, causing bad social impact, disrupting social order, with severe circumstances, constituting the crime of disturbing the peace. Huang Deyi refused to accept the judgment and filed a complaint with the court, which has been accepted for review by the court.

Case 3. Tang Hui, a "petitioner mother," was subjected to reeducation through labor, and she and her brother Tang Shike were charged with disturbing the peace. Prosecutors filed three charges of disturbing the peace. In the "ectopic pregnancy" and "alkaline poisoning" disturbing the peace cases, the prosecution accused the two of disturbing the peace by using improper treatment as an excuse to put pressure on the hospital through malicious reports, insults and threats to hospital staff, and illegal petitions in Beijing demanding "medical compensation." In the case of "wild camphor trees being logged," the prosecution accused them of "illegally logging wild camphor trees in hilly land" and carrying out acts of "disturbing the peace" by means of malicious false reporting, making a scene, and abusing, chasing, and intercepting government employees, making trouble in public places, and posting false posts on the Internet. The case is currently being tried.

After the publication of the above three cases, people from all walks of life unanimously condemned them, which once again sparked heated discussions calling for the "abolition of the crime of disturbing the peace." It is generally believed that the above-mentioned behaviors that should be regulated by administrative laws and regulations have been regulated by criminal laws, which seriously deviates from natural justice and humanist principles, and does not conform to legal common sense.

We believe that Zhu Yuzhen's family were legitimately exercising the public's rights of supervision and freedom of speech when they reported on matters such as law enforcement chaos and judicial injustice, and they are identified as suspected of constituting the crime of disturbing the peace, which seriously reduces citizens' belief in the law. Professor Xu also said that Zhu Yuzhen's family was "wiped out by the judiciary."

Huang Deyi and others did not disturb social public order by building bridges and charging fees. In the absence of plans by relevant government departments to build bridges, the construction of bridges met the expectations of the people to a certain extent. Fees were only paid voluntarily and were not mandatory. In addition, there was no provocative motive to make something out of nothing or create a pretext to cause trouble. This behavior did not harm society, did not infringe on the legitimate rights and interests of others, and did not infringe on anyone's legal interests. It was a violation of the criminal law's principle of restraint to identify it as a crime.

The three cases involving Tang Hui and others were borne out of rights defense. There was a reason for everything they did, there was no coercion, even if the manner of rights protection was somewhat fierce. Since 2019, the Supreme People's Court and the Supreme People's Procuratorate have continuously advocated that "criminal trials should take into account the principles of natural justice, State law, and human conditions." Criminal trials should not be indifferent to public opinion or mechanically impose justice, and should not deviate from human nature and common sense. In practice, one of the root causes of judicial deviation from public opinion is the shortcoming of the legislation of the crime of disturbing the peace, and it is the ambiguity of the legal provisions of the crime of disturbing the peace that leads to judicial uncertainty.

3. Proposal to Abolish the Crime of Disturbing the Peace

(1) Flaws in Legislation and Judicial Interpretation

First, the description of the crime is vague. Expressions such as "arbitrary," "willfully," "severe circumstances," "offensive circumstances," and "causing severe disorder in public venues" are too vague, and these are the key constituent elements for the determination of this crime. Judicial interpretation has not eliminated the ambiguity of this crime in the determination of criminal boundaries. There has been significant controversy among professionals in judicial theory and practice  about the expression of relevant provisions, and it is even more difficult for ordinary people to distinguish them.

Second, the acts of pursuing or obstructing others and creating a disturbance violate the "Public Security Administrative Punishments Law," or they may be involved in other crimes. If all of them are convicted and punished according to the crime of disturbing the peace, it may lead to excessive attention to maintaining social order, and then excessive infringement of personal legal interests.

Third, although Articles 2, 3, 4, and 5 of the Interpretation of the Supreme People's Court and People's Procuratorate on Issues Concerning the Application of Law for Criminal Cases of Disturbing the Peace (hereinafter referred to as the "Interpretation on Handling Disturbing the Peace") are a detailed list of how the relevant behavior types and methods in Article 293 of the Criminal Law may be carried out, because the list itself is not exhaustive, and the interpretation itself also retains vague expressions, it cannot fundamentally address the problem of the law's opacity.

Fourth, the "Interpretation on Handling Disturbing the Peace" stipulates the subjective motives of the crime of disturbing the peace, stipulating that a perpetrator shall be deemed to have "disturbed the peace" when they make trouble out of nothing by seeking excitement, venting their emotions, acting the hero, etc., and commits the acts stipulated in Article 293 of the Criminal Law. However, the provisions on this subjective motive remain ambiguous, so it is impossible for them to actually limit the expansion of the offense of disturbing the peace, and it may still lead to the subjective imputations by the judiciary.

(2) Corresponding Solutions

Article 5 of the "Legislation Law" stipulates that "legislation shall conform to the provisions, principles, and spirit of the Constitution." Article 6 stipulates that "legislation shall uphold and develop people's democracy throughout the process, respect and protect human rights, and safeguard and promote social fairness and justice." Article 7(2) stipulates that "legal norms shall be clear, specific, targeted, and enforceable."

The ambiguity of the crime of disturbing the peace violates the above-mentioned provisions of the Legislative Law and the principle of legally prescribed crimes and punishments, leading to selective law enforcement by the judiciary and serious damage the authority and credibility of the criminal law. Accordingly, we propose to abolish the crime of disturbing the peace and divide it into other crimes. After the crime of disturbing the peace is abolished, the four different forms of the crime of disturbing the peace can be dealt with by the crime of intentional injury, crime of insult, crime of robbery, crime of intentionally destroying property, and the crime of gathering crowds to disturb order in public places. If the circumstances of the behavior are relatively minor, administrative penalties may be imposed in accordance with the Public Security Administrative Punishments Law.

The aforementioned proposals are hereby offered to the honorable Commission for legislation.

Respectfully submitted to Legislative Affairs Commission of the National People's Congress Standing Committee.

Proposed by: The Shandong Xiaolin Law Firm

Lawyer Lan Qingzhou
Lawyer Ma Xiaolin
Lawyer Yu Zhaoyan
Zhang Wenpeng
Lawyer Yu Kai

August 2, 2023

Contact information:

Lawyer Yu Kai: [INTENTIONALLY OMITTED]
Lawyer Yu Zhaoyan: [INTENTIONALLY OMITTED] 


山东晓临律师事务所

致全国人民代表大会常务委员会法制工作委员会

关于废除寻衅滋事罪的立法建议

全国人民代表大会常务委员会法制工作委员会

沈春耀主任:

我们在多年执业过程中曾办理了数起寻衅滋事案,其中至少有三起案件,我们认为不构成犯罪,但依然判决认定构成犯罪判处缓刑;还有一起案件,在法院开庭后检察院撤回起诉,作出存疑不起诉决定。

我们深感寻衅滋事罪罪状表述的模糊性,严重影响了公众对权利义务的合理预期,损害了刑法的权威和公信力。现依据《中华人民共和国立法法》(以下简称《立法法》》及罪刑法定原则,向贵委员会提出立法建议,建议废除寻衅滋事罪。

一、司法实践中发现的问题

寻衅滋事罪来源于1979年刑法第160条规定的流氓罪,其从流氓罪中分解出来后,逐渐代替流氓罪,成为了新的“流氓罪”。在当前司法实践中,寻衅滋事罪的存在,是导致执法机关选择性执法的主要原因之一,一些处在行政处罚与刑事处罚模糊地带的行为,大多被以寻衅滋事罪作为兜底条款进行处罚。比如网络上发表失察言论的行为以及上访、申诉、控告等行为,常常被指控涉嫌寻衅滋事。实际上,如此指控不仅剥夺了公民的言论自由权,使公权力缺乏监督,更违背了刑法的谦抑性原则。

刑法学界、司法实务界关于废除寻衅滋事罪的呼声不断。朱征夫等人大代表一直呼吁废除寻衅滋事罪;罗翔等大学教授也认为,本罪由于规定的模糊性与罪刑法定原则存在巨大的冲突,以至于不可避免地会在司法实践中存在被滥用的情况,建议废除寻衅滋事罪。

二、典型存疑案例

案例一,淮南朱玉珍一家满门被寻衅滋事案。朱玉珍及其前夫因在网络上反映淮南政府违法征地、暴力强拆现象,被指控涉嫌寻衅滋事罪一案,目前已到检察院审查起诉阶段。据了解,朱玉珍一家人在针对政府强拆一事诉诸法律程序无果后,无奈进行上访,后朱玉珍前夫在抖音上发布了几条反映违法强拆和其在北京期间情况的视频,就被指控涉嫌寻衅滋事罪,之后朱玉珍也被指控涉嫌寻衅滋事罪。在此之前,朱玉珍年近八十的父母也因为替儿子伸冤被判寻衅滋事罪。

案例二,村民搭浮桥收费被判寻衅滋事罪案。吉林洮南市村民黄德义等18人因为搭浮桥收费,被判寻衅滋事罪。法院判决认定:黄德义等人搭建浮桥收取过桥费,拦截过往车辆收取过桥费,属于强拿硬要他人财物,造成恶劣社会影响,破坏社会秩序,情节严重,构成寻衅滋事罪。黄德义不服判决,向法院提出申诉,目前法院已受理审查。

案例三,被劳教的“上访妈妈”唐慧及其哥哥唐世科被控寻衅滋事案。检方共指控了三起寻衅滋事案。其中“宫外孕”和“碱中毒”寻衅滋事案中,检方指控二人以治疗不当为由,通过恶意举报、辱骂、威胁医院工作人员和赴省进京非法上访等方式给医院施压,索要“医疗赔偿款”,实施寻衅滋事行为。“野生樟树被采伐”寻衅滋事案中,检方指控二人以“自留山中的野生樟树被非法采伐”为由,通过恶意虚假报、撒泼耍赖、辱骂、追逐、拦截国家机关工作人员、在公共场所起哄闹事和网络虚假发帖等手段,实施寻衅滋事行为。该案目前已开庭。

上述三个案例公布后,各界一致口诛笔伐,再次引发了呼吁“废除寻衅滋事罪”的热议,大家普遍认为上述本应由行政法律法规规制的行为,上升到由刑法规制,严重背离了天理、人情,不符合法律常识。

我们认为,朱玉珍一家人反映执法乱象、司法不公等现象,是正当行使公权力的监督权和言论自由权,将其认定为涉嫌构成寻衅滋事罪,严重降低了公民对法律的信仰。徐教授亦称,朱玉珍一家被“司法灭门”。

黄德义等人建桥及收费行为并未扰乱社会公共秩序,在政府相关部门未规划建造桥梁的情况下,建桥一定程度满足了民众的期待,收费也仅是自愿缴纳并无强制,且没有无事生非和借故生非的寻衅动机。该行为没有危害社会,没有侵害他人合法权益,没有法益侵害性,将其认定为犯罪违反了刑法的谦抑性原则。

唐慧等涉及的三起案件均是出于维权,是事出有因,并非强拿硬要,只是维权方式有些激烈。最高人民法院、最高人民检察院自2019年开始,不断倡导“刑事审判要兼顾天理国法人情”,刑事审判不能对民意无动于衷,搞机械司法,不能背离人之常情,世之常理。实践中,导致司法背离民意的根本原因之一是寻衅滋事罪立法上存在的弊端,是寻衅滋事罪法律规定的模糊性导致了司法的不确定性。

三、建议废除寻衅滋事罪

(一)立法及司法解释存在缺陷

第一,本罪罪状表述模糊。“随意”“任意”“情节严重”“情节恶劣”“造成公共场所秩序严重混乱”等表述过于模糊,而这些又是认定构成本罪的关键构成要件,司法解释也没有消除本罪在犯罪界限认定上的模糊性。理论和司法实践界专业人士对相关条文的表述争议就很大,普通群众更难以辨别。

第二,追逐、拦截他人,起哄闹事的行为,违反《治安管理处罚法》或可能涉嫌其他罪名,如果全部按照寻衅滋事罪进行定罪处罚,可能会导致因过分注重维护社会秩序,进而过分侵害个人法益。

第三,《最高人民法院、最高人民检察院关于办理寻衅滋事刑事案件适用法律若干问题的解释》(以下简称“《办理寻衅滋事的解释》”)第二条、第三条、第四条、第五条虽然对刑法第二百九十三条相关行为类型和行为方式进行了细化列举,但由于列举本身难以穷尽,加上解释本身也保留了模糊性表述,不能从根本上解决法律规定的不明确问题。

第四,《办理寻衅滋事的解释》对寻衅滋事罪的主观动机进行了规定,规定行为人为寻求刺激、发泄情绪、逞强耍等,无事生非,实施刑法第二百九十三条规定的行为的,应当认定为“寻衅滋事”。但关于该主观动机的规定仍然存在模糊性,不可能真正限制寻衅滋事罪名扩大化,依然可能导致司法机关主观归罪。

(二)相应解决措施

《立法法》第五条规定“立法应当符合宪法的规定、原则和精神。”第六条规定“立法应当坚持和发展全过程人民民主,尊重和保障人权,保障和促进社会公平正义。”第七条第二款规定“法律规范应当明确、具体,具有针对性和可执行性。”

寻衅滋事罪的模糊性规定,违反了《立法法》上述规定和罪刑法定原则,导致司法机关选择性执法,严重损害了刑法的权威和公信力。据此,我们建议废除寻衅滋事罪,将其分解到其他犯罪中。寻衅滋事罪废止后,寻衅滋事罪的四种不同形式的行为可分别由故意伤害罪、侮辱罪、抢劫罪、故意毁坏财物罪、聚众扰乱公共场所秩序罪来处理。行为情节较轻的,可以依照治安管理处罚法进行行政处罚。

以上建议,敬请贵委员会立法参考。

此致

全国人民代表大会常务委员会法制工作委员会

建议人:山东晓临律师事务所

兰庆洲律师
马晓临律师
于兆燕律师
张文鹏
于凯律师

2023年8月2日

联系方式:

于凯律师: [INTENTIONALLY OMITTED]
于兆燕律师: [INTENTIONALLY OMITTED]

Saturday, August 5, 2023

Translation: Ding Jiaxi 2021 Subversion Indictment

 Translator' Notes:

  • 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. 
  • Ding Jiaxi is a former civil rights lawyer who, along with fellow civil rights lawyer Xu Zhiyong (who was also prosecuted in this case), co-founded the New Citizens' Movement (中国新公民运动). They would both eventually be found guilty and imprisoned for 12 and 14 years, respectively. As far as I know the PRC government has not made court judgment public.
    These screenshots show that, at some time after Ding's arrest, PRC search engine Baidu began censoring search results for his name, restricting results to a white list of websites under the direct control of the central government and Communist Party.

People's Procuratorate of Linyi, Shandong

Indictment

Lin Procuratorate First Criminal Indictment (2021) No. Z42

Defendant Ding Jiaxi, male, born [OBSCURED IN ORIGINAL], 1967, Citizen I.D. No. [OBSCURED IN ORIGINAL], Han ethnicity, graduate student education, formerly a lawyer at the Beijing Dehong Law Firm, currently unemployed, household registration and currently residing at [OBSCURED IN ORIGINAL], Beijing. On April 18, 2014, he was sentenced to a fixed term imprisonment of three years and six months by the People's Court of Haidian, Beijing for the crime of gathering crowds to disrupt public venue order. On October 16, 2016 he was released following the fulfillment of his sentence. On December 26, 2019, he was taken into criminal detention by the Public Security Bureau of Yantai, Shandong on suspicion of committing the crime of inciting subversion of state power. On the same day this was converted into residential confinement at a designated location. The arrest was approved by this Office on June 19, 2020, and the arrest was carried out by the Public Security Bureau of Linyi on the same day.

The investigation in this case was concluded by the Public Security Bureau of Linyi with defendant Ding Jiaxi being suspected of the offense of subversion of state power, and it was transferred to this Office on January 19, 2021. After this Office docketed the case, on January 21, 2021 the defendant was informed of his right to retain defense counsel and the relevant legal provisions of pleading guilty and accepting punishment. The defendant was interrogated n accordance with the law, the opinions of the defense counsel were heard and all the case materials were reviewed. this Office returned the case to the investigating agency for supplemental investigation on March 6 and May 21, 2021. The investigating agency completed the investigation on April 6 and June 21, 2021, respectively, and transferred it for prosecution. this Office extended the pre-prosecution examination deadline for 15 days on February 19, May 6, and July 21, 2021, respectively.

It was ascertained through an examination in accordance with the law:

From 2012 to 2013, out of dissatisfaction with our country's socialist system and the ruling status of the Communist Party of China, defendant Ding Jiaxi collaborated with Xu Zhiyong (being handled in another case) and others to establish and develop the "New Citizens Movement" illegal organization, and carried out criminal activities. In 2017, after his release following the completion of his sentence for committing the crime of gathering crowds to disrupt public venue order, Ding Jiaxi did, with the goal of overthrowing our country's current political system, collaborate with Xu Zhiyong to recruit Wang Jiangsong, Zhang Zhongshun, Dai Zhenya, and Chang Weiping (being handled in another case) as key members, establish the "Citizens Movement" illegal organization with Xu Zhiyong and Ding Jiaxi as organizers and leaders, spread a large number of inciting articles; launch trainings for "non-violent" color revolutions, operate the "China Citizens Movement Net," held secret meetings of the "Citizens Movement" illegal organization in Yantai and Xiamen successively to organize, plan, and implement criminal activities to subvert state power and overthrow the socialist order, severely jeopardizing national security and social stability. The specific facts are as follows:

1. From 2012 to 2013, defendant Ding Jiaxi, together with Xu Zhiyong and others, used communication software to organize "Citizen Dinners" and "dinner and drinks" activities in Beijing, Xuzhou, Wuhan and other cities, and recruited members for the "New Citizens Movement" illegal organization.

In 2017, defendant Ding Jiaxi, together with Xu Zhiyong, continued to collude with members of the "New Citizens Movement" illegal organization Wang Jiangsong, Liu Jiacai, and others, and went to Yantai, Xiamen, and other cities to collude with Zhang Zhongshun, Dai Zhenya, and others, changed the name of the "New Citizens Movement" to the "Citizens Movement," established the "Citizens Movement" illegal organization, and organized, planned, and carried out a series of criminal activities to subvert state power.

2. In 2017, defendant Ding Jiaxi colluded with Xu Zhiyong and Hua Ze, a member of a foreign organization, to jointly operate the website "China Citizens Movement Net," add new sections to the website, select website reporters and editors, raise website operating funds, spread a large number of inciting articles written by Xu Zhiyong, and advocate ideologies that subverted state power.

3. In 2018, defendant Ding Jiaxi colluded with  Xu Zhiyong to establish the "Citizens Movement" illegal organization's Telegram group, which acted as the platform for the subversive activities of the illegal organization. Ding Jiaxi and Wu Ming, a member of a foreign organization, successively acted as group administrators, and more than 20 key members including Wang Jiangsong, Zhang Zhongshun, Dai Zhenya, and Hua Ze used this group to contact and communicate. Ding Jiaxi and Xu Zhiyong also organized key members to use Zoom software to hold online illegal meetings and trainings, and plan activities to subvert state power.

In 2018 and 2019, defendant Ding Jiaxi colluded with Xu Zhiyong to instruct Hua Ze to use Zoom software to regularly launch "non-violent" color revolution trainings for members of the "Citizens Movement" illegal organization, and enable the members of the organization to master the ways of "non-violent" color revolution to subvert state power.

4. From September 22 to 23, 2018, defendant Ding Jiaxi colluded with Xu Zhiyong to organize 13 people, including Zhang Zhongshun, Chang Weiping, Wang Jiangsong, and Wu Ming, to hold a secret meeting at Zhang Zhongshun's house in the Yinhe Yihai Tianyuewan Community, High-tech Zone, Yantai, Shandong, organize and plan activities to subvert state power, discuss the experience and lessons of the previous subversive activities of the "New Citizens Movement" and "Citizens Movement," analyze the current problems faced by the "Citizens Movement," and get members of the organization to infiltrate grassroots communities and adopt methods of "non-violent" color revolutions to subvert state power.

5. From December 7th to 8th, 2019, defender Ding Jiaxi colluded with Xu Zhiyong organized 20 people including Zhang Zhongshun, Dai Zhenya, and Wang Jiangsong to hold a secret meeting at Nice Home Party Villas and the Mohe Courtyard in Jimei District, Xiamen, Fujian. Wu Ming and Liu Shuqing participated in the meeting through the Internet. Ding Jiaxi and Xu Zhiyong summarized the circumstances of the activities of "Citizens Movement" illegal organization in 2019, and proposed activity plans for 2020. At the meeting, issues such as organizational development, confrontation with the government, fund raising, and social transformation were planned, and the ways, means and goals to subvert state power were clarified, that is, to infiltrate communities through "non-violent" color revolutions, control grassroots political power and develop so-called "citizen communities" and "nation-wide citizen communities," and ultimately subvert state power.

Evidence determining the aforementioned facts is as follows:

1. Physical Evidence: Laptop computers, USB drives, etc.;
2. Documentary Evidence: "The People's Country," "Citizen Initiative: Election 2021," "Non-Violence," "Glorious China" and other articles, case registration forms, criminal judgments, etc.;
3. Witness Testimony: Testimony of witnesses Wang Jiangsong, Zhang Zhongshun, and others;
4. Defendant Statements and Justifications: Defendant Ding Jiaxi's statements and justifications;
5. Forensic Opinions: Judicial forensic opinion reports, etc.;
6. Transcripts of Crime Scene Investigations, Inspections, and Identification: Remote crime scene investigation transcripts, investigation records, identification transcripts, etc.;
7. Audio-Visual Materials: Surveillance videos, etc.

This Office finds defendant Ding Jiaxi organized, planned, and carried out subversion of state power and overthrow the socialist order, his actions were the commission of an offense under the provisions of Article 105(1) of the "Criminal Law of the People's Republic of China," the criminal facts are clear, the evidence is reliable and copious, and he should bear criminal liability for the offense of subversion of state power. Defendant Ding Jiaxi is a recidivist, and should be punished in accordance with the provisions of Article 65(1) of the "Criminal Procedure Law of the People's Republic of China." Based on the provisions of Article 176 of the "Criminal Procedure Law of the People's Republic of China" this public prosecution is filed, and it is requested that sentence be passed in accordance with the law.

Respectfully Delivered to the Intermediate People's Court of Linyi, Shandong

Prosecutors     Tan Changzhi
                        Li Tao
                        Huang Zheng

Prosecutors Assistant Meng Li

August 5, 2021

山东省临沂市人民检察院

起诉书

临检一部刑诉[2021]Z42号

被告人丁家喜,男,1967年[OBSCURED IN ORIGINAL]出生,公民身份号码[OBSCURED IN ORIGINAL],汉族,研究生文化,北京德鸿律师事务所原律师,现无业,户籍地、住址地北京市[OBSCURED IN ORIGINAL]。因犯聚众扰乱公共场所秩序罪,于2014年4月18日被北京市海淀区人民法院判处有期徒刑三年六个月,2016年10月16日刑满释放。因涉嫌煽动颠覆国家政权罪,于2019年12月26日被山东省烟台市公安局刑事拘留,次日变更为指定居所监视居住,2020年6月19日经本院批准逮捕,同日由临沂市公安局执行逮捕。

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

经依法审查查明:

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

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

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

2.2017年,被告人丁家喜伙同许志永、境外组织成员华泽,共同运营网站“中国公民运动网”,增设网站新栏目、选任网站报道员和编辑、筹集网站运营经费,传播许志永撰写的大量煽动性文章,宣扬颠覆国家政权思想。

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

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

4.2018年9月22日至23日,被告人丁家喜伙同许志永组织张忠顺、常玮平、王江松、吴明等13人,在山东省烟台市高新区银和怡海天越湾小区张忠顺的别墅内召开秘密会议,组织、策划颠覆国家政权活动,总结前期“新公民运动”“公民运动”颠覆活动的经验教训,分析目前“公民运动”面临的问题,要求组织成员向基层社区渗透,采取“非暴力”颜色革命的方式,颠覆国家政权。

5.2019年12月7日至8日,被告人丁家喜伙同许志永组织张忠顺、戴振亚、王江松等20人,在福建省厦门市集美区奈斯轰趴别墅、墨和小院召开秘密会议,吴明、刘书庆通过网络参会。丁家喜、许志永总结2019年“公民运动”非法组织的活动情况,提出2020年的活动计划,会上针对组织发展、对抗政府、经费筹集、社会转型等议题进行策划,明确颠覆国家政权的方式、方法和目标,即通过“非暴力”颜色革命渗透社区、把持基层政权,发展所谓的“公民社群”“全国公民共同体”,最终颠覆国家政权。

认定上述事实的证据如下:

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

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

山东省临沂市中级人民法院

检察官    谭长志
                李涛
                黄政

检察官助理 孟丽

2021年8月5日

Translation: Huang Xuqin and Wang Jianbing Inciting Subversion Indictment

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