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。


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...