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:
- In 2023, lawyers at the PRC law firm Shandong Xiaolin Law Firm delivered a petition to the PRC National People's Congress titled "Legislative Proposal on Abolishing the Crime of Disturbing the Peace." I translated their petition here: Translation: Law Firm's Petition to Abolish Offense Used to Prosecute Pure Speech Crimes.
- In 2022, an article titled "National Committee of the Chinese People's Political Consultative Conference Member Zhu Zhengfu: A Proposal to Abolish the Crime of Disturbing the Peace in Due Course" was published on page 12 of the "People's Political Consultative Daily" (人民政协报). I translated that article here: National Committee of the Chinese People's Political Consultative Conference Member Zhu Zhengfu: A Proposal to Abolish the Crime of Disturbing the Peace in Due Course.
- In 2020, Liu Zhiqiang (刘志强) and Song Haichao (宋海超), two academics at the Guangzhou University Institute for Human Rights, noted:
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.
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.