Tencent's Weixin Censors 1980's People's Daily Article on Cult of Personality

On September 3, 2023, an article titled "People's Daily: Exaggerating the Personal Role of Leaders to an Extreme Level will Lead to Superstitious Belief in the Individual" (人民日报：把领袖个人的作用夸大到极端的程度，就会出现对个人的迷信) was posted on the "The Reading Drawer" (抽屉读书) public Weixin account. It was censored within 24 hours and replaced with a notice saying: "This content cannot be viewed due to violations. Complaints were made by users and audited by the platform. This involves the use of words, pictures, videos, etc. that exaggerated, seduced and violated objective facts to maliciously incite, confuse and mislead users. Check the corresponding rules."

• Original URL: https://mp.weixin.qq.com/s/bS50iboCf-nLMkbZ8AmHPA
• Archives: https://archive.li/https://mp.weixin.qq.com/s/bS50iboCf-nLMkbZ8AmHPA

I checked, and the Weixin article is a word-for-word copy paste of the referenced People's Daily article, which was published on Page 2 of the July 4, 1980 edition, according to the copy I found here: https://cn.govopendata.com/renminribao/1980/7/4/2/#542014 - with one exception, which I don't this is material:

• Weixin Article: 马克思主义者要承认个人权威，重视个人权威的，但是，我们首先要强调的还是集体的权威。
• govopendata: 马克思主义者是承认个人权威，重视个人权威的，但是，我们首先要强调的还是集体的权威。

The only other difference is the addition of the photo at the top of the Weixin article. Based on some online research, this is a photo of Nikita Khrushchev during his trip to the United States in 1959. 

Below are selected translations from the article (emphasis added by me).

Deification of, and superstitious belief in, the individual begins with exaggerating the role of the individual. Lin Biao and the "Gang of Four" engaged in modern superstition, not only taking advantage of people's simple feelings, but also taking advantage of these loopholes in people's understanding.

A Profound Lesson in Personal Deification

The communist movement and our own experience show that when the role of individual leaders is exaggerated to an extreme level, superstitious belief in individuals will emerge.

For many years, we have been accustomed to using superstition to explain the history of our struggles. Now, as Marx said, we should "use history to explain superstition." (The Complete Works of Marx and Engels, Vol. 1, p. 425) That is to say, we should take a look at history, how did a man become a "god"? How did people come to deify and superstitiously believe in individuals? In this way, the necessary lessons can be drawn. This is a rather complex and difficult task. Here are just a few examples, briefly.

. . . .

Our Party is organized according to the principle of democratic centralism. According to this principle, the Party line must be discussed and formulated by the Party's national congress or central authority. Although the Party's line is sometimes put forward by a certain person, once it is decided, it becomes the Party's line and cannot be attributed to an individual, it is called the line of so-and-so. Of course, when summing up historical experience, calling the opposing lines the lines of a certain person, and comparing and analyzing them will help distinguish right from wrong and educate the entire Party. But this is a special situation. From the perspective of organizational principles, within the Party, all Party members must implement the Party's line, rather than the entire Party following the line of a certain individual.

However, for a period of time, people have often attributed the Party's line to individuals, and also promoted all the opinions and propositions of individual leaders as lines, or believed that they have the same authority as the Party's line, and the whole Party must unconditionally implement it. In this way, in the life of the Party, in fact, some abnormal practices gradually took shape: obeying the Party's leadership means listening to a certain person, implementing the Party's line means doing what a certain person says, and thinking that as long as you act "in accordance with every sentence," you will be invincible. This actually regards the individual as a sacred authority over the entire Party.

. . . .

We must be highly conscious and take various measures to prevent the situation where the top leaders look down at the masses from above, while the masses can only squint and look up at the leader from below, so as to prevent the leader from becoming a figure that ordinary people cannot approach. The guidelines for political life within the Party passed by the Fifth Plenum of the Party Central Committee have made a series of specific regulations to prevent leaders from becoming special in their political life and from praising leaders without principle. This is undoubtedly necessary. However, in order to achieve what Lenin said, to make the leaders and the class, and the leaders and the masses form a whole, we still need to make efforts in many aspects and have a series of effective methods. For example, restore the system that our Party advocates that senior leading cadres must spend a certain amount of time at the grassroots level in a year; establish a system for leaders to communicate directly with the people; put senior leaders in fixed electoral districts to maintain regular contact with voters and accept voter supervision; cancel all kinds of unreasonable regulations that completely separate senior leaders from ordinary cadres and the masses in daily life (such as housing, transportation, shopping, entertainment, etc.); and we must use newspapers and radio to exert the supervisory power of public opinion, etc. In short, we should continue to adhere to the methods that have worked well in the past, and at the same time, we should continue to adopt some new methods based on new situations. 

. . . .

To gather the experience and opinions of the broad masses and the entire Party and form correct leadership ideas and opinions, it is necessary to adopt democratic centralism and collective research and discussion. The view that "the first secretary has absolute truth, the second secretary has relative truth, and the others have no truth" is not in line with the facts.

. . . .

Second, we must treat the right of one vote correctly. In the leadership team, the top leader has more responsibilities but no greater power. He has only one vote in deciding major issues, while other members have the same vote. Why do some leadership groups form a "one-man-talk" situation? The first is that the top leader lacks a democratic style and engages in personal arbitrariness. At the same time, it is also an important reason why each leading member cannot exercise his right to vote seriously and responsibly. If every leading member can responsibly exercise his right to one vote, especially when some people put forward wrong propositions, everyone can stick to the principles and not support or veto them, then can "one word" be achieved? Can personal arbitrariness prevail unimpeded? Can those wrong and confusing decisions be made easily? Therefore, every leading member must exercise his right to vote with the utmost solemnity when deciding major issues.

. . . .

Marxists must recognize and value individual authority, but the first thing we must emphasize is collective authority. Only when personal authority is combined with collective authority can it play its role better.

神化个人、迷信个人，是从夸大个人的作用开始的。林彪、“四人帮”大搞现代迷信，除了利用人们的朴素感情外，也钻了人们在认识上的这些空子。

神化个人的深刻教训

共产主义运动和我们自己的经验说明，把领袖个人的作用夸大到极端的程度，就会出现对个人的迷信。

多年来，习惯于用迷信来说明我们的斗争历史，现在，应该象马克思说的那样，“用历史来说明迷信”。（《马克思恩格斯全集》第１卷第４２５页）这就是说，应当从历史上看一看，人是怎样成为“神”的？人们是怎样神化个人、迷信个人的？这样，才能得出必要的经验教训。这是一项相当复杂而艰巨的任务。这里仅举几个例子，简略地说一下。
. . . .
我们的党是按照民主集中制的原则组织起来的。根据这个原则，党的路线必须由党的全国代表大会或中央权力机构讨论制定。党的路线尽管有时是由某个人提出来的，但一经作出决定，就成了党的路线，而不能归之于个人，称为某某人的路线了。当然，在总结历史经验时，把对立的路线分别称之为某某人的路线，加以对比分析，这样做，有利于分清是非，教育全党。但这是一种特殊的情况，从组织原则说，在党内，所有党员必须执行党的路线，而不是全党执行某一个人的路线。

但是，一个时期以来，人们却常常把党的路线归之于个人，而且，又把领袖个人的一切意见主张都上升为路线，或认为具有党的路线那样的权威性，全党必须无条件地执行。这样，在党的生活中，实际上就逐渐形成了某些不正常的准则：服从党的领导就是听某一个人的话，执行党的路线就是照某一个人说的去干，而且认为，只要“句句照办”，就能无往而不胜。这实际上是把个人看成为凌驾于全党之上的神圣权威了。
. . . .
我们要以高度的自觉，采取各种措施，防止出现领导上层从上面向下看群众，而人民群众只能眯着眼睛从下面向上望领袖的状况，防止领袖成为普通群众无法接近的人物。党的五中全会通过的党内政治生活准则，对防止领导人政治上生活上的特殊化，防止对领导人无原则的歌功颂德，已经作了一系列具体的规定。这无疑是很必要的。但是，要做到列宁讲的，使领袖与阶级、领袖与群众结成一个整体，则还要作多方面的努力，还要有一系列有效的办法。比如，恢复我们党提倡的高级领导干部一年要有一定时间下基层的制度；建立领导者与人民群众直接对话的制度；把高级领导人放到固定选区保持与选民的经常联系并接受选民监督；取消在日常生活中（如住房、坐车、购物、娱乐等）把高级领导人与一般干部和群众完全分开的种种不合理规定；各种代表大会作为权力机构，要切实加强对领导工作人员的监督，并要利用报纸、广播，发挥舆论的监督力量，等等。总之，凡是过去行之有效的办法应当继续坚持，同时，要根据新的情况，不断采取一些新的办法。
. . . .
要把广大群众和全党的经验、意见集中起来，形成正确的领导思想和领导意见，就必须通过民主集中制，通过集体研究讨论。那种“第一书记有绝对真理，第二书记有相对真理，其他人没有真理”的看法，是不符合事实的。
. . . .
第二，要正确对待一票的权利。在领导班子中，第一把手负有更多的责任，但并没有更大的权力，在决定重大问题时，他只有一票的权利，而其他成员也有同样一票的权利。为什么有的领导班子形成“一言堂”的局面呢？首先是第一把手缺乏民主作风，搞个人专断。同时，各个领导成员不能严肃负责地行使自己一票的权利，也是一个重要原因。如果每一个领导成员都能负责地行使自己一票的权利，特别是在某些人提出错误的主张时，大家都能坚持原则，不予支持，或给以否决，“一言堂”能搞得起来吗？个人专断能畅行无阻吗？那些错误的、颠倒是非的决定，能够轻而易举地作出来吗？因此，每一个领导成员，在决定重大问题时，一定要以极其郑重的态度行使自己一票的权利。
. . . .

马克思主义者要承认个人权威，重视个人权威的，但是，我们首先要强调的还是集体的权威。个人权威只有与集体权威相结合，才能更好地发挥其作用。

Science with PRC Characteristics: CAS Academics Must "Toe Party Line"

 On September 6, 2023, the state sponsored media outlet Caixin published an article titled "China’s Top Academics Told to Toe Party Line With Public Statements." https://www.caixinglobal.com/2023-09-06/chinas-top-academics-told-to-toe-party-line-with-public-statements-102101001.html

Some excerpts:

China’s top science academy has updated its code of conduct with new rules that require members ensure their public statements are “in line with the general policy of the Central Committee of the Communist Party of China” and prohibit openly expressing academic views unrelated to their field of expertise.

The Chinese Academy of Sciences (CAS) code of conduct, which consists of 33 articles in six chapters, is an update of a version released nine years ago.
. . . .
Compared to the 2014 version, the latest code adds a chapter that specifies what CAS scientists are prohibited from doing.

Specifically, the new version the Chinese Academy of Sciences Code of Conduct (中国科学院院士行为规范（试行）) contains the following provisions:

Article 2: Abide by the Constitution, laws and regulations, improve political standing, enhance awareness of responsibility, respect moral integrity, model love of the Party and love of country, and be an example for scientific researchers.

Article 3: Set an example of cherishing the fatherland and serving the people. To improve our country's independent innovation capabilities, enhance our country's comprehensive national strength, promote our country's scientific and technological progress, economic development, ecological protection, and improvement of people's livelihood, and serve national security and national decision-making.

Article 19 Consciously accept social supervision and correctly address doubts and criticisms. When making public statements, be consistent with the major policies of the Party Central Committee.

第二条 遵守宪法和法律法规，提高政治站位，增强责任意识，尊崇道德操守，做爱党爱国的模范和科研人员的榜样。

第三条 做胸怀祖国、服务人民的表率。为提高我国自主创新能力，增强我国综合国力，推动我国科技进步、经济发展、生态保护、民生改善，服务国家安全和国家决策作出贡献。

第十九条  按规定出席评审会议，超脱部门、单位和学科的利益，郑重负责地履行选举权利。关注新兴和交叉学科的发展，注意学科平衡。

The previous version of the Code of Conduct (available here: http://www.jskx.org.cn/web/artlist/777928) did not contain any mention of the terms "Party" (党), "fatherland" (祖国), "national security" (国家安全) or "love the country" (爱国).

Academics Criticise Proposed Public Security Administrative Punishments Law Revisions

 As noted previously on this blog, in early Septmber 2023, the Standing Committee of the National People’s Congress solicited public comment on proposed revisions to the Public Security Administrative Punishments Law through September 30, 2023. One of the most drastic proposals was the addition of a new Article 34:

Anyone who commits any of the following acts shall be detained for not less than five days but not more than ten days, or fined not less than 1,000 yuan but not more than 3,000 yuan; if the circumstances are relatively serious, they shall be detained for not less than ten days but not more than fifteen days, and may also be fined not more than 5,000 yuan:

(1) Engaging in activities in public venues that damage the environment and atmosphere of commemorating heroes and martyrs;

(2) Wearing or adorning, or forcing others to wear or adorn, clothing or symbols in public venues that are detrimental to the spirit of the Chinese nation or hurt the feelings of the Chinese nation;

(3) Producing, spreading, advocating, or disseminating articles or remarks that are detrimental to the spirit of the Chinese nation or hurt the feelings of the Chinese nation;

(4) Blaspheming or repudiating the deeds and spirit of heroes and martyrs, advocating or beautifying aggressive wars and acts of aggression, disturbing the peace, and disrupting public order;

(5) Insulting, defaming, or otherwise infringing on the names, likenesses, reputation and honor of heroes and martyrs, harming the public interest of society;

(6) Occupying, destroying, or defacing memorial facilities for heroes and martyrs.

On September 6, several PRC academics published statements criticizing Article 34.

Tong Zhiwei (童之伟), Professor of Constitutional Law, East China University of Political Science and Law

https://weibo.com/1837869620/Ni1q3pSIU

It is recommended that paragraphs 2-3 of Article 34 of the "Public Security Management Punishment Law" (revised draft) not be reviewed for the time being. Who determines what is the "spirit of the Chinese nation" and what procedures are followed? Who determines what are the "feelings of the Chinese nation" and what procedures are followed to recognize and determine it? These are huge problems that are almost impossible to implement in accordance with the principles of the rule of law. If the National People's Congress Standing Committee adopts this article according to the current draft, the practical consequence of its enforcement and adjudication will inevitably be the arrest and conviction of people in accordance with the will of senior officers, which will lead to untold troubles. The law is something that regulates human behavior, and scientific legislation requires legislators to always avoid making regulations on matters of "spirit" and "feelings."

建议暂不审议《治安管理处罚法》（修订草案）第34条第2-3款。“中华民族精神”由谁确认，按什么程序确认？“中华民族感情”由谁体认，按什么程序体认和确定？这都是极大的、几乎无法循法治原则操作的问题。若全国人大常委会按现在的草案通过该条，执法司法上必造成循长官意志抓人、定罪的实际后果，会贻害无穷。法律是调整人的行为的，科学立法要求立法者永远避免就“精神”和“感情”问题做规定。

 

Lao Dongyan (劳东燕), Professor of Criminal Law, Tsinghua University

https://weibo.com/7740539018/Ni1gijcyR 

A few days ago, I saw the content stipulated in Article 34 of the "Public Security Management Punishments Law (Revised Draft)". To be honest, I couldn't believe it. Today I went to the National People's Congress website to check the content of the draft, and I found out that it was indeed true. The draft is currently in the stage of soliciting opinions, and comments can be submitted on the "Draft Law Soliciting Opinions" column of the People's Congress website (www.npc.gov.cn/flcaw/).

Regarding the provisions of Items 2-3 of Article 34, I hold an objection and suggest that they be deleted. The main reasons are:

First, "harming the spirit of the Chinese nation and hurting the feelings of the Chinese nation" is a concept with extremely vague connotations. Different people will have completely different understandings and grasps. If it is used as a legal penalty standard, the problem will be the penalty standard will inevitably be too vague, which can easily lead to arbitrary expansion of the scope of administrative penalties.

Second, due to the ambiguity of punishment standards, it will inevitably lead to selective enforcement of administrative power, which is prone to abuse of power, thus creating a new space for the breeding of corruption, and may intensify conflicts between the police and the public, bringing new risks to social stability.

Third, state power will directly interfere in area of daily clothing of individual citizens, which raises  the obvious suspicion that there will be excessive intervention. National spirit and national feelings are matters at the cultural and spiritual level. The State can advocate them, but they should not be promoted through legal coercion.

Fourth, such legislative provisions may stimulate the wanton spread of populism or extreme nationalism, further deteriorate the public opinion environment in the public sphere, and unduly suppress the freedom of individuals to dress and speak in their daily lives. At the same time, it may also intensify antagonism with some countries, leading to diplomatic passivity.

些天就看到《治安管理处罚法（修订草案）》第34条规定的内容。老实说，我有些不敢相信，今天特地到中国人大网上查了草案的内容，才知道确实是真的。草案目前正处于征求意见阶段，可以在人大网“法律草案征求意见”栏提意见（www.npc.gov.cn/flcaw/）。

对于第34条第2-3项的规定，我持反对意见，建议删除为妥。主要理由是：

其一，“有损中华民族精神、伤害中华民族感情”是内涵极为模糊的概念，不同的人会有完全相异的理解与把握，将其作为法律上的处罚标准，必然面临处罚标准过于模糊的问题，容易造成任意扩张行政处罚的范围。

其二，由于处罚标准模糊，势必导致行政权力的选择性执法，容易出现滥权现象，从而为腐败的滋生创设新的空间，并且可能激化警民矛盾，给社会稳定带来新的风险。

其三，国家权力直接干预公民个人的日常穿着领域，明显有过度干预之嫌。民族精神与民族感情属于文化精神层面的事务，国家可以进行倡导，但不应通过法律强制的方式来推行。

其四，这样的立法规定可能会刺激民粹主义或极端民族主义情绪的肆意蔓延，进一步恶化公共领域的舆论环境，不当压制个人在日常穿衣与言论的自由空间。同时，也可能加剧与一些国家的对立情绪，导致外交上的被动。

Zhao Hong (赵宏), Professor at China University of Political Science and Law

https://i.ifeng.com/c/8SrCr8t1itK

An expansion of the scope of punishable offenses also means an expansion of the authority of the public security agencies. The law must establish corresponding restraint mechanisms for this expansion of authority, otherwise the crackdown on and suppression of emerging illegal activities is likely to breed unconstrained and uncontrolled powers.

The modern rule of law has never advocated a doctrine of creating felonies in the pursuit order and unity through heavy punishment. On the contrary, it is always vigilant against the expansion of state power. Expanding the scope of punishable offenses under the Public Security Administration Punishments Law, the most punitive departmental law in the administrative field, must be approached with caution. It is necessary to clearly delineate the areas that require the intervention of the State's power to punish, and to avoid blurring the boundaries between law and morality.
. . . .
The newly added Article 34 inevitably brings to mind the precedent of a girl in Suzhou last year who accused of disturbing the peace by wearing a kimono. In that case, the individual was reprimanded by the police for wearing a kimono and taking photos in a Japanese-style street in Suzhou. After the individual expressed doubts, the police took her to the police station for investigation on suspicion of disturbing the peace. In the end, the party involved was not punished, but after the case was exposed it still had a relatively adverse social impact. Many Internet users commented that if taking pictures in a kimono can be understood as something damaging to the national spirit that should be punished by the police, then eating Japanese food, watching anime, or even learning the Japanese language will most likely be considered to offend national sentiments. If public officials can expand the interpretation and application of laws at will based on their personal preferences and ideas and creeds, then we are not far away from the situation where "if the authorities want to punish someone, they can always find grounds to frame them."

扩大处罚圈同样意味着公安机关权限的扩张，对这种权限的扩张，法律上必须配置以相应的约束机制，否则对新兴违法行为的打击和压制很有可能滋生出不受约束和控制的权力。

现代法治从来不倡导借由重罚重刑来追求秩序统一的重刑主义，相反它对国家权力的扩张时刻保持警醒。《治安管理处罚法》作为行政领域惩戒力度最重的部门法规范，在扩大处罚圈时必须慎之又慎，既要清晰地划定需要国家惩罚权介入的领域，也要避免法律与道德边界的消弭。
. . . .
新增的第34条不免让人联想到去年苏州女生穿和服被寻衅滋事的旧案。在该案中，当事人因在苏州日式风情街穿和服拍照遭到警察训斥，在当事人表示质疑后，警察以涉嫌寻衅滋事为由将其带至派出所调查。尽管当事人最终并未被处罚，但案件曝光后仍造成了较为恶劣的社会影响。许多网友评价，如果穿和服拍照都可以被理解为有损民族精神，就应被治安处罚，那么吃日料、看动漫，甚至是学日文，都极有可能会被认为是冒犯民族感情；如果公职人员可以凭个人偏好和观念信条，随意扩张解释和适用法律，那么我们距离“欲加之罪、何患无辞”也就不远了。

 

Proposed Revisions to the Public Security Administrative Punishments Law and Their Impact on Freedom of Speech

Based on my research in compiling "State Prosecutions of Speech in the People's Republic of China" (https://ssrn.com/abstract=4168412), three of the six offenses commonly employed by the PRC government to prosecute speech appear in the Public Security Administrative Punishments Law (治安管理处罚法). They are:

Article 25 (Disrupting Public Order by Disseminating Rumors). Example: In 2015, a court held the police did not violate Zhang Guanghong's rights when they jailed him for seven days and confiscated his computer on the grounds that he "used his own Sina Weibo to spread rumors and posts about the 'Five Heroes of Wolf Tooth Mountain' and distorted the image of those revolutionary martyrs." See "State Prosecutions," pp. 540-546.

Article 26 (Other Acts Disturbing the Peace). Example: In 2018, court found that police did not violate Feng Zhouguan's 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." See "State Prosecutions," pp. 426-435.

Article 42 (Flagrantly Insulting or Concocting Facts to Defame Another Party). Example: In 2014, a court found that police did not violate Cheng Huaishan's rights when they subjected him to administrative detention for a single QQ post that the police decided "flagrantly humiliated leaders of the Party and the State" including Xi Jinping and other members of the Politburo Standing Committee. The court acknowledged that Cheng's post did not explicitly name any State leader, but "nevertheless included content that was clearly 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." See "State Prosecutions," pp. 416-420.

The Public Security Administrative Punishments Law is also used to punish individuals for using VPNs to access websites that the PRC government blocks using the Great Firewall. For examples, see "State Prosecutions," Chapter 16, pp. 641-643.

On September 1, 2023, the NPC Observer published an article (https://npcobserver.com/2023/09/01/china-npc-consultation-public-security-administration-company-vat-education-law/) stating that the Standing Committee of the National People’s Congress (NPCSC) is soliciting public comment on proposed revisions to the Public Security Administrative Punishments Law through September 30, 2023. That announcement included a link to a PDF outlining the proposed revisions: https://npcobserver.com/wp-content/uploads/2023/09/Public-Security-Administrative-Punishments-Law-Draft-Revision.pdf.

In the table below I've pulled out the provisions that could potentially be used to prosecute speech related activities, along with English translations. Some initial impressions:

There are no significant changes to Articles 25, 26, and 42.

The draft adds new language stating explicitly that "The comprehensive management of social security adheres to the leadership of the Communist Party of China."

The draft adds this new language to Article 27 (now Article 30): "Producing, spreading, or possessing for the purpose of spreading items, information, and materials that promote cults and sects." This will no doubt be used to punish Falun Gong practitioners and house church members. For an example of how these acts have been punished under Criminal Law, see the case of Geng Doe, who in 2020 was found guilty of "Using a cult to undermine law enforcement" on the grounds that she invited three other people to come to her home to "practice Falun Gong and share their knowledge of Falun Gong with one another." "State Prosecutions," Chapter 7, pp. 252-255.

The draft adds an entirely new provision devoted to offenses against the image of the State, Article 34. Some of the draft language closely mirrors the Protection of Heroes and Martyrs Law (英雄烈士保护法), for example "Engaging in activities in public venues that damage the environment and atmosphere of commemorating heroes and martyrs," and "Insulting, defaming, or otherwise infringing on the names, likenesses, reputation and honor of heroes and martyrs, harming the public interest of society." The remainder of Article 30, however, creates new offenses which will allow to the government to punish a broad range of pure speech conduct simply on the grounds that someone might find it offensive:

• Clause (2) makes it illegal to wear or adorn clothing or symbols in public venues that "harm the spirit of the Chinese nation or hurt the feelings of the Chinese nation." It is easy to see how this provision could be used by police in the PRC to jail individuals who engage in protest activities outside of the PRC who then return to the PRC.
• Clause (3) makes it illegal to produce, advocate, or publish any remarks that are "detrimental to the spirit of the Chinese nation or hurt the feelings of the Chinese nation." It is easy to see how this provision could be used by police in the PRC to jail individuals who publish anything critical of the Communist Party of China or its leaders outside of the PRC who then return to the PRC.
• Clause (4) makes it illegal to advocate or beautify "aggressive wars and acts of aggression." It seems unlikely that this will be used by police to punish state run media when they advocate aggression against Taiwan (see, e.g., "PLA Conducts Mock Strikes on Taiwan Island on 2nd Day of Encirclement Drills" https://www.globaltimes.cn/page/202304/1288744.shtml). But it is easy to see how this provision could be used by police in the PRC to jail individuals who express support for freedom of navigation operations in the South China Sea.

ORIGINAL	REVISED	ENGLISH TRANSLATION
第六条 各级人民政府应当加强社会治安综合治理,采取有效措施,化解社会矛盾,增进社会和谐,维护社会稳定.	第二条 社会治安综合治理工作坚持中国共产党领导. 各级人民政府应当加强社会治安综合治理,采取有效措施,化解社会矛盾,增进社会和谐,维护社会稳定. 县级以上人民政府有关部门应当在各自职责范围内,做好社会治安综合治理相关工作.	Article 62 The comprehensive management of social security adheres to the leadership of the Communist Party of China. People's governments at all levels shall strengthen comprehensive management of social security and take effective measures to resolve social conflicts, enhance social harmony, and maintain social stability. Relevant departments of the people's governments at or above the county level shall carry out work related to the comprehensive management of social security within the scope of their respective responsibilities.
第二十五条 有下列行为之一的,处五日以上十日以下拘留,可以并处五百元以下罚款;情节较轻的,处五日以下拘留或者五百元以下罚款: (一)散布谣言,谎报险情、疫情、警情或者以其他方法故意扰乱公共秩序的; (二)投放虚假的爆炸性、毒害性、放射性、腐蚀性物质或者传染病病原体等危险物质扰乱公共秩序的; (三)扬言实施放火、爆炸、投放危险物质扰乱公共秩序的.	第二十八条 有下列行为之一的,处五日以上十日以下拘留,可以并处一千元以下罚款;情节较轻的,处五日以下拘留或者一千元以下罚款: (一)散布谣言,谎报险情、疫情、警情或者以其他方法故意扰乱公共秩序的; (二)投放虚假的爆炸性、毒害性、放射性、腐蚀性物质或者传染病病原体等危险物质扰乱公共秩序的; (三)扬言实施放火、爆炸、投放危险物质等行为扰乱公共秩序的.	Article 258. A person who commits one of the following acts 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 1,000 yuan; and if the circumstances are relatively minor, he shall be detained for not more than 5 days or be fined not more than 500 yuan 1,000 yuan: (1) intentionally disturbing public order by spreading rumors, making false reports of dangerous situations and epidemic situations or raising false alarms or by other means; (2) disturbing public order by putting in fake hazardous substances such as explosive, toxic, radioactive and corrosive substances or pathogens of infectious diseases; or (3) disturbing public order by actions such as threatening to set fire, set off explosions, or put in hazardous substances.
第二十六条 有下列行为之一的,处五日以上十日以下拘留,可以并处五百元以下罚款;情节较重的,处十日以上十五日以下拘留,可以并处一千元以下罚款: (一)结伙斗殴的; (二)追逐、拦截他人的; (三)强拿硬要或者任意损毁、占用公私财物的; (四)其他寻衅滋事行为.	第二十九条 有下列行为之一的,处五日以上十日以下拘留,可以并处一千元以下罚款;情节较重的,处十日以上十五日以下拘留,可以并处二千元以下罚款: (一)结伙斗殴的; (二)追逐、拦截他人的; (三)强拿硬要或者任意损毁、占用公私财物的; (四)其他寻衅滋事行为.	Article 269. A person who commits one of the following acts 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 1,000 yuan; and if the circumstances are relatively serious, he shall be detained for not less 10 than days but not more than 15 days and may, in addition, be fined not more than 1,000 yuan 2,000 yuan: (1) gang-fighting; (2) chasing or intercepting another person; (3) forcibly taking and obstinately seizing, or willfully damaging and occupying public or private property; or (4) other provocative acts.
	第三十条 (三)制作、传播、为传播而持有宣扬邪教、会道门内容的物品、信息、资料的. 明知他人从事前款活动,为其提供条件的,依照前款的规定处罚.	Article 2730 (3) Producing, spreading, or possessing for the purpose of spreading items, information, and materials that promote cults and sects. Whoever knowingly provides the conditions for others to engage in the activities in the preceding paragraph shall be punished in accordance with the provisions of the preceding paragraph.
	第三十四条 有下列行为之一的,处五日以上十日以下拘留或者一千元以上三千元以下罚款;情节较重的,处十日以上十五日以下拘留,可以并处五千元以下罚款: (一)在公共场所从事有损纪念英雄烈士环境和氛围的活动的; (二)在公共场所或者强制他人在公共场所穿着、佩戴有损中华民族精神、伤害中华民族感情的服饰、标志的; (三)制作、传播、宣扬、散布有损中华民族精神、伤害中华民族感情的物品或者言论的; (四)亵渎、否定英雄烈士事迹和精神,宣扬、美化侵略战争和侵略行为,寻衅滋事,扰乱公共秩序的; (五)以侮辱、诽谤或者其他方式侵害英雄烈士的姓名、肖像、名誉、荣誉,损害社会公共利益的; (六)侵占、破坏、污损英雄烈士纪念设施的.	Article 34 Anyone who commits any of the following acts shall be detained for not less than five days but not more than ten days, or fined not less than 1,000 yuan but not more than 3,000 yuan; if the circumstances are relatively serious, they shall be detained for not less than ten days but not more than fifteen days, and may also be fined not more than 5,000 yuan: (1) Engaging in activities in public venues that damage the environment and atmosphere of commemorating heroes and martyrs; (2) Wearing or adorning, or forcing others to wear or adorn, clothing or symbols in public venues that are detrimental to the spirit of the Chinese nation or hurt the feelings of the Chinese nation; (3) Producing, spreading, advocating, or disseminating articles or remarks that are detrimental to the spirit of the Chinese nation or hurt the feelings of the Chinese nation; (4) Blaspheming or repudiating the deeds and spirit of heroes and martyrs, advocating or beautifying aggressive wars and acts of aggression, disturbing the peace, and disrupting public order; (5) Insulting, defaming, or otherwise infringing on the names, likenesses, reputation and honor of heroes and martyrs, harming the public interest of society; (6) Occupying, destroying, or defacing memorial facilities for heroes and martyrs.

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

This blog has documented several examples of legal professionals, academics, and officials, calling for the PRC government to address problems with the application of the crime of disturbing the peace  (寻衅滋事, also commonly literally translated as "picking quarrels and provoking troubles." For more on why I have chosen to translate this as "disturbing the peace," see "State Prosecutions of Speech in the People's Republic of China: Cases Illustrating the Application of National Security and Public Order Laws to Political and Religious Expression, pp. 21-22, https://ssrn.com/abstract=4168412). For example:

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

Most of those in domestic academic circles have either resolutely opposed, or hold a very negative attitude toward, the crime of disturbing the peace. Many scholars in criminal law circles have published papers discussing the flaws associated with determining what constitutes the crime of disturbing the peace, including determining the standard for the offense, the difficulty of judicial application, and generally focusing on opposing the existence of the crime of disturbing the peace and restricting the scope of application of the crime. (国内学界对寻衅滋事罪的态度大多都持坚决反对或者十分消极的态度,刑法学界很多学者都曾发表论文论述寻衅滋事罪的犯罪构成缺陷、罪名认定标准、司法适用困境,总体上以反对寻衅滋事罪的存在和限制该罪名适用范围两方面为主.)

"Three Characteristics of the 'Judicial Interpretation of the Crime of Disturbing the Peace.'" (寻衅滋事罪司法解释"三性"审视), Academics (学术界), Issue No. 5, May, 2020. See http://blog.feichangdao.com/2020/09/prc-scholars-judicial-interpretation-on.html.

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

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

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

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

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

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

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

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

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

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

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

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

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

The crime of disturbing the peace (寻衅滋事, also commonly literally translated as "picking quarrels and provoking troubles." For more on why I have chosen to translate this as "disturbing the peace," see "State Prosecutions of Speech in the People's Republic of China: Cases Illustrating the Application of National Security and Public Order Laws to Political and Religious Expression, pp. 21-22, https://ssrn.com/abstract=4168412) is often used to prosecute political speech, both online and in physical venues. The following examples are all from 2019:

• A court found Dong Zehua & Yuan Shuai guilty of disturbing the peace on the grounds that Dong "wore a T-shirt with sensitive markings on it and took photos in Tiananmen Square and posted the photos online" and Dong and Yuan "interviewed foreigners in Tiananmen Square and made inquiries into sensitive topics." See "State Prosecutions," pp. 513-515).
• A court found Jie Ruixue guilty on the grounds that she "stood in an area crowded with tourists in the vicinity of the national flag pole in Tiananmen Square wearing a white t-shirt upon which was written 'Freedom of Speech, Vindicate June Fourth, Oppose Repeating the Tragedy.'" See "State Prosecutions," pp. 516-18).
• A court found an individual surnamed Wang guilty of disturbing the peace on the grounds that he used Twitter to repost, like, and comment on a large number of posts relating to major domestic incidents, including: 
• Hu Wei proves the authenticity of Guo Wengui's revelations;
• The Communist Party of China controls all the resources . . . the working people can only get a piece of the pie;
• If China has the best socialist system in the world, why is the quality of each generation lower than the last?;
• The Communist Party seizes power in order to kill people;
• The Communist Party of China will never open the Internet . . . their end is at hand;
• The Communist Party of China has become an interest group and will devour the private sector;
• Content about 'June Fourth,' 'Tibet,' and 'The Mirror Group.' See "State Prosecutions," p. 715.

• A court found an individual surnamed Cheng guilty of disturbing the peace on the grounds that he used Twitter to post and repost 471 tweets on the Internet that denigrated and berated others, and denigrated the image of the Party and the government. See "State Prosecutions," p. 717.
• A court found an individual surnamed Xu guilty of disturbing the peace on the grounds that he used Twitter to post and repost content that "berated Party and State leaders, and assailed the socialist system, soldiers, and police groups." See "State Prosecutions," pp. 717-718.

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

• In 2022, an article titled "National Committee of the Chinese People's Political Consultative Conference Member Zhu Zhengfu: A Proposal to Abolish the Crime of Disturbing the Peace in Due Course" was published on page 12 of the "People's Political Consultative Daily" (人民政协报).  I translated that article here: National Committee of the Chinese People's Political Consultative Conference Member Zhu Zhengfu: A Proposal to Abolish the Crime of Disturbing the Peace in Due Course.
• In 2020, Liu Zhiqiang (刘志强) and Song Haichao (宋海超),  two academics at the Guangzhou University Institute for Human Rights, noted:

Most of those in domestic academic circles have either resolutely opposed, or hold a very negative attitude toward, the crime of disturbing the peace. Many scholars in criminal law circles have published papers discussing the flaws associated with determining what constitutes the crime of disturbing the peace, including determining the standard for the offense, the difficulty of judicial application, and generally focusing on opposing the existence of the crime of disturbing the peace and restricting the scope of application of the crime. (国内学界对寻衅滋事罪的态度大多都持坚决反对或者十分消极的态度,刑法学界很多学者都曾发表论文论述寻衅滋事罪的犯罪构成缺陷、罪名认定标准、司法适用困境,总体上以反对寻衅滋事罪的存在和限制该罪名适用范围两方面为主.)

"Three Characteristics of the 'Judicial Interpretation of the Crime of Disturbing the Peace.'" (寻衅滋事罪司法解释"三性"审视), Academics (学术界), Issue No. 5, May, 2020. See http://blog.feichangdao.com/2020/09/prc-scholars-judicial-interpretation-on.html.

The Shandong Xiaolin Law Firm

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

Legislative Proposal on Abolishing the Crime of Disturbing the Peace

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

Director Shen Chunyao:

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

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

1. Problems Found in Judicial Practice

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

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

2. Model Cases That Raise Issues

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

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

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

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

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

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

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

3. Proposal to Abolish the Crime of Disturbing the Peace

(1) Flaws in Legislation and Judicial Interpretation

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

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

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

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

(2) Corresponding Solutions

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

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

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

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

Proposed by: The Shandong Xiaolin Law Firm

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

August 2, 2023

Contact information:

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

山东晓临律师事务所

致全国人民代表大会常务委员会法制工作委员会

关于废除寻衅滋事罪的立法建议

全国人民代表大会常务委员会法制工作委员会

沈春耀主任:

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

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

一、司法实践中发现的问题

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

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

二、典型存疑案例

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

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

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

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

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

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

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

三、建议废除寻衅滋事罪

(一)立法及司法解释存在缺陷

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

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

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

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

(二)相应解决措施

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

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

以上建议,敬请贵委员会立法参考。

此致

全国人民代表大会常务委员会法制工作委员会

建议人:山东晓临律师事务所

兰庆洲律师
马晓临律师
于兆燕律师
张文鹏
于凯律师

2023年8月2日

联系方式:

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

Translation: Ding Jiaxi 2021 Subversion Indictment

 Translator' Notes:

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

• According to Ding Jiaxi's spouse Luo Shengchun, the PRC government refused to provide his family a copy of the judgment (see https://twitter.com/luoshch/status/1682289671882125312), and has failed to comply with its own law requiring the judgment to be made public. For more on that see "Censorship of Court Judgments in the PRC." 
  
• Ding's and Xu's activism goes back over a decade. In 2014, a court imprisoned them for "gathering crowds" after they organized small demonstrations calling for reforms to government policies that made it difficult for children of parents without a Beijing household registration to sit for entrance examinations for high school and college. A full translation of Xu's court judgment in that case can be found on p. 287 of my casebook: "State Prosecutions of Speech in the People's Republic of China." 
  
• For more information about this case, see the following blog posts:
• Translation: Civil Rights Lawyer Ding Jiaxi's Statement to the Court
• Translation: Civil Rights Lawyer Xu Zhiyong's Statement to the Court  
• Xu Zhiyong's Girlfriend Li Qiaochu Indicted (Full Translation) 
  

People's Procuratorate of Linyi, Shandong

Indictment

Lin Procuratorate First Criminal Indictment (2021) No. Z42

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

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

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

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

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

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

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

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

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

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

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

Evidence determining the aforementioned facts is as follows:

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

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

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

Prosecutors     Tan Changzhi
                        Li Tao
                        Huang Zheng

Prosecutors Assistant Meng Li

August 5, 2021

山东省临沂市人民检察院

起诉书

临检一部刑诉[2021]Z42号

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

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

经依法审查查明:

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

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

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

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

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

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

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

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

认定上述事实的证据如下:

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

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

山东省临沂市中级人民法院

检察官    谭长志
                李涛
                黄政

检察官助理 孟丽

2021年8月5日