Translation: State v. Guo Quan - Subversion

NOTE: This post was published on December 6, 2020, but this post is dated the date the court judgment was issued in order to prevent confusion.

 Intermediate People's Court of Suqian, Jiangsu

Criminal Judgment

(2009) Su Intermediate Criminal Second First Instance No. 00021

The public prosecution agency was the People's Procuratorate of Suqian, Jiangsu.

Defendant Guo Quan, Male, born [INTENTIONALLY DELETED], 1968 in Nanjing, Jiangsu, ID number [INTENTIONALLY DELETED], Han, post-graduate education, formerly a member of the information staff at the information office of the College of Liberal Arts of Nanjing Normal University, residing at [INTENTIONALLY DELETED], Drum Tower District, Nanjing. On November 13, 2008, he was taken into criminal detention on suspicion of committing the crime of subversion of state power, and he was arrested on December 19 of that year. He is currently being held in custody at the Nanjing Detention Center.

Defense counsel Si Weijiang is a lawyer at the Shanghai Dabang Law Firm.

Defense counsel Guo Lianhui is a lawyer at the Jiangxi Ming Li Law Firm.

The People's Procuratorate of Suqian, Jiangsu charged defendant Guo Quan with committing the crime of subversion of state power in the Suqian Criminal Indictment (2009) No. 17 indictment, and filed a public prosecution with this Court on June 8, 2009. In accordance with the High People's Court of Jiangsu's decision on the designation of jurisdiction, on June 10 this Court established the case, formed a collegial panel in accordance with the law, and publicly tried this case on August 7. The People's Procuratorate of Suqian, Jiangsu assigned Procurator Xia Wei, and acting Procurators Liu Zhaodong and Zhao Jing to appear in court in support of the public prosecution. Defendant Guo Quan and his defense counsels Si Weijiang and Guo Lianhui appeared in court to participate in the proceedings. During the trial, this Court applied to the High People's Court of Jiangsu to extend the trial period for one month, after hearing recommendations for an extension submitted by the public prosecution agency. In accordance with the law this Court decided to delay the trial, and resumed the trial on September 16, 2009. The trial has now concluded.

The People's Procuratorate of Suqian, Jiangsu charged that in order to subvert state power and overthrow the socialist system, in the second half of 2007 to November 2008, on several occasions defendant Guo Quan wrote and disseminated through the Internet a series of articles titled "Democracy Herald," used the Internet to publish a "Party Constitution of the China New Democracy Party (and Guiding Policy Principles)," "Party Framework of the China New Democracy Party (CNDP)," illegally organized the "China New Democracy Party," and took the position of the so-called "Acting Chairman" and developed the Party organization and members of the "China New Democracy Party." He used the Internet to plan activities including a "Democratic Revolutionary Blue Movement" and a "Seven Day Stay-At-Home Revolution." He instigated the overthrow of the socialist system under the guise of helping certain collective "rights defenders."

In order to substantiate the facts in the aforementioned charges, the People's Procuratorate of Suqian, Jiangsu questioned defendant Guo Quan in court, produced relevant physical and documentary evidence, read out testimony of witnesses who did not appear in court, and examined in court the investigation notes and defendant Guo Quan's repeated statements made at the investigating agency's office, and other evidence. They maintain that defendant Guo Quan's actions violated the provisions of Article 105(1) of the "Criminal Law of the People's Republic of China," constitute the crime of subversion of state power, and request that this Court pass sentence in accordance with law.

Defendant Guo Quan did not contest the facts charged by the public prosecution agency that on several occasions he used the Internet to disseminate a series of articles titled "Democracy Herald," distributed the "Constitution China New Democracy Party" and "Party Framework of the China New Democracy Party," established the "China New Democracy Party," and considered himself the so-called "Acting Chairman." He argued, however, that he lacked the subjective intent and objective behavior to subvert the national regime and overthrow the socialist system, that establishing a "China New Democracy Party" online is an exercise of the constitutional right to freedom of association, that the "Democracy Herald" series of articles do not include content that subverts the national regime and overthrows the socialist system, that the articles relating to the "One Week Stay-at-Home Revolution" and the "Democratic Revolutionary Blue Movement" did not have written expressions about overthrowing the socialist system, and that he told the "rights defenders" the harm to their collective interests had been caused by system's structure, and that this did not overthrow the socialist system, and therefore does not constitute a crime.

Defendant Guo Quan's defense counsels claimed that Guo Quan lacked the subjective intent and objective behavior to subvert state power and overthrow the socialist system, that his use of the Internet to publicly distribute the "Constitution of the China New Democracy Party" and the "Party Framework of the China New Democracy Party" was not illegal, that his actions were within the boundaries of freedom of speech and freedom of association, that the "Seven Day Stay-At-Home Revolution" and the "Democratic Revolutionary Blue Movement" merely propagandized democratic ideals and were not socially harmful, that there is no evidence proving instigated the overthrow the socialist system under the guise of rights defense, and that defendant Guo Quan has not committed a crime.

It was ascertained at trial that in the second half of 2007 to November 2008, defendant Guo Quan did on several occasions write and disseminate through the Internet a series of articles titled "Democracy Herald," defamed China's current socialist system, attacked China's political system as "a one party dictatorial regime," and threatened to "end the existing authoritarian regime." used the Internet to publish a "Party Constitution of the China New Democracy Party (and Guiding Policy Principles)," "Party Framework of the China New Democracy Party (CNDP)," illegally organized the "China New Democracy Party," and furthermore took the position of the so-called "Acting Chairman" and developed the party organization and members of the "China New Democracy Party." and actively developed Liu Chenggong, Mu Hao, Yang Shizhen, and other "New Democracy Party" members. He appointed Kong Qiang, Wang Xiqiang, and others to serve as Party heads in Shandong, Zhejiang, and other places. He called for "China New Democracy Party" Party members to donate "special Party fees" to fund "The Four Cardinal Points Rights Defense Work Office." He used the Internet to plan a "One Week Stay at Home Revolution," a "Democratic Revolutionary Blue Movement," and other activities, calling for "all citizens to stay at home, not collaboration with the dictators, not act in services of dictators, prepare seven days worth of food and water, and wait for the advent of a democratic China." He did all this in an attempt to subvert state power and overthrow the socialist system; instigating the overthrow of the socialist system in the name of helping certain groups "defend their rights."

The aforementioned facts have been substantiated through cross examination of evidence in hearings, and are hereby confirmed by this Court.

1. Documentary evidence, several articles that have been confirmed and acknowledged through the signature of defendant Guo Quan including: "Democracy Herald 88: Party Constitution of the China New Democracy Party (and Guiding Policy Principles)," "Democracy Herald 200: Party Framework of the China New Democracy Party (CNDP)," "Democracy Herald 67: Whoever Believes that China's Society is a Socialist Society Can Go to Hell," "Democracy Herald 129: When Lenin and Huntington Meet in China, That is When the Chinese Communist Dictatorship will be About to End," and "Democracy Herald 287: China New Democracy Party Please Pay Special Membership Dues for the 'Wandering Rights Defense Office.'"

2. Testimony of witnesses Liu Chenggong, Mu Hao, Yang Shizhen, Pang Ben, Guo Jian, Li Wenbin, Ye Jun, Zhang Yongfeng, Wu Yongjian, Chen Xudong, Qian Feng, Kong Qiang, Wang Xiqiang, Lin Nianqin, and Xu Xuefeng, confirmed defendant Guo Quan sent them the "Democracy Herald." In addition, Li Chenggong confirmed that, upon inquiry, Guo Quan replied that he was himself a "New China Democracy Party" member, and had established online the "China New Democracy Forum" (Google Group) and the "Democracy Herald Group," and had published the "Democracy Herald" articles in the name of the "New Democracy Party Propaganda Department." Mu Hao confirmed that, after joining the "New Democracy Party," he founded the "Voice of China" magazine, wrote the "China New Democracy Party Party Song," and wrote articles such as "Election for National Salvation," and "Discussions On the Federated States of Greater China's Constitutional Referendum." In addition, he sent the aforementioned articles to Guo Quan, received Guo Quan's approval, and went on to propagandize the "New Democracy Party" to many people. Yang Shizhen confirmed that Guo Quan asked him to be the person responsible for the "New Democracy Party" in the Linyi region, and to take responsibility for propagandizing and developing the "New Democracy Party," and that at one point he disseminated the "New Democracy Party" program and introduced good friends to join the Party, but did not complete this task. Pang Ben and Guo Jian confirmed that due to their acknowledgment of the "New Democracy Party" Constitution, they believe themselves to be "New Democracy Party" members, and conducted their relationship with Guo Quan in their capacity as members of the "New Democracy Party." Guo Jian asked Guo Quan whether he could take responsibility for the Shanxi local party committee of the "New Democracy Party," and received Guo Quan's acknowledgment. Li Wenbin confirmed that at one time Guo Quan wrote to him asking him to establish a "New Democracy Party" Tatung Division, and Guo Quan encouraged him to develop the "New Democracy Party's" grass-roots organizations and Party members. Ye Haijun, Zhang Yongfeng, Wu Yongjian and others confirmed that they got into contact with Guo Quan through the Internet and the telephone and received replies from him, and that they believed themselves to be members of the "New Democracy Party." Kong Qiang, Wang Xiqiang, and Lin Nianjin confirmed that Guo Quan proposed they act respectively as the "New Democracy Party" Shandong and Zhejiang Party Chairmen and as the "Party School" director and develop Party membership and cultivate "New Democracy Party" cadres. Xu Xuefeng confirmed Guo Quan wanted him to be the so-called "second echelon," and have him and Guo Quan run against one another for presidency.

3. The testimony of witnesses Hu Zhengyu, Gong Lei and Wang Kang confirmed Mou Hao regularly propagandized the "China New Democracy Party" Party Constitution to them.

4. The testimony of Lan Hongbo, Yang Yong, Li Jing, and other witnesses confirmed they used QQ and other networking tools to access and read the "Democracy Herald" series of articles written and disseminated by Guo Quan.

5. The testimony of Xu Xiangqian, Liu Chenggong, Zhang Shuifeng and other witnesses separately confirmed that they used articles calling for "New Democracy Party" Party members to provide financial assistance to Xu Xiangqian's "Wandering Rights Defense Workshop" under the guise of paying Party membership dues. Xu Xiangqiang estimated he received 3,500 yuan and a computer from Guo Quan, and that Liu Chenggong, Zhang Yongfeng and others responded to Guo Quan's call and proactively paid "special Party membership dues."

6. The testimony of Ye Haijun, Mu Hao, Kong Mingming and other witnesses confirmed that they had read Guo Quan's articles about the "One Week Stay-at-Home Revolution" and the "Democratic Revolutionary Blue Movement" and that they believed Guo Quan was calling on people to launch a "One Week Stay-at-Home Revolution" and other movements and that the intent was to have workers strike, students skip class, and businessmen stay home from work.

7. The testimony of Kong Guangyou, Chen Bing, Kong Mingming, Liu Fajin, and other witnesses confirmed they used the telephone and Internet to respond to Guo Quan about demobilized cadres, corporate employment, and other problems, and that Guo Quan said that their situation is a result of the current system, and advocated that the only way to solve these problems was to carry out democratic revolution.

8. Physical evidence including a "Shenzhou" brand laptop computer, a "BenQ" brand laptop computer, three black PC compatible desktop machines, one "Shinco" brand portable USB hard drive, two mobile phones, two search records from the public security agency, work records from the examination of electronic evidence, photographic records from inquest investigations, and a list of recovered electronic evidence. These confirmed that public security agencies conducted a search of Guo Quan's residence at [INTENTIONALLY DELETED], Drum Tower District, Nanjing and seized Guo Quan's aforementioned materials, and through an inspection discovered a large quantity of "Democracy Herald" text documents on the computers and the USB portable hard drive, and records that defendant Guo Quan used QQ, MSN, and SKYPE instant messaging software accounts to send the "Democracy Herald" articles to others, and this was recognized and confirmed by Guo Quan.

9. Remote evidence collection work records produced by the public security agencies confirmed that "Democracy Herald 47: China must Quickly Implement a Multi-Party Election Democratic Institutions, Otherwise a Popular Uprising Will Sweep Away Authoritarian Rule" and other articles from the "Democracy Herald" series written by Guo Quan were publicly distributed on the "Epoch Times," "Boxun," "Sound of Hope," and "Radio Free Asia" websites.

10. Electronic evidence inspection work records, electronic data collection reports, judicial appraisals, identification transcripts, identification photos, and evidence collection notices made by public security organs confirmed that when the electronic evidence inspection of the computers of of Yang Shizhen, Liu Chenggong, Xu Qianqian, Mou Hao, and Chen Xudong was conducted a saved article called  "Democracy Herald" was found.

11. The remote forensic work records produced by the public security agency and the screenshots of the websites confirmed by Liu Chenggong confirmed that Mou Hao sent Guo Quan emails such as "China New Democracy Party's Party Song" and "On the Constitutional Referendum of the Federal Republic of Greater China" and they were received and opened by Guo Quan, and a large number of "Democracy Herald" articles were found in Liu Chenggong's mailbox and he published the "Democracy Herald" articles on overseas websites using user names such as "Success" and "China New Democracy Party."

12. The online chat records of defendant Guo Quan and Liu Chenggong, Xu Xuefeng, Yang Shizhen, Wang Xiqiang, and others collected by the public security agencies confirmed the facts that Guo Quan sent the article "Democracy Herald" and asked Yang Shizhen to serve as "acting chairman" of theShandong Linyi Party Branch of the "New Democracy Party," and proposed having Xu Xuefeng run with him for election for the president as a so-called "second echelon."

13. The mobile phone SMS records of defendant Guo Quan and Mou Hao, Pang Ben, and Guo Jian collected by the public security agencies confirmed the facts that Mou Hao and Guo Jian reported to Guo Quan to establish the so-called "China New Democracy Party Greater China Federal Constitutional Committee" and the "Shanxi Party Department," and that Guo Quan clearly requested party member Pang Ben to not join the Communist Party in his personal capacity.

14. The bank card transaction details and remittance records of Xu Qiangqian, Liu Chenggong, Zhang Yongfeng, and Chen Yao collected by public security agencies in accordance with the law confirmed the fact that Liu Chenggong, Zhang Yongfeng, and Chen Yao remitted 100, 500, and 1,000 yuan to Xu Qianqian, respectively.

15. The Public Security Bureau of Nanjing's public security administrative punishment decision letter and punishment notification transcript confirmed that defendant Guo Quan was held for 10 days in administrative detention starting May 18, 2008 for using the "5.12" Wenchuan earthquake to assemble dozens of fictitious experts on the Internet on May 13, 2008 in a "China New Democracy Party Disaster Relief Committee" to spread rumors and disturb public order.

16. The "Supplementary Letter of Investigation on Guo Quan's Suspected Subversion of State Power" issued by the Nanjing Public Security Bureau confirmed that during the supplementary investigation of this case, the Public Security Bureau of Suqian entrusted the Public Security Bureau of Nanjing to conduct investigations.

17. The explanations of matters such as the case resolution process and detention process submitted by the public security agencies proved that defendant Guo Quan was arrested and brought to justice.

18. Guo Quan's household registration information and the "Proof of Guo Quan's Employment Status" issued by the Personnel Office of Nanjing Normal University confirmed that Guo Quan was born on [INTENTIONALLY DELETED], 1968, and before the incident he worked in the position of a data clerk in the reference room of the School of Liberal Arts, Nanjing Normal University.

19. Defendant Guo Quan's statement at the investigation stage confirmed that since the second half of 2007, he used the Internet to establish the Chinese New Democracy Party with the aim of opposing the "Communist dictatorship" and actively developed Party organizations and members, and published a large number of "Democracy Herald" series through the Internet, and planned activities such as the "Seven Day Stay-at-Home Revolution" and the "Republican Revolutionary Blue Movement," and used his own accounts on QQ, MSN, SKYPE, and other instant messaging software on the Internet to instill in certain "rights protection" groups the idea that "the dictatorship of the Communist Party" was the root cause of their current situation and their own.

This Court finds that defendant Guo Quan illegally formed the "China New Democracy Party" through the Internet, and published a large number of reactionary articles through the Internet, developed Party members, planned a "Seven Day Stay-at-Home Revolution," "Republican Revolutionary Blue Movement" and other activities, and organized, planned, and carried out subversion of state power and the overthrow of the socialist system, and his actions constitute the crime of subversion of state power, the crime is serious, and should be punished in accordance with the law. With respect to the People 's Procuratorate of Suqian, Jiangsu's charge that defendant Guo Quan of committed the crime of subversion of state power, the facts are clear, the evidence is reliable and copious, and the offense is correct.

The defense justifications and defense opinions of defendant Guo Quan and his defense counsels claim that Guo Quan lacked the subjective intent and objective behavior to subvert the national regime. An investigation has determined that the fact that defendant Guo Quan organized, planned, and implemented the actions to subvert the national regime and overthrow the socialist system is supported by physical evidence, documentary evidence, witness testimony, transcripts of investigation and inspection, and Guo Quan's multiple statements during the investigation stage, and the sources of evidence are legal, mutually corroborate each other, and are sufficient to reach a determination.

With respect to Guo Quan's defense justifications and the defense justifications and defense opinions proffered by his defense counsels that Guo Quan's forming a political party and publishing articles online was a lawful exercise of the rights of freedom of association and freedom of speech granted under the Constitution, and that his actions do not constitute a crime, an investigation has shown that, while freedom of association and freedom of speech are political rights provided to China's citizens by the Constitution, the Constitution also clearly provides that when exercising these rights citizens may not jeopardize the nation's interests or its security. Defendant Guo Quan used methods such as the illegal formation of a "New People's Party of China," the publication of a Party Constitution, the recruitment of Party members, and the planning of the "Seven Day Stay-at-Home Revolution" to subvert state power and overthrow the socialist system, which endangered national security, and his actions meet the requirements to constitute the crime of subversion of state power. Therefore, defendant Guo Quan's defense justifications and his defense counsel's defense opinions are not accepted by this Court. Therefore, in accordance with the provisions of Articles 105(1), 55(1), 56(1), and 64 of the "Criminal Law of the People's Republic of China," the judgment is as follows:

1. Defendant Guo Quan committed the crime of subversion of state power, and is sentenced to a fixed term imprisonment of 10 years and 3 years deprivation of political rights. (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 November 13, 2008 and expiring on November 12, 2018.)
2. Computers, USB sticks, etc. used in the crime and seized are confiscated.

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

Chief Adjudicator: Liu Zhi
Adjudicator: Zhong Jia
Adjudicator: Yang Haifeng

October 16, 2009

Clerk: Dai Jianjun

江苏省宿迁市中级人民法院

刑事判决书

（2009）宿中刑二初字第0002号

公诉机关江苏省宿迁市人民检察院。

被告人郭泉，男，1968年[INTENTIONALLY DELETED]出生于江苏省南京市，身份证号[INTENTIONALLY DELETED]，汉族，研究生文化，原系南京师范大学文学院资料室资料员，住南京市鼓楼区[INTENTIONALLY DELETED]。因涉嫌犯颠覆国家政权罪于2008年11月13日被刑事拘留，同年12月19日被逮捕。现羁押于南京市看守所。

辩护人斯伟江，上海大邦律师事务所律师。

辩护人郭莲辉，江西明理律师事务所律师。

江苏省宿迁市人民检察院以宿检刑诉（2009）17号起诉书指控被告人郭泉犯颠覆国家政权罪一案，于2009年6月8日向本院提起公诉。本院依照江苏省高级人民法院指定管辖决定，于6月10日立案受理，并依法组成合议庭，于8月7日公开审理了本案。江苏省宿迁市人民检察院指派检察员夏玮、代理检察员刘兆东、赵静出庭支持公诉，被告人郭泉及其辩护人斯伟江、郭莲辉到庭参加诉讼。在审理期间，本院向江苏省高级人民法院申请延长审限一个月，后公诉机关提出延期审理建议，本院依法决定延期审理，并于2009年9月16日恢复审理。本案现已审理终结。

江苏省宿迁市人民检察院指控，被告人郭泉为颠覆国家政权、推翻社会主义制度，于2007年下半年至2008年11月间，撰写并通过网络多次传播《民主先声》系列文章，通过互联网公开发布《中国新民党党章（暨施政纲领）》、《中国新民党（CNDP）党建党务大纲》，非法组建"中国新民党"，并自任所谓"代主席"，积极发展"中国新民党"党组织和成员；通过互联网先后策划了"民主革命蓝色运动"、"七日在家革命"等活动；借帮助部分群体"维权"之名策动推翻社会主义制度。

江苏省宿迁市人民检察院为证实上述指控的事实，当庭讯问了被告人郭泉，出示了相关物证和书证，宣读了未到庭证人证言、勘验检查笔录级被告人郭泉在侦查机关所作的多次供述等证据，认为被告人郭泉的行为已触犯《中华人民共和国刑法》第一百零五条第一款之规定，构成颠覆国家政权罪，提请本院依法判处。

被告人郭泉对公诉机关指控其撰写并通过网络多次传播《民主先声》系列文章，发布《中国新民党党章》、《中国新民党党建党务大纲》，组建"中国新民党"，并自认所谓"代主席"的事实不存异议，但辩称其无颠覆国家政权、推翻社会主义制度的主观故意和客观行为，网上组建"中国新民党"，属于行使宪法赋予的结社自由权，撰写的《民主先声》系列文章不含有颠覆国家政权、推翻社会主义制度的内容，"七日在家革命"、"民主革命蓝色运动"相关文章中并没有推翻社会主义制度的文字表述，告诉"维权"群体利益被损害是制度体制造成的，并不是推翻社会主义制度，故不构成犯罪。

被告人郭泉的辩护人提出，郭泉无颠覆国家政权、推翻社会主义制度的主观故意和客观行为，其通过网络公开发布《中国新民党党章》、《中国新民党党建党务大纲》文章并不违法，其行为属于言论、结社自由范畴，"七日在家革命"、"民主革命蓝色运动"只是宣传民主理念，无社会危害性，无证据证实其借维权之名策动推翻社会主义制度，被告人郭泉不构成犯罪。

经审理查明，被告人郭泉于2007年下半年至2008年11月间，撰写并通过网络多次传播《民主先声》系列文章，诋毁我国现行社会主义制度，攻击我国政治制度是"一党专制独裁政权"，扬言要"终结全部现存的独裁专制制度"；在互联网公开发布《中国新民党党章（暨施政纲领）》、《中国新民党（CNDP）党建党务大纲》，非法组建"中国新民党"并自任所谓"代主席"，积极发展了刘成功、牟昊、杨士振等"新民党"成员，提出孔强、王喜强等人担任山东、浙江等地党部负责人，号召"新民党"党员交"特别党费"资助"走四方维权工工作室"；通过互联网策划了"七日在家革命"、"民主革命蓝色运动"等活动，要求"全体国民在家，不与专制者合作，不为专制者服务，备齐七天之饮食，静候民主中国来临"，妄图颠覆国家政权、推翻社会主义制度；借帮助部分群体"维权"之名策动推翻社会主义制度。

上述事实，有下列经庭审举证、质证的证据证实，本院予以确认：

1、书证，经被告人郭泉认可并签名确认的《民主先声88：中国新民党党章（暨施政纲领）》、《民主先声200：中国新民党（CNDP）党建党务大纲》、《民主先声67：现在谁还认为中国这样的社会是社会主义社会，谁就该下地狱》、《民主先声129：当列宁与亨延顿在中国相遇的时候、中共独裁统治即将被终结》、《民主先声287：请全体中国新民党党员为"走四方维权工作室"交纳特别党费》等多篇文章。

2、证人刘成功、牟昊、杨士振、庞奔、郭剑、李文斌、叶海俊、张永峰、武勇健、陈旭东、钱峰、孔强、王喜强、林年锦、徐雪峰等人的证言，均证实被告人郭泉向其发送《民主先声》系列文章，此外，刘成功证实经询问郭泉得到回复后自认为是"新民党"党员，在网上创建了"中国新民党论坛"（谷歌群组）、"声先民主群"，以"新民党宣传部"名义宣传《民主先声》文章；牟昊证实加入"新民党"后，先后创办"华夏之声"杂志、创作《中国新民党党歌》、撰写《大选救国》、《论大中华联邦国的立宪公投》等文章，并将上述文章向郭泉发送，受到郭泉肯定，其还向多人宣传"新民党"；杨士振证实郭泉要求其任"新民党"临沂地区负责人，负责宣传并发展"新民党"，其曾传播过"新民党"纲领并介绍好友入党但未成；庞奔、郭剑证实因认可"新民党"党章而自认为是"新民党"党员，以"新民党"党员身份与郭泉进行交流，郭剑询问郭泉自己能否负责"新民党"山西党部，得到郭泉认可；李文斌证实曾给郭泉写信要求建立"新民党"大同分部，郭泉鼓励其发展"新民党"基层组织和党员；叶海俊、张永峰、武勇健等人证实通过与郭泉网络或电话联系，得到郭泉的回复，自认为是"新民党"党员；孔强、王喜强、林年锦证实郭泉提出让其分别担任"新民党"山东、浙江党部主席、"党校"校长，发展党员或培养"新民党"干部；徐雪峰证实郭泉要其为所谓"第二梯队"，并让其与郭泉一起竞选总统，

3、证人胡正余、龚磊、王康的证言，证实牟昊经常向其宣传"中国新民党"及党章。

4、证人兰洪波、杨勇、李晶等人的证言，证实通过QQ等网络工具接受或阅读过郭泉撰写并传播的《民王先声》系列文章。

5、证人许向前及刘成功、张水峰等人的证言，分别证实郭泉通过文章号召"新民党"党员用交"新民党"党费的形式资资助许向前的"走四方维权工作室"，许向前合计收到3500余元和郭泉邮寄的电脑一部及刘成功、张永峰等人响应郭泉号召，积极交纳"特别党费"的情况。

6证人叶海俊、牟昊、孔明鸣等人的证言，证实阅读过郭泉关于"七日在家革命"、"民主革命蓝色运动"相关文章，认为郭泉要求人们开展"七日在家革命"等运动．是要工人罢工、学生罢课、商人罢市。

7证人孙光友、陈冰、孔明鸣、刘法进等人的证言，证实通过电话或网络向郭泉反映军转干部、企业用工等问题，郭泉说他们的情况是现行体制造成的，鼓吹只有进行民主革命、换掉现行制度才能解决司题。

8、物证"神舟"牌笔记本电脑、"明基"牌笔记本电脑、黑色台式兼容机三机各一台、"新科"牌U盘一只、手机两部及公安机关制作的搜查笔录、电子证据检查工作记录、勘验检查照片记录表、提取电子证据清单．证实公安机关对被告人郭泉位于[INTENTIONALLY DELETED]室住处和南京师范大学办公地点进行搜查，扣押郭泉上述物品，以及经检查，在电脑及U盘中发现大量《民主先声》文本文件、被告人郭泉使用QQ、MSN、SKYPE即时通讯软件账号向他人传送《民主先声》文章的记录，经郭泉辨认并确认的情况。

9、公安机关制作的远程勘验工作记录，证实被告人郭泉撰写的《民主先声47：中国必须尽快实行多党竞选的民主体制，否则风起云涌的人民起义将横扫一切专制统治》等《民主先声》系列文章在"中国事务"、"大纪元"、"博讯"、"希望之声"、"自由亚洲电台"、"看中国"等网站公开发布的情况。

10、公安机关制作的电子证据检查工作记录、电子数据提取报告、司法鉴定书、指认笔录、指认照片、调取证据通知书等，证实对杨士振、刘成功、许向前、牟昊、陈旭东电脑进行电子证据检查时，发现其中存有《民主先声》文章。

11、公安机关制作的远程勘验工作记录、经刘成功确认的网站截屏资料，证实牟昊向郭泉发送《中国新民党党歌》、《论大中华联邦国的立宪公投》等电子邮件并被郭泉收到或打开阅读，以及在刘成功邮箱内发现大量《民主先声》文章及其以"成功"、"中国新民党"等用户名在境外网站发布《民主先声》文章的情况。

12、公安机关依法提取的被告人郭泉与刘成功、徐雪峰、杨士振、王喜强等人的网络聊天记录，证实郭泉向其发送《民主先声》文章并要求杨士振任"新民党"山东临沂党部的"代理主席"、提出让徐雪峰与其共同竞选总统并为所谓"第二梯队"等事实。

13、公安机关依法提取的被告人郭泉与牟昊、庞奔、郭剑的手机短信记录，证实牟昊、郭剑向郭泉汇报成立所谓"中国新民党大中华联邦国制宪委员会"、"山西党部"以及郭泉明确要求党员庞奔不可以个人身份加入共产党等事实。

14、公安机关依法提取的许向前、刘成功、张永峰、陈耀的银行卡交易明细、汇款记录等，证实刘成功、张永峰、陈耀分别向许向前汇款100元、500元、1000元的事实。

15、南京市公安局公安行政处罚决定书及处罚告知笔录，证实被告人郭泉因于2008年5月13日以虚构的数十名专家组成的"中国新民党赈灾委员会"名义在互联网上利用"5．12"汶川大地震散布谣言、扰乱公共秩序，于2008年5月18日被行政拘留10日。

16、南京市公安局出具的《关于郭泉涉嫌颠覆国家政权案补充侦查委托函》，证实本案补充侦查期间，宿迁市公安局委托南京市公安局进行侦查。

17、公安机关出具的发破案经过、抓获经过等说明，证实被告人郭泉系被抓获归案。

18、郭泉的户籍信息、南京师范大学人事处出具的"关于郭泉任职情况的证明"，证实郭泉出生于1968年[INTENTIONALLY DELETED]、案发前在南京师范大学文学院资料室资料员岗位工作。

19、被告人郭泉在侦查阶段的供述，证实自2007年下半年以来，通过网络组建旨在反对"共产党独裁统治"的"中国新民党，并积极发展党组织和成员，通过网络发布大量《民主先声》系列文章及策划了"七日在家革命"、"民王革命蓝色运动"等活动，向部分"维权"群体灌输造成他们现状的根源在于"共产党的独裁统治"的思想以及自己在互联网上使用的QQ、MSN、SKYPE等即时通讯软件的账号等情况。

本院认为，被告人郭泉通过互联网非法组建"中国新民党"、并通过互联网发表大量反动文章，发展党员，策划"七日在家革命"、"民王革命蓝色运动"等活动，组织、策划、实施颠覆我国国家政权，推翻社会主义制度、其行为已构成颠覆国家政权罪，且罪行重大，依法应予惩处。江苏省宿迁市人民检察院指控被告人郭泉犯颠覆国家政权罪的事实清楚，证据确实、充分，定性准确。被告人郭泉及其辩护人关于郭泉没有颠覆国家政权的主观故意和客观行为的辩解和辩护意见，经查，认定被告人郭泉组织、策划、实施颠覆国家政权、推翻社会主义制度行为的事实有物证、书证、证人证言、勘验检查笔录及郭泉在侦查阶段多次供述等证据证实，且证据来源合法，相互印证，足以认定。对被告人郭泉的辩解及其辩护人提出郭泉在网上组建政党、发表文章，属于依法行使宪法赋予的结社自由权、言论自由权，其行为不构成犯罪的辩解及辩护意见，经查，结社自由权、言论自由权是宪法赋予我国公民的一项政治权利，但宪法也明确规定，公民在行使该权力时，不得损害国家利益和安全。被告人郭泉利用非法组建"中国新民党"、发表党章、招募党员、策划"七日在家革命"等方式实施颠覆国家政权、推翻社会主义制度的活动，危害了国家安全，其行为符合颠覆国家政权罪的构成要件，故被告人郭泉的辨解及其辩护人的辩护意见，本院不予采纳。据此，依照"中华人民共和国刑法》第一百零五条第一款、第五十五条第一款、第五十六条第一款、第六十四条之规定，判决如下:

一、被告人郭泉犯颠覆国家政权罪，判处有期徒刑十年，剥夺政治权利三年。

(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2008年11月13日起至2018年11月12日止。)

二、查获供犯罪使用的电脑、U盘等物品，予以没收。

如不服本判决，可在接到本判决书的第二日起十日内，通过本院或者直接向江苏省高级人民法院提出上诉。书面上诉的，应提交上诉状正本一份，副本二份。

审判长 刘国志

审判员 仲佳

审判员 杨海峰

二零零九年十月十六日

书记员 戴建军

 

 

Translation: Liu Fenggang, Xu Yonghai & Zhang Shengqi Espionage Judgment

 Note: This translation was posted on March 24, 2021, but the blog post is dated August, 6, 2004 in order to comport with the date the judgment was issued.

Intermediate People's Court of Hangzhou, Zhejiang

Criminal Judgment

(2004) Hang Criminal First Instance No. 391

The public prosecution agency was the People's Procuratorate of Hangzhou, Zhejiang.

Defendant Liu Fenggang, male, born [INTENTIONALLY DELETED], 1959, Han ethnicity, associates degree, unemployed, residing at [INTENTIONALLY DELETED], Haidian District, Beijing. On October 13, 2003, he was placed under residential confinement at a designated location by the Public Security Bureau of Hangzhou, Xiaoshan District Branch, on suspicion of spying for, and illegally providing state intelligence to, people abroad. On November 14 of the same year he was taken into criminal detention, and on December 4 of the same year the Public Security Bureau of Hangzhou, Xiaoshan District Branch authorized his arrest. On May 14, 2004, he was placed under under residential confinement at a designated location on the decision of this Court.

Defense counsel Zhao Jian is a lawyer at the Beijing Zhenghai Law Firm.

Defendant Xu Yonghai, male, born [INTENTIONALLY DELETED], 1960, Han ethnicity, originally from Beijing, bachelors degree, physician at the Beijing Fusuijing (Ping An) Hospital, residing at [INTENTIONALLY DELETED], Xicheng District, Beijing. On November 9, 2003, he was taken into criminal detention by the Public Security Bureau of Hangzhou, Xiaoshan District Branch, on suspicion of spying for, and illegally providing state intelligence to, people abroad. On December 4 of the same year the Public Security Bureau of Hangzhou, Xiaoshan District Branch authorized his arrest. On May 14, 2004, he was placed under residential confinement at a designated location on the decision of this Court.

Defense counsel Qian Lieyang is a lawyer at the Beijing Zhongfu Law Firm.

Defendant Zhang Shengqi, male, born [INTENTIONALLY DELETED], 1974, Han ethnicity, originally from Cao County in Shandong, junior high school education, farmer, residing at Zhangdian Village, Wangji Township, Cao County, Shandong. On November 17, 2003, he was taken into criminal detention by the Public Security Bureau of Hangzhou, Xiaoshan District Branch, on suspicion of spying for, and illegally providing state intelligence to, people abroad. On December 4 of the same year the Public Security Bureau of Hangzhou, Xiaoshan District Branch authorized his arrest. On May 14, 2004, he was placed under residential confinement at a designated location on the decision of this Court.

Defense counsel Xu Ping is a lawyer at the Beijing Zhongfu Law Firm.

In the Hang Procuratorate Criminal Indictment (2004) No. 46 indictment the People's Procuratorate of Hangzhou charged defendants Liu Fenggang, Xu Yonghai, and Zhang Shengqi with spying for, and illegally providing state intelligence to, people abroad, and filed a public prosecution with this Court on March [day missing in original], 2004. This Court formed a collegial panel in accordance with the law and, because it involved state secrets, proceeded to try this case in closed court. The People's Procuratorate of Hangzhou appointed acting Procurator Zhao Linjie to appear in support of the public prosecution, and defendants Liu Fenggang, Xu Yonghai, and Zhang Shengqi and their defense counsels Zhao Jian, Qian Lieyang, and Xu Ping appeared in court to participate in the proceedings. The trial has now concluded.

The People's Procuratorate of Hangzhou charged: in the middle of October 2001, defendant Xu Yonghai provided RMB 1,000 to defendant Liu Fenggang for business travel expenses, and Liu Fenggang traveled to Anshan, Liaoning in order to understand the circumstances of Liu Baozhi's reeducation through labor. Afterwards, Li Fenggang wrote an article titled "What I Understand About the Facts of Liu Baozhi's 'Cult' Case in Anshan, Liaoning," and Xu Yonghai then provided this article to the distribution agency for the foreign magazine "Life Quarterly." This magazine published the entire article in its 20th edition.

On July 25, 2003, at the direction of foreign agents, Liu Fenggang fled to such places as Dongtong County in Wenzhou, Zhejiang and the Xiaoshan and Xihu districts of Hangzhou, and gathered information from relevant agents in those locations regarding their having been subjected to force. Afterwards he returned to Beijing and finished writing an article titled "Reports from the Motherland." On August 5 of that year, Liu Feng directed defendant Zhang Shengqi to provide it to foreign agents via email.

On August 18, 2003, Zhang Shengqi printed and emailed to overseas agents the article "Interrogated by the Police for Preaching the Gospel in Mountain District Outside of Beijing" which Liu Fenggang had written about the circumstances of his interrogation by police when he went to Dachengzi Township in Miyun County, Beijing on August 17 to participate in an illegal gathering.

In order to prove the aforementioned charges, the public prosecution authority read and produced evidence in court including: the statements and justifications of defendants Liu Fenggang, Xu Yonghai, and Zhang Shengqi, the testimony of witness Li Baozhi, the verification conclusions provided by the National Administration for the Protection of State Secrets and the State Security Bureau of Zhejiang. It also produced physical evidence in court including "Life Quarterly" magazine, an MP3 player, and a digital camera. It believes that the actions of defendants Liu Fenggang, Xu Yonghai, and Zhang Shengqi constitute the commission of the crime of spying for, and illegally providing state intelligence to, people abroad, and should be punished in accordance with the law.

Defendants Liu Fenggang, Xu Yonghai, and Zhang Shengqi do not object to the facts charged by the public prosecution agency, but they all submit that they do not constitute the commission of a crime.

Defense counsels for the three defendants separately submitted that the National Administration for the Protection of State Secrets lacks verification qualifications, and that this case involves three articles that cannot be considered intelligence, and that the actions of the defendants does not constitute the commission of a crime.

It was ascertained at trial that:

In the middle of October 2001, after defendant Xu Yonghai learned that a woman named Li Baozhi in Anshan, Liaoning submitted an administrative appeal of her reeducation through labor decision and that the Intermediate People's Court of Anshan would be hearing the appeal in open court, he directed defendant Liu Fenggang to go to Anshan, Liaoning to gather information about the case. In addition, he provided RMB 1,000 for business travel expenses. Afterwards, Li Fenggang wrote an article titled "What I Understand About the Facts of Liu Baozhi's 'Cult' Case in Anshan, Liaoning," and Xu Yonghai then provided this article to the distribution agency for the foreign magazine "Life Quarterly." This magazine published the entire article in its 20th edition.

On July 25, 2003, at the direction of foreign agents, Liu Fenggang fled to such places as Dongtong County in Wenzhou, Zhejiang and the Xiaoshan and Xihu districts of Hangzhou, and gathered information from relevant agents in those locations regarding their having been subject to force. Afterwards he returned to Beijing and finished writing an article titled "Reports from the Motherland." On August 5 of that year, Liu Feng directed defendant Zhang Shengqi to provide it to foreign agents via email.

On August 17, 2003, Liu Fenggang participated in an illegal gathering in Dachengzi township in Miyun county, Beijing and was interrogated by the police. The following day Liu Fenggang wrote "Interrogated by the Police for Preaching the Gospel in Mountain District Outside of Beijing," which Zhang Shengqi then provided to overseas agents via email.

The aforementioned facts were confirmed by the following evidence:

(1) Testimony of witnesses Li Baozhi, Dai Xiaoqiang, Kong Guoxian, Gao Fengyi, and Zhang Fucai and the record of the defense arguments proved the fact that Liu Fenggang went to Anshan, Liaoning, Wenzhou in Dongtou County, Zhejiang, and the Xihu and Xiaoshan districts in Hangzhou, Zhejiang to gather information. Testimony of witnesses Shi Shucai, Ma Shulan, Dan Cuixiang, Liu Yuqin, Han Chunzhi, Cui Wenfu, and Qi Shuhua proved the fact that on August 17, 2003, Liu Fenggang participated in an illegal gathering in Dachengzi township in Miyun county, Beijing and was interrogated by the police.

(2) The contents stored in the digital camera and MP3 player that public security authorities confiscated from Liu Fenggang proved the fact that Liu Fenggang went to Wenzhou in Dongtou county, Zhejiang, and the Xihu and Xiaoshan districts in Hangzhou, Zhejiang to gather information.

(3) From two computers, a scanner, and a printer confiscated from Liu Fenggang and a Dongzhi 220CDS laptop computer traced to Xu Yonghai, public security authorities verified that three articles were stored on computers owned by Liu Fenggang: "What I Understand About the Facts of Liu Baozhi's 'Cult' Case in Anshan, Liaoning," "Reports from the Motherland," and "Interrogated by the Police for Preaching the Gospel in Mountain District Outside of Beijing." The article "What I Understand About the Facts of Liu Baozhi's 'Cult' Case in Anshan, Liaoning," was stored on the Dongzhi 220CDS laptop computer owned by Xu Yonghai. There is supporting evidence in the form of a partial draft manuscript of the article "Reports from the Motherland" that was confiscated from Liu Fenggang, which he had written.

(4) The 20th edition of "Life Quarterly" magazine published by a foreign publishing house collected in this case which had published the article "What I Understand About the Facts of Liu Baozhi's 'Cult' Case in Anshan, Liaoning," and the articles "Reports from the Motherland" and "Dense Clouds Interrogations" (referring to "Interrogated by the Police for Preaching the Gospel in Mountain District Outside of Beijing"), which the three defendants recognized in court, and which confirms without a doubt that they had supplied them.

(5) The National Administration for the Protection of State Secrets verification opinion proved that the three articles "What I Understand About the Facts of Liu Baozhi's 'Cult' Case in Anshan, Liaoning," "Reports from the Motherland," and "Interrogated by the Police for Preaching the Gospel in Mountain District Outside of Beijing" are intelligence.

(6) The household registrations submitted by the public security authorities confirmed the identities of the three defendants.

(7) The confessions of defendants Liu Fenggang, Zhang Shengqi, and Xu Yonghai in this case conform to one another and give identical synopses of the foregoing evidence.

The foregoing evidence has been confronted in court hearings without objection, and is confirmed by this Court.

This Court finds that the actions of defendants Liu Fenggang, Zhang Shengqi, and Xu Yonghai of spying for, and illegally providing state intelligence to, organizations and agents abroad constitutes the commission of the crime of spying for, and illegally providing state intelligence to, people abroad. The argument submitted by the defense counsels for the three defendants that it does not constitute the commission of a crime is inconsistent with the law. In accordance with the provisions of law, in order to resolve certain technical questions in this case we may entrust relevant agencies and personnel to carry out verifications. It is a technical question whether or not the circumstances surrounding the three defendants spying and illegally supplying for people abroad can be considered "intelligence." The National Administration for the Protection of State Secrets is the "state secrets" statutory verification agency, and in view of the fact that "secrets" and "intelligence" have equivalent natures there is nothing improper with a judicial agency entrusting a state secrets protection agency with carrying out verification. The verification produced by the National Administration for the Protection of State Secrets is therefore legal and effective, and may serve as the basis for a judgment. The argument submitted by the defense counsels that the National Administration for the Protection of State Secrets lacks verification qualifications and that the three articles are not intelligence is without basis, and cannot be accepted by this Court. Therefore, in accordance with the provisions of Articles 111, 25(1), 56(1), 55(1), and 64 of the "Criminal Law of the People's Republic of China," the judgment is as follows:

1. Defendant Liu Fenggang committed the crime of spying for, and illegally providing state intelligence to, people abroad, and is sentenced to a fixed term imprisonment of three years  and three years deprivation of political rights. (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 November 14, 2003 to February 4, 2007).

2. Defendant Xu Yonghai committed the crime of spying for, and illegally providing state intelligence to, people abroad, and is sentenced to a fixed term imprisonment of two years and two years deprivation of political rights. (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 November 11, 2003 to January 30, 2006).

3. Defendant Zhang Shengqi committed the crime of spying for, and illegally providing state intelligence to, people abroad, and is sentenced to a fixed term imprisonment of one year and one year deprivation of political rights. (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 November 17, 2003 to February 7, 2005).

4. The equipment used in this case: one digital camera, one MP3 player, two computers, one printer, and one scanner that were confiscated and handed over to this Court for the trial are to be turned over to the national treasury.

If anyone 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 High People's Court of Zhejiang. A written appeal should be submitted with one original and two copies of the appeal brief.

Chief Adjudicator: Zhang Yongchun
People's Assessor: Zhang Baowen
People's Assessor: Hua Xianglin

August 6, 2004

Clerk: Ma Jun

浙江省杭州市中级人民法院

刑事判决书

(2004)杭刑初字第39号

公诉机关浙江省杭州市人民检察院。

被告人刘凤钢，男，1959年[INTENTIONALLY DELETED IN THIS CASEBOOK]出生，汉族，北京市人，大专文化程度，无业，住北京市海淀区[INTENTIONALLY DELETED]。因涉嫌犯为境外刺探、非法提供国家情报罪，于2003年10月13日被杭州市公安局萧山区分局监视居住，同年11月14日被刑事拘留，同年12月4日经杭州市萧山区人民检察院批准逮捕。2004年5月14日由本院决定被监视居住。

辩护人赵健，北京正海律师事务所律师。

被告人徐永海，男，1960年[INTENTIONALLY DELETED]出生，汉族，北京市人，大学文化程度，北京市福绥境（平安）医院医生，住北京市西城区[INTENTIONALLY DELETED]。因涉嫌犯为境外刺探、非法提供国家情报罪，于2003年11月9日被杭州市公安局萧山区分局刑事拘留，同年12月4日经杭州市萧山区人民检察院批准逮捕。2004年5月14日由本院决定被监视居住。

辩护人钱列阳，北京中孚律师事务所律师。

被告人张胜其，男，1974年[INTENTIONALLY DELETED]出生，汉族，山东省曹县人，初中文化程度，农民，住山东省曹县王集乡张店村。因涉嫌为境外刺探、非法提供国家情报罪，于2003年11月17日被杭州市公安局萧山区分局刑事拘留，同年12月4日经杭州市萧山区人民检察院批准逮捕。2004年5月14日由本院决定被监视居住。

辩护人徐平，北京中孚律师事务所律师。

浙江省杭州市人民检察院以杭检刑诉（2004）46号起诉书指控被告人刘凤钢、徐永海、张胜其犯为境外刺探、非法提供国家情报罪，于2004年3月日向本院提起公诉。本院依法组成合议庭，因涉及国家秘密，不公开开庭审理了本案。浙江省杭州市人民检察院指派代理检察员赵琳洁及杨甜出庭支持公诉，被告人刘凤钢、徐永海、张胜其及其辩护赵健、钱列阳、徐平到庭参加诉讼。现已审理终结。

浙江省杭州市人民检察院指控：2001年10月中旬，被告人徐永海出资人民币1000元给被告人刘凤钢作差旅费，由刘凤钢前往辽宁省鞍山市了解李宝芝被劳动教养的情况。事后，刘凤钢写了《我所了解的辽宁鞍山市刘宝芝"邪教"一案的事实与经过》一文，由徐永海提供给境外杂志《生命季刊》的发行机构。该刊物在第20期上全文刊登。

2003年7月25日，刘凤钢受境外人员指使，窜至浙江省温州市洞头县和杭州市萧山区、西湖区等地，收集当地有关人员所谓受逼迫的情况，回京后写成《来自祖国的报道》一文。同年8月5日，刘凤钢指使被告人张胜其通过电子邮件提供给境外人员。

2003年8月18日，刘凤钢将自己在8月17日至北京市密云县大城子镇参加非法活动被警察盘查的情况写成《在北京远郊的山区传福音被警察盘查的经过》一文，由张胜其打印成文，并通过电子邮件提供给境外人员。

为证实上述指控，公诉机关当庭宣读和出示了被告人刘凤钢、徐永海、张胜其的供述与辩解；证人李宝芝等人的证言；国家保密局出具的鉴定结论、浙江省安全厅出具的证明等；《生命季刊》杂志等书证；MP3播放嚣、数码相机等物证。认为被告人刘凤钢、徐永海、张胜其的行为已构成为境外刺探、非法提供国家情报罪，应依法惩处。

被告人刘凤钢、徐永海、张胜其对公诉机关指控的事实均无异议，但均提出不构成犯罪。

三被告人的辩护人分别提出国家保密局没有鉴定资格，且本案涉及的三篇文章，不属情报，被告人的行为不构成犯罪。

经审理查明：2001年10月中旬，被告人徐永海得知辽宁省鞍山市妇女李宝芝因对被决定劳动教养不服而提起行政诉讼，及鞍山市中级人民法院即将二审公开开庭审理此案的消息后，指使被告人刘凤钢前往辽宁省鞍山市收集该案情况，并出资人民币1000元作差旅费。事后，刘凤钢将前往当地收集的情况写成《我所了解的辽宁鞍山市刘宝芝"邪教"一案的事实与经过》一文，由徐永海提供给境外杂志《生命季刊》的发行机构。该刊物在第20期上全文刊登。

2003年7月25日，刘凤钢受境外人员指使，窜至浙江省温州市洞头县和杭州市萧山区、西湖区等地，收集当地有关人员所谓受逼迫的情况，回京后写成《来自祖国的报道》一文。同年8月5日，刘凤钢指使被告人张胜其通过电子邮件提供给境外人员。

2003年8月17日，刘凤钢在北京市密云县大城子镇因参加非法活动受到警察盘查。次日，刘凤钢写了《在北京远郊的山区传福音被警察盘查的经过》一文，由张胜其通过电子邮件提供给境外人员。

案发后，公安机关从刘凤钢处扣押作案时使用的数码相机一架、MP3播放机一只、电脑二台、打印机一台、扫描仪一台。

认定上述事实的证据有：

（1）证人李宝芝、戴小强、孔国宪、高崇益、张福才证言及辩论笔录，证明刘凤钢到辽宁省鞍山市、浙江省温州市洞头县和杭州市萧山区、西湖区等地收集有关情况的事实。证人史书才、马淑兰、单翠香、刘玉琴、韩春芝、崔文福、齐淑花的证言，证明2003年8月17日，刘凤钢在北京市密云县大城子镇参加非法活动，受到公安人员盘查的事实。

（2）公安机关从刘凤钢处查扣的数码相机一架、MP3播放机一只，所记载的内容证明刘凤钢在浙江省温州市洞头县和杭州市萧山区、西湖区等地收集有关情况的事实。

（3）公安机关从刘凤钢处查扣两台电脑、扫描仪一台、打印机一台，从徐永海处查获东芝牌 220CDS型笔记本电脑一台，经鉴定，刘凤钢拥有的计算机内存有《我所了解的辽宁鞍山市刘宝芝"邪教"一案的事实与经过》、《来自祖国的报道》、《在北京远郊的山区传福音被警察盘查的经过》等三篇文章。徐永海拥有的东芝牌220CDS型笔记本电脑内存有《我所了解的辽宁鞍山市刘宝芝"邪教"一案的事实与经过》一文。从刘凤钢处查扣其所写的《来自祖国的报道》的部分底稿在案佐证。

（4）搜集在案的境外出版社出版的《生命季刊》第20期一本，该杂志刊登了《我所了解的辽宁鞍山市刘宝芝"邪教"一案的事实与经过》一文及公安机关从境外网站下载的《来自祖国的报道》、《密云盘查》（即为《在北京远郊的山区传福音被警察盘查的经过》）的文章，经三被告人当庭辩认，确系其提供无疑。

（5）国家保密局出具的鉴定意见，证明《我所了解的辽宁鞍山市刘宝芝"邪教"一案的事实与经过》、《来自祖国的报道》、《在北京远郊的山区传福音被警察盘查的经过》三篇文章系情报。

（6）公安机关出具的户籍证明证实三被告人的身分情况。

（7）被告人刘凤钢、张胜其、徐永海分别供述在案，所供能相印证，且与上述证据反映的情节一致。

上述证据经庭审质证无异，本院予以确认。

本院认为，被告人刘凤钢、徐永海、张胜其为境外组织、人员刺探、非法提供国家情报的行为，已构成为境外刺探、非法提供国家情报罪。公诉机关所控罪名成立。三被告人及辩护人提出不构成犯罪的辩解于法不符。根据法律规定，为了解决案件中某些专门性问题，可以委托有关部门和人员进行鉴定。本案三被告人为境外刺探、非法提供的有关情况是否为情报，属于专门性问题，而国家保密局是"国家秘密"的法定鉴定机关，鉴于"秘密"与"情报"有相同的性质，故司法机关委托保密部门进行鉴定并无不当，且国家保密局作出的鉴定合法有效，可以作为定案依据。辩护人提出国家保密局没有鉴定资格及三篇文章不属情报的辩护意见不能成立，本院不予采纳。据此，依照《中华人民共和国刑法》第一百一十一条、第二十五条第一款、第五十六条第一款、第五十五条第一款、第六十四条的规定，判决如下：

一、 被告人刘凤钢犯为境外刺探、非法提供国家情报罪，判处有期徒刑三年，剥夺政治权利三年。（刑期从判决执行之日起计算。判决执行以前先行羁押的，羁押一日抵刑期一日，即自2003年11月14日起至2007年2月4日止）。

二、 被告人徐永海犯为境外刺探、非法提供国家情报罪，判处有期徒刑二年，剥夺政治权利二年。（刑期从判决执行之日起计算。判决执行以前先行羁押的，羁押一日抵刑期一日，即自2003年11月9日起至2006年1月30日止）。

三、 被告人张胜其犯为境外刺探、非法提供国家情报罪，判处有期徒刑一年，剥夺政治权利一年。（刑期从判决执行之日起计算。判决执行以前先行羁押的，羁押一日抵刑期一日，即自2003年11月17日起至2005年2月7日止）。

四、 随案移送本院的作案工具数码相机一架、MP3播放机一只、电脑二台、打印机一台、扫描仪一台，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，通过本院或者直接向浙江省高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 张永纯
人民陪审员 张宝文
人民陪审员 华香琳

二○○四年八月六日

书记员 马骏

 

Translation: State v. Zheng Enchong - Disclosing State Secrets

 NOTE: This post was published on December 6, 2020, but this post is dated the date the court judgment was issued in order to prevent confusion.

No. 2 Intermediate People's Court of Shanghai

Criminal Judgment

(2003) Hu No. 2 Intermediate Criminal No. 1361

The public prosecution agency was the People's Procuratorate of Shanghai Branch No. 2.

Appellant (defendant at trial) Zheng Enchong, male, born [INTENTIONALLY DELETED IN THIS CASEBOOK], 1950 in Shanghai, Han ethnicity, college graduate, formerly a worker at the Shanghai Minjian Law Firm, residing at [INTENTIONALLY DELETED IN THIS CASEBOOK], Shanghai, household registration at [INTENTIONALLY DELETED IN THIS CASEBOOK], Shanghai. He was taken into criminal detention on June 6, 2003 in connection with this case, and was arrested on June 18 of the same year. He is currently being held in custody at the Shanghai Detention Center.

Defense counsel Guo Guoting is a lawyer at the Shanghai Tianyi Law Firm.

Defense counsel Zhang Sizhi is a lawyer at the Beijing Wuluan Zhaoyan Law Firm.

In the Hu 2nd Division Criminal Indictment 1 (2003) No. 91 indictment the People's Procuratorate of Shanghai Branch No. 2 charged defendant Zheng Enchong with committing the crime of illegally providing state secrets, and on August 15, 2003 filed a public prosecution with this Court. This Court formed a collegial panel in accordance with the law, and because this case implicated state secrets, tried this case in closed court in accordance with the law. The People's Procuratorate of Shanghai Branch No. 2 appointed Procurators Yuan Hanjun and Wang Li, and Deputy Procurator Xu Jing to appear in court in support of the public prosecution. Defendant Zheng Enchong and his defense counsels Guo Guoting and Zhang Sizhi appeared in court to participate in the proceedings. The case was extended for one month in accordance with the law, and the trial has now concluded.

The People's Procuratorate of Shanghai Branch No. 2 charged:

In the latter part of May 2003, after defendant Zheng Enchong learned secrets from a police officer surnamed Xu that the Shanghai public security agency was dealing with emergencies arising from a sudden mass incident at the Shanghai Yimin Food Products Factory, he took notes, organized them, and on the morning of the 23rd, faxed a hand-written draft that included the aforementioned secrets from his residence at Puyuan Road to the organization Human Rights in China in New York. In order to ensure these secrets were received, that night Zheng Enchong also sent the aforementioned secrets to Human Rights in China via email. Based on the forensics of the State Secrets Bureau of Shanghai the aforementioned secrets are classified as "Confidential" state secrets.

On May 28, 2003, defendant Zheng Enchong, faxed a copy of the article "Forced Demolitions Lead to Clashes, Reporters Attacked While Conducting Interviews" copied from the Xinhua News Agency's "Internal Reference Selections" Issue 17, 2003, from his residence at Puyuan Road to Human Rights in China. On the copy it is clearly written in Zheng's own handwriting: "Xinhua News Agency internal material, I hope you can use it." Based on the forensics of the State Secrets Bureau of Shanghai the aforementioned secrets are classified as "Confidential" state secrets.

The People's Procuratorate of Shanghai Branch No. 2 transferred to this Court evidence confirming the aforementioned facts including documentary evidence, witness testimony, and defendant Zheng Enchong's statement, alleging that defendant Zheng Enchong's actions constitute an offense under the provisions of Article 111 of the "Criminal Law of the People's Republic of China," and requesting that he be held criminally liable for illegally providing state secrets to a foreign organization.

Defendant Zheng Enchong and his defense counsels do not dispute the facts charged by the public prosecution agency that Zheng provided the aforementioned documents to a foreign organization. They do, however, offer the defense that Zheng Enchong was not aware that the aforementioned documents were state secrets; that he did not have the intent to provide state secrets abroad, that the foreign organization did not actually receive the documents provided by Zheng, and given that there were no consequences, the crime the public prosecution agency charged Zheng Enchong with cannot be established.

It was ascertained at trial:

On May 28, 2003, defendant Zheng Enchong, at his residence at Puyuan Road, wrote "Xinhua News Agency internal material, I hope you can use it. Zheng" on  a copy of the article "Forced Demolitions Lead to Clashes, Reporters Attacked While Conducting Interviews" that he had obtained from the Xinhua News Agency's "Internal Reference Selections" Issue 17, 2003. Afterwards he faxed it to the organization "Human Rights in China" in New York, USA. The copy was obtained by public security agencies after the case commenced, and based on the forensics of the State Secrets Bureau of Shanghai the "Forced Demolitions Lead to Clashes, Reporters Attacked While Conducting Interviews" material is classified as "Confidential" state secrets.

In addition, in the latter part of May 2003, defendant Zheng Enchong organized and wrote up information he had obtained regarding Shanghai public security agencies dealing with sudden mass incidents and faxed and emailed them to a foreign organization.

Evidence substantiating the aforementioned facts:

Witness Xue Minchun confirmed that, because Zheng Enchong gave Xue an article about Zheng being interviewed to provide to foreign media, in January 2003 Xue sent the article to the organization "Human Rights in China" in New York, USA, and thereafter received a faxed reply from the organization with Liu Qing's signature. Xue Minchun showed Zheng this fax and informed Zheng that the organization "Human Rights in China" in New York, USA would contact him, and Zheng made a copy and kept it.

A copy of the fax with the marginalia  "Liu Qing, 2003.1.29" from the organization "Human Rights in China" in New York, USA, displayed the organization's phone number, fax number, and that Liu Qing's assistant is a Mr. Jiao.

The State Security Bureau of Shanghai produced the "Materials Relating to the Identification of Human Rights in China, Human Rights in China Chairperson Liu Qing, and his assistant Jiao Baigu" which confirmed that Human Rights in China was established and has an office in New York, USA, Liu Qing is its Chairperson, and Jiao Baigu is assistant to the Chairperson.

Witness Zhao Hanxiang confirmed that at approximately 3 pm on May 28, 2003, he went to Zheng Enchong's residence and gave him a copy of Xinhua News Agency's "Internal Reference Selections."

Defendant Zheng Enchong's stated that "Internal Reference Selections" is an internal reference document, and may only be seen by high level public officials. Zheng also stated he contacted "Human Rights in China" and Jiao Baigu's phone numbers, fax numbers, and Jiao Baigu's email address. In addition, Zheng Enchong fully confessed to the fact that on May 28, 2003, he faxed a copy of the article "Forced Demolitions Lead to Clashes, Reporters Attacked While Conducting Interviews" from the Xinhua News Agency's "Internal Reference Selections" from his residence to the organization "Human Rights in China."

The public security agencies' "Search Record" and "Inventory of Seized Items and Documents" confirm that it found the Xinhua News Agency's "Internal Reference Selections" (Issue 17) article "Forced Demolitions Lead to Clashes, Reporters Attacked While Conducting Interviews" (with a handwritten notation on the top: "Jiao: Xinhua News Agency internal material, I hope you can use it. Zheng") at Zheng Enchong's residence at [INTENTIONALLY DELETED IN THIS CASEBOOK].

The Public Security Bureau of Shanghai "Documentary Investigation Forensic Report" confirmed that the handwriting on the aforementioned document copies has been verified as belonging to Zheng Enchong.

The "Evidentiary Materials" produced by the Xinhua News Agency Shanghai Bureau confirmed that that the article "Forced Demolitions Lead to Clashes, Reporters Attacked While Conducting Interviews" was written by the Bureau's reporters and was published in Issue 17 of the Xinhua News Agency's "Internal Reference Selections" on April 30, 2003.

The State Secrets Bureau of Shanghai confirmed in its "Manual for Secret Classification" that the material "Forced Demolitions Lead to Clashes, Reporters Attacked While Conducting Interviews" which Zheng Enchong transmitted abroad was derived from "Internal Reference Selections" (Secret) Issue 17,  2003, and was classified as state secrets at the level "Confidential."

The State Secrets Bureau "Response to Questions Regarding the State Secrets Bureau of Shanghai's Confirmation of the Classification of Secrets in the Zheng Enchong Case" confirmed that the aforementioned secret classification remains in effect.

Witness Xue Lili confirmed that on May 28, 2003 at Zheng Enchong's residence, he helped Zheng send multiple copies of the materials to a recipient surnamed Jiao.

The information in the Residential Telephone Registration Register provided by the Security Department of Shanghai Telecom Ltd. confirmed that the telephone number [INTENTIONALLY DELETED IN THIS CASEBOOK] is registered to Zheng Enchong and is installed at 8[INTENTIONALLY DELETED IN THIS CASEBOOK].

The telephone customer communications records produced by the Fixed Telephone Line Department of China Unicom Ltd. confirms that on May 28, 2003 there were multiple connections established between the telephone number [INTENTIONALLY DELETED IN THIS CASEBOOK] and the telephone number of the organization "Human Rights in China" in New York.

All of the foregoing evidence was produced, examined, and verified as factual in court, and is affirmed by this Court.

This Court finds that defendant Zheng Enchong illegally transmitted state secrets to an organization abroad, and that his actions constitute the commission of the crime of illegally providing state secrets under relatively minor circumstances. The offense charged by the public prosecution agency has been established.

In light of defendant Zheng Enchong's level of education, knowledge of society, and his profession, combined with Zheng's actions to draw other's attention such as his additional message "Xinhua News Agency internal material, I hope you can use it" faxed with the aforementioned article to the organization "Human Rights in China" in New York, as well as Zheng's statement after the case began that "Internal Reference Selections" is an internal reference document, and may only be seen by high level public officials, Zheng had the subjective intent to illegally provide state secrets abroad.

This Court gives no credence to the justifications and defense opinions proffered by Zheng and his defense counsels that Zheng did not clearly know that these were state secrets and that he did not intentionally transmit state secrets abroad.

Defendant Zheng Enchong's act of providing state secrets were socially harmful and considerations such as whether or not the foreign organization received them, or whether or not there was any actual harmful consequences to national interests do not influence the establishment of a crime. Therefore, the justifications and defense opinions proffered by Zheng and his defense counsel that the foreign organization never received the article provided by Zheng Enchong and as a result his actions did not have any consequences and do not constitute the commission of a crime are not accepted.

In order to maintain social order and safeguard national security, and in accordance with Articles 111, 56(1), 55(1), and 64 of the "Criminal Law of the People's Republic of China," and Articles 1, 4, and 5 of the "Supreme People's Court's Explanations Regarding Certain Questions Concerning the Specific Laws to be Used in Adjudicating Cases of Foreign Theft or Spying to Obtain, or Providing Illegally, State Secrets or Intelligence," the judgment is as follows:

1. Defendant Zheng Enchong committed the crime of illegally providing state secrets to a foreign organization and is sentenced to a fixed term imprisonment of three years and one year deprivation of political rights. (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 June 6, 2003 to June 5, 2006).

2. Tools verified as having been used in the commission of the crime and material implicating state secrets shall be confiscated.

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 High People's Court of Shanghai. A written appeal should be submitted with one original and one copy of the appeal brief.

October 28, 2003

Chief Adjudicator: Shen Xingkai
Adjudicator: Wang Yuzhan
Acting Adjudicator: Jiang Zhengyu

Clerk: Dong Wei
Clerk: Li Shu

上海市第二中级人民法院

刑事判决书

（2003）沪二中刑初字第136号

公诉机关上海市人民检察院第二分院。

被告人郑恩宠，男，1950年[INTENTIONALLY DELETED IN THIS CASEBOOK]出生于上海市，汉族，大学文化程度，原系上海市敏鉴律师事务所工作人员，住本市[INTENTIONALLY DELETED IN THIS CASEBOOK]，户籍所在地本市[INTENTIONALLY DELETED IN THIS CASEBOOK]。因本案于2003年6月6日被刑事拘留，同年6月18日被逮捕；现羁押于上海市看守所。

辩护人郭国汀，上海市天易律师事务所律师。

辩护人张思之，北京市吴栾赵阎律师事务所律师。

上海市人民检察院第二分院以沪检二分刑诉一字（2003）第91号起诉书指控被告人郑恩宠犯为非法提供国家秘密罪，于2003年8月15日向本院提起公诉。本院依法组成合议庭，因本案涉及国家秘密，依法进行了不公开开庭审理。上海市人民检察院第二分院指派检察员袁汉钧、王利、代理检察员许靖出庭支持公诉，被告人郑恩宠及辩护人郭国汀、张思之到庭参加诉讼。本案依法延长审限一个月，现已审理终结。

上海市人民检察院第二分院指控：

被告人郑恩宠于2003年5月下旬，从民警徐某处获悉本市公安机关处置上海益民食品一厂突发性群体事件出警情况的秘密后，作了记录、整理，并于同月23日上午在其晋元路住处，以手写稿的形式将上述秘密传真给在美国纽约的"中国人权"组织。郑恩宠为确保该秘密送达，又于当晚将上述秘密以电子邮件的方式发送给"中国人权"组织。经上海市国家保密局鉴定，上述秘密属机密级国家秘密。

2003年5月28日，被告人郑恩宠在其晋元路住处，将新华社2003年第17期《内参选编》中的《强行拆迁引发冲突，记者采访遭遇围攻》一文的复印件传真给"中国人权"组织，并在该复印件上亲笔注明"新华社内参稿，望引用"。经上海市国家保密局鉴定，上述文件属秘密级国家秘密。

上海市人民检察院第二分院想本院移送了证实以上事实的书证、证人证言和被告人供述等证据，认为被告人郑恩宠的行为已触犯《中华人民共和国刑法》第一百一十一条的规定，提请以为境外非法提供国家秘密罪追究起刑事责任。

被告人郑恩宠及其辩护人对公诉机关指控郑将上述文稿提供给境外组织的事实不持异议，但均辩称郑恩宠不明知上述文稿属于国家秘密，也没有向境外提供国家秘密的故意，且境外组织并未收到郑提供的文稿，所以未造成后果，公诉机关指控郑恩宠的罪名不能成立。

经审理查明：

2003年5月28日，被告人郑恩宠在晋元路住处，在获得的新华社出版的《内参选编》2003年第17期中《强行拆迁引发冲突，记者采访遭遇围攻》一文的复印件上，加注"新华社内参稿，望引用。郑"等文字后，传真给在美国纽约的"中国人权"组织。该复印件在案发后被公安机关查获，经上海市国家秘密局鉴定，《强行拆迁引发冲突，记者采访遭遇围攻》的材料，属秘密级国家秘密。

此外，被告人郑恩宠还于2003年5月下旬，将获得的本市公安机关处置群体事件的出警情况整理成文，通过传真和以电子邮件的方式发送给境外机构。

证实上述事实的证据有：

证人薛民春证实，因郑恩宠把一篇有关郑的采访文章交薛民春向境外媒体提供，薛遂于2003年1月将该文章传真给了在美国纽约的"中国人权"组织，随后收到了该组织署名刘青的回复传真。薛民春便将该传真送给了郑恩宠看，并告知郑在美国纽约的"中国人权"组织会与其联系，郑复印了一份留下。

落款为"刘青2003.1.29"、在美国纽约的"中国人权"组织传真复印件上载明了该组织的电话号码、传真号码、刘青的助手是焦先生。

上海市国家安全局出具的《关于"中国人权"组织及"中国人权"主席刘青、主席助理焦柏固的证明材料》证实，"中国人权"组织是在美国纽约成立和办公的组织，由刘青任主席，焦柏固任主席助理。

证人赵汉祥证实，2003年5月28日下午3时许，赵至郑恩宠住处交给其一份新华社《内参选编》的复印件。

被告人郑恩宠供述，《内参选编》是内部参考文章，非高级别的公务人员是看不到的。郑还供述了其与"中国人权"组织及焦柏固联系的电话号码、传真号码、焦柏固的电子邮箱地址。此外，郑恩宠对其于2003年5月28日在住处把新华社《内参选编》中《强行拆迁引发冲突，记者采访遭遇围攻》一文，传真给"中国人权"组织的事实供认不讳。

公安机关的《搜查笔录》、《扣押物品、文件清单》证实，从本市[INTENTIONALLY DELETED IN THIS CASEBOOK]郑恩宠住处查获了新华社《内参选编》第17期中《强行拆迁引发冲突，记者采访遭遇围攻》一文的复印件（标有"焦：新华社内参稿，望引用。郑"的手写字体）。

上海市公安局的《文检鉴定书》证实，上述复印件上的手写字迹均是郑恩宠所写。

新华通讯社上海分社出具的《证明材料》证实，《强行拆迁引发冲突，记者采访遭遇围攻》一文系该分社记者采写，刊登于新华社出版的《内参选编》2003年4月30日第17期上。

上海市国家保密局的《秘密鉴定书》证实，郑恩宠向境外提供的《强行拆迁引发冲突，记者采访遭遇围攻》的材料，系出自《内参选编》（秘密级）2003年第17期，属于秘密级国家秘密。

国家保密局的《关于上海市保密局对郑恩宠案所作密级鉴定有关问题的复函》确认了以上密级鉴定为有效。

证人薛利里证实，其于2003年5月28日在郑恩宠住处帮助郑发送过多材料，收件人姓焦。

上海市电信有限公司保卫处提供的住宅电话注册登记信息证实，电话号码[INTENTIONALLY DELETED IN THIS CASEBOOK]的用户名为郑恩宠，装机地址为[INTENTIONALLY DELETED IN THIS CASEBOOK]。

中国联合通信有限公司数据与固定通信业务部提供的电话用户通讯记录清单证实，2003年5月28日，电话号码63804774与在美国纽约的"中国人权"组织电话号码之间曾有多次通讯联系。

以上证据均经当庭出示、质证，查证属实，本院予以确认。

本院认为，被告人郑恩宠将国家秘密非法传真给境外组织，其行为已构成为境外非法提供国家秘密罪，尚属情节较轻。公诉机关指控的罪名成立。根据被告人郑恩宠的文化程度、社会阅历及其所从事的职业，结合郑向在美国纽约的"中国人权"组织传真前述文章时特意加注"新华社内参稿，望引用"等文字以引起对方重视的行为，以及郑到案后曾作的《内参选编》是内部参考文章，非高级别公务人员看不到的供述，郑主观上具有为境外非法提供国家秘密的故意。故对郑恩宠及其辩护人提出的郑不明知国家秘密及没有向境外提供秘密之故意的辩解和辩护意见不予采信。被告人郑恩宠向境外提供国家秘密的行为，具有社会危害性，至于境外组织是否收到，损害国家利益的实际后果是否产生，并不影响本罪的成立。因此对郑恩宠及其辩护人关于郑恩宠提供的文章境外组织未收到，没有造成后果，不构成犯罪的辩解和辩护意见不予采纳。为维护社会秩序，保卫国家安全，依照《中华人民共和国刑法》第一百一十一条、第五十六条第一款、第五十六条第一款、第五十五条第一款、第六十四条以及《最高人民法院关于审理为境外窃取、刺探、收买、非法提供国家秘密、情报案件具体应用法律若干问题的解释》第一条、第四条、第五条之规定，判决如下：

一．   被告人郑恩宠犯为境外非法提供国家秘密罪，判处有期徒刑三年，剥夺政治权利一年。

（刑期从判决执行之日起计算。判决执行以前先行羁押的，羁押翌日折抵刑期一日，即自二00三年六月六日起至二00六年六月五日止）。

二。查获的犯罪工具、涉及国家秘密的材料等予以没收。

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上海市高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，副本一份。

审判长        沈行恺
审判员        王宇展
代理审判员    蒋征宇

二00三年十月二十八日

书记员        董  玮
书记员        李  姝

Translation: State v. Huang Qunwei - Fabricating False Terrorist Information About SARS and Intentionally Posting It on the Internet

NOTE: This post was published on December 5, 2020, but this post is dated the date the court judgment was issued in order to prevent confusion.

First Intermediate People's Court of Beijing

Criminal Judgment

(2003) First Intermediate First Instance No. 14991

The public prosecution agency was the People's Procuratorate of Beijing Branch No. 1.　　

Defendant Huang Qunwei, male, 25 years old (born [INTENTIONALLY DELETED], 1978), Han ethnicity, place of birth Beijing, associates degree, unemployed, residing at Qinghuayuan, Zhongguancun, Haidian District, Beijing. On May 3, 2003 he was taken into custody on suspicion of committing the crime of fabricating false terrorist information and was granted bail on the same day.  On May 8 of the same year he was taken into criminal detention, and was arrested on May 16. He is currently being held in custody at the Beijing Detention Center.

Appointed defense counsel Xu Lanting is a lawyer at the Beijing Junzejun Law Firm.

In the Jing Procuratorate Branch 1 Criminal Indictment (2003) No. 95 indictment the People's Procuratorate of Beijing Branch No. 1 charged defendant Huang Qunwei committing the crime of fabricating false terrorist information, and on May 27, 2003 filed a public prosecution with this Court. This Court formed a collegial panel in accordance with the law, and convened public hearings to try this case. The People's Procuratorate of Beijing Branch No. 1 assigned Procurator Zhu Lan and Acting Procurator Li Hong to appear in court in support of the public prosecution, and defendant Huang Qunwei and his assigned defense counsel Xu Lanting appeared in court to participate in the proceedings. The trial has now concluded.

The People's Procuratorate of Beijing Branch No. 1 charged that from April 25 to May 2, 2003, defendant Huang Qunwei at his home at [INTENTIONALLY DELETED], Qinghuayuan, Zhongguancun, Haidian District, Beijing, took advantage of a period of time when there was a peak in the SARS epidemic in Beijing and it was easy to instill psychological panic in people to fabricate articles without any factual basis with titles such as: "Absolutely Reliable News, Shanghai Concealed a Large Number of SARS Cases," "China has Officially Entered an Economic Crisis Due to SARS," and "With This Kind of Security, Take the Opportunity Created by SARS to Make Money," and used a home computer to log into the Internet by dialing from his home phone to spread them on the Internet.

The People's Procuratorate of Beijing Branch No. 1 transferred evidence of the crimes charged against defendant Huang Qunwei to this Court including witness testimony, search records, forensic conclusions, and the defendant's statements. It believes that defendant Huang Qunwei actions were an offense under the provisions of Article 291-1 of the "Criminal Law of the People's Republic of China" and constitute fabricating false terrorist information, and it requests this Court impose punishment in accordance with the law.　　

In court during the trial defendant Huang Qunwei did not raise any objections to the criminal facts charged by the public prosecution agency. Defendant Huang Qunwei's defense counsel believes that the article "With This Kind of Security, Take the Opportunity Created by SARS to Make Money," which the public prosecution agency charged Huang Qunwei with authoring, should not be deemed terrorist information, and that after being taken into custody Huang Qunwei was able to proactively and thoroughly come clean regarding all the criminal facts and express regret for his crimes, and asks the court to show leniency to Huang Qunwei.　　

It was ascertained at trial: From April 25 to April 27, 2003, defendant Huang Qunwei at his home at [INTENTIONALLY DELETED], Qinghuayuan, Zhongguancun, Haidian District, Beijing, took advantage of a period of time when there was a peak in the SARS epidemic in Beijing and it was easy to instill psychological panic in people to fabricate articles without any factual basis with titles such as: "Absolutely Reliable News, Shanghai Concealed a Large Number of SARS Cases" and "China has Officially Entered an Economic Crisis Due to SARS" and used a home computer to log into the Internet by dialing from his home phone. He went online and posted several times on forums such as the "Sohu website" news commentary forum web page and the "Xilu website's" "Sea and Sky" lying that China's Shanghai already head hundreds of "SARS" fatalities, that over 3,000 people had died nationwide, and encouraged people to stockpile. This created an atmosphere of terror and severely disrupted social order. On May 3, 2003, defendant Huang Qunwei was apprehended and brought to justice.　　

The aforementioned facts have been affirmed by this Court by the following evidence which has been produced, examined, and substantiated in court:

1. The testimony of witness Huang Huaiwei proved: Recently, his younger brother Huang Qunwei often used a home-built computer to go online at home. Huang Qunwei usually went online after dinner, and often went to some forums to download comments made by other Internet users on a certain issue. After Huang Qunwei was released on bail by a public security agency awaiting trial, he told him that it was because he of the articles he posted online saying more than 400 people died of "SARS" in Shanghai, prices soared, and security guards using "SARS" to make money.

2. Search record and lists of seized items proved: On May 3, 2003, public security personnel seized one desktop computer from the southern living room of Huang Qunwei's home during the process of a search in accordance with the law.

3. One home computer was produced in court, and was identified by defendant Huang Qunwei in court and confirmed as the tool used by him in the commission of this case.
4. The Network Monitoring (2003) No. 28 forensic results produced by the Public Security Bureau of Beijing's Public Information Network Security Monitoring Detachment proved: An analysis of the computer used by Huang Qunwei found the contents of two articles on the machine: "absolutely reliable information, Shanghai has concealed a large number of SARS cases" and "China has officially entered an economic crisis due to SARS." Huang Qunwei used the online alias "zzzzxxxxzz" on the "Xilu website."

5. The evidentiary materials and download recordal materials produced by the Sohu Aitexin Information Technology (Beijing) Co., Ltd. proved: Around April 25, 2003, an Internet user with the alias "Head-on Attack" published an article titled "Absolutely reliable news, Shanghai conceals a large number of SARS cases" on Sohu.com's Society and Humanities forum. Around April 27, they used the same alias to post "China has entered an economic crisis due to SARS" on Sohu.com (the forum is unknown), and then changed the title to "Shanghai conceals a large number of SARS cases." A thorough search found the aforementioned three articles posted by an Internet user with the alias "Head-on Attack," and a recordal was made. The aforementioned articles were posted at the following times (respectively): 22:46, 23:04, and 23:38 on April 25, 2003; 19:30, 23:28, 23:32, 23:41, and 23:51 on April 26, 2003; and 21:02 on April 27, 2003.

6. The evidentiary materials produced by the Beijing Xilu Information Technology Co., Ltd.  proved: (i) At 18:58 on April 26, 2003, a user named "zzzzxxxxzz" registered and published on the "Xilu Network" [www.xilu.com] Forum Haikuotian [skysea.xilubbs.com] with the subject "Absolutely Reliable Inside Information" the article "Shanghai conceals a large number of SARS Cases," the IP address was [202.108.136.154], when the security monitor on duty on Xilu deleted the article at 20:42 that day, the click rate was 945; (ii) At 23:42 on April 26, 2003, a registered user named [hushuoya] published an article titled "China Has Truly Entered an Economic Crisis Due to SARS" on the "Xilu Network" forum [skysea.xilubbs.com], the IP address was [218.245.168.103], when the security supervisor on duty on Xilu deleted the article, the click rate was 386.

7. The evidentiary materials produced by the Beijing Changjie Network Communication Co., Ltd. prove: At 23:04 on April 25, 2003, the dialing number using that company's IP address was the phone number of defendant Huang Qunwei's home.

8. The apprehension process produced by the Public Security Bureau of Beijing proved: Huang Qunwei was apprehended at around 11:00 am on May 3, 2003 at [INTENTIONALLY DELETED], Qinghuayuan, Hadian District, Beijing.

9. Defendant Huang Qunwei's statements regarding the time, place, circumstances, and methods of the commission of the case correspond to the aforementioned evidence and are mutually corroborating.

This Court finds defendant Huang Qunwei intentionally fabricated false terrorist information and intentionally posted and publicized it on the Internet at a particular period of time when China's people were fighting the "SARS" epidemic, severely disrupting social order. His actions constitute the crime of fabricating and intentionally publicizing false terrorist information, and he shall be punished in accordance with the law.

With respect to the defense opinion proffered by defendant Huang Qunwei's defense counsel  that the content of the "With This Kind of Security, Take the Opportunity Created by SARS to Make Money " article which the indictment charged Huang Qunwei with publishing online was not terrorist information, the rationale is established and is accepted by this Court. But with respect to the defense opinion requesting Huang Qunwei be given a suspended sentence, in consideration of the specific circumstances of Huang Qunwei's crime a suspended sentence would be inappropriate, and therefore this Court does not accept it.

With respect to the People's Procuratorate of Beijing Branch No. 1's charges against defendant Huang Qunwei, the evidence that a crime has been committed is reliable. But the defendant both acted to fabricate false terrorist information and acted to disseminating it online, and therefore the offense charged by the public prosecution agency is insufficiently precise, and is amended by this Court. Accordingly, in accordance with the provisions of Article 8 of the Third Amendment to the "Criminal Law of the People's Republic of China," Articles 291-1, 61, and 64 of the "Criminal Law of the People's Republic of China," and Article 10(1) of the "Supreme People’s Court and  Supreme People’s Procuratorate Interpretation on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Obstructing the Prevention and Control of Emergent Infectious Diseases," the judgment is as follows:

1. Defendant Huang Qunwei committed the crime of fabricating and intentionally publicizing false terrorist information and is sentenced to a fixed term imprisonment of three 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 May 8, 2003 to May 6, 2006).

2. One seized desktop computer used by defendant Huang Qunwei in the commission of the crime is confiscated.　　

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 High People's Court of Beijing. A written appeal should be submitted with one original and three copies of the appeal brief.

[TEXT INDICATING ADJUDICATORS, CLERK, AND JUDGMENT DATE MISSING FROM SOURCE MATERIAL.] 

北京市第一中级人民法院

刑事判决书

（2003）一中刑初字第1499号

公诉机关北京市人民检察院第一分院。

被告人黄群威，男，25岁（1978年[INTENTIONALLY DELETED]出生），汉族，出生地北京市，大专文化，无业，住北京市海淀区中关村清华园。因涉嫌犯编造虚假恐怖信息罪，于2003年5月3日被羁押，同日被取保候审，同年5月8日被刑事拘留，5月16日被逮捕。现羁押在北京市看守所。

指定辩护人许兰亭，北京市君泽君律师事务所律师。

北京市人民检察院第一分院以京检一分刑诉字（2003）第95号起诉书指控被告人黄群威犯编造虚假恐怖信息罪，于2003年5月27日向本院提起公诉。本院依法组成合议庭，公开开庭进行了审理。北京市人民检察院第一分院指派检察员朱兰、代理检察员李宏出庭支持公诉，被告人黄群威及其指定辩护人许兰亭到庭参加诉讼。现已审理终结。

北京市人民检察院第一分院指控，被告人黄群威于2003年4月25日至5月2日间，在北京市海淀区清华园[INTENTIONALLY DELETED]家中，借当时北京市“非典型肺炎”疫情高发期易引起人们心理恐慌之机，在无任何事实依据的情况下，编造题为《绝对可靠消息，上海隐瞒了大量非典病例》、《中国已因非典而正式进入了经济危机》、《如此保安，借非典趁机赚钱》等文章，使用家中电脑，通过其住宅电话以拨号方式登陆互联网进行传播。

北京市人民检察院第一分院向本院移送了指控被告人黄群威犯罪的证人证言、搜查笔录、鉴定结论及被告人供述等证据，认为被告人黄群威的行为触犯了《中华人民共和国刑法》第二百九十一条之一的规定，已构成编造虚假恐怖信息罪，提请本院依法惩处。

被告人黄群威在法庭审理中对公诉机关指控的犯罪事实未提出异议。被告人黄群威的辩护人认为，公诉机关指控黄群威编写的《如此保安，借非典趁机赚钱》一文，不应认定为虚假恐怖信息；黄群威被羁押后能够主动、彻底坦白全部犯罪事实，有悔罪表现，请求法院对黄群威判处缓刑。

经审理查明：被告人黄群威于2003年4月25日至4月27日，在北京市海淀区清华园[INTENTIONALLY DELETED]家中，借当时北京市“非典型性肺炎”疫情高发期易引起人们心理恐慌之机，在无任何事实依据的情况下，编造题为《绝对可靠消息，上海隐瞒了大量非典病例》、《中国已因非典而正式进入了经济危机》的文章，使用家中电脑，通过其住宅电话以拨号方式登陆互联网，在“搜狐网站”新闻评论网页和“西路网站”的“海阔天空”等论坛中，多次上网传播，谎称我国上海市已因“非典型性肺炎”死亡数百人、全国死亡3000多人，鼓动尽快储备物品，制造恐怖气氛，严重扰乱了社会秩序。

2003年5月3日，被告人黄群威被抓获归案。

上述事实，有下列经法庭举证、质证的证据在案证实，本院予以确认：

1、证人黄怀威的证言证明：近一段时间，他的弟弟黄群威常在家使用组装的一台电脑上网。黄群威一般是在晚饭后上网，经常去一些论坛下载其他网民就某一问题发表的评论。黄群威被公安机关取保候审后，对他说是因为在网上发表了上海因“非典”死亡400多人、物价飞涨、保安借“非典”发财等内容的文章。

2、搜查笔录和扣押物品清单证明：公安人员在2003年5月3日依法搜查过程中，从黄群威家南侧客厅扣押电脑主机1台。

3、当庭出示扣押的电脑主机1台，经被告人黄群威当庭辨认，确认为其使用的作案工具。

4、北京市公安局公共信息网络安全监察处出具的网监鉴字［2003］28号鉴定结果证明：对起获的黄群威使用的电脑主机检验发现，机内存有《绝对可靠消息，上海隐瞒了大量非典病例》、《中国已因非典而正式进入了经济危机》两篇文章的内容；黄群威在“西路网站”使用的网名为“zzzzxxxxzz”。

5、搜狐爱特信信息技术（北京）有限公司出具的证明材料和下载备份资料证明：2003年4月25日左右，一名为“迎头痛击”的网民在搜狐网社会人文类的论坛上发表了题目为《绝对可靠消息，上海隐瞒了大量非典病例》的文章，4月27日左右，以同样网名在搜狐网（论坛不明）张贴了《中国因非典而进入经济危机》，后将题目改成《上海隐瞒了大量非典病例》。经全面搜索，找到网名为“迎头痛击”的网友发表的上述三篇文章，并作备份。上述文章的发表时间分别为：2003年4月25日22时46分、23时04分、23时38分；4月26日19时30分、23时28分、23时32分、23时41分、23时51分；4月27日21时02分。

6、北京市西路信息技术有限公司出具的证明材料证明：①2003年4月26日18时58分，注册名为“zzzzxxxxzz”的用户，在“西路网”［www.xilu.com］论坛海阔天空［skysea.xilubbs.com］发表标题为“绝对可靠内部消息，上海隐瞒了大量非典病例”一文，IP地址为［202.108.136.154］，西路当值安全监控员于当日20时42分删除该文章时，点击率为945次；②2003年4月26日23时42分，注册名为［hushuoya］的用户，在“西路网”论坛海阔天空［skysea.xilubbs.com］发表标题为“中国已因非典而真正进入了经济危机”一文，IP地址为［218.245.168.103］，西路当值安全监控员删除该文章时，点击率为386次。

7、北京畅捷网络通讯有限公司出具的证明材料证明：2003年4月25日23时04分，使用其公司IP地址的主叫号为被告人黄群威家中的电话号码。

8、北京市公安局出具的抓获经过证明：2003年5月3日11时许，在北京市海淀区清华园[INTENTIONALLY DELETED]将黄群威抓获。

9、被告人黄群威供述的作案时间、地点、情节、手段与上述证据相符，并可相互印证。

本院认为，被告人黄群威在我国人民共同抗击“非典型性肺炎”疫情的特殊时期，故意捏造虚假的恐怖信息并故意在互联网上发表、传播，严重扰乱了社会秩序，其行为已构成编造、故意传播虚假恐怖信息罪，依法应予惩处。被告人黄群威的辩护人提出起诉书指控黄群威在网上发表的《如此保安，借非典趁机赚钱》一文，其内容不属恐怖信息的辩护意见，理由成立，本院予以采纳；但请求对黄群威判处缓刑的辩护意见，本院考虑黄群威犯罪的具体情况，不宜对被告人适用缓刑，故不予采纳。北京市人民检察院第一分院指控被告人黄群威犯罪的证据确实，但被告人既有编造虚假恐怖信息的行为，又有上网传播的行为，因此公诉机关指控的罪名不够准确，本院予以纠正。据此，依照《中华人民共和国刑法修正案（三）》第八条、《中华人民共和国刑法》第二百九十一条之一、第六十一条、第六十四条、《最高人民法院、最高人民检察院关于办理妨害预防、控制突发传染病疫情等灾害的刑事案件具体应用法律若干问题的解释》第十条第一款的规定，判决如下：　　

一、被告人黄群威犯编造、故意传播虚假恐怖信息罪，判处有期徒刑三年。　　（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2003年5月8日起至2006年5月6日止）。

二、在案扣押被告人黄群威供犯罪所用的电脑主机一台，予以没收。

如不服本判决，可在接到本判决书的第二日起十日内，通过本院或者直接向北京市高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。

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