As noted previously on this blog, in early Septmber 2023, the Standing Committee of the National People’s Congress solicited public comment on proposed revisions to the Public Security Administrative Punishments Law through September 30, 2023. One of the most drastic proposals was the addition of a new Article 34:
Anyone who commits any of the following acts shall be detained for not less than five days but not more than ten days, or fined not less than 1,000 yuan but not more than 3,000 yuan; if the circumstances are relatively serious, they shall be detained for not less than ten days but not more than fifteen days, and may also be fined not more than 5,000 yuan:
(1) Engaging in activities in public venues that damage the environment and atmosphere of commemorating heroes and martyrs;
(2) Wearing or adorning, or forcing others to wear or adorn, clothing or symbols in public venues that are detrimental to the spirit of the Chinese nation or hurt the feelings of the Chinese nation;
(3) Producing, spreading, advocating, or disseminating articles or remarks that are detrimental to the spirit of the Chinese nation or hurt the feelings of the Chinese nation;
(4) Blaspheming or repudiating the deeds and spirit of heroes and martyrs, advocating or beautifying aggressive wars and acts of aggression, disturbing the peace, and disrupting public order;
(5) Insulting, defaming, or otherwise infringing on the names, likenesses, reputation and honor of heroes and martyrs, harming the public interest of society;
(6) Occupying, destroying, or defacing memorial facilities for heroes and martyrs.
On September 6, several PRC academics published statements criticizing Article 34.
Tong Zhiwei (童之伟), Professor of Constitutional Law, East China University of Political Science and Law
https://weibo.com/1837869620/Ni1q3pSIU
It is recommended that paragraphs 2-3 of Article 34 of the "Public Security Management Punishment Law" (revised draft) not be reviewed for the time being. Who determines what is the "spirit of the Chinese nation" and what procedures are followed? Who determines what are the "feelings of the Chinese nation" and what procedures are followed to recognize and determine it? These are huge problems that are almost impossible to implement in accordance with the principles of the rule of law. If the National People's Congress Standing Committee adopts this article according to the current draft, the practical consequence of its enforcement and adjudication will inevitably be the arrest and conviction of people in accordance with the will of senior officers, which will lead to untold troubles. The law is something that regulates human behavior, and scientific legislation requires legislators to always avoid making regulations on matters of "spirit" and "feelings."
建议暂不审议《治安管理处罚法》（修订草案）第34条第2-3款。“中华民族精神”由谁确认，按什么程序确认？“中华民族感情”由谁体认，按什么程序体认和确定？这都是极大的、几乎无法循法治原则操作的问题。若全国人大常委会按现在的草案通过该条，执法司法上必造成循长官意志抓人、定罪的实际后果，会贻害无穷。法律是调整人的行为的，科学立法要求立法者永远避免就“精神”和“感情”问题做规定。
Lao Dongyan (劳东燕), Professor of Criminal Law, Tsinghua University
https://weibo.com/7740539018/Ni1gijcyR
A few days ago, I saw the content stipulated in Article 34 of the "Public Security Management Punishments Law (Revised Draft)". To be honest, I couldn't believe it. Today I went to the National People's Congress website to check the content of the draft, and I found out that it was indeed true. The draft is currently in the stage of soliciting opinions, and comments can be submitted on the "Draft Law Soliciting Opinions" column of the People's Congress website (www.npc.gov.cn/flcaw/).
Regarding the provisions of Items 2-3 of Article 34, I hold an objection and suggest that they be deleted. The main reasons are:
First, "harming the spirit of the Chinese nation and hurting the feelings of the Chinese nation" is a concept with extremely vague connotations. Different people will have completely different understandings and grasps. If it is used as a legal penalty standard, the problem will be the penalty standard will inevitably be too vague, which can easily lead to arbitrary expansion of the scope of administrative penalties.
Second, due to the ambiguity of punishment standards, it will inevitably lead to selective enforcement of administrative power, which is prone to abuse of power, thus creating a new space for the breeding of corruption, and may intensify conflicts between the police and the public, bringing new risks to social stability.
Third, state power will directly interfere in area of daily clothing of individual citizens, which raises the obvious suspicion that there will be excessive intervention. National spirit and national feelings are matters at the cultural and spiritual level. The State can advocate them, but they should not be promoted through legal coercion.
Fourth, such legislative provisions may stimulate the wanton spread of populism or extreme nationalism, further deteriorate the public opinion environment in the public sphere, and unduly suppress the freedom of individuals to dress and speak in their daily lives. At the same time, it may also intensify antagonism with some countries, leading to diplomatic passivity.些天就看到《治安管理处罚法（修订草案）》第34条规定的内容。老实说，我有些不敢相信，今天特地到中国人大网上查了草案的内容，才知道确实是真的。草案目前正处于征求意见阶段，可以在人大网“法律草案征求意见”栏提意见（www.npc.gov.cn/flcaw/）。
对于第34条第2-3项的规定，我持反对意见，建议删除为妥。主要理由是：
其一，“有损中华民族精神、伤害中华民族感情”是内涵极为模糊的概念，不同的人会有完全相异的理解与把握，将其作为法律上的处罚标准，必然面临处罚标准过于模糊的问题，容易造成任意扩张行政处罚的范围。
其二，由于处罚标准模糊，势必导致行政权力的选择性执法，容易出现滥权现象，从而为腐败的滋生创设新的空间，并且可能激化警民矛盾，给社会稳定带来新的风险。
其三，国家权力直接干预公民个人的日常穿着领域，明显有过度干预之嫌。民族精神与民族感情属于文化精神层面的事务，国家可以进行倡导，但不应通过法律强制的方式来推行。
其四，这样的立法规定可能会刺激民粹主义或极端民族主义情绪的肆意蔓延，进一步恶化公共领域的舆论环境，不当压制个人在日常穿衣与言论的自由空间。同时，也可能加剧与一些国家的对立情绪，导致外交上的被动。
Zhao Hong (赵宏), Professor at China University of Political Science and Law
https://i.ifeng.com/c/8SrCr8t1itK
An expansion of the scope of punishable offenses also means an expansion of the authority of the public security agencies. The law must establish corresponding restraint mechanisms for this expansion of authority, otherwise the crackdown on and suppression of emerging illegal activities is likely to breed unconstrained and uncontrolled powers.
The modern rule of law has never advocated a doctrine of creating felonies in the pursuit order and unity through heavy punishment. On the contrary, it is always vigilant against the expansion of state power. Expanding the scope of punishable offenses under the Public Security Administration Punishments Law, the most punitive departmental law in the administrative field, must be approached with caution. It is necessary to clearly delineate the areas that require the intervention of the State's power to punish, and to avoid blurring the boundaries between law and morality.
. . . .
The newly added Article 34 inevitably brings to mind the precedent of a girl in Suzhou last year who accused of disturbing the peace by wearing a kimono. In that case, the individual was reprimanded by the police for wearing a kimono and taking photos in a Japanese-style street in Suzhou. After the individual expressed doubts, the police took her to the police station for investigation on suspicion of disturbing the peace. In the end, the party involved was not punished, but after the case was exposed it still had a relatively adverse social impact. Many Internet users commented that if taking pictures in a kimono can be understood as something damaging to the national spirit that should be punished by the police, then eating Japanese food, watching anime, or even learning the Japanese language will most likely be considered to offend national sentiments. If public officials can expand the interpretation and application of laws at will based on their personal preferences and ideas and creeds, then we are not far away from the situation where "if the authorities want to punish someone, they can always find grounds to frame them."
扩大处罚圈同样意味着公安机关权限的扩张，对这种权限的扩张，法律上必须配置以相应的约束机制，否则对新兴违法行为的打击和压制很有可能滋生出不受约束和控制的权力。
现代法治从来不倡导借由重罚重刑来追求秩序统一的重刑主义，相反它对国家权力的扩张时刻保持警醒。《治安管理处罚法》作为行政领域惩戒力度最重的部门法规范，在扩大处罚圈时必须慎之又慎，既要清晰地划定需要国家惩罚权介入的领域，也要避免法律与道德边界的消弭。
. . . .
新增的第34条不免让人联想到去年苏州女生穿和服被寻衅滋事的旧案。在该案中，当事人因在苏州日式风情街穿和服拍照遭到警察训斥，在当事人表示质疑后，警察以涉嫌寻衅滋事为由将其带至派出所调查。尽管当事人最终并未被处罚，但案件曝光后仍造成了较为恶劣的社会影响。许多网友评价，如果穿和服拍照都可以被理解为有损民族精神，就应被治安处罚，那么吃日料、看动漫，甚至是学日文，都极有可能会被认为是冒犯民族感情；如果公职人员可以凭个人偏好和观念信条，随意扩张解释和适用法律，那么我们距离“欲加之罪、何患无辞”也就不远了。
