Translation: Wang Jiangfeng Disturbing the Peace Judgment

 The PRC government sentenced Wang Jiangfeng (王江峰) to two years imprisonment (later reduced to 22 months) for the crime of "disturbing the peace" (寻衅滋事, also translated as "picking quarrels and provoking troubles") for posting text and images on WeChat and QQ that, it claimed "berated and denigrated" Mao Zedong and Xi Jinping.

Some noteworthy aspects of the judgment:

• The court neither provided any examples of what Wang posted, nor explained how his posts resulted in any actual disturbance of the peace.
• The government seized Wang's Huawei phone, and when they found that the phone had a lock screen password and they could not access it, they used "technical means to crack the password" and unlock the screen and open the phone.
• The court adopted a rule that is the opposite of the US NYT v. Sullivan - namely that concerns for social stability demand public figures like Mao Zedong and Xi Jinping are are entitled to extra protection for their reputations: "[D]ue to the special identities of Mao Zedong and Xi Jinping as deceased and current State leaders, the denigration of their personal reputations and images will inevitably cause adverse perceptions of the Communist Party of China, the socialist system, and the People's Democratic Dictatorship State regime in the minds of the masses, which is very likely to cause confusion among the people and social unrest." 

This not the first time people in the PRC have been imprisoned for merely ridiculing Mao and Xi:

• In 2018 a court found that police did not violate Feng Zhouguan's (冯周管) rights by subjecting him to five days administrative detention for referring to Xi Jinping as "fat pig," "steamed bun," and "spendthrift" in WeChat posts. The court rejected Feng's claim that "If the country's leader or his appointed attorneys want to play at litigation with [Feng] then [the police] should maintain a neutral stance because the [police] are agents of the country's judiciary."
• In 2019 a court sentenced a man surnamed Wang to One year and three months imprisonment for posting the following statements on Twitter: 'Hitler, Mao Doe and Pol Pot Conquered in Order to Commit Massacres" and "Mao Colluded with the Japanese Army."
• In 2020 a court found police did not violate Yang Tianqiao's rights by subjecting him to 12 days administrative detention for a single WeChat post criticizing Mao Zedong and the Cultural Revolution.

People's Court of Zhaoyuan, Shandong
Criminal Judgment
(2017) Gao 0685 Criminal First Instance No. 9

The public prosecution agency was the People's Procuratorate of Zhaoyuan

Defendant Wang Jiangfeng, male, born [INTENTIONALLY DELETED], 1970 in Zhaoyuan, Shandong, citizen I.D. No. [INTENTIONALLY DELETED], Han ethnicity, college education, unemployed, residing at [INTENTIONALLY DELETED] Yingbin Road, Zhaoyuan. On May 26, 2003, he was sentenced to six months in prison and one year of probation by the People's Court of Zhaoyuan for the crime of occupational embezzlement. On January 6, 2013, he was sentenced to one year re-education through labor by the Yantai Labor Re-education Committee for disturbing social order in the Beijing embassy district on April 16, 2012, and was granted an early release in July 2013. On September 9, 2016, he was taken into criminal detention on suspicion of disturbing the peace, and he was arrested on October 15 of the same year. He is currently being held in detention at the Zhaoyuan Detention Center.

Defense counsel Li Yongheng is a lawyer at the Shandong Taicheng Law Firm.

Defense counsel Zhu Shengwu is a lawyer at the Shandong Xinchang Law Firm.

In the Zhao Procuratorate Public Prosecution Criminal Indictment (2017) No. 1 indictment the People's Procuratorate of Zhaoyuan charged defendant Wang Jiangfeng with committing the crime of disturbing the peace, and on January 9, 2017 filed a public prosecution with this Court. After an examination this Court established a case on the same day, and formed a collegial panel, and tried this case with hearings in open court. The People's Procuratorate of Zhaoyuan assigned procurator Wang Yan to appear in court in support of the public prosecution. Defendant Wang Jiangfeng and his defense counsels Li Yongheng and Zhu Shengwu appeared in court to participate in the litigation. The trial has now concluded.

The People's Procuratorate of Zhaoyuan charged: From June to September 9, 2016, defendant Wang Jiangfeng did on many occasions use WeChat and QQ social media platforms to publicly or privately chat with unspecified objects in the form of text and images to distribute or repost a large number of statements that berated or denigrated the deceased State leader Mao Zedong and the current State leader Xi Jinping, intentionally belittling the reputation of the State leaders and undermining social order.

The public prosecution agency submitted relevant evidence to the court to confirm the aforementioned criminal facts. The public prosecution agency believed that defendant Wang Jiangfeng's actions violated the provisions of Article 293, Paragraph 1, Item (2) of the “Criminal Law of the People's Republic of China” and constituted the crime of disturbing the peace, and requested this Court pass sentence in accordance with the law.

Defendant Wang Jiangfeng made a full confession to the public prosecution agency's allegations that he had posted statements on WeChat Groups and the QQ social media platform that berated and denigrated deceased State leader Mao Zedong and current State leader Xi Jinping, but argued that the content of his posts was reposted by him from others, and were not original. He reposted these inappropriate statements because he was dissatisfied with a court judgment and had been punished administratively on many occasions during his petitioning process. There were reasons for what he did, and it did not constitute the crime of disturbing the peace.

His defense counsel Li Yongheng argued that the defendant's use of information networks to distribute remarks involving the degradation of Mao Zedong’s and Xi Jinping's personal character was not an attack on their personal character, but was to express dissatisfaction with major national political events such as the Hangzhou Summit and foreign aid. In the crime of disturbing the peace in my country's criminal law, "berate" and "intimidate others" refers to ordinary natural persons, and should not include political leaders and politicians. The defendant's inappropriate statements in Friends Groups and QQ Groups were inappropriate, the circumstances were still within the scope of freedom of speech that my country can tolerate, and should not be punished by criminal law.

His defense counsel Zhu Shengwu argued that the defendant’s posting of inappropriate statements in cyberspace does not fall within the category of posting in public venues. The nature of speech in a Friends Group is different from that in a public venue. Criticism, negative evaluations, and insults against politicians do not constitute a crime. The defendant’s speech was justified, and his statements were related to his personal experience, and all the statements were based on specific political events. The defendant’s statements were reposts, not original. The defendant’s statements did not constitute offensive circumstances and did not constitute a crime.

It was ascertained at trial that between June and September 9, 2016, defendant Wang Jiangfeng did on many occasions utilize WeChat and QQ social media platforms, repeatedly using his registered WeChat number wangjiangfeng2015 (nickname "Turned Lotus"), WeChat number zywjf2016 (nickname "Turned Lotus2"), QQ number [INTENTIONALLY DELETED] (nickname "Maple Leaf Red"), and QQ number 1824759041 (nickname "Red Cloud Turned Lotus"), to utilize texts, images, and other forms to send messages such as "Chilled to the Heart," "Tomorrow Will Be Better," "Fate Brings Us Together and Separates Us" to specific targets, or to repost approximately 30 messages to berate and denigrate the deceased State leader Mao Zedong and the current State leader Xi Jinping to unspecified targets in his WeChat Groups, WeChat Friends Groups, QQ Groups, QQ Spaces, etc., intentionally belittling the State leaders’ reputation and undermining social order. From August to September 2016, defendant Wang Jiangfeng used his WeChat account "Turned Lotus2" to post 5 messages insulting and defaming Mao Zedong and Xi Jinping and 8 messages denigrating the ruling Party in the "Yantai Citizen Friendship Circle" (a group with more than 70 members), and 6 messages insulting and defaming Mao Zedong and Xi Jinping and more than 10 messages denigrating the ruling Party in his WeChat Circle (which had 360 members).

The aforementioned facts have been confirmed by the following evidence submitted by the public prosecution agency and presented and affirmed in court:

1. Witness Testimony and Related Documentary Evidence and Photos

(1) Hao Guiqing confirmed that he had joined two public WeChat Groups, one of which was "Yantai Citizen Friendship Circle." This group had 77 people, and he knew Wang Jiangfeng, Wang Shuxin, Zhang Enguang, and Zhang Xueshan in the group. Wang Jiangfeng's first WeChat account was "wangjiangfeng2015" and his WeChat nickname was "Turned Lotus." After this account was blocked, Wang Jiangfeng used the WeChat nickname "Turned Lotus2," his WeChat account was "zywjf2016," and his mobile phone number was 138****3179. He also pointed out that the person in the demographic information photo of Wang Jiangfeng in this case was the Wang Jiangfeng he knew. There were 5 photos of some information about the "Yantai Citizen Friendship Group" WeChat Group on his mobile phone, and it was confirmed that the WeChat nicknames used by Wang Jiangfeng in the WeChat Group were "Turned Lotus" and "Turned Lotus2," and from the order in which the photos were displayed, Wang Jiangfeng was the group owner of the WeChat Group.

(2) Zhang Xueshan confirmed that he had a WeChat Group called "Yantai Citizen Friendship Group," Wang Jiangfeng was his WeChat friend, and his WeChat ID was: wangjiangfeng2015, and it was Wang Jiangfeng who pulled him in. Wang Jiangfeng had two WeChat nicknames in the "Yantai Citizen Friendship Group," first "Turned Lotus" and later "Turned Lotus2." This group was a group that promoted democracy, constitutionalism, human rights, and criticized current politics, and Wang Jiangfeng made remarks in that regard. He also pointed out that the person in the demographic information photo of Wang Jiangfeng in this case was the Wang Jiangfeng he knew. There were 4 photos of some information about the "Yantai Citizen Friendship Group" WeChat Group on his mobile phone, and it was confirmed that in this WeChat Group, "Turned Lotus" and "Turned Lotus2" were both Wang Jiangfeng's WeChat IDs, and "Turned Lotus2" was the group owner.

(3) Chen Guangwei confirmed that he had joined a public WeChat group called "Yantai Citizen Friendship Group." The group owner was a person named "Turned Lotus2" on WeChat, whom he did not know. There were 4 photos of information on the WeChat group "Yantai Citizen Friendship Circle" on his mobile phone, showing that the group owner was "Turned Lotus2." Both "Turned Lotus2" and "Turned Lotus" had the same WeChat signature: "Beasts feast upon their stipends amongst the palaces, and men with wolves’ hearts and dogs’ behavior hold power."

(4) Wang Jinghong confirmed that she knew Wang Jiangfeng and added two QQ numbers of Wang Jiangfeng successively. The numbers were [INTENTIONALLY DELETED] with the nickname "Maple Leaf Red" and 1824759041 with the nickname "Red Cloud Turned Lotus." Her QQ number was 60552**** with the nickname "Wind and Rain." She also pointed out that the person in the demographic information photo of Wang Jiangfeng in this case was the Wang Jiangfeng she knew. There were 4 information photos about the QQ numbers "Maple Leaf Red" and "Red Cloud Turned Lotus" on her mobile phone. Among them, the signature of "Maple Leaf Red" is "Beasts feast upon their stipends amongst the palaces," and the signature of "Red Cloud Turned Lotus" was"Men with wolves’ hearts and dogs’ behavior hold power." In addition, the "Maple Leaf Red" QQ number distributed in the space, which contained insults to Mao Zedong and Xi Jinping.

(5) Fan Guiqiang confirmed that Wang Jiangfeng's QQ nickname was "Red Cloud Turned Lotus," his account number is 1824759041, his QQ number was 475406940, and his nickname was "Jinduyuan." After he and Wang Jiangfeng became QQ friends, they chatted a few times through QQ. Wang Jiangfeng sent him messages through QQ a few times, but he saw that the content of these messages was unhealthy and not positive, so he did not reply. The three evidence photos of his friend nicknamed "Red Cloud Turned Lotus" on his mobile QQ were consistent with the content confirmed by Fan Guiqiang's testimony. He also pointed out that the person in the demographic information photo of Wang Jiangfeng in this case was Wang Jiangfeng, whom he knew.

(6) Yan Fang confirmed that she had the QQ number of Wang Jiangfeng, whose nickname was "Maple Leaf Red," and that Wang Jiangfeng added her as a QQ friend. There were two photos of the information of "Maple Leaf Red" on her computer QQ friend. From her QQ, she checked some of the photos of Maple Leaf Red's space and found that "Turned Lotus2" and "Maple Leaf Red" were both Wang Jiangfeng. She also pointed out that the person in the demographic information photo of Wang Jiangfeng in this case is the Wang Jiangfeng she knew.

(7) Wang Jiangfeng's wife Sun Wenjuan confirmed that the police seized a black Gionee candy bar non-smartphone from her home, which was carried by Wang Jiangfeng; and a dark gray Huawei phone, which was Wang Jiangfeng's phone and was used exclusively by him. She and her son had never used it. They also seized a Lenovo computer, her mother's SIM card, a router, an internet modem, and some of Wang Jiangfeng's materials. She didn't use the computer at home, which was usually used by Wang Jiangfeng. Her mother didn't have WeChat or QQ, and her phone number was 131****1129.

2. Physical Evidence

(1) A seized mobile phone card with the number 131****1129.

(2) A seized black Huawei mobile phone with the number used by Wang Jiangfeng in this case.

3. Documentary evidence

(1) The Case Registration Form confirmed that the police discovered Wang Jiangfeng's suspected crime during the execution of their duties.

(2) Household registration information confirmed that defendant Wang Jiangfeng had reached the age of full criminal responsibility when he committed the crime.

(3) The Case Handling Explanation issued by the Public Security Bureau of Zhaoyuan’s Cyber Security Brigade confirmed: When Civil Police inspected a Huawei phone seized from Wang Jiangfeng's residence, they found that the phone had a lock screen password and could not access the system. They used technical means to crack the password and successfully unlocked the screen and opened the phone.

(4) The Analysis Explanation issued by the Public Security Bureau of Zhaoyuan’s Cyber Security Brigade confirmed: On September 9, 2016, the Luofeng Police Station sent 4 mobile phones and 1 desktop computer for inspection. QQ and WeChat chat records were obtained from one of the smartphones (which should be the Huawei phone with a password mentioned above).

(5) IP usage records and broadband account information, etc. issued by the China Mobile Yantai Laishan Branch confirmed: Wang Jiangfeng opened a broadband account using the mobile phone number 138****3179. He frequently logged into the Internet on many occasions between August and September 2016.

(6) The Case Handling Explanation No. 1 issued by the Luofeng Precinct of the Zhaoyuan Public Security Bureau confirmed: On the morning of October 3, 2016, Civil Police from the Public Security Bureau of Zhaoyuan investigated and questioned Gao Shaozhen. She confirmed the photo on Wang Jiangfeng’s demographic information and found Wang Jiangfeng’s WeChat ID: wangjiangfeng2015, nickname "Turned Lotus," and phone number 138****3179 in her WeChat mobile phone. She is Wang Jiangfeng’s QQ friend. Gao Shaozhen said that she and Wang Jiangfeng were not in a fixed group, but she often saw adverse information about petitioning and other aspects sent by Wang Jiangfeng on QQ spaces in the past. Civil Police took photos of the information about Wang Jiangfeng in Gao Shaozhen’s mobile phone to collect evidence and made a video CD of the whole process. Gao Shaozhen’s mobile phone photos showed that one of Gao Shaozhen’s WeChat friends was named "Turned Lotus," with WeChat ID wangjiangfeng2015 and phone number 138****3179; at the same time, the corresponding QQ nickname of this mobile phone number in Gao Shaozhen’s QQ friends was "Jiang Ge."

(7) The Case Handling Explanation No. 2 issued by the Luofeng Precinct of the Zhaoyuan Public Security Bureau confirmed: On the morning of October 3, 2016, Civil Police from the Public Security Bureau of Zhaoyuan questioned Sun Wenjuan, who said she did not know about her husband Wang Jiangfeng’s WeChat and QQ, and she had never used Wang Jiangfeng’s QQ and WeChat. Her mother had lived in her home for more than a month, and she could only dial a number on the phone, but could not use WeChat and QQ, and did not know Wang Jiangfeng’s QQ and WeChat numbers. This ruled out the possibility that Wang Jiangfeng’s wife or mother used Wang Jiangfeng’s WeChat or QQ account to surf the Internet to post distribute related comments.

(8) The Case Handling Explanation No. 3 issued by the Luofeng Precinct of the Zhaoyuan Public Security Bureau confirmed: On several occasions the Public Security Bureau of Zhaoyuan received Internet information intelligence involving Zhaoyuan Internet user Wang Jiangfeng from its commanding public security agency. The Cyber ​​Security Brigade Civil Police then began to search the WeChat number, QQ number, and Weibo account involved in the information intelligence through the Internet and conducted remote inspections, and successively produced two CDs.

(9) Criminal record inquiries, a criminal judgment of the People's Court of Zhaoyuan, and a Re-education Through Labor Decision confirmed defendant Wang Jiangfeng's criminal punishment and re-education through labor.

(10) Two Work Reports issued by the Public Security Bureau of Yantai’s Cyber Security Brigade dated September 3 and September 8, 2016 confirmed: According to the notification of the Ministry of Public Security and the Shandong Public Security Department, Yantai Internet user "Turned Lotus" (WeChat ID905794705), "Turned Lotus2" (WeChat ID1566529368, account name: zywjf2016, bound QQ number  [INTENTIONALLY DELETED], mobile phone  [INTENTIONALLY DELETED]), and QQ username "The Wind Blows JJ" (QQ number  [INTENTIONALLY DELETED], the same as Turned Lotus2's bound QQ number) used WeChat and QQ from June to early September 2016 to post insults of State leaders, smears on the Communist Party of China, and attacks on the socialist system in WeChat Friends groups, WeChat Groups, and QQ Groups.

4. On Site Inspection Records

(1) Search records on September 9, 2016 confirmed the process by which the public security officers searched Wang Jiangfeng’s home and seized his computer, mobile phone and other tools that he suspected of using for criminal activities.

(2) List of Seized Items, List of Items Taken Into Temporary Custody、and photographs from the scene confirmed: On September 9, 2016, the Public Security Civil Police seized a black Nokia candy bar-type non-smartphone; a black Huawei TL00 smartphone; a white OPPO phone (which could not be turned on); a black Lenovo desktop computer; petition materials of petitioners Li Decheng, Xue Yushuang and others; and a black Gionee candybar-type non-smartphone at Wang Jiangfeng's residence. The Civil Police registered and photographed the items that were searched and seized.

(3) The search record and List of Seized Items of September 28, 2016 confirmed: The Civil Police’s search of Wang Jiangfeng’s Internet devices and mobile phone or mobile phone card number 131****1129 at Wang Jiangfeng’s residence on that day. They seized a mobile phone card (131****1299), a wireless Internet device, and a Unicom Internet device, as well as the characteristics of the above items.

5、Audio-Visual Materials and Electronic Data

(1) The Public Security Bureau of Zhaoyuan’s Electronic Data Inspection Record confirmed that professionals used professional equipment to inspect a Huawei mobile phone used by Wang Jiangfeng, extracted and fixed relevant content, generated an HTML format report, and burned the extracted evidence data into a CD numbered YTZY2016013-001, and took 5 photos and 6 screenshots at the same time.

(2) Video Materials

i. The CD made from the content obtained from Wang Jiangfeng's Huawei mobile phone confirmed that Wang Jiangfeng's QQ account number 1824759041 with the nickname "Red Cloud Turned Lotus" and QQ account number [INTENTIONALLY DELETED] with the nickname "Maple Leaf Red" contained a large number of statements that berated and belittled the late State leader Mao Zedong and the current State leader Xi Jinping, in addition to remarks attacking the ruling Party and the current regime.

WeChat account "Turned Lotus2," WeChat ID zywjf2016, associated QQ number  [INTENTIONALLY DELETED], and associated mobile phone  [INTENTIONALLY DELETED]. This WeChat account sent statements that berated and belittled the late State leader Mao Zedong and the current State leader Xi Jinping to 21 WeChat friends.

The WeChat account distributed statements in the "Yantai Citizen Friendship Circle" with more than 70 members that berated and belittled the late state leader Mao Zedong and the current state leader Xi Jinping 5 times and 8 messages attacking the current regime.

The WeChat account had distributed statements in the Friends Group (with 360 members), that berated and belittled the late state leader Mao Zedong and the current state leader Xi Jinping 6 times and 10 messages attacking the current regime.

ii. Wang Jiangfeng's public opinion feedback CD and remote inspection CD were records made by the public security agencies when monitoring Wang Jiangfeng's relevant statements distributed by the WeChat account "Turned Lotus." They show that Wang Jiangfeng was dissatisfied with the handling of his crimes and illegal acts, and did on many occasions post statements that denigrated and berated the current state leader Xi Jinping in WeChat groups using the WeChat account "Turned Lotus."

iii. The evidence CD retrieved from Shenzhen Tencent confirmed the account information of Wang Jiangfeng's WeChat ID "Turned Lotus" and "Turned Lotus2."

iv. The video discs of the searches confirmed that the public security officers went to Wang Jiangfeng's home to search and seized the relevant items in accordance with the law.

v. The content of the CD of Gao Shaozhen’s questioning was consistent with the Case Handling Explanation No.1 issued by the Luofeng Precinct of the Zhaoyuan Public Security Bureau and the four photos of Gao Shaozhen's cell phone information.

vi. The CD of Sun Wenjuan’s questioning confirmed the process by which the Public Security Civil Police questioned Sun Wenjuan.

vii. A CD made from the relevant evidence of the Ministry of Public Security's monitoring system, and a video made based on Wang Jiangfeng's online statement issued by the Ministry of Public Security. The content of the video is consistent with the content described on pages 121-127 of the investigation volume.

6、Defendant’s Statements

Defendant Wang Jiangfeng made a full confession of the facts relating to his utilization of WeChat, QQ, and other platforms to distribute statements through text, images, and other means that berated and denigrated former and current State leaders. In summary, the facts in this case were clear and the evidence was reliable and copious, and is sufficient to make a determination.

This Court finds that between June and September 9, 2016, defendant Wang Jiangfeng did on many occasions utilize WeChat, QQ, and other platforms to distribute statements through text, images, and other means that berated and denigrated former and current State leaders and undermining social order. The circumstances were offensive and his actions constitute the crime of disturbing the peace. The public prosecution agency’s charges are established.He was previously sentenced to fixed-term imprisonment for the crime of occupational embezzlement, has a criminal record of intentional crime, and has a relatively high level of subjective malice, so he should be given a heavier punishment.

Regarding defendant Wang Jiangfeng’s justifications: "The content he posted was reposted by him from others, and was not original. He reposted these inappropriate statements because he was dissatisfied with a court judgment and had been punished administratively on many occasions during his petitioning process. There were reasons for what he did, and it did not constitute the crime of disturbing the peace." This Court finds that the distribution of any speech should be within the scope permitted by law and should not contain words that insult, defame, or attack others' personality. Although the defendant’s posts were not original, he did repost them on many occasions, which also shows that he had the subjective intention to insult others and spread it in cyberspace, seriously undermining social order. Therefore, his defense that "his actions did not constitute the crime of disturbing the peace" does not conform to the facts and legal provisions. and is not adopted by this Court.

Regarding defendant Wang Jiangfeng’s defense counsel Li Yongheng’s argument: "The defendant's use of information networks to distribute remarks involving the degradation of Mao Zedong’s and Xi Jinping's personal character was not an attack on their personal character, but was to express dissatisfaction with major national political events such as the Hangzhou Summit and foreign aid. "Berate" and "intimidate others" in the crime of disturbing the peace in my country's criminal law, refers to ordinary natural persons, and should not include political leaders and politicians." This Court finds, the defendant's speech contained a large number of insults and defamation of others, which went beyond the scope of commenting on political events. State leaders have dual identities of natural persons and politicians. The defendants reposted or distributed texts and images denigrating Mao Zedong and Xi Jinping through WeChat, QQ, etc. That information seriously belittled the personal reputations of Mao Zedong and Xi Jinping. At the same time, due to the special identities of Mao Zedong and Xi Jinping as deceased and current State leaders, the denigration of their personal reputations and images will inevitably cause adverse perceptions of the Communist Party of China, the socialist system, and the People's Democratic Dictatorship State regime in the minds of the masses, which is very likely to cause confusion among the people and social unrest. The nature of this is severe, the circumstances were offensive, severely undermining social order. Therefore, the defense counsel's relevant defense opinions do not comply with legal provisions, and are also not adopted by this Court.

Regarding defense counsel Zhu Shengwu’s argument "the defendant’s posting of inappropriate statements in cyberspace does not fall within the category of posting in public venues. The nature of speech in a Friends Group is different from that in a public venue." This Court finds that Supreme People's Court and the Supreme People's Procuratorate’s "Interpretation on Several Issues Concerning the Specific Application of Law in the Handling of Defamation Through Information Networks and Other Criminal Cases" clearly provides: "Where information networks are used to berate or intimidate others, with adverse circumstances and undermining social order, the person shall be convicted and punished in accordance with the provisions of Article 293(1)(ii) of the Criminal Law, and punished for the crime of disturbing the peace." Cyberspace also falls within the scope of public venues, so the defense counsel's defense opinion does not comply with legal provisions., and is not adopted by this Court. Regarding the defense opinion: "Criticism, negative evaluations, and insults against politicians do not constitute a crime. The defendant’s speech was justified, and his statements were related to his personal experience, and all the statements were based on specific political events. The defendant’s statements were reposts, not original. The defendant’s statements did not constitute offensive circumstances and did not constitute a crime." This is the same as defendant Wang Jiangfeng’s other defense counsel’s argument and defense opinion, and neither complies with legal provision, and is also not adopted by this Court.

Defendant Wang Jiangfeng was able to admit in court that he distributed inappropriate statements and expressed remorse, so he may be given a lighter punishment. In accordance with the provisions of Article 293(1)(ii) of the “Criminal Law of the People's Republic of China” and Article 5 of the "Supreme People's Court and the Supreme People's Procuratorate "Interpretation on Several Issues Concerning the Specific Application of Law in the Handling of Defamation Through Information Networks and Other Criminal Cases"" the judgment is as follows:

Defendant Wang Jiangfeng committed the crime of disturbing the peace, and is sentenced to a fixed term imprisonment of two years (The prison term is to be calculated starting on the day the judgment is executed, and each day in custody prior to the execution of the judgment shall count as one day of the prison term, that is from September 9, 2016 to September 8, 2018).

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 Intermediate People's Court of Yantai. A written appeal should be submitted with one original and two copies of the appeal brief.

Chief Adjudicator Liu Yongwen
People’s Assessor Yuan Jingyuan
People’s Assessor Ding Hongyun

April 7, 2017

Clerk Ma Li

山东省招远市人民法院
刑事判决书
(2017)告0685刑初9号

公诉机关招远市人民检察院

被告人王江峰,男,1970年2月7日出生于山东省招远市,身份证号码:370624197002074417,汉族,大学文化,无业,住招远市迎宾路130号5号楼1单元301号。2003年5月26日因犯职务侵占罪被招远市人民法院判处有期徒刑六个月,缓刑一年;2012年4月16日因在北京使馆区扰乱社会秩序,于2013年1月6日被烟台市劳动教养委员会劳动教养一年,2013年7月提前放释。2016年9月9日因涉嫌犯寻衅滋事被刑事拘留,同年10月15日被逮捕,现羁押于招远市看守所。

辩护人李永恒,山东泰诚律师事务所律师。

辩护人祝圣武,山东信常律师事务所律师。

招远市人民检察院以招检公诉刑诉[2017]1号起诉书,指控被告人王江峰犯寻衅滋事罪,于2017年1月9日向本院提起公诉,本院审查后于同日立案,并依法组成合议庭,公开开庭审理了本案。招远市人民检察院指派检察员王岩出庭支持公诉。被告人王江峰及其辩护人李永恒、祝圣武到庭参加诉讼。现已审理终结。

招远市人民检察院指控:2016年6月份至9月9日期间,被告人王江峰多次利用微信和QQ社交平台,在多个微信群、微信朋友圈、QQ群,QQ空间等,采用文字、图片等形式对不特定对象公开或与不特定对象私聊,发表或转发了大量辱骂、诋毁已逝国家领导人毛泽东和现任国家领导人习近平的言论,故意贬损国家领导人声誉,破坏社会秩序。

公诉机关向法庭提交了相应的证据证实指控的上述犯罪事实。公诉机关认为,被告人王江峰的行为触犯了《中华人民共和国刑法》第二百九十三条第一款第(二)项之规定构成寻衅滋事罪,提请本院依法判处。

被告人王江峰对公诉机关指控的其在微信圈、QQ社交平台发布过辱骂人、诋毁已逝国家领导人毛泽东和现任国家领导人习近平的言论的事实供认不讳,辩称发布的内容都是他转发别人的,不是他原创的,他转发这些不当言论是因为自己因对法院的判决不服,在上访过程中多次被行政处罚,系事出有因,不构成寻衅滋事犯罪。

其辩护人李永恒辩称,被告人利用信息网络发表涉及到毛泽东、习近平个人人格降低的言论时并不是针对个人人品进行攻击,均是在向杭州峰会、对外援助这些重大国家政治事件中发表的不满言论,我国刑法寻衅滋事罪中辱骂、恐吓他人是指普通的自然人,不应当包含政治领袖和政治人物。被告人发表的不当言论,在朋友圈和QQ群里是不妥的,但其情节仍然在我国能够忍受的言论自由的范围之内,不应当受到刑法的惩罚。

其辩护人祝圣武辩称,被告人在网络空间发布不当言论,不属于在公共场所。在朋友圈发表言论和在公共场所发表言论性质不一样。对政治人物的非议、否定性评价和谩骂言论不构成犯罪。被告人的言论是事出有因的,其言论和其自身人身经历有关系,这些言论都依托于具体的政治事件。被告人的言论均是转发的,而不是原创的。被告人的言论不构成情节恶劣,不构成犯罪。

经审理查明,2016年6月份至9月9日期间,被告人王江峰多次利用微信和QQ社交平台,先后使用其注册的微信号wangjiangfeng2015(昵称“转莲”)、微信号zywjf2016(昵称“转莲2”)、QQ号[INTENTIONALLY DELETED](昵称“枫叶红”)、QQ号1824759041(昵称“红霞转莲”),采用文字、图片等形式向特定对象“透心凉”、“明天更美好”“缘聚缘散”等微信好友或在其“烟台公民交友圈”微信群内、微信朋友圈、QQ群,QQ空间等,向不特定对象转发了约30条辱骂、诋毁已逝国家领导人毛泽东和现任国家领导人习近平的言论,故意贬损国家领导人声誉,破坏社会秩序。其中2016年8至9月份,被告人王江峰利用其“转莲2”微信号在“烟台公民交友圈”(群成员70余人)发布侮辱、诽谤毛泽东和习近平的信息5条及诋毁执政党的信息8条,在其微信圈(成员360人)发布侮辱、诽谤毛泽东和习近平的信息6条及诋毁执政党的信息10余条。

上述事实,有公诉机关提交并经法庭质证确认的下列证据予以证实:

1、证人证言及关联的书证、照片

(1)郝贵庆证实,他加入过两个公共微信群,其中一个是“烟台公民交友圈”。这个群有77个人,他认识群里的王江峰、王书信、张恩广、张学善。王江峰的第一个微信号“wangjiangfeng2015”,微信昵称是“转莲”。这个号被封后,王江峰用“转莲2”这个微信昵称,微信号是“zywjf2016”,手机号码是138****3179。并指出本案王江峰人口信息照片上的人就是他所认识的王江峰。其手机内“烟台公民交友群”微信群部分信息照片5张,证实王江峰在微信群里使用的微信昵称分别是“转莲”和“转莲2”,并且从照片显示顺序来看,王江峰系该微信群的群主。

(2)张学善证实,他有一个微信群是“烟台公民交友群”,王江峰是他的微信好友,微信号是:wangjiangfeng2015,是王江峰把他拉进去的。王江峰在“烟台公民交友群”有2个微信昵称,开始是“转莲”,后来是“转莲2”。这个群是宣扬民主、政宪、人权、抨击时政的群,王江峰发过这方面的言论。并指出本案王江峰人口信息照片上的人就是他所认识的王江峰。其手机内“烟台公民交友群”微信群部分信息照片4张,证实该微信群中,“转莲”和“转莲2”都是王江峰的微信号,且“转莲2”是群主。

(3)陈光伟证实,他加入过一个“烟台公民交友群”公共微信群,群主是一个微信名叫“转莲2”的人,这个人他不认识。其手机内“烟台公民交友圈”微信群信息照片4张,显示该群群主是“转莲2”,“转莲2”和“转莲”两个微信的个性签名都是“殿陛之间禽兽食禄,狼心狗行之辈纷纷秉政”。

(4)王敬红证实,她认识王江峰,先后加了王江峰的两个QQ号,号码分别是[INTENTIONALLY DELETED]昵称“枫叶红”,另一个是1824759041昵称“红霞转莲”。她的QQ号码是60552****昵称“风雨兼程”。并指出本案王江峰人口信息照片上的人就是她认识的王江峰。其手机内关于QQ号“枫叶红”“红霞转莲”的信息照片4张,其中“枫叶红”的个性签名为“殿陛之间,禽兽食禄”,“红霞转莲”的个性签名为“狼心狗行之辈滚滚当朝”。另外“枫叶红”QQ号在空间内发表的说说,内有侮辱毛泽东、习近平等内容。

(5)范桂强证实,王江峰的QQ昵称是“红霞转莲”,账号是1824759041,他的QQ号码是475406940,昵称“金都缘”。他和王江峰加入QQ好友以后,通过QQ聊过没几次。王江峰通过QQ给他发过几次信息,他看到这些信息的内容不健康,不是正能量,就没有回复。其手机QQ关于昵称为“红霞转莲”的好友取证照片3张,与范桂强证言证实的内容一致。并指出本案王江峰人口信息照片上的人就是他认识的王江峰。

(6)闫芳证实,她有王江峰的一个QQ号,QQ昵称是“枫叶红”,是王江峰加她为QQ好友。其电脑QQ好友“枫叶红”的信息照片2张,从其QQ查看枫叶红空间看到的部分照片信息,显示“转莲2”和“枫叶红”都是王江峰。并指出本案王江峰人口信息照片上的人就是她认识的王江峰。

(7)王江峰妻子孙文娟证实,公安机关到她家扣押的一部黑色金立直板非智能手机,是王江峰随身携带的;一部深灰色华为手机,是王江峰的手机,他专用的,她和儿子没有用过。扣押了一部联想电脑主机,还有她母亲的手机卡,一个路由器和一个上网猫,还有王江峰的一些材料,她家电脑她不使用,一般都是王江峰用。她母亲没有微信、QQ,手机号是131****1129。

2、物证

(1)扣押的手机卡一个,备注显示号码为131****1129。

(2)扣押的黑色华为手机一部,备注为王江峰作案所用。

3.书证

(1)受案登记表,证实本案是由民警在工作中发现王江峰涉嫌犯罪事实。

(2)户籍信息,证实被告人王江峰作案时已达完全负刑事责任年龄。

(3)招远市公安局网安大队出具的办案说明,证实民警在对从王江峰住处查扣的一部华为手机进行检验时,发现该手机有锁屏密码,无法进入系统,通过技术手段对该密码进行了破解,成功解锁屏幕打开手机。

(4)招远市公安局网安大队出具的检验说明,证实2016年9月9日,罗峰派出所送检4部手机,1台台式电脑主机。从其中1部智能手机(应为前述有密码的华为手机)中取证到QQ、微信聊天记录。

(5)由中国移动公司烟台莱山分公司出具的IP使用记录及宽带账户信息等,证实王江峰用138****3179的手机号开户的宽带账户,在2016年8月份到9月份期间,多次频繁登陆上网。

(6)招远市公安局罗峰派出所出具的办案说明一,证实2016年10月3日上午,招远市公安局民警对高绍珍调查询问,其对王江峰人口信息上的照片进行了确认,在其手机微信中找出王江峰的微信号:wangjiangfeng2015,昵称“转莲”,电话号码138****3179。其系王江峰的QQ好友。高绍珍称,其与王江峰不在固定群里,但是过去常能看见王江峰QQ空间发的关于上访等方面的负面信息。民警对高绍珍手机内关于王江峰的这些信息拍照取证,对整个过程制作视频光盘。高绍珍手机照片4张,显示高绍珍的一名微信好友微信名叫“转莲”,微信号是wangjiangfeng2015,电话号码是138****3179;同时该手机号码在高绍珍QQ好友里对应的QQ昵称是“姜哥”。

(7)招远市公安局罗峰派出所出具的办案说明二,证实2016年10月3日上午,招远市公安局民警在询问孙文娟过程中,其称不知道其丈夫王江峰微信、QQ等相关情况,她从来没有用过王江峰的QQ和微信。其母亲在她家里住了一个多月了,只会用电话简单拨号,不会用微信和QQ,也不知道王江峰的QQ和微信号。排除了王江峰妻子或母亲使用王江峰微信或QQ账号上网发表相关言论的情形。

(8)招远市公安局罗峰派出所出具的办案说明三,证实招远市公安局接到上级公安部门多次转发的互联网信息情报,涉及招远网民王江峰,网安大队民警遂开始对信息情报中涉及微信号、QQ号、微博通过网络搜索并远程勘验,先后制作光盘二张。

(9)前科查询、招远市人民法院刑事判决书、劳动教养决定书,证实被告人王江峰受刑事处罚、劳动教养的情况。

(10)烟台市公安局网安支队于2016年9月3日和9月8日出具的两份工作情况,证实根据公安部、山东省公安厅相关部门的通报,烟台市网民“转莲”(微信ID905794705)、“转莲2”(微信ID1566529368,账户名:zywjf2016,绑定QQ号[INTENTIONALLY DELETED],手机[INTENTIONALLY DELETED])、QQ网名“风吹JJ哦”(QQ号[INTENTIONALLY DELETED],与转莲2的绑定QQ号相同)通过微信和QQ,从2016年6月份至9月初,先后在微信朋友圈、微信群以及QQ群发布侮辱国家领导人、抹黑中国共产党、攻击社会主义制度等言论。

4、现场勘查记录

(1)2016年9月9日的搜查笔录,证实公安人员当天在王江峰家中依法搜查并扣押到其涉嫌用于犯罪活动的电脑、手机等工具的过程。

(2)扣押物品清单、暂管物品清单、现场照片,证实公安民警于2016年9月9日在王江峰住处扣押黑色诺基亚直板非智能手机一部;黑色华为TL00型号智能手机一部;白色OPPO牌手机一部(无法开机);黑色联想牌台式电脑主机一台;李德成、薛玉双等上访人上访资料一宗;黑色金立牌直板非智能手机一部。民警将搜查、扣押的相关物品予以登记并拍照。

(3)2016年9月28日的搜查笔录及扣押清单,证实办案民警当天在王江峰的住处搜查王江峰的上网设备和手机或手机卡号131****1129。扣押手机卡一个(131****1299),无线上网设备一个,联通上网设备一个的过程及上述物品的特征。

5、视听资料、电子数据

(1)招远市公安局电子数据检验笔录,证实经专业人员以专业设备,对王江峰使用的一部华为手机进行检验,提取并固定相关内容,生成了html格式报告1份,并将提取到的证据数据刻录在编号为YTZY2016013-001的光盘内,同时拍摄照片5张,截图6张。

(2)视频资料

i.根据从王江峰华为手机中取证到的内容所制作的光盘,证实王江峰QQ号1824759041昵称“红霞转莲”的QQ中,QQ号[INTENTIONALLY DELETED]昵称“枫叶红”的QQ中,除了攻击执政党和现政权的言论外,包含有大量辱骂、贬损已故国家领导人毛泽东和现任国家领导人习近平的言论。

微信“转莲2”,微信号zywjf2016,关联的QQ号码[INTENTIONALLY DELETED],关联的手机[INTENTIONALLY DELETED]。该微信号共向21名微信好友发送了辱骂、贬损已故国家领导人毛泽东和现任国家领导人习近平的言论。

该微信号在有70余名成员的“烟台公民交友圈”5次发表过辱骂、贬损已故国家领导人毛泽东和现任国家领导人习近平的言论及8条攻击现政权的信息。

该微信号在朋友圈(群成员360人)6次发表过辱骂、贬损已故国家领导人毛泽东和现任国家领导人习近平的言论及10余条攻击现政权的信息。

ii.王江峰舆情反馈光盘、远程勘验盘光盘,系公安机关在监控王江峰以“转莲”这个微信号发表的相关言论时做的记录,显示王江峰因对自己的犯罪和违法行为被处理不服,以“转莲”的微信号多次在微信群发布诋毁、辱骂现任国家领导人习近平的言论。

iii.从深圳腾讯公司调取的证据光盘,证实王江峰微信号“转莲”、“转莲2”的相关账户信息。

iv.搜查视频光盘,证实公安人员依法到王江峰家进行搜查并扣押相关物品的过程。

v.询问高绍珍光盘,内容与招远市公安局罗峰派出所出具的办案说明一及高绍珍手机信息照片四张所反映的内容一致。

vi.询问孙文娟光盘,证实公安民警询问孙文娟的过程。

vii.公安部监控系统的相关证据制作的光盘,根据公安部下发的王江峰网上言论材料制作的视频,视频显示的内容与侦查卷121-127页所说明的内容一致。

6、被告人供述

被告人王江峰对其利用微信、QQ等平台采用文字、图片等方式发表辱骂、诋毁已故或现任国家领导人的言论事实供认不讳。综上,本案事实清楚,证据确实充分,足以认定。

本院认为,被告人王江峰于2016年6月份至9月9日期间,多次利用微信、QQ等平台采用文字、图片等方式发表辱骂、诋毁已故或现任国家领导人的言论,破坏社会秩序,情节恶劣,其行为构成寻衅滋事罪。公诉机关指控的罪名成立。其曾因犯职务侵占罪被判处有期徒刑,系有故意犯罪前科,主观恶性较大,应对其酌予从重处罚。

关于被告人王江峰辩解:“其发布的内容都是他转发别人的,不是他原创的,他转发这些不当言论是因对法院的判决不服,在上访过程中多次被行政处罚,系事出有因,不构成寻衅滋事犯罪。”本院认为,发表任何言论都应该在法律许可的范围内,不能含有侮辱、诽谤他人,攻击他人人格的言辞,且虽然被告人发布的上述言论不是其本人原创,但他多次转发,亦体现其主观上具有辱他人的故意,且在网络空间传播,严重破坏社会秩序,故其关于“其行为不构成寻衅滋事罪”的辩解不符合事实和法律规定,本院不予采纳。

关于被告人王江峰的辩护人李永恒辩称,“被告人利用信息网络发表涉及到毛泽东,习近平个人人格降低的言论时并不是针对个人人品进行攻击,均是在向杭州峰会、对外援助这些重大国家政治事件中发表的不满言论,我国刑法寻衅滋事罪辱骂、恐吓他人是指普通的自然人,不应当包含政治领袖和政治人物。”本院认为,被告人发表的言论中,包涵大量侮辱、诽谤他人人格的言辞,已经超出了对政治事件进行评价的范畴。国家领导人同时具有自然人和政治人物的双重身份,被告人通过微信、QQ等形式转发或者发表诋毁毛泽东、习近平的文字、图片,这些信息严重贬损了毛泽东、习近平个人的声誉,同时由于毛泽东、习近平具有已故或者现任国家领导人的特殊身份,对他们个人声誉,形象的诋毁必然在群众心目中造成对中国共产党、对社会主义制度、对人民民主专政政权的负面认知,极易引起人心混乱、社会动荡,性质严重,情节恶劣,严重破坏了社会秩序。故辩护人的相关辩护意见不符合法律规定,本院亦不予采纳。

关于辩护人祝圣武辩称,“被告人在网络空间发布不当言论,不属于在公共场所。在朋友圈发表言论和在公共场所发表言论性质不一样。”本院认为,最高人民法院、最高人民检察院《关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释》明确规定,“利用信息网络辱骂、恐吓他人,情节恶劣,破坏社会秩序的,依照刑法第二百九十三条第一款第(二)项的规定,以寻衅滋事罪定罪处罚。”网络空间同样属于公共场所的范畴,故该辩护人的相关辩护意见不符合法律规定,本院不予采纳。其关于“对政治人物的非议、否定性评价和谩骂言论不构成犯罪。被告人的言论是事出有因的,其言论和其自身人身经历有关系;这些言论都依托于具体的政治事件。被告人的言论均是转发的,而不是原创的。被告人的言论不构成情节恶劣,不构成犯罪”的辩护意见,与被告人王江峰及另一辩护人的辩解及辩护意见相同,均不符合法律规定,本院亦不予采纳。

被告人王江峰当庭能够承认自己发表的不当言论,并表示悔过,可对其酌予从轻处罚。依照《中华人民共和国刑法》第二百九十三条第一款第(二)项、《最高人民法院、最高人民检察院<关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释>》第五条之规定,判决如下:

被告人王江峰犯寻辞滋事罪,判处有期徒刑二年。(刑期自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2016年9月9日起到2018年9月8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烟台市中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 刘永文
人民陪审 员敬远
人民陪审员 丁洪云

二0一七年四月七日

书记员 马丽
 

Baidu Increases Censorship of "Xi Jinping"

 China's search engines have censored the names of leaders of the Communist Party of China and the PRC government for over a decade (see: http://blog.feichangdao.com/2012/12/how-other-websites-are-censoring.html). They typically do this by restricting search results to a white list of around 20 websites under their own control or under the direct control of the central government and the Communist Party. This is illustrated below with a screenshot showing that a search for "Xi Jinping" in Chinese characters (习近平) on Baidu returns millions of results (left), but the same search limited to educational websites returns no results (right).

Paging through the result one finds that the only websites shown are Party and government mouthpieces such as Xinhua, the People's Daily, the China Daily, CCTV (the state controlled television broadcaster), CRI (the state controlled radio broadcaster), etc. This censorship is done for searches of leaders names in Chinese characters and in pinyin romanization (e.g. "Xi Jinping"). 

The screenshots below show that some time between April 2020 (left) and September 2021 (right)  Baidu changed how it was censoring search results for "Xi Jinping" in pinyin romanization. Whereas in April 2020 Baidu was limiting results to the Party/Government white list, it claimed to have found almost 6 million results. In September, Baidu was still limiting search results to that white list, but was only displaying nine results. 

At least Baidu is showing something. As the screenshots below show, China's two other major search engines - Qihoo (left) and Sogou (right) return no results whatsoever.

 

Interestingly, it is still possible to "trick" Sogou into showing search results containing "Xi Jinping" by entering his name in Chinese characters into its English language search engine. The screenshot below shows that in that case Sogou returns dozens of results (again, from the Party/Government white list).

Translation: Judgment in Case of US University Student Jailed for Twitter Postings

People's Court of Wuchang District, Wuhan, Hebei

Criminal Judgment

(2019) E 0160 Criminal First Instance No. 10871

The public prosecution agency was the People's Procuratorate of Wuchang District, Wuhan, Hubei.

Defendant Luo Daiqing, male, born [INTENTIONALLY DELETED], 1999, Han ethnicity, studying in Humanities Department of the University of Minnesota in the United States, household registration in the Honghan District of Wuhan, currently residing in the Wuchang District of Wuhan. On July 12, 2019 he was summoned to appear on suspicion of the crime of disturbing the peace, and on the same day it was decided he would subjected to 10 days in administrative custody. On July 22, 2019, he was taken into criminal detention by the Public Security Bureau of Wuchang District, Wuhan, and on August 29 of the same year he was arrested. He is currently being held in custody in the Wuchang District Detention Center.

Defense counsel Hu Jibin is a lawyer at the Hubei Lingfeng Law Firm.

In the Chang Procuratorate First Division Criminal Indictment (2019) No. 127 indictment the People's Procuratorate of Wuchang District, Wuhan, Hubei charged defendant Luo Daiqing with committing the crime of disturbing the peace, and October 11, 2019 filed a public prosecution with this Court. This Court utilized ordinary procedures in accordance with the law, and formed a collegial panel and on October 29, 2019 tried this case in closed court. The People's Procuratorate of Wuchang District, Wuhan, Hubei assigned Procurator Chen Honglin to appear in court in support of the public prosecution, and defendant Luo Daiqing and his defense counsel Hu Jibin appeared in court to participate in the proceedings. The collegial panel has held deliberations on this case, and the trial has now concluded.

The People's Procuratorate of Wuchang District, Wuhan, Hubei charged that in September and October of 2018, while studying at the University of Minnesota in the United States, defendant Luo Daiqing posted 40 statements and inappropriate memes that ridiculed the image of State leaders through his Twitter account on a foreign website in order to attract the attention of others. This drew the attention of others and created a pernicious social influence. On July 12, 2019, defendant Luo Daiqing was taken into custody and brought to justice by public security agencies.

The aforementioned facts have been substantiated by relevant evidence submitted by the public prosecution agency including documentary evidence, witness testimony, audio-visual materials, and statements of the defendant. Based on these it alleges defendant Luo Daiqing utilized information networks to post fake images and statements that ridiculed the nation's image, disrupted social management order, that the circumstances were severe, that he violated  the provisions Article 293 of the "Criminal Law of the People's Republic of China," and should bear criminal liability for the crime of disturbing the peace.

Defendant Luo Daiqing and his defense counsel did not object to any of the criminal facts and the crime charged by the public prosecution agency. In court Luo Daiqing expressed remorse for his offenses and asked to be shown leniency. Defense counsel believes that Luo Daiqing is a first offender who is ordinarily well behaved,  that once he became involved in the case he made truthful statements and plead guilty. They asked that he be shown leniency during sentencing.

It was ascertained at trial that while studying at the University of Minnesota in the United States in September and October of 2018, defendant Luo Daiqing posted 40 statements and inappropriate memes that ridiculed the image of State leaders through his Twitter account on a foreign website in order to attract the attention of others. This drew the attention of others and created a pernicious social influence. On July 12, 2019, defendant Luo Daiqing was taken into custody and brought to justice by public security agencies.

The evidence proving the aforementioned facts includes:

1. The process of how the defendant came into police custody produced by the Shuiguohu Police Precinct of the Public Security Bureau of Wuchang District, Wuhan, and the explanation of circumstances produced by the Public Security Bureau of Xuzhou's Cyber Security Detachment confirmed the process by which Luo Daiqing was taken into custody: On October 20, 2018, while Ma Doe was assisting in an investigation at the Xuzhou Police Precinct, they reported to the police that someone had stolen their identity to register on Twitter and other foreign Internet social media platforms, and had posted over 50 statements and inappropriate memes that ridiculed the nation's image and that were drawing unwanted attention and creating a pernicious social influence. An investigation found that the suspect was Luo Daiqing, and based on certain leads, on July 12, 2019, the Public Security Bureau of Wuchang District, Wuhan detained Luo Daiqing at Hongshan Side Road, Xiaohongshan Western District, Wuchang District, who stated that he undertook the aforementioned actions in order to attract online attention. The case was considered solved.

The Public Security Bureau of Xuzhou's Cyber Security Detachment confirmed that said detachment conducted online evidence retrieval with respect to the "mianq12" Twitter account in this case, and recorded it in fixed form on a disc.

2. The Public Security Bureau of Xuzhou's online collection work record and volume of evidence collected from the Internet information content.

3. The written testimony of witness Ma Doe confirmed that someone used the Internet in their name to post images and statements that insulted the nation's image: I am an anime author, and owing to some online interpersonal contradictions I got involved in many flame wars with online trolls, and I offended many people and was attacked by them. I had registered the  nickname "Eastern Footbath" in many places online, and had also registered it on Twitter, but I had never used it, and had lost that account. None of the images that insulted State leaders that were posted online under the names Ma Doe and "Footbath" were posted by me.  I was framed.

4. Defendant Luo Daiqing's household registration, identification information and statement confirmed the circumstances of the crimes he committed: I am student in the Humanities Department of the University of Minnesota in the United States. I returned to China in May  2019 and have not yet graduated. I registered three Twitter accounts; "Soft Green," "Ma Doe," and "The Footbath." I logged into Twitter in the United State, and in order to attract the attention of followers I reposted images created by others that smeared some State leaders. I do not know Ma Doe, I saw many denounce him in a Telegram group, and I pretended to be him in order to go ahead and do this. I used the reputation of "Ma Doe" to post certain derogatory information, and it increased my followers (attracted attention) quite a bit. I was posting continuously from September to October 2018, adding some of my own writings. Afterwards I felt that it was not appropriate to post inappropriate information in the name of someone else, and it was linked to politics and did not really mean anything to me, so I deleted all of that content.

5. The thoughts and understandings set down in writing by Luo Daiqing confirmed the detailed circumstances of the crimes he committed and that his attitude was one of regret.

6. The Public Security Bureau of Wuchang District, Wuhan Administrative Punishment Decision confirmed that on July 13, 2019 it was decided to subject Luo Daiqing to 10 days of administrative detention for his actions in the aforementioned case.

All the foregoing evidence was submitted by public prosecution agencies, was presented and examined in court, defendant Luo Daiqing and his defense counsel raised no objections, and it was affirmed in court. The evidence is reliable, copious, and consistent, and this Court deems the facts charged by the public prosecution agency with respect to defendant Luo Daiqing committing the crime of disturbing the peace to be determinative.

This Court finds that defendant Luo Daiqing utilized information networks to promulgate false information that ridiculed the State's image (the original text of the document phrased it thus, not as ridiculing the image of State leaders), this caused a disturbance and attracted attention. It disrupted social management order, the circumstances were pernicious, and his actions constitute the commission of the crime of disturbing the peace. The facts in this case charged by the public prosecution agency are clear and the evidence is reliable and copious, the was applied correctly, the offense charged is established and is upheld by this Court.

After becoming involved in the case Luo Daiqing was able to honestly confess to the crime and recognize his offense and show a relatively penitent attitude, so he may be shown leniency.

This Court does not accept the relevant opinions of defense counsel. This Court accepts as appropriate the opinion of the public prosecution agency recommending a sentence of between four months detention and a fixed term imprisonment of 10 months. In accordance with the provisions of Articles 293(1) and 67(3) of the "Criminal Law of the People's Republic of China" and Article 5 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Defamation Through Information Networks and Other Criminal Cases," the judgment is as follows:

Defendant Luo Daiqing committed the crime of disturbing the peace and is sentenced to a fixed term imprisonment of six months.

(The prison term is to be calculated starting on the day the judgment is executed, and each day in custody prior to the execution of the judgment shall count as one day of the prison term, that is from July 12, 2019 to January 11, 2020.)

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 Intermediate People's Court of Wuhan, Hubei. A written appeal should be submitted with one original and three copies of the appeal brief,

Chief Adjudicator　　Wei Xiaoxia
Adjudicator                  Cheng Ping
People's Assessor　　Bao Jianping

November 5, 2019

Clerk    Zhang Yanglan 

湖北省武汉市武昌区人民法院

刑事判决书

（2019）鄂0106刑初1087号

公诉机关湖北省武汉市武昌区人民检察院。

被告人罗岱青，男，1999年[INTENTIONALLY DELETED]出生，汉族，美国明尼苏达大学人文学院在读学生，户籍地武汉市江汉区，现住武汉市武昌区。因涉嫌寻衅滋事罪于2019年7月12日被传唤，次日决定行政拘留10日，2019年7月22日被武汉市公安局武昌区分局刑事拘留，同年8月29日被逮捕。现羁押于武汉市武昌区看守所。

辩护人胡继斌，湖北凌枫律师事务所律师。

湖北省武汉市武昌区人民检察院以昌检一部刑诉（2019）127号起诉书指控被告人罗岱青犯寻衅滋事罪，于2019年10月11日向本院提起公诉。本院本院依法适用普通程序，组成合议庭于2019年10月29日开庭不公开审理本案。武汉市武昌区人民检察院指派检察员陈红林出庭支持公诉，被告人罗岱青及其辩护人胡继斌到庭参加诉讼。案件经合议庭评议，现已审理终结。

湖北省武汉市武昌区人民检察院指控，被告人罗岱青于2018年9、10月间，在美国明尼苏达大学就读期间，为吸引他人关注，在境外网站上通过其推特账户，发布丑化国家领导人形象的言论及不雅拼装图片信息40余条，引发他人围观，造成恶劣社会影响。被告人罗岱青于2019年7月12日被公安机关抓获归案。

上述事实公诉机关提交相关书证、证人证言、视听资料，被告人的供述等证据证实，据此认为被告人罗岱青利用信息网络发布丑化国家形象的虚假图片、言论，破坏社会管理秩序，情节恶劣，触犯《中华人民共和国刑法》第二百九十三条的规定，应当以寻衅滋事罪追究刑事责任。

被告人罗岱青及其辩护人对公诉机关指控的犯罪事实及罪名均没有异议，罗岱青当庭表示认罪悔罪，请求从轻处罚；辩护人认为罗岱青系初犯，平时表现良好，到案后如实供述、认罪认罚，量刑时请求从轻处罚。

经审理查明，被告人罗岱青在美国明尼苏达大学就读期间，于2018年9、10月间，为吸引他人关注，在境外通过其本人的推特账户，发布丑化国家领导人形象的言论及不雅拼装图片信息40余条，引发他人围观，造成恶劣社会影响。被告人罗岱青后于2019年7月12日回国期间被公安机关抓获归案。

证明上述事实的证据有：

1、武汉市公安局武昌区分局水果湖街派出所出具的到案经过、徐州市公安局网安支队出具情况说明，证实罗岱青查获的过程：2018年10月20日马某在徐州市珠山派出所配合调查案件时，报警称被他人在境外冒用身份登录推特等网络社交平台，在网上发表丑化国家形象的言论、不雅图片50多条，引发起哄围观，影响恶劣。经查嫌疑人系罗岱青。2019年7月12日武汉市公安局武昌区分局根据线索，在武昌区洪山侧路小洪山西区查获罗岱青，其供述为吸引网络关注实施了上述行为。案件告破。

徐州市公安局网安支队证实，该队对涉案推特账号“mianq12”推文进行在线取证固定，并刻盘保存。

2、徐州市公安局在线提取工作记录及提取的网络信息内容在卷佐证。

3、证人马某的证词，证实他人以其名义通过网络发表有辱国家形象的图片言论：我是动画制作者，因为网络社交中的个人矛盾，与网络暴力圈的一些人发生过多次口角，得罪了很多人，被他们攻击。我在网上多处注册昵称为“东风洗脚盆”，也注册过推特，但没有使用过，账号已经丢了。网上以马某和“洗脚盆”的名义发布的侮辱国家领导人的照片，都不是我发表的，是嫁祸行为。

4、被告人罗岱青的户籍、身份信息及供述，证实其实施犯罪经过：我是美国明尼苏达大学人文学院学生，2019年5月回国、现在未毕业。我注册了三个推特账号分别是“绵青”“马某”“洗脚盆”。我在美国登录推特，为吸引粉丝关注，转发了别人制作的一些丑化国家领导人的图片信息。我不认识马某，在“电报群”里看到很多人声讨他，我想出头办这个事，就伪装成他，以“马某”的名义发布这些负面信息，涨粉（吸引关注）不少，2018年9月到10月一直在发，有些加上我自己写的文字。后来觉得冒充他人发这些不当信息的行为不正当，和政治挂钩，对我也没有实际意义，就把这些内容都删了。

5、罗岱青本人书写的思想认识，证实其实施犯罪的详细过程及悔罪态度。

6、武汉市公安局武昌区分局行政处罚决定书，证实罗岱青因上述涉案行为于2019年7月13日被决定行政拘留十日日。

以上证据均由公诉机关提交，经庭审举证质证，被告人罗岱青及其辩护人均无异议，当庭予以确认。证据确实、充分且吻合一致，公诉机关指控被告人罗岱青犯寻衅滋事罪的事实，本院予以认定。

本院认为，被告人罗岱青利用信息网络散布丑化国家形象（文书原文如此，并非丑化国家领导人形象）的虚假信息，起哄闹事、引发围观，破坏社会管理秩序，情节恶劣，其行为已构成寻衅滋事罪。公诉机关指控事实清楚，证据确实、充分，适用法律正确，指控罪名成立，本院均予以支持。罗岱青到案后能如实交代罪行，认罪悔罪态度较好，可以从轻处罚。辩护人相关意见本院予以采纳。公诉机关建议在拘役四个月至有期徒刑十个月之间量刑的意见，本院酌情采纳。依照《中华人民共和国刑法》第二百九十三条第一款，第六十七条第三款，及最高人民法院、最高人民检察院《关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释》第五条的规定，判决如下：

被告人罗岱青犯寻衅滋事罪，判处有期徒刑六个月。

（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12日起至2020年1月11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北省武汉市中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，副本三份。

审判长　　魏筱霞
审判员　　成萍
人民陪审员　　鲍建平

二〇一九年十一月五日

书记员　　张映兰

Woman Sentenced to 18 Months Imprisonment for Tencent QQ Posts That Insulted Leaders and Policies

According to a judgment issued by the Jinzhou People's Court in December 2016 (translated below) a defendant, identified only as "Ms. Li," was sentenced to 18 months imprisonment for posting information Tencent's QQ service that "spread rumors, stirred up trouble, confused public opinion, seduced the public, triggered severe chaos in public order, and exhibited a certain social perniciousness." Ms. Li was convicted of disturbing the peace (寻衅滋事 - often literally translated as "picking quarrels and provoking troubles"). The court did not specify what Ms. Li posted or how it created "severe chaos." The court did say that it included images and text that "insulted and vilified foreign and domestic heads of state, national leaders, and national religious policies as well as false information about major domestic incidents."

The original decision is available on the court's website here: http://wenshu.court.gov.cn/content/content?DocID=1ccfa0b5-befa-40e4-8491-79e0e3bad61c

Ms. Li Committed the Crime of Disturbing the Peace

Judgment in the Court of First Instance

Jinzhou Municipal People's Court

Hebei Province

Criminal Judgment

(2016) Jin 0183 Criminal First Instance No. 251

Public Prosecutorial Agency Jinzhou Municipal People's Procuratorate.
Defendant Ms. Li, female, Han, civilian, middle school education. Subject to criminal detention on October 20, 2016 by the Jinzhou Municipal Public Security Bureau on suspicion of committing the crime of disturbing the peace. Arrested on November 2 of the same year. Currently being held in the Shijiazhuang No. 2 Detention Center.

In the Public Prosecution Indictment Document No. 201[2016] the Jinzhou Municipal People's Procuratorate charged the defendant Ms. Li with the crime of disturbing the peace, and filed an indictment with this court on December 7, 2016. This court conducted a single adjudication using expedited procedures and held a hearing in open court. The  Jinzhou Municipal People's Procuratorate assigned Procurator Zhang Wenhao to appear in court in support of the indictment, and the defendant Ms. Li appeared in court to participate in the trial. Hearings have now concluded.

Based on hearings it has been determined that since 2015 the defendant Ms. Li used her own QQ numbers 158***7886 (nicknamed "The Buddha is Indeterminate"), 302***9936 (nicknamed "Endure Humiliation and Return to Emptiness") and 330***5569 (nicknamed "Illusive Dreams") to join dozens of "Zhennan QQ Groups," and repost images and articles about "Zhennan." In 2016 Ms. used the QQ number 158***7886 to launch a "Zhennan QQ Group" and used QQ's friend search functionality to add over 100 people into the group, and reposted images and articles regarding "Zhennan" with the intent of letting more people get to know Buddhist doctrine. Ms. Li then proceeded to repost text images to her QQ Space with content that insulted and vilified foreign and domestic heads of state, national leaders, and national religious policies as well as false information about major domestic incidents, thereby confusing public opinion and allowing Internet users to browse, like, and comment.

Ms. Li did not refute the foregoing facts in court, and supplementary evidence offered as proof included the Jinzhou Municipal Public Security Bureau's case records and decision to filed charges, the defendant's cell phone used in the case which was confiscated by the Jinzhou Municipal Public Security Bureau, three CD-ROMs tracking the progress of the case, and three images of portions of a QQ Space produced by the Jinzhou Municipal Public Security Bureau's Public Information Network Security Supervision Task Force. The foregoing evidence was subject to cross-examination and determined to be acceptable.

This court finds that that Ms. clearly knew that the images and articles reposted in the "Zhennan QQ Group" had content that insulted and vilified foreign and domestic heads of state, national leaders, and national religious policies as well as false information about major domestic incidents, and nevertheless reposted them to her own QQ Space. Internet users browsed, liked, and commented on them, spread rumors, stirred up trouble, confused public opinion, seduced the public, triggered severe chaos in public order, and exhibited a certain social perniciousness. Her behavior constitutes the crime of disturbing the peace, and should be punished.

The public prosecutorial agencies charge that the defendant Ms. Li committed the crime of disturbing the peace is amply supported by clear facts and reliable evidence, and the crime she has been accused of is affirmed.

In court The defendant Ms. Li demonstrated a fairly good attitude in acknowledging her crime, and taking this into consideration her punishment may be reduced.

On the basis of Article 293 of the Criminal Law and the Article 5 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate Regarding Certain Questions About Applicable Law When Dealing With Criminal Cases Whereby Information Networks are Utilized to Commit Defamation and Other Crimes" it is hereby held:

1. The defendant Ms. Li committed the crime of disturbing the peace, and is sentenced to 1 year and six months imprisonment. The sentence is to be calculated from the date of execution of this judgment, with the sentence to be reduced by one day for each day that she was in custody prior to the execution of this judgment. Therefore it shall run from October 20, 2016 to April 18, 2018.

2. The Vivo cell phone used in this case is confiscated and turned over to the state treasury.

If she does not agree with this judgment she may appeal to this court or directly to the Shijiazhuang Municipal Intermediate People's Court within 10 after the day after receiving this judgment. Written appeals should be submitted with one original and three copies.

Judicial Officer Li Shuangli

December 23, 2016

Clerk Shi Yaqian

李某犯寻衅滋事罪一审刑事判决书

河北省晋州市人民法院

刑 事 判 决 书

（2016）冀0183刑初251号

公诉机关晋州市人民检察院。
被告人被告人李某，女，汉族，群众，初中文化。2016年10月20日因涉嫌寻衅滋事罪被晋州市公安局刑事拘留，同年11月2日被依法逮捕。现羁押于石家庄市第二看守所。

晋州市人民检察院以晋检公诉刑诉[2016]201号起诉书指控被告人李某犯寻衅滋事罪，于2016年12月7日向本院提起公诉。本院依法适用简易程序，实行独任审判，公开开庭进行了审理。晋州市人民检察院指派检察员张文浩出庭支持公诉，被告人李某到庭参加诉讼。现已审理终结。

经审理查明，2015年以来，被告人李某将自己的QQ号158***7886（昵称：佛不是定）、302***9936（昵称：忍辱归空）、330***5569（昵称：梦幻泡影）分别加入几十个”真南QQ群”，转发有关”真南”的图片和文章。2016年被告人李某用QQ号158***7886开通了”真南QQ群”的群，并通过QQ好友搜索功能添加好友约100多人并拉入群内，在群内转发关于”真南”的图片和文章意图让更多人认识到佛法。李某将含有辱骂、诋毁国内外国家元首、国家领导人、国家宗教政策等内容的文字图片及涉及国内重大事件虚假信息转发到自己的QQ空间，混淆视听，供网友浏览、点赞及评论。

上述事实，被告人李某在庭审中亦无异议，且有晋州市公安局受案登记表、立案决定书，晋州市公安局扣押的被告人作案用的手机，随案移交的光盘三张，晋州市公安局公共信息网路安全监察大队出具的三个QQ号空间的部分图片等证据在案佐证，以上证据，相互印证，足以认定。

本院认为，被告人李某明知”真南QQ群”里转发的图片和文章含有辱骂、诋毁国内外国家元首元首、国家领导人、国家宗教政策和国内重大事件的虚假信息的内容，还转发到自己的QQ空间，并有网友浏览、点赞及评论，散布谣言，起哄闹事，混淆视听，蛊惑群众，引发公共秩序严重混乱，具有相当的社会危害性，其行为已构成寻衅滋事罪，应予惩处。公诉机关指控被告人李某犯寻衅滋事罪的事实清楚，证据确实、充分，指控罪名成立。庭审中，被告人李某认罪态度较好，可酌情从轻处罚。根据本案的犯罪事实，犯罪性质、情节以及对于社会的危害性，依照《中华人民共和国刑法》第二百九十三条、《最高人民法院最高人民检察院关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释》第五条之规定，判决如下：

一、被告人李某犯寻衅滋事罪，判处有期徒刑一年零六个月。
（刑期从判决执行之日起计算。判决执行前先行羁押的，羁押一日折抵刑期一日。即自2016年10月20日至2018年4月19日止。）

二、作案工具vivo手机一部予以没收，上缴国库。

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直接向河北省石家庄市中级人民法院提出上诉。书面上诉的，应提交上诉状正本一份，副本三份。

审判员　　李双利

二〇一六年十二月二十三日

书记员　　师亚倩

Man Sentenced to Six Months Imprisonment for Tencent Wechat Posts Defaming Xi Jinping

According to a judgment issued by the Ningling County People's Court in January 2017 (translated below) a defendant, identified only as "Mr. Yu,” was sentenced to six  months imprisonment for using Tencent’s Wechat service (also known as Weixin) to "fabricate facts, defame state leaders, and create a malicious influence." Mr. Yu was convicted of defamation. The court did not specify what Mr. Yu posted, but it did say that it “involved statements that defamed Comrade Chairman Xi Jinping.”

The original decision is available on the court's website here: http://wenshu.court.gov.cn/content/content?DocID=3f0bf0a4-4077-4d28-8fba-a70d01576338

Mr. Yu Defamation

Judgment in the Court of First Instance

Ningling County People's Court

Henan Province

Criminal Judgment

(2017) Yu 1423 Criminal First Instance No. 26

Public Prosecutorial Agency Ninling County People's Procuratorate.
Defendant Mr. Yu, male, born January 12, 29189, Han, middle school education, farmer, residing in Ningling County, Henan Province. Subject to criminal detention on July 28, 2016, by the Ningling County Public Security Bureau on suspicion of committing the crime of defamation. Granted bail by the Ningling County Public Security Bureau on August 9, 2016. Released on bail by the Ninling County People's Procuratorate on December 24, 2016. Arrested on January 11, 2017 by order of this court, and the Ningling County Public Security Bureau executed the arrest on the same day.

In the Public Prosecution Indictment Document No. 330[2016] the Jinzhou Municipal People's Procuratorate charged the defendant Mr. Yu with the crime of defamation, and filed an indictment with this court. This court conducted a single adjudication using expedited procedures and held a hearing in open court. The Ningling County People's Procuratorate assigned Procurator Ning Xindong to appear in court in support of the indictment, and the defendant Mr. Yu appeared in court to participate in the trial. Hearings have now concluded.

Ningling County People's Procuratorate charged: at 2:24 on July 28, 2016, the defendant Mr. Yu was at his home at No. 1, Wangxiaojing Hutong No. 52, Chengguan Township, Ningling County. There he used his Wechat account to make several posts in the Wechat group "Yaping Yapai Technology Exchange and Sharing Group" that involved statements that defamed Comrade Chairman Xi Jinping. As proof of these foregoing facts the public prosecutorial agency submitted the defendants deposition and pleadings, documentary evidence, investigation records, and other evidence.

The public prosecutorial agency believes that the defendant Mr. Yu fabricated facts, defamed state leaders, created a malicious influence, and that his actions violated Article 246 of the Criminal Law of the People's Republic of China, and that he should be held criminally liable for defamation. They have asked this court to rule accordingly.

The defendant Mr. Xu did not refute the foregoing criminal fact as charged, was penitent, and asked that he be punished lightly.

This court's findings of fact are consistent with the criminal facts charged by the public prosecutorial agency.

The foregoing facts have been proven and determined to be acceptable based on the defendant Mr. Yu's household registration an investigation into his criminal record, other evidentiary proof such as as the investigation records and photographs and the defendant Mr. Yu's confession record.

This court finds that the defendant Mr. Yu fabricated facts, defamed state leaders, created a malicious influence, and that his actions constitute the crime of defamation. The crime charged by the public prosecutorial agency is established and is upheld by this court. In light of the circumstances of defendant Mr. Yu's candid confession, he is eligible for a lighter punishment. In accordance with Articles 246(1), 246(2), and 67(3) of the Criminal Law of the People's Republic of China, it is hereby held:

Defendant Mr. Yu is guilty of the crime of defamation, and is sentenced to six months imprisonment. The sentence is to be calculated from the date of execution of this judgment, with the sentence to be reduced by one day for each day that she was in custody prior to the execution of this judgment. Therefore it shall run from January 11, 2017 to June 27, 2017.

If he does not agree with this judgment he may appeal to this court or directly to the Shangqiu Municipal Intermediate People's Court within 10 after the day after receiving this judgment. Written appeals should be submitted with one original and two copies.

Judicial Officer Wang Shouliang

January 12, 2017

Clerk Wang Zhen

余某某诽谤一审刑事判决书

河南省宁陵县人民法院

刑 事 判 决 书

（2017）豫1423刑初26号

公诉机关宁陵县人民检察院。
被告人余某某，男，1989年1月12日出生，汉族，初中文化，农民，住河南省宁陵县。因涉嫌犯诽谤罪于2016年7月28日被宁陵县公安局刑事拘留，于2016年8月9日被宁陵县公安局取保候审。2016年12月14日经宁陵县人民检察院决定取保候审。2017年1月6日经本院决定取保候审。2017年1月11日经本院决定逮捕，同日由宁陵县公安局执行逮捕。

宁陵县人民检察院以宁检刑诉（2016）330号起诉书指控被告人余某某犯诽谤罪，向本院提起公诉。本院依法适用简易程序，实行独任审判，公开开庭审理了本案。宁陵县人民检察院指派检察员宁新东出庭支持公诉，被告人余某某到庭参加诉讼。现已审理终结。

宁陵县人民检察院指控：2016年7月28日2时24分，被告人余某某在宁陵县城关镇王小井胡同52号附1号家中，使用其微信号在微信群“压屏压排技术交流共享群”里发布多条涉及国家主席习近平同志诽谤言论。公诉机关为证明上述事实，向本院提交了被告人的供述与辩解、书证、检查笔录等证据证实。

公诉机关认为，被告人余某某捏造事实，诽谤国家领导人，造成恶劣影响，其行为已触犯了《中华人民共和国刑法》第二百四十六条第二款之规定，应以诽谤罪追究其刑事责任。诉请依法判处。

被告人余某某对上述指控犯罪事实、罪名无异议，表示悔罪，请求从轻处罚。

本院经审理查明的事实与公诉机关指控的犯罪事实一致。

上述事实，有被告人余某某的人口户籍证明、前科查询证明，检查笔录及照片，被告人余某某供述笔录等证据证实，足以认定。

本院认为，被告人余某某捏造事实，诽谤国家领导人，造成恶劣影响，其行为已构成诽谤罪。公诉机关指控罪名成立，本院予以支持。被告人余某某有坦白情节，可对其从轻处罚。依照《中华人民共和国刑法》第二百四十六条第一款、第二款，第六十七条第三款之规定，判决如下：

被告人余某某犯诽谤罪，判处有期徒刑六个月。
（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2017年1月11日起至2017年6月27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河南省商丘市中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。

审判员　　王守亮

二〇一七年一月十二日

书记员　　王　振

Man Given Ten Days in Jail for Tencent QQ Posts That "Openly Insulted Leaders of the Party and the State"

According to a judgment issued by the Guangzhou Municipal Intermediate People's Court in May 2014 (translated below) Cheng Huaishan was sentenced to ten days administrative detention for using Tencent’s QQ  service to post statements that “openly insulted leaders of the Party and the State.” Cheng’s sentence was imposed by officials at a local police station based their determination that he had violated China’s “Public Security Administrative Punishment Law.”

The original decision is available on the court's website here: http://wenshu.court.gov.cn/content/content?DocID=4da8571c-ab9c-4a47-beec-4437e63bb700

Cheng Huaishan vs. Jiangsu Kunshan Public Security Bureau Administrative Security et. al.

Administrative Judgment in the Court of First Instance

Jiangsu Kunshan People's Court

Administrative Judgment

(2014) Kun Admin First Instance No. 0015

Plaintiff Cheng Huaishan
Defendant Kunshan Public Security Bureau, located at No. 1288, Qianjin West Road, Kunshan, Jiangsu, Organization No. 01418924-6.

Plaintiff Cheng Huaishan filed suit regarding defendant Kunshan Public Security Bureau's administrative punishment case, and after this court accepted the suit on February 14, 2014 it served a copy of the claim and notice of the lawsuit on the defendant on the same day. This court convened a collegiate panel, and on March 20, 2014 held a hearing on this case in open court. Plaintiff Cheng Huaishan and the representatives for defendant Kunshan Public Security Bureau Lu Huanfang and Cha Wenming appeared in court to participate in the litigation. Hearings in this case have concluded.

On November 12, 2013, the Kunshan Public Security Bureau issued the Kunshan PSB (Lujia) Administrative Punishment Decision (2013) No. 6544, finding that on the afternoon of November 3, 2013 plaintiff Cheng Huaishan was discovered to have logged into the Internet QQ group "Jiangsu Democracy Group" (Group No. 273997921) from Lujia township, Kunshan, and in this QQ group he published statements defaming State leaders. The foregoing facts were confirmed through Cheng Huaishan's statements and pleadings, investigation records, on-the-scene records, and documentation. They determined to subject Cheng Huaishan to ten days administrative detention in accordance with the provisions of Paragraph 2, Article 42 of the Public Security Administrative Punishment Law of the People's Republic of China.

Plaintiff Cheng Huaishan's lawsuit claims that on the morning of November 12, 2013, police officers from the Lujia station of the Kunshan Public Security Bureau  came to his temporary residence and gave him a verbal summons to go the police station. They then interrogated him regarding certain statement of his in a QQ group which defamed the nation's leaders, and ordered him held for 10 days in administrative detention. On November 3, 2013, the plaintiff reposted the following text:

Seven wolves will convene the 18th street burial clock plenary session; the meeting will discuss the liberalization of the lambs being put out to pasture; local  beasts of prey will be responsible for a portion of the flock's expenditures; give the sheep more sovereignty over their grazing; continue reducing the approvals required for being put out to pasture; resolve the problem of mutton allotment; reform the sheep registration system, with no division between black mountain sheep and plains sheep, they are one and the same; demarcate the reform routes for Xi big wolf and Li little wolf; bring universal happiness for the shepherds,  and keep the sheep ignorant of their fate; let the chorus ring out: Fuck your mother, Damn!

Looking at the whole post, it did not mention the name of a single State leader, it only mentioned wolves and sheep, so how could it constitute defamation of State leaders? Of course, the post's text can easily allow people to make associations, but the police can't rely on mental associations when enforcing the law. Looking at this from the perspective of free speech, democratic governance means that citizens have the right to curse those who hold power, and those who hold power have a duty to be tolerant of criticism. All the more so because the post did not even directly curse anyone who holds power, and Article 35 of China's Constitution clearly provides that citizens of the People's Republic of China have the freedom of speech. The Kunshan Public Security Bureau's decision to impose administrative detention was factually flawed, made improper use of the law, and it is requested that Kunshan PSB (Lujia) Administrative Punishment Decision (2013) No. 6544 be rescinded, and the applicant receive compensation from the State for restricting his freedom of movement in the amount 1,825 yuan.

Defendant Kunshan Public Security Bureau argues that, the statements published on the QQ group by plaintiff Cheng Huaishan on November 3, 2013 using information networks openly insulted leaders of the Party and the State, and this was subsequently investigated and confirmed by public security agencies. The foregoing facts have been verified based on the statements and pleadings of the parties, on-the-scene records and information records, and the detention process.  The plaintiff's use of information networks that enable widespread and rapid  dissemination to publish statements that insulted leaders of the Party and the State constitutes a relatively severe instance of insulting third parties, and the defense attorney argue that the decision to impose ten days administrative punishment in accordance with the provisions of Paragraph 2, Article 42 of the Public Security Administrative Punishment Law of the People's Republic of China was found to be based on clear facts, a correct application of the law, and the punishment was appropriate.

Plaintiff claims that the statement made online constitute freedom of speech, and it does not matter whether or not the statements were proper.

The defense attorneys believe that freedom of speech has boundaries. Article 35 of the Constitution provides that citizens have freedom of speech, and Article 41 provides that a citizen is protected by law when offering criticisms and suggestions to State agencies and State employees. But citizens' rights must be exercised in accordance with the law, and may not infringe upon the rights of others. Article 51 provides that in exercising their freedoms and rights, citizens must not damage any State, social, or collective rights or the lawful freedoms and rights of other citizens. Although the statements made online by the plaintiff did not clearly refer to any State leader's name, it was nevertheless extremely clear what it was referring to, the statements' contents were obviously insulting, had infringed upon others' rights to dignity and reputation, exceeding the scope allowed by law, constituting illegal behavior, and responsibility should be borne in accordance with law. Based on the foregoing, they request that the court reject the lawsuit's claims.

An investigation has shown that at approximately 2:23 in the afternoon on November 3, 2013, plaintiff Cheng Huaishan, using the online name "Rare Animal" (QQ10xxx46), utilizing online information in Lujia, used a cell phone to publish the following statement on the QQ group "Jiangsu Democracy Group" (Group No. 273997921):

Seven wolves will convene the 18th street burial clock plenary session; the meeting will discuss the liberalization of the lambs being put out to pasture; local  beasts of prey will be responsible for a portion of the flock's expenditures; give the sheep more sovereignty over their grazing; continue reducing the approvals required for being put out to pasture; resolve the problem of mutton allotment; reform the sheep registration system, with no division between black mountain sheep and plains sheep, they are one and the same; demarcate the reform routes for Xi big wolf and Li little wolf; bring universal happiness for the shepherds,  and keep the sheep ignorant of their fate; let the chorus ring out: Fuck your mother, Damn!

At approximately 11:00 in the morning on November 12, 2013, after defendant Kunshan Public Security Bureau determined that the user with the online name "Rare Animal" (QQ10xxx46) was plaintiff Cheng Huaishan, they proceeded to handle the case in accordance with the law. Following an investigation, on November 12, 2013, defendant Kunshan Public Security Bureau issued the Kunshan PSB (Lujia) Administrative Punishment Decision (2013) No. 6544, and determined to subject Cheng Huaishan to ten days administrative detention in accordance with the provisions of Paragraph 2, Article 42 of the Public Security Administrative Punishment Law of the People's Republic of China.

On November 12, 2013, the defendant carried out the aforementioned punishment and transferred plaintiff Cheng Huaishan to the Kunshan Detention Center. Because plaintiff Cheng Huaishan submitted an administrative appeal application, on January 23, 2014, the Kunshan Municipal Government issued Kunshan Government Administrative Review No. 6, upholding the Kunshan PSB (Lujia) Administrative Punishment Decision (2013) No. 6544 decision.

This court finds that, in accordance with Clause 1, Paragraph 7 of Article 2 of the Public Security Administrative Punishment Law of the People's Republic of China, public security bureaus of the people's government at the level of county and above are responsible for public security administrative punishments within their administrative districts relating to disturbing public order, harming public security, infringements of personal and property rights, harming social management where there is social harm that does not rise to the level requiring criminal sanctions. Because the defendant Kunshan Public Security Bureau is responsible for public security administration work in this jurisdiction, it is the appropriate defendant in this case.

The point of dispute in this case is whether the content of the post published by plaintiff Cheng Huaishan at issue in this case does in fact constitute relatively severe insult and defamation of a third party. In accordance with the provisions of Paragraph 2, Article 42 of the Public Security Administrative Punishment Law of the People's Republic of China, insult or fabrication of facts to defame a third party may be punished by detention of five days or less or a fine of no more than 500 yuan. Where the circumstances are severe, a punishment of between five and 10 days detention and a fine of no more than 500 yuan may be imposed.

Insult refers to words and actions that harm the reputation or personal dignity of a third party. Defamation refers to distorting and spreading falsehoods which harm the reputation or personal dignity of a third party.

The plaintiff in this case Cheng Huaishan used an online alias to post content which, while not explicitly naming any State leader, nevertheless included content that was obviously insulting and defamatory, and its target was both specific and unique, and based on the timing of the post and the related content, it was entirely obvious who it was about.

Plaintiff's utilization of networks for fast and broad dissemination of the aforementioned statements that insulted national leaders falls within the scope of insulting and defaming third parties as provided in the aforementioned law, and the circumstances were relatively severe. The administrative punishment issued by defendant Kunshan Publish Security Bureau was lawful.

Plaintiff believes that his statements were the exercise of free speech as provided for in the Constitution. This court holds that the Constitution of the People's Republic of China provides that citizens of the People's Republic of China have freedom of speech, and that have the right to make criticisms and suggestions to State agencies and State employees. But it also provides that the personal dignity of citizens of the People's Republic of China may not be infringed upon, and prohibits insult, defamation, or false claims against citizens by any means. When exercising their freedoms and rights, citizens must not damage any State, social, or collective rights or the lawful freedoms and rights of other citizens. Therefore the defense statement of plaintiff Cheng Huaishan is rejected.

In handling the aforementioned case, defendant Kunshan Public Security Bureau conducted its inquiries and investigation of the defendant within 24 hours, and on November 12, 2013 imposed administrative punishment and carried out the procedures in the manner prescribed by law. The prerequisite for administrative compensation is that the legal rights and interests of a citizen, legal person or other organization has been infringed upon by a specific administrative act performed by an administrative agency or an employee thereof. The administrative acts of the defendant did not infringe upon the legal rights and interests of plaintiff Cheng Huaishan. Plaintiff's contention that defendant's administrative acts were illegal and request for personal compensation is without factual or legal basis.

Based on the foregoing, in accordance with the provisions of Article 56(4) of the Supreme People's Court's Interpretation Regarding Certain Issues Relating to the Implementation of the Administrative Litigation Law of the People's Republic of China and Article 33 of the Supreme People's Court's Rules Regarding Certain Issues Relating to Adjudicating Administrative Compensation Cases, it is hereby decided as follows:

Plaintiff Cheng Huaishan's claims in his lawsuit are rejected.

Court costs in the amount of 50 yuan will be borne by the plaintiff Cheng Huaishan.

If he does not agree with this decision, he may submit an appeal to this court within 15 days of this issuance of this judgment, with the number of copies based on the number of opposing parties. The court of appeal shall be the Jiangsu Intermediate People's Court.

Judge: Li Shiyin
Acting Judge: Zhou You
People's Assessor: Wang Guixiang

May 12, 2014

Clerk: Jin Yufang

成怀山与江苏省昆山市公安局行政公安其他一审行政判决书

江苏省昆山市人民法院

行政判决书

（2014）昆行初字第0015号

原告成怀山。
被告昆山市公安局，住所地江苏省昆山市前进西路1288号，组织机构代码01418924-6。

原告成怀山诉被告昆山市公安局治安行政处罚一案，本院于2014年2月14日受理后，于2014年2月14日向被告送达了起诉状副本及应诉通知书。本院依法组成合议庭，于2014年3月20日公开开庭审理了本案，原告成怀山，被告昆山市公安局的委托代理人陆迎芳、查文明到庭参加诉讼。本案现已审理终结。
　　
被告昆山市公安局于2013年11月12日作出昆公（陆家）行罚决字（2013）6544号行政处罚决定书，认为原告成怀山于2013年11月3日下午，在昆山市陆家镇登陆互联网QQ群“江苏民主群”（群号273997921），在该QQ群内发布公然侮辱国家领导人的言论，被查获。以上事实有成怀山的陈述和申辩、检查笔录、现场笔录、书证等证据证实。根据《中华人民共和国治安管理处罚法》第四十二条第二项之规定，决定对成怀山处行政拘留十日的处罚。

原告成怀山诉称，2013年11月12日上午，昆山市公安局陆家派出所警察到其暂住地口头传唤其至派出所，并进行了询问以其在QQ群里公然发布侮辱国家领导人的言论作出行政拘留10天的决定。2013年11月3日，原告在QQ群里转发了这样一个帖子：七头狼要召开十八街葬钟全会；与会讨论羊的放牧自由化；地方鹰犬负担部分羊圈支出；给予羊更大的吃草自主权；继续减少放牧审批环节；解决羊肉分配问题；改革羊户籍制度，不区分黑山羊与草原羊，一事同羊；制定刁得一狼与李子狼改革路线图；羊倌们喜大普奔，众羊们不明觉厉；纷纷喊道：开你妈逼，草！

通观全贴，没有提到任何国家领导人的名字，只提了狼和羊，怎么就构成对国家领导人的侮辱呢？当然，帖中的文字很易让人联想，但公安机关办案不能靠联想执法。从言论自由的角度看，民主政治就是民众有骂掌权者的权利，掌权者有容忍被骂的义务。何况帖子中根本没有直接骂掌权者，我国宪法第三十五条也明确规定中华人民共和国公民有言论自由。昆山市公安局作出的行政拘留决定认定事实错误，适用法律错误，请求依法撤销昆公（陆家）行罚决定（2013）6544号行政处罚决定书，赔偿申请人人身自由限制国家赔偿金1825元。
　　
被告昆山市公安局辩称，2013年11月3日，原告利用信息网络在QQ群发表的言论，对党和国家领导人进行公然的侮辱，后被公安机关查获。上述事实由当事人的陈述和申辩、现场笔录和消息记录、抓获经过等证据证实。原告利用扩散范围广、传播速度快的信息网络发布侮辱党和国家领导人的言论属于侮辱他人情节较重的情形，答辩人依照《中华人民共和国治安管理处罚法》第四十二条第二项的规定对原告作出行政拘留十日的行政处罚决定，认定事实清楚，适用法律正确，处罚适当。原告称网络上发表言论属于言论自由，而不论言论是否正确。答辩人认为，言论自由是有边界的。《宪法》第三十五条规定公民有言论自由，第四十一条规定公民对于国家机关和国家工作人员提出批评和建议，受法律保护。但公民权利必须依法行使，不得侵犯他人权利。第五十一条规定公民在行使自由和权利的时候，不得损害国家的、社会的、集体的利益和其他公民的合法自由和权利。原告在网络上所发的言论虽然没有明确提到国家领导人名字，但是所指十分明确，言论中含有明显的侮辱内容，已造成了对他人人格尊严与名誉的侵犯，超出法律的范围，属于违法行为，应承担相应法律责任。综上所述，请求法院判决驳回诉讼请求。

经审理查明，2013年11月3日14：23许，原告成怀山以其网名“稀有动物”（QQ10×××46）在陆家镇利用网络信息，通过手机在QQ群“江苏民主群”（群号273997921）内发表了“七头狼要召开十八街葬钟全会；与会讨论羊的放牧自由化；地方鹰犬负担部分羊圈支出；给予羊更大的吃草自主权；继续减少放牧审批环节；解决羊肉分配问题；改革羊户籍制度，不区分黑山羊与草原羊，一事同羊；制定刁得一狼与李子狼改革路线图；羊倌们喜大普奔，众羊们不明觉厉；纷纷喊道：开你妈逼，草！”的言论。
　　
2013年11月12日11时许，被告昆山市公安局查明网名“稀有动物”（QQ10×××46）的使用人为原告成怀山后，依法予以立案处理。经调查后，被告昆山市公安局于2013年11月12日作出昆公（陆家）行罚决字（2013）6544号行政处罚决定书，根据《中华人民共和国治安管理处罚法》第四十二条第二项之规定，决定对成怀山处行政拘留十日的处罚。

2013年11月12日，被告将原告成怀山交昆山市拘留所执行上述拘留处罚。因原告成怀山提起行政复议申请，昆山市人民政府于2014年1月23日作出（2014）昆府行复第6号行政复议决定书，维持了昆公（陆家）行罚字（2013）6544号行政处罚决定书。
　　
本院认为，根据《中华人民共和国治安管理处罚法》第二条、第七条第一款的规定，县级以上地方各级人民政府公安机关负责本行政区域内的有关扰乱公共秩序，妨害公共安全，侵犯人身权利、财产权利，妨害社会管理，具有社会危害性，尚不够刑事处罚的治安管理处罚工作。由此本案被告昆山市公安局负责本辖区内治安管理工作，是本案的适格被告。
　　
本案的争议焦点是原告成怀山在网络发表涉案内容帖子是否属于公然侮辱、诽谤他人情节较重的行为。《中华人民共和国治安管理处罚法》第四十二条第（二）项规定，公然侮辱他人或者捏造事实诽谤他人的， 处五日以下拘留或者五百元以下罚款；情节较重的，处五日以上十日以下拘留，可以并处五百元以下罚款。

侮辱是指以言行公然损害他人名誉、人格尊严的行为；诽谤是指捏造并散布虚构的事实，损害他人名誉、人格的行为。

本案中原告成怀山用其网名所发帖子内容虽然没有明确指出国家领导人的名字，但从其网贴发表的时间及相关内容看，所指十分明确，含有明显的侮辱、诽谤内容，且指向具有特定性和唯一性。

原告利用传播快、范围广的网络发布上述侮辱国家领导人的言论，属于上述法律规定的公然侮辱、诽谤他人，且情节较重情形。被告昆山市公安局据此作出的行政处罚适用法律正确。

原告认为其言论属于宪法规定的言论自由行为，本院认为，《中华人民共和国宪法》规定了中华人民共和国公民有言论的自由，对于任何国家机关和国家工作人员，有提出批评和建议的权利，但同时亦规定中华人民共和国公民的人格尊严不受侵犯，禁止用任何方法对公民进行侮辱、诽谤和诬告陷害，公民在行使自由和权利的时候，不得损害国家的、社会的、集体的利益和其他公民的合法的自由和权利。因此原告成怀山的辩论意见不予支持。
　　
被告昆山市公安局受案处理上述涉案后，在二十四小时内对原告进行了询问、调查，并于2013年11月12日作出行政处罚，并交所执行的程序符合法定程序。行政赔偿的前提是公民、法人或者其他组织的合法权益受到行政机关或者行政机关工作人员作出的具体行政行为侵犯并造成损害，本案中被告昆山市公安局对原告成怀山作出的涉案行政处罚并无不妥，即被告的行政行为并未侵犯原告成怀山的合法权益，原告认为被告行政行为违法并要求人身赔偿的请求无事实及法律依据。

综上，依照《最高人民法院关于执行﹤中华人民共和国行政诉讼法﹥若干问题的解释》第五十六条第（四）项、《最高人民法院关于审理行政赔偿案件若干问题的规定》第三十三条的规定，判决如下：
　　
驳回原告成怀山的诉讼请求。
　　
案件受理费50元，由原告成怀山负担。
　　
如不服本判决，可在判决书送达之日起十五日内，向本院递交上诉状，并按对方当事人的人数提出副本，上诉于苏州市中级人民法院。

审 判 长： 李诗茵
代理审判员： 周 游
人民陪审员： 王桂香

二Ｏ一四年五月十二日

书 记 员： 晋玉芳

Man Given Five Days in Jail for Tencent Wechat Posts That "Openly Insulted National Leaders."

According to a judgment issued by the Guangzhou Municipal Intermediate People's Court in December 2015 (translated below) Guo Jianhe was sentenced to five days administrative detention for using Tencent’s Wechat service (also known as Weixin) to post statements that “openly insulted national leaders.” Guo's sentence was imposed by officials at a local police station based their determination that he had violated China’s “Public Security Administrative Punishment Law.” The court did not specify what Guo posted.

The original decision is available on the court's website here: http://wenshu.court.gov.cn/content/content?DocID=d1ffe665-32b2-4465-8ac4-2979c1e43143

Guo Jianhe vs. Guangzhou Yuexiu District Public Security Bureau et. al.

Administrative Judgment in the Court of Second Instance

Guangzhou Municipal Intermediate People's Court, Guangdong Province

Administrative Judgment

(2015) Sui Intermediate Administrative Final Judgment No. 1374

Appellant (original plaintiff): Guo Jianhe, resident of Guangzhou.
Appellee (original defendant): Guangzhou Yuexiu District Public Security Bureau, based in Guangzhou.
Legal Representative: Cai Wei, position: Bureau Commander.
Attorney: Zhou Peixin, employee at the Bureau.
Attorney: Huang Weifeng, employee at the Bureau.

Appellant Guo Jianhe sued appellee Guangzhou Yuexiu District Public Security Bureau regarding a public security administrative punishment, and filed an appeal with this court on the grounds that he did not agree with the Yuexiu District People's Court's (2015) Sui Yue Administrative First Instance No. 152 administrative judgment. This court convened a judicial panel  and commenced hearings in this case. Hearings in this case have now concluded.

The court of first instance made the following determinations during trial: On January 27, 2015, plaintiff Guo Jianhe used Wechat account No. 130xxxx8717 (cell phone No. 130xxxx8717) to repost statements to friend groups that openly insulted national leaders. As of January 30, 2015, the plaintiff's Wechat account address book contained 697 contacts. The defendant summoned the plaintiff to appear at the Zhuguang police station in Yuexiu, Guangzhou, and following an investigation ascertained the foregoing facts. After determining that the plaintiff had reposted statements to friend groups that openly insulted national leaders, it informed the plaintiff of the facts, reasoning, and basis for making a determination to impose punishment, as well as of his right to make statements and offer a defense. On the 30th of that month the defendant issued Sui Gong Yue Administrative Punishment (2015) No. 00491 "Administrative Punishment Decision" in accordance with the provisions of Article 42(2) of the "Public Security Administration Punishments Law," ordering the plaintiff be sentenced to five days of administrative detention. The plaintiff did not agree with the foregoing punishment decision, and filed an appeal with the court of first instance.

The court of first instance held: Article 42(2) of the "Public Security Administrative Punishment Law" provides:  "A person who commits one of the following acts shall be detained for not more than five days or be fined not more than 500 yuan; and if the circumstances are relatively serious, he shall be detained for not less than 5 days but not more than 10 days and may, in addition, be fined not more than 500 yuan: . . . (2) openly insulting another person or fabricating facts to defame another person; . . . ."

The plaintiff in this case reposted statements to friends groups that openly insulted others, the defendant determined that the facts were clear and the evidence sufficient to show that the plaintiff's actions were illegal, and the punishment decision issued following the defendant's investigation of the facts underlying the illegal actions of the plaintiff complied with the aforementioned provisions. The reasoning underlying the plaintiff's request to revoke the punishment decision was not sufficient, and it was therefore rejected by the court of first instance.

In summary, in accordance with Article 56(4) of the "Supreme People's Court's Interpretation Regarding Certain Issues Relating to the Implementation of the Administrative Litigation Law'" the court held that plaintiff's request was denied.

Appellant Guo Jianhe did agree with the judgment of the court of first instance, and appealed to this court claiming: the weixins that the appellant reposted to his friends groups were within the right to freedom of speech granted under the Constitution. The Sui Gong Yue Administrative Punishment (2015) No. 00491 "Administrative Punishment Decision" lacked sufficient evidence, and the court of first instance ignored the appellant's demand that the appellee produce evidence of the fact that the appellant openly insulted national leaders. Appellant did not openly insult national leaders, and the facts acknowledged by the court of first instance were not clear. The appellant therefore requests:

1. Overturn the Yuexiu District People's Court's (2015) Sui Yue Administrative First Instance No. 152 "Administrative Judgment."
2. Revoke the appellee's Sui Gong Yue Administrative Punishment (2015) No. 00491 "Administrative Punishment Decision."
3.  Order the appellee to bear the litigation costs of the first and second trials.

The appellee Guangzhou Yuexiu District Public Security Bureau agrees with the judgment in trial of first instance, and asks that it be upheld in the trial of second instance.

Based on hearings it has been determined that the facts acknowledged by the court of first instance were clear, and furthermore are supported by the relevant evidence, and are affirmed by this court.

This court finds that Article 42(2) of the "Public Security Administrative Punishment Law" provides:  "A person who commits one of the following acts shall be detained for not more than five days or be fined not more than 500 yuan; and if the circumstances are relatively serious, he shall be detained for not less than 5 days but not more than 10 days and may, in addition, be fined not more than 500 yuan: . . . (2) openly insulting another person or fabricating facts to defame another person; . . . ." In this case the appellant openly fabricated facts online and posted statements that insulted national leaders. There are interrogation records, investigation records, photographs, and other supporting evidence. In accordance with the law, prior to issuing its administrative punishment decision the appellee had informed the appellant of the facts, reasoning, and basis, and also informed him of his right to make statements and offer a defense. Appellant stated that he would not make any statements or offer any defense.

Therefore, as regards the appellee's issuance of an administrative punishment decision, and the decision to sentence appellant to five days of administrative detention, the facts as determined are clear, the evidence is sufficient, the procedures were lawful, and the punishment was appropriate.

The judgment of the court of first instance to reject the appellant's request was handled correctly, and is upheld by this court. Appellant's appeal lacked justification and motivation for his belief that the appellee's determinations of fact were not clear, and this court rejects his requests on appeal.

In summary, in accordance with the provisions of Article 89(1)(i) of the "Administrative Litigation Law" it is hereby held:

The appeal is rejected, the first instance judgment is affirmed.

The second instance case filing fee of 50 yuan shall be borne by the appellant Guo Jianhe.

This judgment shall be the judgment of last instance.

Presiding Judge: Wang Yi
Acting Judicial Officer: Tang Yong
Acting Judicial Officer: Yu Qiubai

November 14, 2015

Clerk: Zhou Zhinuo

郭建和与广州市公安局越秀区分局其他

二审行政判决书

广东省广州市中级人民法院

行 政 判 决 书

（2015）穗中法行终字第1374号

上诉人（原审原告）：郭建和，住广州市。
被上诉人（原审被告）：广州市公安局越秀区分局，住所地广州市。
法定代表人：蔡巍，职务：局长。
委托代理人：周培新，该局工作人员。
委托代理人：黄伟峰，该局工作人员。

上诉人郭建和诉被上诉人广州市公安局越秀区分局治安行政处罚一案，不服广州市越秀区人民法院（2015）穗越法行初字第152号行政判决，向本院提起上诉。本院依法组成合议庭，开庭审理了本案。本案现已审理终结。

原审法院经审理查明：2015年1月27日，原告郭建和使用微信号130××××8717（手机号130××××8717）在朋友圈转发公然侮辱国家领导人的言论，截至2015年1月30日，原告微信账户通讯录共有697位联系人。被告将原告传唤至广州市公安局越秀区分局珠光派出所，经调查查明上述事实，遂认定原告在微信圈转发公然侮辱国家领导人的言论，告知原告拟作出处罚决定的事实、理由、依据及陈述和申辩的权利。同月30日，被告依据《中华人民共和国治安管理处罚法》第四十二条第二项之规定，作出穗公越行罚决字（2015）00491号《行政处罚决定书》，决定对原告处以行政拘留五日。原告对上述处罚决定不服，诉至原审法院。

原审法院认为：《中华人民共和国治安管理处罚法》第四十二条第二项规定：“有下列行为之一的，处五日以下拘留或者五百元以下罚款；情节较重的，处五日以上十日以下拘留，可以并处五百元以下罚款：……（二）公然侮辱他人或者捏造事实诽谤他人的；……”本案原告在微信朋友圈转发公然侮辱他人的言论，被告认定原告违法行为的事实清楚、证据充分，被告查明原告该违法事实后作出的处罚决定符合上述有关规定，原告请求撤销该处罚决定的理由不充分，原审法院不予采纳。综上所述，依照《最高人民法院关于执行〈中华人民共和国行政诉讼法〉若干问题的解释》第五十六条第（四）项，判决驳回原告郭建和的诉讼请求。

上诉人郭建和不服原审判决，上诉至本院称：上诉人在朋友圈转发微信是宪法赋予公民言论自由的权利。被上诉人作出穗公越行罚决字（2015）00491号《行政处罚决定》的证据不足，原审判决对上诉人提出要被上诉人拿出上诉人公然侮辱国家领导人的事实证据的要求，置之不理。上诉人没有公然侮辱国家领导人，原审判决认定事实不清。故上诉人请求：1、撤销广州市越秀区人民法院（2015）穗中法行初字第152号《行政判决书》；2、撤销被上诉人作出的穗公越行罚决字（2015）00491号《行政处罚决定》；3、一、二审案件诉讼费由被上诉人承担。

被上诉人广州市公安局越秀区分局答辩同意一审判决，请求二审法院予以维持。

经审理查明，原审法院认定事实清楚，且有相应的证据予以支持，本院予以确认。

本院认为，《中华人民共和国治安管理处罚法》第四十二条第二项规定：“有下列行为之一的，处五日以下拘留或者五百元以下罚款；情节较重的，处五日以上十日以下拘留，可以并处五百元以下罚款：……（二）公然侮辱他人或者捏造事实诽谤他人的；……”本案上诉人在网络上公然捏造事实，发布侮辱国家领导人的言论，有询问笔录、检查笔录和照片等证据证实，被上诉人在作出行政处罚决定前，已依法告知上诉人作出行政处罚决定的事实、理由及依据，并告知其依法享有陈述、申辩等权利，上诉人表示不提出陈述和申辩。因此被上诉人作出被诉行政处罚决定，决定对上诉人处以行政拘留五日，认定事实清楚、证据充分，程序合法，处罚适当。原审法院判决驳回上诉人诉讼请求的处理正确，本院予以维持。上诉人认为被上诉人查明事实不清的上诉理由理据不足，其上诉请求本院不予支持。综上所述，依照《中华人民共和国行政诉讼法》第八十九条第一款第（一）项的规定，判决如下：

驳回上诉，维持原判。

二审案件受理费50元，由上诉人郭建和负担。

本判决为终审判决。

审　判　长　汪　毅
代理审判员　唐　勇
代理审判员　余秋白

二〇一五年十一月十四日

书　记　员　周芷诺