Verdict of a Chongqing Citizen in the Time of Bo Xilai

Tiananmen

On July 21, 2010, in the southwestern city of Chongqing, 47-year-old Gao Yingpu was getting ready to have dinner at his in-law’s when two local police officers barged into his home, Caijing reports. The police officers came to ask Gao about the origins of two satirical images of Mao Zedong that had been posted online. The former journalist turned businessman acknowledged that he had reposted the images on his blog. He was then told to change his clothes and accompany the officers to the local police station to “assist with the investigation,” the findings of which are detailed in the criminal verdict translated below.

Weeks earlier, a once high-ranking police official was executed in Chongqing, marking the high tide of a conspicuous anti-mafia campaign carried out by former Chongqing Party Secretary Bo Xilai and Police Chief Wang Lijun. Although welcomed by many Chongqing residents, the campaign was criticized for allowing political interests to bulldoze due process and rule of law. Many who denounced the campaign, or other controversial policies carried out under Bo, were sent to prison or reeducation-through-labor camps.

Gao Yingpu, who frequently engaged in online debates with supporters of Bo’s “leftist” policies, was one of dozens, perhaps hundreds, who fell victim to what some have called Chongqing’s period of “red terror.” Following a secret trial, Gao was sentenced to three years’ imprisonment for “inciting subversion” and sent to Chongqing’s Daping Prison.

Chongqing’s political environment changed dramatically just over a year later, as first Wang Lijun and then Bo Xilai were removed from office and investigated. (Wang was sentenced to 15 years’ imprisonment in September 2012; Bo is still awaiting trial.) Not long afterwards, many of those punished for expressing criticism of Chongqing’s former power-holders began to be released from custody, and some had their sentences overturned. Having had his sentence reduced, Gao was released seven months early in January 2013. The same month, he asked his wife to petition the Chongqing High People’s Court to overturn the sentence against him on the grounds that his conviction came during an “unusual historical period.” There is no word yet on whether the court will review the case.

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Chongqing Municipality No.1 Intermeidate Court Criniminal Verdict: click to expand

Chongqing Municipality No. 1 Intermediate People’s Court
Criminal Verdict

(2010) CQ No. 1 Int. Crim. First No. 189

The prosecuting organ is the Chongqing People’s Procuratorate No. 1 Branch.

Defendant Gao Yingpu, male, born August 17, 1963, in Yuzhong District, Chongqing Municipality, Han ethnicity, university education, unemployed, resides at [redacted] Yubei District, Chongqing Municipality (place of household registration: 201-13 Guanghe 1st Street, Tianhenanjie [Subdistrict], Guangzhou, Guangdong). On July 21, 2010, he was taken into custody on suspicion of inciting subversion and placed under criminal detention the following day. On August 26 of that year, he was formally arrested. He is currently detained in Chongqing Municipality Yubei District Detention Center.

Defense counsel is Zhao Yang, lawyer with the Chongqing Baijun Law Firm.

On November 25, 2010, the Chongqing People’s Procuratorate No. 1 Branch filed indictment CQ Proc. No. 1 Branch Crim. Indict. (2010) No. 238 with this court, charging defendant Gao Yingpu with inciting subversion. This court formed a collegiate bench in accordance with the law and, as this case involves state secrets, held a closed hearing to try this case. The Chongqing People’s Procuratorate No. 1 Branch appointed associate prosecutor Ma Hongwei to appear in court on behalf of the prosecution. Defendant Gao Yingpu and his defense counsel Zhao Yang appeared in court to participate in the proceedings. The trial has now concluded.

The Chongqing People’s Procuratorate No. 1 Branch alleged that: Beginning in 2009, defendant Gao Yingpu installed anti-firewall software [e.g., a virtual private network] and browsed overseas web sites such as secretchina.com, renminbao.com, dajiyuan.com, and aboluowang.com. He also set up QQ [an online chat tool] account number 190996622 and, using the screen name “Xinan Paike” joined the “Nabaichuan,” “Law Forum,” and “Grassroots Wisdom” QQ groups. Gao Yingpu did not set a password or download limit on his Qzone [a QQ social networking and blog platform similar to MySpace] page and saved photos vilifying Mao Zedong, Hu Jintao, and other national leaders on his QQ photo storage space. On his QQ blog, he posted more than 10 articles, including “Mao Zedong: If It Weren’t for the Japanese Imperial Army, We Couldn’t Have Taken Power” and “Eleven Days of Trickery.” He shared Tombstone, Mao Zedong: An Assessment of his Crimes and Accomplishments, and 28 other documents with his QQ groups. Beginning in July 2010, Gao Yingpu posted comments on QQ group chats such as “Socialism has proven that it causes bloodshed and failure; it’s a dying system. Capitalism can improve things for the better and move towards more humane and humanitarian [conditions]. China’s Maoist socialism must die and be reborn soon”; “Patriotism is an attempt to bring back the spirit of despotism”; and “We must follow the path of European-American democracy” and uploaded two photos vilifying Mao Zedong. On July 21, 2010, defendant Gao Yingpu was captured by the public security authorities.

In support of these charges, the prosecution produced the following evidence in court: a detention record; a record of remote inspection of electronic evidence; a certification report for the inspection of electronic evidence; the statements of witnesses Xu Tao, Chen Lin, and Tang Yi; and the confession and defense argument of defendant Gao Yingpu. Based on this evidence, the prosecution maintains that defendant Gao Yingpu used rumor, slander, and other methods to express speech that incited subversion of state power and overthrow of the socialist system. His actions violate Article 105(2) of the Criminal Law of the PRC, the facts of the crime are clear, the evidence is reliable and sufficient, and he ought to be held criminally responsible for the crime of inciting subversion. [The prosecution] requests that this court deliver punishment in accordance with the law.

Defendant Gao Yingpu did not raise any objections to the charge or the basic facts as presented in the indictment, but he argued in his defense that the defamatory image of state leader Hu Jintao in his Qzone page photo album was not something he downloaded; rather the image was automatically saved on his Qzone page because it had been part of a group page. His defense counsel argued that Gao Yingpu was a first-time offender and that he had acknowledged guilt and regret. Moreover, his criminal act had not resulted in major damage to national interests, and the subjective evil and degree of social harm were both relatively minor. Therefore, he recommended that [Gao] be punished with lenience in accordance with the law and in consideration of the circumstances.

In the course of the trial, it was ascertained that: Beginning in 2009, defendant Gao Yingpu used QQ account number 190996622; joined the “Grassroots Wisdom,” “Law Forum,” and “Nabaichuan” QQ groups using the screen name “Xinan Paike”; and used “Freegate” anti-firewall software to browse overseas websites such as secretchina.com, renminbao.com, dajiyuan.com, and aboluowang.com. Gao Yingpu did not set a password or download limit on his Qzone page and saved photos vilifying Mao Zedong, Hu Jintao, and other national leaders in his QQ photo storage space. On his QQ blog, he posted more than 10 articles, including “Mao Zedong: If It Weren’t for the Japanese Imperial Army, We Couldn’t Have Taken Power” and “Eleven Days of Trickery.” He shared Tombstone, Mao Zedong: An Assessment of his Crimes and Accomplishments, and 28 other documents with his QQ groups. Beginning in July 2010, Gao Yingpu posted comments on QQ group chats such as “Socialism has proven that it causes bloodshed and failure; it’s a dying system. Capitalism can improve things for the better and move towards more humane and humanitarian [conditions]. China’s Maoist socialism must die and be reborn soon”; “Patriotism is an attempt to bring back the spirit of despotism”; and “We must follow the path of European-American democracy.” On the “Nabaichuan” QQ group, he uploaded two photos vilifying Mao Zedong that he had downloaded from other websites.

On July 21, 2010, defendant Gao Yingpu was taken into custody by public security authorities.

The aforementioned facts are confirmed by the following evidence, which was put forth by the prosecution and cross-examined and confirmed in court:

1. The crime registration report and case-filing decision, confirming: After the public security authority received a crime report on July 21, 2010, it filed a case for investigating Gao Yingpu that same day.
2. Record of capture, confirming: Public security personnel took Gao Yingpu into custody on July 21, 2010, at [address redacted], Yubei District, Chongqing Municipality.
3. Recovery record and inventory of confiscated items, confirming: On July 21, 2010, a Lenovo notebook computer related to the case was recovered from Gao Yingpu’s home and confiscated in accordance with the law.
4. Identification of photographs of a computer and sent images: On July 21, 2010, Gao Yingpu identified the notebook computer used to commit the crimes. He also identified two images vilifying Mao Zedong that he sent; the more than 10 articles, including “Mao Zedong: If It Weren’t for the Japanese Imperial Army, We Couldn’t Have Taken Power” and “Eleven Days of Trickery” that were posted on his blog; and Tombstone, Mao Zedong: An Assessment of his Crimes and Accomplishments, and 28 other documents that were shared with his QQ groups.
5. Record of on-scene inspection and investigation, confirming: On July 21, 2010, the Yubei Internet Inspection Police conducted an on-scene inspection of Gao Yingpu’s computer, recovering electronic information including relevant images transmitted using QQ account number 190996622 on the “Nabaichuan” QQ group and QQ chat records.
6. Record of remote investigation, confirming: On August 17, 2010, investigators from the Chongqing Public Security Bureau conducted a remote investigation of the overseas websites Gao Yingpu visited such as secretchina.com, renminbao.com, dajiyuan.com, and aboluowang.com. It is impossible to visit the aforementioned websites through normal browsing, but they may be opened using the “Freegate” anti-firewall software. From August 8‒9, 2010, investigators from the Chongqing Public Security Bureau examined records of the QQ groups, Qzone blog, and uploaded images associated with QQ account number 190996622. From the time it was opened until the time of the remote investigation, QQ account number 190996622 had 2,042 hits and a total of 10 QQ groups. There were a total of 339 items posted to the blog associated with QQ account number 190996622, of which approximately 15 had content attacking Mao Zedong and others. There were 1,629 images on the Qzone page associated with QQ account number 190996622, of which 11 insulted leaders such as Mao Zedong and Hu Jintao. Thirty documents, including Tombstone and Mao Zedong: An Assessment of his Crimes and Accomplishments, were shared via the QQ groups.
7. A report on the inspection of electronic evidence, confirming: A search of Gao Yingpu’s computer that was involved in the case recovered a record of 5,824 web pages browsed; 2.95MB of QQ chat records, 25,485 images, .DOC files, and other documents; 10 QQ groups including “Nabaichuan,” “Law Forum,” and “Grassroots Wisdom”; and statements in the chat records of some of these 10 QQ groups, including: “Socialism has proven that it causes bloodshed and failure; it’s a dying system. Capitalism can improve things for the better and move towards more humane and humanitarian [conditions]. China’s Maoist socialism must die and be reborn soon”; “Patriotism is an attempt to bring back the spirit of despotism”; and “We must follow the path of European-American democracy.”
8. A report of additional investigation, confirming: The QQ groups that Gao Yingpu’s QQ account joined are listed inconsistently in the two inspection records because the remote inspection record and the electronic evidence inspection report were compiled at different times and, in the interim, the QQ group names had changed. But the QQ account number does not change. Moreover, the Qzone software does not include any automatic saving of [group] images to individual QQ users’ spaces.
9. The statement of witness Xu Tao: I came to know “Xinan Paike” in the “Grassroots Wisdom” group. “Xinan Paike” kicked anyone out of “Grassroots Wisdom” who supported and liked Chairman Mao and didn’t allow them to express their opinions. Later, I created the “Nabaichuan” group with more than 100 members, including “Xinan Paike.” “Xinan Paike” was prejudiced against Chairman Mao and liked to post comments attacking Chairman Mao. “Xinan Paike” shared some information, documents, and books that couldn’t be found on the Internet and had a certain degree of popularity.
10. The statement of witness Wang Kan: I saw “Xinan Paike” publish comments many times on the “Rule of Law Forum” [sic] QQ group. His main view was support for reform and opening and desire for deeper political reform, open leadership elections, and exercise of effective oversight over officials.
11. The statement of witness Chen Lin: Many topics of discussion on the “Grassroots Wisdom” group were introduced by “Xinan Paike” He posted a lot of information to the QQ group, much of which expressed dissatisfaction or even opposition to the actions of the party and government. The discussion topics initiated by “Xinan Paike” all criticized Mao Zedong and opposed the government. The discussions he proposed did not seek truth from facts; they were very extreme or you could even say reactionary.
12. The statement of witness Tang Yi: I joined the “Grassroots Wisdom” and “Nabaichuan” QQ groups. The comments “Xinan Paike” posted to the “Nabaichuan” QQ group mainly opposed radical “leftism.” He said that China’s present economic development model wasn’t scientific and that it should be re-adjusted as quickly as possible. He was rather opposed to Mao Zedong and, in addition to posting comments, also posted some images that vilified and insulted Mao Zedong’s image. I visited the Qzone page and blog of “Xinan Paike” and saw articles slandering Mao Zedong and [discussing] Mao Zedong’s political struggles with other leaders during the Cultural Revolution. “Xinan Paike” also shared these articles with his QQ groups.
13. The statement of witness Liu Yuntao: I’ve been going online for three or four years. I joined the “Nabaichuan” QQ group but I don’t know “Xinan Paike.”
14. The statement of witness Li [redacted]: I’m Gao Yingpu’s wife. Our family has two computers, one desktop computer and one Lenovo notebook computer. Gao Yingpu usually uses the notebook computer. I only use the desktop.
15. The confession of defendant Gao Yingpu: I have a QQ account with the screen name “Xinan Paike,” account number 190996622. I joined 10 QQ groups, including “Grassroots Wisdom,” “Law Forum,” and “Nabaichuan.” I used the “Freegate” software to browse overseas websites like aboluowang.com, secretchina.com, renminbao.com, and dajiyuan.com because these web sites have things I can’t read on websites within China. I also read some books online, such as Tombstone and Mao Zedong: An Assessment of his Crimes and Accomplishments. In 2009, I began participating in discussions about Mao Zedong and uploading books, articles, and comments that cast a negative light on Mao Zedong’s life. My QQ space has no password or limit on downloading. “Mao Zedong: If It Weren’t for the Japanese Imperial Army, We Couldn’t Have Taken Power,” “China’s Super Emperor,” “Eleven Days of Trickery,” and other articles were reposted by me, and I shared Tombstone, Mao Zedong: An Assessment of his Crimes and Accomplishments, and other documents on “Grassroots Wisdom,” “Nabaichuan,” and other QQ groups. In my QQ groups, I posted comments like “We must follow the path of European-American democracy”; “Socialism has proven that it causes bloodshed and failure; it’s a dying system. Capitalism can improve things for the better and move toward more humane and humanitarian [conditions]. China’s Maoist socialism must die and be reborn soon”; and “Patriotism is an attempt to bring back the spirit of despotism.” On the afternoon of July 20, 2010, when I was online at my home, I observed an argument between leftists and rightists on the “Nabaichuan” QQ group. The leftists said that the Maoist era was good and said that the people must stand up and rid themselves of the capitalists and the capitalist reform faction. Since I am part of the reform faction, I was very angry with the leftists’ views so I posted two insulting images of Mao Zedong that I had downloaded from the “Yuan Tengfei Ba” on Baidu. The first was an image of Mao Zedong kneeling on the ground in repentance; the second was an image of a turtle’s body with Mao Zedong’s head and a person standing on the turtle’s back. As I posted these images, I added the comment, “Old Hoodlum Mao’s statue has been erected in Tiananmen Square, are you ready to kneel alongside him?” At the time, I posted these two images to attack the ideas and comments of the leftists in the group who were supporting Mao Zedong. I was mainly trying to argue against them, ridicule them, and insult their spiritual leader.

This court finds that defendant Gao Yingpu used rumor, slander, and other methods and incited subversion of state power and overthrow of the socialist system through the online posting, reposting, and sharing of remarks and texts and the storage and uploading of images that vilified state leaders; [therefore,] his actions constitute the crime of inciting subversion and he should be punished in accordance with the law. The criminal facts alleged by the prosecution and the charged crime are both valid, but given that defendant Gao Yingpu is a first-time offender, he truthfully confessed his crimes upon arrest, he displayed a relatively good attitude towards acknowledging guilt, and the harm he caused to state security was relatively minor, he may be punished with appropriate lenience. As for Gao Yingpu’s claim that the defamatory image of state leader Hu Jintao in his Qzone photo album was not something he downloaded but, rather, was automatically saved in his Qzone space because it was part of a group’s page, [the court finds that] the supplementary investigation report produced by the public security authority confirms that the Qzone software does not include any automatic saving of [group] images to individual QQ users’ spaces; therefore this defense argument is not tenable and is not accepted. Defense counsel’s defense arguments are tenable and may be accepted. In accordance with Articles 105(2), 55(1), 56(1), and 64 of the Criminal Law of the PRC, [this court] rules as follows:

I. For the crime of inciting subversion, defendant Gao Yingpu is sentenced to three years’ imprisonment, with subsequent deprivation of political rights for one year.

(The prison term is to be calculated from the day the verdict is implemented, with each day spent in detention prior to the verdict’s implementation to count as one day of the prison term; therefore, it will run from July 21, 2010, to July 20, 2013.)

II. The Lenovo notebook computer used to commit defendant Gao Yingpu’s crimes is hereby confiscated.

If this verdict is not accepted, an appeal may be filed within 10 days of the second day following the receipt of this verdict, either to this court or directly to the Chongqing High People’s Court. In the case of a written appeal, the original appellate petition must be submitted together with two copies.

Presiding Judge: Xiao Ming
Judicial Officer: Li Yi
Deputy Judicial Officer: Li Ying

December 13, 2010

Court Clerk: Xia Yujie

Chinese Source（原文）: 重庆市第一中级人民法院刑事判决书 （2010）渝一中法刑初字第189号 Click on icon to expand

重庆市第一中级人民法院
刑事判决书

（2010）渝一中法刑初字第189号

公诉机关重庆市人民检察院第一分院。

被告人高应朴，男，1963年8月17日出生于重庆市渝中区，汉族，大学文化程度，无业。住重庆市渝北区【略】号（户籍所在地：广东省广州市天河南街广和一街13号201房）。因涉嫌煽动颠覆国家政权罪，于2010年7月21日被捉获，次日被刑事拘留，同年8月26日被逮捕。现羁押于重庆市渝北区看守所。

辩护人赵阳，重庆百君律师事务所律师。

重庆市人民检察院第一分院以渝检一分院刑诉【2010】238号起诉书指控被告人高应朴犯煽动颠覆国家政权罪，于2010年11月25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，不公开开庭进行了审理，重庆市人民检察院第一分院指派代理检察员马洪伟出庭支持公诉，被告人高应朴及其辩护人赵阳到庭参加诉讼。现已审理终结。

重庆市人民检察院第一分院指控：2009年以来，被告人高应朴安装使用翻墙软件浏览境外《看中国》、《人民报》、《大纪元》、《阿波罗》等境外网站。并使用QQ号190996622，以“西南派克”的网名先后加入了“纳百川”、“法制论坛”、“草根智慧”等QQ群，高应朴在其QQ空间不设密码和下载限制，在QQ相册下载储存丑化毛泽东、胡锦涛等国家领导人的照片；在QQ日志存有《毛泽东：没有你们日本皇军，我们不可能夺取胜利》、《权谋十一天》等10余篇文章；在QQ群共享《墓碑》、《千秋功罪毛泽东》等30篇文章。2010年7月以来，高应朴在QQ群聊天时发表了“社会主义已证明更血腥更失败，是死的制度，资本主义能改恶从善，走向更人道更人性，中国的毛式社会主义要早死早投胎”、“爱国主义，是一面专制主义的招魂帆”、“要走欧美民主道路”等言论，上传丑化毛泽东的照片2张。2010年7月21日，被告人高应朴被公安机关捉获归案。

为证明指控的事实，公诉机关当庭举示了扣押笔录，电子证据远程勘验笔录，电子证据检验鉴定报告书，证人许涛、陈琳、唐翼等的证言，被告人高应朴的供述和辩解等证据，并据此认为，被告人高应朴以造谣、诽谤等方式，在网络发表煽动颠覆国家政权、推翻社会主义制度的言论，其行为已触犯《中华人民共和国刑法》第一百零五条第二款之规定，犯罪事实清楚，证据确实、充分，应当煽动颠覆国家政权罪追究其刑事责任。提请本院依法判处。

被告人高应朴对起诉书指控的内容及基本事实无异议，但辩称其QQ空间相册里丑化国家领导人胡锦涛的图片并非其下载储存。该图片系群空间的图片自动保存到其QQ空间中的。其辩护人提出被告人高应朴系初犯，认罪、悔罪，其犯罪行为没有为国家利益造成重大损害，主观恶性和社会危害程度相对较小。建议依法对其酌情从轻处罚的辩护意见。

经审理查明，2009年以来，被告人高应朴使用QQ号190996622，以“西南派克”的网名加入了“草根智慧”、“法制论坛”、“纳百川”等QQ群，并安装使用“自由之门”翻墙软件浏览“看中国”、“人民报”、“大纪元”、“阿波罗”等境外网站，高应朴在其QQ空间不设密码和下载限制，在QQ相册下载储存丑化毛泽东、胡锦涛等国家领导人的照片；在QQ日志存有《毛泽东：没有你们日本皇军，我们不可能夺取胜利》、《权谋十一天》等10余篇文章；在QQ群共享《墓碑》、《千秋功罪毛泽东》等30篇文章。2010年7月以来，高应朴在QQ群聊天时发表了“社会主义已证明更血腥更失败，是死的制度，资本主义能改恶从善，走向更人道更人性，中国的毛式社会主义要早死早投胎”、“爱国主义，是一面专制主义的招魂帆”、“要走欧美民主道路”等言论，上传丑化毛泽东的照片2张。

2010年7月21日，被告人高应朴被公安机关捉获归案。

上述事实，有公诉机关举示并经庭审质证、认证的下列证据予以证明：

1. 接受刑事案件登记表，立案决定书证明：2010年7月21日，公安机关接报案后，于同日依法对高应朴立案侦查。
2. 捉获经过证明：2010年7月21日公安机关在重庆市渝北区【略】将高应朴捉获。
3. 提取笔录及扣押物品清单证明：2010年7月21日从高应朴家中提取涉案“联想”牌笔记本电脑一台，并依法予以扣押。
4. 指认电脑及所发图片的照片证明：2010年7月21日，高应朴对作案笔记本电脑进行指认；对所发的丑化毛泽东的图片2张进行指认；对在QQ日志中所发表的《毛泽东：没有你们日本皇军，我们不可能夺取胜利》、《权谋十一天》等10余篇文章进行指认；对在QQ群中共享的《墓碑》、《千秋功罪毛泽东》等30篇文章进行指认。
5. 现场勘验检查工作记录证明：2010年7月21日渝北网监民警对高应朴电脑进行勘察，在电脑中获取QQ号为190996622在“纳百川”QQ群发布的相关图片及QQ聊天记录等电子信息。
6. 远程勘验工作记录证明：2010年8月17日，重庆市公安局侦查员对高应朴访问过的“看中国”、“人民报”、“大纪元”、“阿波罗”等境外网站进行远程勘察，上述网站无法直接正常访问，但使用“自由之门”翻墙软件可以打开。2010年8月8日至9日，重庆市公安局侦查员对QQ190996622的QQ群、QQ空间日志、图片上传等情况进行固定。QQ90996622的空间从开通至远程勘验时，共有2042人/次访问过。QQ190996622共有10个QQ群。QQ90996622在空间发表日志339篇，其中有大约15篇文章有攻击毛泽东等人的内容。QQ190996622空间有图片1629张，其中有11张系毛泽东和胡锦涛等领导人的。QQ群共享《墓碑》、《千秋功罪毛泽东》等30篇文章。
7. 电子证据检验报告书证明：对高应朴涉案电脑中恢复提取网页浏览记录5824条。QQ聊天记录2.95MB，图片、DOC后缀等文件25485个、QQ9099622共有“纳百川”、“法制论坛”、“草根智慧”等10个QQ群，其在10个QQ群中的部分聊天记录有“社会主义已证明更血腥更失败，是死的制度，资本主义能改恶从善，走向更人道更人性，中国的毛式社会主义要早死早投胎”、“爱国主义，是一面专制主义的招魂帆”、“要走欧美民主道路”等。
8. 补充侦查报告书证明：高应朴的QQ号所加入的QQ群在两份勘察记录中记载的不一致，是因为远程勘验笔录与电子物证鉴定报告书形成时间有差异，期间，QQ群名称变更所致，但QQ群ID号不能更改，另外，QQ空间软件中没有群空间中的图片自动保存到QQ群友个人QQ空间中的功能。
9. 证人许涛证言证明：我和“西南派克”是在“草根智慧”群中认识的，“西南派克”在“草根智慧”里把拥护和喜欢毛主席的网友踢出群，不准他们发表观点。后来，我创建了“纳百川”群，“纳百川”有100多人，也包括“西南派克”。“西南派克”对毛主席有成见，喜欢发表攻击毛主席的言论。“西南派克”在群里共享一些不能在互联网上找到的资料，文章和书籍，在群里有一定人气。
10. 证人王侃证言证明：我在“法治论坛”这个QQ群中，多次看到“西南派克”发言，主要观点是支持改革开放，并要求进一步深化改革，公开选举领导人，对领导人实施有效监督。
11. 证人陈琳证言证明：在“草根智慧”群里面很多讨论的话题是“西南派克”发起的，他发了很多资料到QQ群里面，这些资料很多都是对党和政府行为的一种不满甚至是持反对意见的。“西南派克”发起的讨论话题也都是批评毛泽东，反对政府的，他发起的话题不是实事求是的，很偏激或者说是反动。
12. 证人唐翼证言证明：我加入过“草根智慧”和“纳百川”QQ群，“西南派克”在“纳百川”QQ群中发的言论主要是反对激进的“左”，他称现在国内的经济发展模式不科学，应该尽快调整，他比较反对毛泽东，除了发表的言论外还发了丑化毛泽东形象的图片，我进入过“西南派克”的QQ空间，空间日志中有污蔑毛泽东及文化大革命中毛泽东与其他领导人政治斗争等的文章，这些文章“西南派克”也传到QQ群共享空间中。
13. 证人刘云涛证言证明：我上网三、四年了，我加入过“纳百川”QQ群，我不认识“西南派克”。
14. 证人李XX证言证明：我与高应朴是夫妻关系，我家有两台电脑，一台台式电脑，一台“联想”笔记本电脑，高应朴一般都是用笔记本电脑，我只用台式机。
15. 被告人高应朴供述：我有一个网名叫“西南派克”的QQ号，号码是190996622.我在网上加入了“草根智慧”、“法制论坛”、“纳百川”等10个QQ群。我通过“自由之门”软件，浏览过“阿波罗”、“看中国”、“人民报”、“大纪元”等境外网站，因为这些网站上有在国内网站上我看不到的东西，我还在上面看一些书，比如《墓碑》、《千秋功罪毛泽东》等。我从2009年开始参加有关对毛泽东的讨论和上传对毛泽东的生平有负面影响的书籍、文章及言论。我的QQ空间不设密码和下载限制，我QQ空间中的《毛泽东：没有你们日本皇军，我们不可能夺得政权》、《中国，有这样一个超级皇帝》、《权谋十一天》等文章是我转载的，在“草根智慧”、“纳百川”等多个QQ群里，共享有《墓碑》、《千秋功罪毛泽东》等文章。我在QQ群中发表了“要走欧美民主道路”、“社会主义已证明更血腥更失败，是死的制度，资本主义能改恶从善，走向更人道更人性，中国的毛式社会主义要早死早投胎”、“爱国主义，是一面专制主义的招魂帆”等言论。2010年7月20日下午，我在家中上网的时候，在名为“纳百川“的QQ群里看到左右派别的成员在进行争吵，左派的人说毛泽东时代好，并称人民要站起来对资产阶级及资改派进行清算，因为我是属于改革派，对左派的观点很生气，就在QQ群里发了两张从百度上的“袁腾飞吧”下载的侮辱毛主席的图片，一张是毛泽东跪在地上忏悔的图片，一张是毛泽东的龟身人头像，一个人站在龟背上的图片。我当时发图片的时候还发了一句话是“把毛老痞立在天安门广场的像都做好了，你做好陪跪的准备没有？”。我当时发表这两张图片是为了打击群里左派拥护毛泽东的思想和言论，我主要是要反驳他们的观点，取笑他们，侮辱他们的精神领袖。

本院认为，被告人高应朴以造谣、诽谤等方式，在网络上发表、转载及共享煽动颠覆国家政权、推翻社会主义制度的言论、文章，储存及上传丑化国家领导人的图片，其行为已构成煽动颠覆国家政权罪，依法应予惩处。公诉机关指控的事实和罪名成立。鉴于被告人高应朴系初犯，归案后能如实供述自己的罪行，认罪态度较好，对国家安全造成的危害相对较小等情节，可对其酌情从轻处罚。关于被告人高应朴提出其QQ空间相册里丑化国家领导人胡锦涛的图片并非其下载储存，该图片系群空间的图片自动保存到其QQ空间的辩解意见，经查，公安机关出具的补充侦查报告书证明QQ空间软件中没有群空间中的图片自动保存到QQ群友个人QQ空间中的功能，故其辩解不能成立，不予采纳。其辩护人提出的辩护意见成立，予以采纳。依照《中华人民共和国刑法》第一百零五条第二款，第五十条第一款、第五十六条第一款、第六十四条之规定，判决如下：

一、 被告人高应朴犯煽动颠覆国家政权罪，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，羁押一日抵刑期一日，即自2010年7月21日起至2013年7月20日止）。

二、 对被告人高应朴犯罪所用的“联想”牌笔记本电脑一台予以没收。

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重庆市高级人民法院提出上诉。书面上诉的，应当提交上诉正本一份，副本二份。

审判长 肖明
审判员 李毅
代理审判员 李颖

二〇一〇年十二月十三日

书记员 夏玉杰

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Big Character Posters Incite Subversion in the Internet Age

Chen Shifu advocated for Sun Yat-sen's Three Principles of the People in his big character posters.

In April 2002, a “big character poster” (dazibao) appeared on a bulletin board reserved for official public notices outside the government building in Zhaoshi Town, Longshan County, in western Hunan Province. Entitled “Letter of Protest,” the poster was written with a calligraphy brush on red paper and called on residents to oppose local government policies related to property demolition and eviction. Over the course of the next several months, other posters appeared and their rhetoric grew more radical.

After an August poster called on people to overthrow the Communist Party and re-establish rule by the Nationalist Party (Guomindang), local police launched a special investigation to find the author of the posters. Two weeks later they found their man, a 45-year-old coffin seller named Chen Shifu, and charged him with inciting subversion.

In the age of blogs and Weibo, it’s perhaps easy to underestimate the significance of a few sheets of paper posted in a public place. Big character posters, large-print manifestos posted strategically to attract the attention of passers-by, have a long history in China, but they became an established means of expressing challenges to authority during the Cultural Revolution (1966‒1976). In fact, for a while the right to express criticisms in this manner became deeply connected to the idea of free speech. A right to post big character posters was enshrined in the 1975 constitution as one of the “four big rights,” which were extolled as “new forms of carrying on socialist revolution created by the masses of the people.” This right was retained in the first post-Cultural Revolution constitution in 1978, but in the wake of the 1979 Democracy Wall movement, the newly consolidated party leadership under Deng Xiaoping decided that big character posters were a threat to the “normal” exercise of the people’s democratic rights, and the right was removed from the 1980 constitution.

Putting up “counterrevolutionary posters”—together with counterrevolutionary leaflets and letters—was classified as a crime of “counterrevolutionary propaganda and incitement” in the criminal law that took effect in 1980. Hundreds if not thousands of people were sentenced to prison for “the three types of cases” during the 1980s and 1990s before the crime of counterrevolution was removed from the criminal law in 1997.[*] After 1997 those detained for putting up posters, distributing leaflets, or sending letters calling for the overthrow of the Communist Party were charged with “inciting subversion.”

The political motivations behind the charge of inciting subversion are expressed clearly in the statement to the court (translated below) presented by Yang Qinghua, who served as public prosecutor in the trial of Chen Shifu. In his attempt to justify the charges against Chen, Yang takes us step by step through the alchemy by which nation, government, and ruling party are fused in China’s political culture, making any challenge to the Communist Party’s “core leadership” role a threat to state security. The prosecutor’s statement is suffused with political language, with which he makes clear that the law he enforces in this case is not so much state law as it is party law. His ultimate analysis of the roots of Chen’s crimes places blame on the defendant’s failure to adhere to the core political faiths that the party has gone to great lengths to instill in its citizens: that the 1949 revolution marked a distinct break between “old” and “new” Chinas, a sharp boundary between the poverty and weakness of the past and the promise of prosperity and strength for a people who had finally “stood up.”

Yang ridicules Chen for his linguistic inelegance and ignorance, yet Yang’s statement (which earned a provincial award for excellent prosecution statements) also suffers from errors, faulty logic, and sloppy legal citations. Yang misquotes China’s constitution, and in what the prosecution must have thought was one of its most damaging arguments, Yang exposes Chen’s inability to elucidate the “Three Principles of the People” that he advocated in his posters. Yang then reveals his own ignorance by identifying “democracy” rather than “nationalism” as the first component of Sun Yat-sen’s famous theory. The fact that, despite these flaws, Yang’s statement was deemed worthy of an award reinforces the suspicion that it was assessed not for its excellence in legal analysis or logic, but rather for its ideological correctness.

The outcome of Chen’s trial is currently unknown, but considering that prosecutors sought a maximum five-year sentence, he is believed to have been released no later than 2007.

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* Counterrevolutionary correspondence is related to the three types of cases. Among law enforcement authorities, it principally referred to cases in which letters were sent with counterrevolutionary purposes to overseas correspondence addresses broadcast by radio stations of “Chiang clique agents,” according to a notice issued by the Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security on December 26, 1979.⇑

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Procuratorate Prosecution Statement: click to expand

Xiangxi Tujia & Miao Autonomous Prefecture People’s Procuratorate
Prosecution Statement

Presiding Judge, Adjudication Officers, and Citizen Observers:

This morning, the First Criminal Division of the Xiangxi Autonomous Prefecture Intermediate People’s Court held a hearing here to publicly try the inciting subversion case against defendant Chen Shifu. In accordance with Articles 153, [160], 165, and [169] of the Criminal Procedure Law of the PRC and Article 15 of the Organic Law of the Procuratorate of the PRC, I have been assigned by the Xiangxi Autonomous Prefecture People’s Procuratorate to represent it as prosecutor on behalf of the state and appear in court to support the prosecution, as well as to undertake legal supervision of the criminal process.

In the court investigation phase of the trial just now, the court’s investigation of the defendant’s testimony in court and questioning by the prosecutor, the reading of relevant witness statements, expert opinions, the record of the crime-scene investigation, and the presentation of relevant documentary evidence sufficiently demonstrates the correctness of our procuratorate’s decision to charge defendant Chen Shifu with the crime of inciting subversion and that the evidence is sufficient and reliable. In order to further expose criminality, castigate evil, uphold justice, and promote legal institutions, the prosecution will set out the following several arguments for the court’s consideration as it decides upon conviction and sentencing for the defendant:

I. Defendant Chen Shifu’s actions constitute the crime of inciting subversion.

According to Article 105(2) of the Criminal Law of the PRC: the offense of “inciting subversion of state power” means to engage in incitement by spreading rumors or slanders or any other means to subvert state power or overthrow the socialist system. Before convicting under this offense, we must clarify two concepts:

1. What is the nature of our country’s state power?
2. Article 1 of the Constitution of the PRC states: “The People's Republic of China is a socialist state under the people's democratic dictatorship led by the working class and based on the alliance of workers and peasants.” The Constitution also states [The following language is not found in the Constitution–Trans.] that the Communist Party of China (CPC) is the core of leadership of China’s socialist revolution and socialist construction effort and the core of leadership of China’s state power of people’s democratic dictatorship. From the above constitutional provisions, we can see that leadership over the state by China’s working class is realized through CPC rule. Overthrow of the CPC is equivalent to overthrowing the leadership of the working class and tantamount to subverting state power, and is thereby a rejection of the socialist system.
3. Inciting subversion is a behavioral offense, which means that a crime is constituted so long as the perpetrator engages in behavior that incites subversion of state power—regardless of whether or not that behavior results in actual harm or whether others believe [the incitement] or commit acts of incitement.

In conclusion, knowing the nature of China’s state power and understanding that the crime of inciting subversion is a behavioral offense, let us again review the case and analyze the actions and subjective intent of defendant Chen Shifu: The prosecution charges that defendant Chen Shifu incited subversion of state power (i.e., the leadership of the CPC) by posting “big character posters.” To show why we say this, the prosecutor will read an excerpt from defendant Chen Shifu’s third “big character poster” (i.e., “Call to Arms”): “I call on all ordinary people and celebrities in China to rise up and overthrow the Communist Party; to retake our national government and govern China properly. Everyone can begin by posting ‘big character posters’ all over or directly participating in anti-Communist organizations. . . .” From this excerpt, we can see clearly that the defendant subjectively had a clear intention to overthrow the CPC and subvert state power and that he objectively engaged in corresponding behavior (posting ‘big character posters’). So, whether one looks at subjective or objective criteria, [his actions] satisfy the main constituent criteria for the crime of inciting subversion. The prosecution’s decision to prosecute defendant Chen Shifu on this charge is correct. However, ever since he was taken into custody—including in court today—defendant Chen Shifu has claimed in his defense that he only wanted to make comments and did not really want to overthrow the Communist Party. The prosecution believes that this is only sophistry on the defendant’s part in an effort to mitigate his criminal liability. Think about it: Does it make sense to overthrow a state’s ruling party first and then make comments? The prosecution believes that no ruling party in any country in the world would accept this way of making “commentary.” The collegiate panel should not give any credence to this sort of ridiculous defense argument.

II. The evidence supporting the criminal charges against defendant Chen Shifu was collected legally and is objective and mutually correlative.

During the just-concluded court investigation phase, the prosecution put forth a large amount of evidence supporting the criminal charges against the defendant. Below, the prosecution will summarize [that evidence] as follows:

1. Defendant Chen Shifu fully confessed to using a brush to write the three big character posters “Letter of Protest,” “On the Current Political Situation,” and “Call to Arms,” and what he has said about the paper, ink, and adhesive used; the locations of posting; and the contents is all corroborated by the testimony of witnesses Chen Xiaohua, Yao Jinxiang, Wu Caixu, Xiang Famao, Peng Bin, Zhang Furong, and Li Wancai.
2. The testimony of Zhou Minglong, Wang Boyu, Li Wenzhi, Chen Shiyun, Fan Guihua, and Wu Dan, confirming that they personally saw the big character posters and some of the contents, is completely consistent with the confession of defendant Chen Shifu.
3. The corroborating documentary evidence of the three big character posters, “Letter of Protest,” “On the Current Political Situation,” and “Call to Arms,” in the case file.
4. The public security authority’s record of on-scene investigation and relevant photographs, which are on file, and the conclusions of the Longshan County Public Security Bureau’s handwriting analysis determining that the three big character posters were all written by Chen Shifu himself, about all of which defendant Chen Shifu has not raised any objections.
5. Documents on file such as the crime report, record of case solution, and record of defendant Chen Shifu’s apprehension.

The evidence above is not mutually contradictory and forms a complete chain of evidence. The only exclusive conclusion that can be drawn from this evidence is that defendant Chen Shifu used the posting of big character posters to incite subversion of state power.

III. Refutation of some of defendant Chen Shifu’s mistaken views

In questioning the defendant and examining the investigation file, the prosecution has discovered that defendant Chen Shifu’s thinking is very confused and that his views are full of holes. There are numerous poorly constructed sentences and mistaken characters in the big character posters he wrote. (Based on the prosecution’s rough tally, there are more than 25 mistaken characters and seven poorly constructed sentences in his “Call to Arms,” an “essay” of fewer than 300 characters.) Some of his views display certain confusions, of which the prosecution will examine two in particular in order to set the record straight:

1. First is the idea that the “freedom of expression” enjoyed by citizens can conceal his criminal activity. During the prosecution’s questioning and even here in today’s courtroom, the defendant continued to say that citizens enjoy the right to “freedom of expression.” There’s no mistake, “freedom of expression” is a fundamental right granted to citizens by the Constitution. But the prosecution is obligated to point out that “freedom of expression” must be established within the framework of law, instead of overriding the law. Moreover, the prosecution wants to explain very carefully that our country and our ruling party has never been afraid of comments from the masses. On the contrary, we welcome very much the oversight of the broad popular masses. Had the defendant expressed his comments and suggestions through lawful channels such as the system of letters and visits or petitioning or made complaints to a people’s congress deputy, he wouldn’t be standing here today in the defendant’s docket. On the contrary, he would receive the law’s protection. Unfortunately, however, Chen Shifu chose the unlawful manner of “posting big character posters” and made vicious attacks and slanders against the government and our party. This is something the law cannot allow. I wonder whether defendant Chen Shifu now realizes this as he sits in the defendant’s docket.
2. Only the “Three Principles of the People” and the Nationalist Party (Guomindang) can properly govern China. This is something that the defendant has said many times; but, ironically, when asked by the prosecution what the “Three Principles of the People” were, the defendant could not answer. Just think, how can a person who doesn’t even know what the “Three Principles of the People” are know whether they can properly govern China? This in and of itself is a joke. One cannot deny that during the old era of democratic revolution, Sun Yat-sen’s idea of the “Three Principles of the People” being “Democracy, People’s Rights, and People’s Livelihood” [The first principle is “nationalism” (minzu) not “democracy” (minzhu)—Trans.] was certainly a progressive idea during its time. Today, however, when China has already entered the socialist era, it is clearly out of step with the times to talk about the “Three Principles of the People.” These days, only Deng Xiaoping Theory and the important idea of “Three Represents” can guide China on the path towards being a strong nation with wealthy citizens. The more than 20 years since reform and opening have proved this point, and I believe that future history will also prove this point. As for whether or not the Nationalist Party can properly govern China, anyone who understands even a little bit of modern history knows that from the 1911 Revolution until the founding of New China [in 1949], China was under control of the Nationalists for several decades. But what they brought the Chinese people was endless war and chaos, hardship and destitution, bullying by foreign powers, and selling out the nation in search of personal glory. As someone born after [1949] who grew up as a citizen of New China, defendant Chen Shifu never had any experience of the old China under Nationalist rule, so how can he know if the Nationalists governed well? Actually, you don’t have to go very far; if you had looked at the great differences between old and new China with regard to your own Zhaoshi Town or asked the old people around you, you wouldn’t have made such a basic error. The prosecution also wants to take this opportunity to mention to the defendant: the “ruling party” in Taiwan is the Democratic Progressive Party, not the Nationalist Party. Just think, the Guomindang cannot even govern the several dozen million people of Taiwan Province; how could they lead the more than one billion people of the mainland towards relative prosperity? Isn’t the defendant taking too much for granted?

IV. The ideological origins and social consequences of defendant Chen Shifu’s crimes and their lessons to us

Before analyzing why the defendant committed his crime, the prosecution first wishes to discuss three things: 1. After the defendant committed his crimes, the public security authority searched his residence in accordance with the law. They found not a single book promoting our party’s policies but discovered several reactionary books such as Biography of Chiang Kai-shek; 2. The defendant confessed to public security and procuratorate authorities on multiple occasions that when he was working as a migrant laborer in Fujian he often listened to Taiwan radio broadcasts to the mainland when he was bored; 3. During the process of relocating the marketplace, the defendant went to create a scene at the township government and other bodies because of the gap between the compensation payment and the expected [expenses].

From the above three matters, it is actually very easy to explain the origins of the defendant’s crimes. He neglected his studies for a long time and stopped reforming his own worldview. Because he frequently listened to hostile radio broadcasts, he gradually developed dissatisfaction with current reality and a hatred for the party and government. The moment his own interests were affected, he immediately went to stand on the side of opposing the party, opposing socialism, and opposing the people. After the Chen Shifu case occurred, it created a big impact in Zhaoshi as well as the surrounding townships. In several middle and primary schools in Zhaoshi Town it was necessary to disrupt the normal curriculum to hold several days of political-thought classes for the students in order to set the record straight. During those several days, Zhaoshi was filled with discussion of the “big character poster” incident. No sooner had the special case team arrived in Zhaoshi than a dozen or so old party members set out on their own initiative to find the team leader. These old comrades with 20 or 30 years of party membership all expressed the same desire: the case must be solved quickly and the perpetrator taken into custody because criminals who spread such heresies and disrupt people’s thinking must be severely punished. I think the words of these dozen or so old party members represent the thinking of Zhaoshi’s masses, who number more than 100,000 people. Now the case has been solved and the defendant will receive law’s sanction, but the prosecution still feels a sense of unease. How could a case like this occur in a place with such a glorious revolutionary tradition as Zhaoshi? How can we eliminate these kinds of cases once and for all? The prosecution wants to use this case to share the following lessons:

1. We cannot do as some local governments and pursue only economic development but must also develop spiritual civilization—both must be “grasped firmly with both hands.” Lately, there have been deviations in the ideology guiding the work of the heads of some local governments (of course, only a small minority). It’s as if it’s only important to pursue economics and nothing else is important. Actually, this kind of thinking is dangerous. If we sacrifice the construction of spiritual civilization in pursuit of economic development, I think this kind of prosperity will certainly not last long. Problems such as this case might even emerge.
2. The character of some of our law enforcement personnel needs to improve. The defendant in this case, as well as many other members of the public, all complained to us about simple work methods and rough attitudes of some local law enforcement personnel. Perhaps to the [law enforcement officers] themselves this is only a matter of work details, but in the eyes of the popular masses these law enforcement personnel represent the image of the party and the government. If the behavior of an extreme few damages the image of the party and the government or even gives those with ulterior motives an opportunity, this does more harm than good.
3. We still have a long way to go in our legal education work for the masses, especially for the masses in “old, minority, remote, and poor” [Here, “old” refers to old revolutionary base areas where CPC activity had been strong prior to 1949—Trans.] regions such as ours. On this point, the prosecution only wants to say one thing: The prerequisite and foundation for our ability to “rule the nation in accordance with the law” is to have the masses know and obey the law.

V. The defendant ought to be held criminally responsible.

According to Article 105(1) of the Criminal Law [The following is not actually a direct quote, the correct citations are Article 105(2) and Article 113—Trans.]: “Whoever incites subversion of state power shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention, public surveillance or deprivation of political rights and may have their property confiscated.” Reviewing this case, defendant Chen Shifu has no grounds for lenience or mitigation, and we hope that the collegiate panel will render a lawful and fair verdict based on the magnitude of the defendant’s crimes, the social impact, and the defendant’s attitude towards confessing guilt. This concludes the prosecution’s statement.

Prosecutor: Yang Qinghua
April 18, 2003

(Note: This prosecution statement was awarded first prize in a provincial competition of prosecution statements.)

Chinese Source（原文）: 湘西州检察志（1989‒2007），pp. 300-305 Click on icon to expand

湘西士家族苗族自治州人民检察院
公诉意见书

审判长、审判员、旁听公民们:

湘西自治州中级人民法院刑事审判第一庭今天在这里开庭，公开审理被告人陈世富煽动颠覆国家政权一案。根据《中华人民共和国刑事诉讼法》第一百五十三条、第一百六十条、第一百六十五条和第一六十九条以及《中华人民共和国检察院组织法》第一十五条之规定，我受湘西自治州人民检察院的指派，代表本院，以国家公诉人的身份，出席法庭支持公诉，并依法对刑事诉讼实行法律监督。

在刚才的法庭调查阶段，通过被告人的当庭供述、公诉人的讯问、宣读有关证人证言、鉴定结论、勘验笔录以及出示有关书证等一系列法庭调查活动，充分说明本院指控被告人陈世富所犯煽动颠覆国家政权罪定性是准确的、证据也是确实充分的。公诉人为了进一步揭露犯罪、鞭挞邪恶、匡护正义、弘扬法制，下面就本案谈如下几点公诉意见，供法庭在对被告人定罪量刑时予以考虑:

（一）被告人陈世富的行为己构成煽动颠覆国家政权罪

《中华人民共和国刑法》第一百零五条第二款规定"煽动颠覆国家政权罪"是指以造谣、诽谤或其它方式煽动颠覆国家政权、推翻社会主义制度的行为。我们在认定此罪名前必须要明确两个概念:

1. 我国国家政权的性质是什么?
2. 《中华人民共和国宪法》第1条规定"中华人民共和国是工人阶级领导的、以工农联盟为基础的人民民主专政的社会主义国家“。同时《宪法》还规定“中国共产党是我国社会主义革命和社会主义建设事业的领导核心，是我国人民民主专政的国家政权的领导核心。由上述宪法规定我们可得知：中国工人阶级对国家的领导是通过中国共产党的执政来实现的，推翻中国共产党，即是推翻工人阶级的领导，既是颠覆国家的政权，从而否定社会主义制度。
3. 煽动颠覆国家政权属于行为犯，即只要行为人具有煽动颠覆国家政权的行为，不管是否产生实际危害结果，不管他人是否相信或实施了煽动内容的行为，都构成犯罪。综上，知道了我国国家政权的性质，明白了煽动颠覆国家政权罪是行为犯，我们再来结合案情分析被告人陈世富的行为和主现故意：公诉机关指控被告人陈世富利用张贴"大字报"的形式煽动颠覆国家政权(即中国共产党的领导)。为什么这样讲，公诉人下面摘录宣读被告人陈世富在第三张"大字报"（即《号召书》）中的一段话：“号召天下百姓和知名人士站起来，推翻共产党，把国民政府接回来，再好好的治理中国。大家首先可以《大字报》的形式到处张贴，或者直接参加反共组织……"从此段话我们可以清楚地得知，被告人在主观上明显具有推翻中国共产党领导，颠覆国家政权的故意，同时在客观上也实施了相应的行为(张贴"大字报")，其无论从主观要件上，还是从客观行为要件上均符合煽动颠覆国家政权罪的构成要件。公诉机关以此罪起诉被告文陈世富在定性上是准确的。虽然，在被告人陈世富被抓后，乃至在今天的法庭上，陈一直辩称其只想提意见，并不是真的想推翻共产党。公诉人认为这只是被告人为了减轻罪责的一种狡辩，试想：有没有先将一个国家的执政党推翻后，才提意见的道理。公诉人想世界上任何一个国家的任何一个执政党都不会接受这种"提意见"的方式的。对于此种荒谬的辩解，合议庭在应不予采信。

（二）认定被告人陈世富犯罪的证据来源合法、客观、证据之间具有关联性

公诉人在刚才的法庭调查阶段，列举并出示了大量认定被告人犯罪的证据。公诉人下面在这里作一下归纳：1、被告人陈世富对其用毛笔书写《抗诉书》、《时局论》、《号召书》三份大字报供认不讳，所述用的纸张、墨水、胶水、张贴的位置、书写的内容均与证人陈小花、姚金香、吴才绪、向发茂、彭斌、张芙蓉、李万财证实一致；

2 、证人周明龙、王伯宇、李文志、陈仕云、范桂花、吴丹等人证实亲眼看见的大字报的纸张及部分内容与被告人陈世富供述完全吻合；3、有书证《抗议书》、《时局论》、《号召书》三张大字报在卷佐证；4、有公安机关的现场勘场笔录、相关照片在卷，龙山县公安局文检鉴定三张大字报均系陈世富一人书写，并经被告人陈世富辩认后没有异议；5、有报案记录、破案记录、抓获被告人陈世富经过等材料在卷。以上证据间互无矛盾，且已形成完整的证据索链。通过这些证据只能得出唯一的排他性的结论即：被告人陈世富采取张贴大字报的方式煽动颠覆国家政权。

（三）对被告人陈世富几个错误观点的反驳

公诉人讯问被告人及审查卷宗时发现，被告人陈世富的思维相当混乱，观点也漏洞百出，书写的大字报病句、错字更是随处可见（公诉人粗略统计了一下，在其《号召书》不足三百字的"文章"中，便有多达二十五个错别字和七个病句）。然而其某些观点，又颇具一定的迷惑性，公诉人下面剖析两点，以正视听： （1）以公民享有"言论自由"权掩盖其犯罪行为，公诉人在提审被告人，甚至在今天的法庭上，被告人还提到公民享有"言论自由"权。不错，"言论自由"是《宪法》赋予公民的一项基本权利，但是公诉人必须指的是"言论自由"权必须是建立在法律的框架之下，而决非凌驾于法律之上。另外，公诉人要慎重说明的是，我们的国家，我们的执政党从来都不怕群众提意见，相反还十分欢迎广大人民群众的监督。假如被告人能够利用信访、上访或找人大代表代为反映等等这些合法的途径提出自己的意见和建议，那么今天他不但不会坐在被告席上，相反还会受到法律的保护。然而遗憾的是，陈世富却选择了“张贴大字报”这种不法手段，同时还对政府及我党进行恶毒的攻击和诽谤，这就是法律所不允许的了。不知今天坐在被告席上的陈世富是否意识到了这点；（2）只有"三民主义"，只有国民党才能治理好中国。这是被告人多次提及的观点，然而可笑的是，当公诉人问其什么是"三民主义"时，被告人却答不上来了。试想，一个连什么是"三民主义"也没弄明白的人，又怎么知道“三民主义”能治理好中国，这本身就是一个笑话。不可否认，在旧民主主义革命时期，孙中山先生提出的以"民主、民权、民生"为核心的“三民主义”思想，在当时确实是一种先进的思想。然而在中国已进入社会主义的今天，再提“三民主义”显然已不合时宜了。在当今，唯有邓小平理论和"三个代表"重要思想才能使中国走上强国、富民之路，改革开放二十多年来的历史已证明了这点，相信以后的历史还将证明这一点。再谈一下国民党是否能治理好中国，稍微懂一点近代史的人都知道，从辛亥革命到新中国成立，国民政府在中国也统治了几十年，然而它带给中国人民的是什么，是无穷的战乱，是民不聊生、是外强欺辱、是卖国求荣。被告人陈世富作为生在解放后，长在新中国的公民，根本都没有经历过国民政府统治过的旧中国，又怎么会知道国民党统治的好呢？其实你根本不用去远方，只要你看一看你们召市新、旧社会的巨大变化，问一问你身边的老人们，你也不至于犯这样一个低级的错误了。公诉人在这里还想顺带告诉一下被告人：目前在台湾"执政"的已不是国民党了，而是民进党。试想连一个几千万人口的台湾省也治理不好的国民党，又怎么能领导大陆十多亿人奔小康。被告人是否有点太想当然了。

（四）被告人陈世富犯罪的思想根源，社会影响及给我们的启示

在剖析被告人为会犯罪前，公诉人想先讲三件事：1、在被告人犯罪后，公安机关依法对其住所搜查时，竟未发现一本宣传我党方针政策的书籍，倒是翻出了几本像《蒋介石传》之类的反动书籍；2、被告人多次向公安和检察机关供述：自己在福建打工期间，由于无聊，经常收听台湾对大陆的广播；3、在这次市场搬迁过程中，由于补偿金与预期有一定的差距，被告人多次到乡政府等部门闹事。从上三件事，其实已很好地诠译了被告人犯罪的根源，那便是长期不学习，放松了对自己世界观的改造，由于经常收听敌台，逐渐产生了对现实不满，仇视党和政府的情绪。当自己的利益一旦受到触动，便马上站到了反党、反社会主义，与人民为敌的一面。陈世富一案发生后，在召市乃至相关乡镇，造成了极大的影响。召市镇几个中、小学、不得不打乱原来的教学计划，对学生上了几天的政治思想课，以正视听。而在那几天，召市的街头巷尾，莫不是纷纷议论"大字报事件"以至于专案组刚一进驻召市，便有十几位老党员自发地找到了专案组负责人，这些有着二、三十年党龄的老同志都表达了一个心愿：请务必尽快破案，请务必抓到罪犯，对于这种公然妖言惑众、扰乱民心的罪犯，必须严惩不贷。我想这十几位老党员的话也代表了召市十几万群众的心声。现在案虽破了，被告人也将要受到法律的制裁，然而公诉人的心情却难以平静，为什么在召市这片有着光荣革命传统的土地上会发生此案，如何才能杜绝此类案件再度发生，公诉人想通过此案谈几点启示：

1. 我们某些地方政府不能光抓经济建设，同时还要抓精神文明建设，必须"两手抓，两手硬"。目前，我州某些地方政府领导（当然是极少数）的工作指导思想出现了一定的偏差，仿佛只要经济抓上去了，其它的都不重要了，其实这种思想是很危险的，假如我们以牺牲精神文明建设为代价去抓经济建设，我想这种繁荣一定不会持久，甚至还会出问题，辟如此案。
2. 我们某些执法部门人员的素质还有待于提高，本案被告人同时也包括很多群众都向我们反映当地某些执法部门工作人员的工作方法简单，态度粗暴，也许对其个人而言，这仅仅是个工作细节问题，然而在人民群众眼中，这些执法部门的人员部代表的是党和政府的形象。假如因为极个别人的行为损害了党和政府的影象，甚至给一些别有用心的人有机可趁，这将是得不偿失;
3. 群众的普法工作，尤其是像我们这样一些"老、少、边、穷"地区群众的普法工作还任重而道远，对于这点，公诉人不想多谈，只想讲一句：群众知法、守法将是我们"依法治国"的前提和基础。

（五）被告人应负的刑事责任

我国《刑法》第105 条第1款规定"犯煽动颠覆国家政权罪的，处5 年以下有期徒刑、拘役、管制或者剥夺政治权利，并可并处没收财产"。结合本案来看，被告人陈世富没有任何从轻、减轻情节，希望合议庭根据被告人的罪责大小、社会影响、认罪态度等对其作出合法而公正的判决，公诉意见发表完毕。

公诉人：杨庆华
2003年4月18日

（注：此公诉词在全省公诉词评选中获得优胜奖。）

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Legal Education: Arbitrary Detention Doesn’t End with RTL

A legal education class in Gansu province, March 15, 2013. Photo credit: Gzxw.com.cn

Although much about China’s planned reform of reeducation through labor (RTL) remains uncertain, it seems quite likely that petitioning has been removed from the list of activities subject to RTL—or whatever new measure is chosen to replace it. On the surface, this looks like a victory for rule of law in China. For many years, individuals whose efforts to seek redress for grievances were deemed “abnormal” or “disruptive” faced being sent to RTL for one or two years without trial, legal representation, or effective means of appeal. However, even if petitioners no longer face RTL, the continuing imperative to “maintain stability” means that they still risk rights-violations through measures with even murkier basis in law.

One of these measures are the “legal education classes” that have been used in China for more than a decade. Like RTL, they provide local authorities with a highly flexible means of dealing with certain individuals whose behavior is considered to be socially disruptive but that doesn’t meet the criteria for criminal prosecution or public-order punishment. Originally targeted at members of Falun Gong and other “cult organizations,” use of these classes has been more recently expanded to include those who engage in persistent, disruptive, or mass petitioning activity.

For example, local authorities who believe that a person is planning to go to Beijing to petition can send him or her to a legal education class regardless of whether the person has taken any steps towards the capital. Compared with RTL, where the emphasis is on labor, legal education is primarily about “educating” attendees. Through a greater understanding of rules and regulations, participants are meant to be dissuaded from pursuing grievances through improper channels or pursuing matters that have officially been resolved.

Like RTL, this period of “education” is compulsory. But unlike RTL, which despite its problematic legal foundation is still governed by a set of national rules and regulations, legal education classes appear to be based on a patchwork of local measures enacted in response to political directives. In 2006, Jiangsu Province designed a regime of education targeting petitioners called the “Three Make Clears.” Through this system, participants were meant to gain clarity on “national, provincial, and county circumstances”; the relevant legal provisions; and the serious social harm caused by abnormal petitioning.

In some locations, legal education classes are held in fixed locations specially designated for the purpose. Other places hold classes in different venues depending on the number of “students,” which reportedly range from one or two to a dozen people.

According to one man sent to a legal education class in Jiangsu in 2007, local authorities in charge of petitioning “tricked” him into attending the class by summoning him to discuss a matter related to his grievance. Held in an abandoned school dormitory for more than 10 days, he claims that he and his “classmates” were denied basic personal hygiene like bathing or tooth brushing, were not able to change their clothes, and were unable to contact family members. Each day, local officials would come to the school to lecture the “students,” who were forced to stay in the school for an indeterminate period—a matter of days in some cases, and months in others—ultimately dependent upon their “performance.”

These deprivations of liberty are not implemented pursuant to any judicial decision and do not appear to be authorized by any duly enacted national legislation. There is no channel through which to challenge a decision to be “enrolled” in legal education. In other words, the system of legal education classes clearly violates China’s constitution and obligations under international human rights law.

But legal education classes continue to play an important role in China’s “stability preservation” system. In Hebei Province’s Fengning Manchu Autonomous County, situated between Beijing’s northern suburbs and Inner Mongolia, plans were recently announced for establishing a legal education school. Though the plans do not reveal much about what happens at the institution, the involvement of a broad variety of law enforcement and social service agencies appears to reflect the recent shift towards a more comprehensive approach to “social management.”

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Implementation Plan for Establishing a Legal Education School: click to expand

Fengning Manchu Autonomous County
Implementation Plan for Establishing a Legal Education School

The Fengning Manchu Autonomous County Legal Education School is a base established to resolve petitioning problems and carry out legal education for targeted petitioners from the county who either go to Beijing [to petition] or present the danger of going to Beijing to engage in abnormal petitioning. It [provides] centralized education for petitioners and an effective method for guiding them to resolve their problems through normal channels and ultimately preserving the stability of the petitioning [system]. In order to better realize the functions of this base for education and training and create beneficial conditions for stabilizing petitioning in the county, this implementation plan has been specifically drafted.

I. Mission

To set up a legal education school to strengthen legal education and publicity. To centralize resolution of the problems of a group of targeted persons who engage in persistent, disruptive, or long-term petitioning and who have the potential to go to Beijing or who have already gone to Beijing or the provincial capital to engage in abnormal petitioning. To employ all effective measures to achieve ultimate resolution of each case or matter and bring an end to each complaint and petition, in order to ensure that the work goal of the “six guarantees ” can be realized.

II. Content of Study

The [county] justice bureau shall take responsibility for inviting personnel to lecture people attending the [legal education school] from bodies such as the people’s congress committee on internal and judicial affairs, the government legal affairs office, the [local] people’s political consultative conference committee on social and legal affairs, the justice bureau, and the bureau of letters and visits on subjects such as the Regulations for Letters and Visits, the Public Order Administration Punishment Law, the Land Law, and the Policy on Rural Industries and arrange for enrollees to study such things as the relevant laws and policies, implementation regulations, and complaint procedures.

III. Organization and Leadership

A leadership small group is to be established for the Fengning Manchu Autonomous County legal education school, to be headed by county party committee standing committee member and politico-legal committee secretary Comrade Liu Haiping and with justice bureau chief Comrade Han Yiwen taking the leading role; this group takes full responsibility for all details of work at the school. The public security bureau, procuratorate, court, bureau of letters and visits, health bureau, finance bureau, and other relevant departments participate jointly and assist with the work of the school in accordance with their respective competencies. Of these, the public security bureau, justice bureau, bureau of letters and visits, and health bureau shall each arrange for a member of their [leadership] teams to direct classes at the school.

IV. Personnel Arrangement

The justice bureau is requested to assign six employees; the bureau of letters and visits is to assign three employees; the public security bureau, procuratorate, and court are to deploy 12 police officers [in total]; the health bureau is to assign two hygiene and epidemic-prevention workers; and for each student, two accompanying persons are to be deployed from [his or her] township, town, or unit. Beyond this, it will be necessary to hire five logistics service employees.

V. Related Responsibilities

1. The justice bureau is responsible for drawing up a corresponding work plan and a system and discipline [measures] for workers; responsible for the routine work of study classes such as organizing the study records and verifying the identities of enrolled persons, handling formalities for enrollment and discharge, and making arrangements for facilities; and responsible for the education and study of enrollees and arranging the content of the curriculum.
2. The public security bureau is responsible for security and maintaining order within the legal education [school] and in the surrounding area. There should be a guaranteed contingent of 12 police officers (deployed from the public security bureau, procuratorate, and court) arranged to be on long-term duty at the school. They should also assist employees of the [school] to carry out such work as security screening and one-by-one inspection of persons participating in the courses.
3. The bureau of letters and visits is responsible for coordinating with the relevant departments and township and town [governments] to resolve the problems of targeted petitioners participating in the courses.
4. The health bureau is responsible for work related to hygiene and medical treatment for the legal education classes. Two health workers shall be permanently assigned to work at the [school] with supplies of routine and emergency medicines and essential medical equipment. They are responsible for health checks and routine medical treatment of enrollees. The epidemic-prevention unit shall carry out advance inspections of the school and be responsible for monitoring food service and hygiene and epidemic-prevention work in order to prevent the occurrence of food poisoning and other such incidents.
5. The finance bureau is responsible for ensuring funding for the school.
6. Township or town [governments] or relevant departments are responsible for transporting targeted petitioners to study at the school. They should strictly control the use of study classes to ensure that those sent to study classes are targeted people whose problems have been satisfactorily resolved but who insist on carrying out persistent or disruptive petitioning or who organize mass petitioning and those who present serious risk of going to Beijing to carry out abnormal petitioning. Township or town [governments] or departments shall assign two employees per enrollee to be responsible for accompanying the enrollee and keeping continual track of his or her progress, adjusting his or her attitude, and strictly preventing the occurrence of problems such as self-mutilation, suicide, or flight.

VI. Related Institutions (Attached)

Establish and improve rules and regulations. Establish a System of Employee Work, a System of Security Personnel Work, a System of Health Personnel Work, and a System of Accompanying Personnel Work.

Chinese Source（原文）: 丰宁满族自治县法制教育学校建设实施方案 发布日期：2012年5月30日 http://wwww.fn.gov.cn/sfj/ShowInfo.asp?InfoID=3001 Click on icon to expand

丰宁满族自治县
法制教育学校建设实施方案

丰宁满族自治县法制教育学校是针对全县进京或有进京非正常上访隐患的重点信访人员建立的解决信访问题和进行法制教育的基地，是集中对信访人员进行教育,引导其通过正常途径解决问题、最终维护信访稳定的有效手段。为更好的发挥教育培训基地功能，为做好全县的信访稳定工作创造有利条件，特制订此实施方案。

一、目标要求

通过开办法制教育学校，加大法制教育宣传力度，要集中解决一批有进京非访苗头或已经进京赴省非访的重点缠访、闹访和老上访人员问题，要采取一切可行措施，最终实现案结事了，息诉罢访，确保实现“六个确保”工作目标。

二、学习内容

由司法局负责，聘请人大内务司法委、政府法制办、政协社会法制委、司法局、信访局等单位工作人员对入班学员讲解《信访条例》、《社会治安管理处罚法》、《土地法》、《农村产业政策》等课程，组织他们学习相关法律政策、法规细则、申诉程序等方面知识。

三、组织领导

成立丰宁满族自治县法制教育学校领导小组，由县委常委、政法委书记刘海平同志任组长，由司法局局长韩亦文同志牵头，全权负责学校的各项具体工作。公安局、检察院、法院、信访局、卫生局、财政局等相关部门共同参与，依照职责协助做好学校各项工作。其中，公安局、司法局、信访局、卫生局各安排一名班子成员在学校带班指挥。

四、人员安排

要求司法局安排6名工作人员，信访局安排3名工作人员，公检法抽调12名警力，卫生局安排2名卫生防疫人员，每名学员由乡镇或部门抽调两名陪护人员。除此以外，还需雇5名后勤服务人员。

五、相关职责

（一）司法局负责制定相应的工作方案及工作人员纪律和制度，负责做好进班人员的学习记录整理、身份核实、进出班手续办理、房间安排等学习班日常事务工作，负责进班人员学习教育、课程内容安排。

（二）公安局负责法制教育学习班内部及周边的安全保卫和维持秩序工作。要保证安排12名警力（从公安局、检察院、法院抽调）长期值班，同时协助学习班工作人员做好进班人员的安检、排查等工作。

（三）信访局负责协调相关部门、乡镇解决进班重点信访人员的问题。

（四）卫生局负责法制教育学习班的医疗卫生等相关工作。要委派2名医务人员常驻学习班，配备常用及应急药品和必备的医疗器具，负责对入班学员体检和日常医护工作；防疫部门要提前到学习班进行检查，负责监餐和卫生防疫工作，防止食物中毒等事件发生。

（五）财政局负责学校的资金保障工作。

（六）各乡镇、有关部门负责输送重点信访人员进行学习。严把进班人员关口，要真正把那些问题已解决到位，但仍坚持缠访、闹访、组织串联集体上访并有重大进京非正常访隐患的重点人员送到学习班。各乡镇、部门要为每名进班学员安排2名工作人员、负责对学员进行陪护，随时掌握学员的动态，调整学员心态，严防自残、自杀、出走等问题的发生。

六、相关制度（附后）

建立健全规章制度。建立《工作人员工作制度》，《保卫人员工作制度》，《医护人员工作制度》，《陪护人员工作制度》。

收起中文部分

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Chinese Man Gets "Lenient" Sentence for Online Political Groups

Gansu Qingyang Intermediate People's Court. Photo credit: gscn.com.cn

In February 2011, after protests swept through North Africa and the Middle East in what became known as the “Arab Spring,” Chinese security officials initiated a vigorous and widespread crackdown on potential sources of perceived political instability. This crackdown involved secret detention of human rights lawyers, arrest of Internet users who posted information about China’s elusive “Jasmine Revolution,” and heightened monitoring of social media.

Though not taken into police custody until June 2012, Zhang Shaofeng’s conviction on charges of “inciting subversion” perhaps ought to be seen in the context of the anti-Jasmine crackdown. Little is known about Zhang, in part because the court document that Dui Hua recently discovered excludes all of his personal details. Possibly a student, Zhang lived in Qingyang in the northwestern province of Gansu and, like many young people, appears to have been an active user of social networking sites.

Prosecutors charged that Zhang used these sites to form illegal political organizations that spread anti-government propaganda. They also charged him with using email to join the China Democracy Party and disseminating articles that advocate violent revolution. For his part, Zhang contended that he had no intention of overthrowing the political order and participated in these activities out of a belief that it would help him seek political asylum in the United States.

Ultimately, the Qingyang Intermediate People’s Court gave Zhang a relatively lenient 18-month prison sentence on account of his cooperative and remorseful attitude during investigation and trial. As is routine in verdicts involving the crime of “inciting subversion,” the court dismissed the argument of Zhang’s lawyers that his activities fell under the scope of constitutionally protected free speech by noting that this freedom is limited by constitutional obligations that prohibit the violation of national security.

The court also clearly explains that for the purposes of assessing culpability it is only necessary that an act of expression have the potential to incite others to commit subversion, regardless of whether subversion actually results. Accordingly, whether Zhang’s political postings were well-received or widely disseminated is not discussed. Instead, the court makes an effort to justify the potential for social harm caused by Internet speech in a very general sense. This contrasts with more widely known cases of “inciting subversion,” such as those involving Hu Jia or Liu Xiaobo, in which the courts tally recipients or viewers. This is likely because prosecutors were not attempting to prove that Zhang’s crimes were especially serious, perhaps because they were already prepared to give relatively lenient punishment.

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Qingyang Intermediate People’s Court of Gansu Province Criminal Verdict: click to expand

Qingyang Intermediate People’s Court of Gansu Province
Criminal Verdict

(2012) Qingyang Int. Crim. 1st Inst. No. 35

The prosecuting organ is the Qingyang People’s Procuratorate of Gansu Province [hereafter, “Qingyang People’s Procuratorate”].

Defendant Zhang Shaofeng. [Personal details have been omitted in the electronic version of this verdict—Ed.] Placed under criminal detention by the Qingyang Public Security Bureau on June 13, 2012, on suspicion of inciting subversion and formally arrested on July 19 of the same year.

Defense counsel is Ma Hongbing, lawyer with the Gansu Beidou Law Firm.

Defense counsel is Yan Lin, lawyer with the Gansu Beidou Law Firm.

On October 9, 2012, the Qingyang People’s Procuratorate filed indictment Qingyang Proc. Crim. Indict. (2012) No. 25 with this court, charging defendant Zhang Shaofeng in a case of inciting subversion. This court formed a collegiate bench in accordance with the law and held an open hearing to try this case on November 1, 2012. The Qingyang People’s Procuratorate appointed procurator Li Haiying to appear in court on behalf of the prosecution. Defendant Zhang Shaofeng and his defense counsel Ma Hongbing and Yan Lin all appeared in court to participate in the proceedings. The trial has now concluded.

The Qingyang People’s Procuratorate charged that, beginning in March 2011, defendant Zhang Shaofeng used screen names such as “MZ Xixiang,” “Xixiang Xianzhi,” “MZ Xixiang Sixty-Four,” “MZ China Sixty-Four,” “MZ Xixiang Yasheng,” “Zhang Xiaofeng,” and “MZ Labi Xixiang” (all with the QQ [user] number 630004145) and employed desktop, laptop, and tablet computers and mobile phones to go online in Xifeng District at the “Sunshine Road Bar,” “Pterodactyl Internet Bar,” and “Starry Sky Network” Internet bars and his dormitory to establish the illegal organizations “Chinese People’s Democratic League” [hereafter, CPDL] and “National Freemasons”; to join the hostile organization “China Democracy Party”; and to wantonly carry out reactionary propaganda activities, viciously attack the Communist Party of China [hereafter, CPC] and the government of the People’s Republic of China [hereafter, PRC], and [express] extreme dissatisfaction with the socialist system. In support of these charges, the prosecution produced the following main evidence in court: defendant Zhang Shaofeng’s confession; statements of witnesses Zhang Qingxu, Ma Jizhong, and Zhang Yaozong; documentary evidence and a record of remote inspection and investigation; electronic data; and a certification report. [The prosecution] maintains that defendant Zhang Shaofeng went online to join hostile organizations, participated in the formation of illegal organizations, expressed reactionary speech, and incited subversion of state power and overthrow of the socialist system; [therefore,] in accordance with Article 105.2 of the Criminal Law of the PRC, he should be held criminally responsible for the crime of inciting subversion.

In his defense, defendant Zhang Shaofeng stated that he had only been asked to draft a constitution for the CPDL and did not have any major role in its establishment or participate in the integration or formation of a new CPDL; that the “National Freemasons” was only a QQ group that could not be called an “illegal organization” and that [he had] disbanded the group in December 2011; that his only motivation for joining the China Democracy Party was to be able to apply for political asylum and emigrate to the United States and that he never participated in any of that organization’s activities; that he disseminated articles online mainly to propagate Western democratic ideas in order to pressure the government to carry out political reform and that he had no intention of subverting the government. Zhang Shaofeng reflected in court that he lacked real-life understanding, had been influenced by the overseas anti-China media’s negative news reports, and had a mistaken understanding of Western democratic system, which led him to commit offenses. He expressed regret in court and requested lenient punishment.

[According to] the defense statement of defense lawyers Ma Hongbing and Yan Lin: Zhang Shaofeng joined illegal organizations and published articles purely out of a wish to emigrate to the United States and had no subjective intent to incite subversion of state power or overthrow the socialist system. Objectively, Zhang Shaofeng never committed any acts of inciting subversion of state power or overthrow of the socialist system, and the articles he published were not created or edited by him and did not represent his own subjective thinking or will. Moreover, the content of these articles mostly propagated Western democratic thinking and expressions of displeasure with the current social situation, which falls under the scope of freedom of expression provided in China’s constitution. Merely relying on his expression and his own volition, it would be impossible to violate the state’s political power and the socialist system. Therefore, Zhang Shaofeng’s actions do not meet the constitutive criteria for the offense of inciting subversion of state power. The evidence for the indictment’s charges against Zhang Shaofeng is lacking and flawed. Based on Zhang Shaofeng’s ordinary behavior and his behavior in custody, his overall [degree of] malice is minor and his actions did not have clear harmful consequences for society; [therefore], it is requested that his punishment be mitigated.

It was determined in the course of the trial that: Beginning in March 2011, defendant Zhang Shaofeng used screen names such as “MZ Xixiang,” “Xixiang Xianzhi,” “MZ Xixiang Sixty-Four,” “MZ China Sixty-Four,” “MZ Xixiang Yasheng,” “Zhang Xiaofeng,” and “MZ Labi Xixiang” (all with the QQ [user] number 630004145) and employed desktop, laptop, and tablet computers and mobile phones to go online in Xifeng District at the “Sunshine Road Bar,” “Pterodactyl Internet Bar,” and “Starry Sky Network” Internet bars and his dormitory to participate in the formation of the illegal organizations CPDL and “National Freemasons;” to join the hostile organization “China Democracy Party”; and to wantonly publish articles of reactionary propaganda, viciously attack the CPC and the government of the PRC, and [express] extreme unhappiness with the socialist system.

1. Actively participated in the organization and establishment of the illegal organizations “China’s CPDL” and “National Freemasons” and participated in the formation of another illegal organization, the new “China’s CPDL.” In March 2011, on the invitation of “Zhao Gang” (basic circumstances unclear), chairman of the illegal organization “China’s CPDL,” defendant Zhang Shaofeng joined [that organization], actively participated in [that organization’s] formation, and personally drafted [its] Constitution. In early May 2011, Zhang Shaofeng established the illegal organization “National Freemasons” and established a “National Freemasons” [QQ] group, periodically advocating Western democratic ideas to members of the group and sending emails containing reactionary propaganda such as “Freemasons Weekly,” “Freemasons Monthly,” “Guide to Non-Violence and Non-Cooperation,” and “Democracy Movement Handbook.” On May 15, 2011, Zhang Shaofeng used anti-firewall software [e.g. a virtual private network] to enter Dynaweb’s “Free China Forum Website” and gather together a “compendium of Chinese underground organizations,” which he compiled into the Latest List of Registered Political Parties and Social Groups.” Then he posted under his personal QQ name: “The ‘National Freemasons’ have compiled a Compendium of Chinese Underground Organizations – write to request a copy.” In July 2011, after Zhang Shaofeng made contact with “Zhi Bi Wen Dao” (basic circumstances unclear), the person responsible for the “Chinese Association for Promotion of Democracy” [hereafter, CAPD], he participated in the integration of the CPDL, the “National Freemasons,” and the CAPD into the new China’s CPDL, with Zhao Gang as chairman, “Zhi Bi Wen Dao” as general secretary, and defendant Zhang Shaofeng as inspector general and head of the Organization Department. Later, defendant Zhang Shaofeng, in his capacity as head of the Organization Department of “China’s CPDL,” appointed Wang Xin (basic circumstances unclear) as the person responsible for [that organization] in Zhejiang. Later, on the invitation of Zhao Gang’s successor Zhang Qingxu (screen name “Zhi Bi Jian Ke”), defendant Zhang Shaofeng consulted documents of the hostile overseas organization “China Democracy Party” to draft CPDL Temporary Measures for the Extraordinary Period and sent them multiple times to his online contacts and actively recruited others to join the illegal organization “China’s CPDL.”

2. Actively applied to join the hostile overseas organization “China Democracy Party.” On September 30, 2011, defendant Zhang Shaofeng used anti-firewall software to enter the “China Democracy Party” website and used his Vietnamese email account “jasonbysshe@zing.vn” to send an email to “China Democracy Party” chairman Xie Wanjun as an “application to join the party.” On October 23, 2011, Xie Wanjun used email to send a China Democracy Party Cadre Appointment Notice and China Democracy Party Registration Form to Zhang Shaofeng’s Vietnamese email account, appointing Zhang Shaofeng as a “Member of the China Democracy Party Gansu Provincial Committee” and “Chair of China Democracy Party Independent Branch No. 4803.” Subsequently, Xie Wanjun again sent reactionary propaganda such as “China Jasmine Newsletter,” “China Jasmine Action Special,” and “Oppose Communism to Save the Nation, All People Rise Up” to defendant Zhang Shaofeng’s Vietnamese email account.

3. Using Weibo, Qzone [a social networking and blog platform similar to MySpace], mobile text messages, and other methods to wantonly disseminate reactionary propaganda and actively advocate Western democratic thought and ideas about violent revolution. On April 3, 2011, defendant Zhang Shaofeng sent an email containing the “Nine Commentaries” to an online friend named “MZ Lanqing.” On May 7, 2011, Zhang Shaofeng sent an email containing “Chinese Transitional Government Voluntary Training Sessions” to an online friend named “Maple Leaf with no Maple Leaf.” On October 8, 2011, Zhang Shaofeng sent an email with “Democracy Movement Leader’s Training Manual” to an online friend named “309945463.” On April 14, 2011, Zhang Shaofeng posted “Letter to MZ Colleagues” on his blog. On September 2, 2011, Zhang Shaofeng posted “How to Apply for Political Asylum in the United States—Think it Over, Let’s Go Together” on his blog. On September 17, 2011, Zhang Shaofeng posted “How to Join the China Democracy Party” on his blog. On October 8, 2011, Zhang Shaofeng posted “How to Raise Funds for the Democracy Movement” on his blog. On December 3, 2011, Zhao Shaofeng posted “Preliminary Draft Proposal for Establishing a People’s Organization” on his blog. On January 26, 2012, Zhang Shaofeng posted many reactionary articles on his blog, including “CPC Puts Million National Flags and Leaders’ Portraits in Tibetan Village Temples, Angers Public.” The aforementioned articles were hostile to the CPC, expressed hatred for the socialist system, viciously attacked the government of the PRC, and expressed high praise for the “Falun Gong” cult’s slander of our party and government through the “Nine Commentaries on the CPC” and “Three Resigns” and “Liu Xiaobo’s 2010 Nobel win.” At the same time, he incited interest groups in China to take to the streets and express their unhappiness and demands through “rights protection” and other means, to pressure the government, to incite the public to carry out violent revolution rather than color revolution and plot the subversion of the political power of the PRC and overthrow of the socialist system.

The aforementioned facts are confirmed by the following evidence, which was put forth by the prosecution and cross-examined and confirmed in court:

1. A record of remote inspection and investigation work from the Qingyang Public Security Bureau Network Security Monitoring Unit, recording the remote inspection and investigation carried out on the email accounts, personal blogs, and locations where Zhang Shaofeng went online.
2. The statements of witnesses Zhang Qingxu, Zhang Yaozong, and others.
3. Electronic data: An email from Zhang Shaofeng’s Vietnamese mailbox with contents related to the China Democracy Party; an application to join the party, a notice of official posting in the China Democracy Party, and a China Democracy Party membership registration certificate; articles published and email correspondence with others, and the articles of constitution for the Chinese Democratic League [retrieved] from Zhang Shaofeng’s blog.
4. Documentary evidence: A Ministry of Public Security document confirming the “China Democracy Party” to be a hostile organization and other documents.
5. A confirmation report;
6. Defendant Zhang Shaofeng’s confession.

This court finds that defendant Zhang Shaofeng used the Internet to participate in the formation of illegal organizations; joined a hostile organization; used Weibo, Qzone, and mobile text messages to publish reactionary propaganda multiple times; wantonly disseminated speech damaging to state political power and the socialist system; distorted facts; maliciously attacked the CPC and PRC government; and damaged the image of the state political power. Subjectively, he possessed a criminal intent to incite subversion of state political power and, objectively, he committed acts of inciting subversion of state power; [therefore,] his actions constitute the crime of inciting subversion. The criminal facts alleged by the prosecution are clear, and the evidence is reliable and sufficient; [therefore,] he is guilty of the offense. As for defendant Zhang Shaofeng’s defense that he only joined the illegal organization in order to apply for political asylum and immigrate to the United States, that the articles he published only propagated Western democratic ideas and that he had no intention of inciting subversion of the government, these [claims] do not accord with the facts that have been ascertained. Because the Internet has a large user base, criminal information may be disseminated quickly, and the degree of harm to society is extremely great, his actions ought to be punished in accordance with the law. With respect to Zhang Shaofeng’s defense lawyers’ defense argument that Zhang’s acts do not meet the constituent criteria for the offense of inciting subversion, since Zhang Shaofeng bears full criminal responsibility [i.e., he has not been found to be mentally ill or deficient—Trans.], his speech attacking the party, the government, and the socialist system shows his clear criminal motivation, and, objectively, he also committed criminal acts that endanger state security. Moreover, the offense in question is a crime of action in which the actor only needs to commit acts that incite subversion of state power and overthrow of the socialist system and, whether the target of his incitement believes or accepts the inciting content or whether [the defendant] committed the subversive acts being incited has no bearing on whether the crime is constituted. Therefore, this defense argument of defense counsel cannot be accepted. The court [also] cannot accept defense counsel’s argument that the defendant Zhang Shaofeng’s act of publishing articles falls under the scope of the freedom of expression provided for in China’s Constitution. Although freedom of expression is a basic right granted to citizens by the constitution, citizens must exercise this right in accordance with the law and may not damage the interests or security of the state; therefore, this view of defense counsel that only emphasizes the defendant’s rights but ignores the defendant’s obligations cannot be accepted. In light of defendant Zhang Shaofeng’s voluntary disbandment of the “National Freemasons” QQ group, his truthful confession of his crimes during the investigative and trial stages, his voluntary exposure of the criminal activities of other illegal organizations, and that he displayed a relatively good attitude in acknowledging guilt and showing remorse, lenient punishment may be given in accordance with the law. Pursuant to discussion and decision by this court’s adjudication committee and in accordance with Articles 105.2, 56, and 67.3 of the Criminal Law of the PRC and Article 2(1) of the National People’s Congress Standing Committee’s Decision on Preserving Internet Security, [this court] rules as follows:

For the crime of inciting subversion, defendant Zhang Shaofeng is sentenced to one year and six months’ imprisonment, with subsequent deprivation of political rights for one year.

(The prison term is to be calculated from the day the verdict is implemented, with each day spent in detention prior to the verdict’s implementation to count as one day of the prison term; therefore, it will run from June 13, 2012 to December 12, 2013.)

If this verdict is not accepted, an appeal may be filed within 10 days of the second day following the receipt of this verdict, either to this court or directly to the Gansu High People’s Court. In the case of a written appeal, the original appellate petition must be submitted together with two copies.

Presiding Judge: Li Ying
Deputy Judicial Officer: Yang Weirong
Deputy Judicial Officer: Chen Yuan

November 7, 2012

Court Clerk: Wang Wei

Chinese Source（原文）: 《甘肃省庆阳市中级人民法院 - 刑事判决书》 Click on icon to expand

甘肃省庆阳市中级人民法院
刑事判决书

(2012)庆中刑初字35号

公诉机关甘肃省庆阳市人民检察院。

被告人张绍峰。2012年6月13日因涉嫌煽动颠覆国家政权罪被庆阳市公安局刑事拘留，同年7月19日被依法逮捕。

辩护人马红兵，甘肃北斗律师事务所律师。

辩护人闫琳，甘肃北斗律师事务所律师。

甘肃省庆阳市人民检察院以庆检刑诉（2012）25号起诉书指控被告人张邵峰犯煽动颠覆国家政权罪一案，于2012年10月9日向本院提起公诉。本院依法组成合议庭，于2012年11月1日公开开庭审理了本案。庆阳市人民检察院指派检察员李海英出庭支持公诉。被告人张邵峰及其辩护人马红兵、闫琳均到庭参加诉讼。现已审理终结。

庆阳市人民检察院指控，2011年3月份以来，被告人张绍峰以“MZ西乡”、“西乡贤治”、“MZ西乡六十四”、“MZ中国六十四”、“MZ西乡崖生”、“张笑风”、“MZ拉比西乡”等网名（QQ号均为630004145），先后在西峰区“一路阳光吧”、“翼龙网吧”、“网络星空”网吧、宿舍等地，利用台式机、笔记本电脑、平板电脑、手机登录互联网，通过网络建立非法组织“华夏人民民主联盟”、“国民共济会”，加入敌对组织“中国民主党”，并大肆从事反宣活动，恶意攻击中国共产党和中华人民共和国政府，对社会主义制度极度不满。公诉机关针对上述事实，当庭出示了被告人张邵峰的供述，证人张庆旭、马继忠、张耀宗等人的证言，书证远程勘验检查笔录、电子数据、鉴定结论等主要证据。指控认为，被告人张邵峰在网上加入敌对组织，参与组建非法组织，发表反动言论，煽动颠覆国家政权，推翻社会主义制度，根据《中华人民共和国刑法》第一百零五条第二款之规定，应当以煽动颠覆国家政权罪追究其刑事责任。

被告人张邵峰辩称，其只是受托起草了华盟章程草案，未对华盟的成立起主要作用，亦未参与整合组建新的华盟；“国民共济会”只是一个QQ群，不能称之为“非法组织”，且该群已于2011年12月解散；其加入中国民主党的目的，只是为了申请政治庇护，移民美国，未参加过该组织的任何活动；通过网络转载文章，主要是宣传西方民主思想，向政府施压，迫使政府进行政治改革，无颠覆政府之意图。张邵峰当庭反省自己是因对现实生活缺乏了解，受境外反华媒体负面新闻报道的影响，错误的认识西方民主制度，以致走向犯罪，并当庭表示悔过，请求从轻判处。

辩护人马红兵、闫琳的辩护意见：张邵峰加入非法组织、发表文章，只是单纯的希望移民美国，主观上没有煽动颠覆国家政权、推翻社会主义制度的故意；客观上没有实施任何煽动颠覆国家政权、推翻社会主义制度的行为，发表的文章并非其创作、编辑，不能代表张邵峰本人的主观思想和意志，且文章的内容大都是宣传西方民主思想及对社会现状不满的言论，属于我国《宪法》规定的言论自由范畴；仅凭其言论和一己之力，无法侵犯国家政权和社会主义制度。因此，张邵峰的行为不符合煽动颠覆国家政权罪的犯罪构成。起诉书指控张邵峰的犯罪事实证据缺失且证据存在瑕疵。根据张邵峰平时及羁押后的表现，结合其主观恶性小，且其行为没有造成明显的社会危害后果，请求予以减轻处罚。

经审理查明：2011年3月份以来，被告人张绍峰以“MZ西乡”、“西乡贤治”、“MZ西乡六十四”、“MZ中国六十四”、“MZ西乡崖生”、“张笑风”、“MZ拉比西乡”等网名（QQ号均为630004145），先后在西峰区“一路阳光吧”、“翼龙网吧”、“网络星空”网吧、宿舍等地，利用台式机、笔记本电脑、平板电脑、手机登录互联网，通过网络参与组建非法组织“华夏人民民主联盟”、“国民共济会”，加入敌对组织“中国民主党”，并大肆发表反宣文章，恶意攻击中国共产党和中华人民共和国政府，对社会主义制度极度不满。

1. 积极参与组建非法组织“中国华夏人民民主联盟”、“国民共济会”，参与整合其它非法组织为新“中国华夏人民民主联盟”。2011年3月，应非法组织“中国华夏人民民主联盟”主席“赵刚”（基本情况不详）的邀请，被告人张绍峰加入“中国华夏人民民主联盟”，积极参与组建“中国华夏人民民主联盟”，并亲自起草《中国华夏人民民主联盟章程》。2011年5月初，张绍峰创建非法组织“国民共济会”，并建立“国民共济会”群，不时向该群成员宣扬西方民主理念，发送《共济周刊》、《共济月刊》、《非暴力不合作指导》、《民运手册》等反宣文章的电子邮件。2011年5月15日，张绍峰通过翻墙软件进入动态网“自由中国论坛网站”搜集“中国地下组织大全”，整理形成《最新政党社团登记排列》，以个人QQ签名方式，发布信息“《中国地下组织大全》已由“国民共济会”整理汇总，欢迎来文索取”。2011年7月，张绍峰与"中华民主弘扬会"负责人"之笔问道"（基本情况不详）取得联系后，参与将非法组织“华夏人民民主联盟”、“国民共济会”、“中华民主弘扬会”整合，组建新的“中国华夏人民民主联盟”，由赵刚任主席，“之笔问道”任总秘书长，被告人张邵峰任总监察长兼组织部长。后被告人张绍峰以“中国华夏人民民主联盟”组织部长的名义委任王欣（基本情况不详）为“中国华夏人民民主联盟”浙江负责人。后应赵刚继任者张庆旭（网名“之笔剑客”）的邀请，参照境外敌对组织“中国民主党”的文件，被告人张邵峰又制定了《非常时期华盟暂行条例》，多次向其网络联系人发送，积极拉拢他人加入非法组织“中国华夏人民民主联盟”。

2. 积极申请加入境外敌对组织“中国民主党”。2011年9月30日，被告人张绍峰利用翻墙软件进入“中国民主党”网站，通过其越南邮箱“jasonbysshe@zing.vn”向“中国民主党”主席谢万军发送了“入党申请书”电子邮件。2011年10月23日，谢万军亦通过发送电子邮件的方式，向张绍峰越南邮箱发送了《中国民主党干部任职通知》和《中国民主党党员登记表》，并任命张绍峰为“中国民主党甘肃省委员会委员”兼任“中国民主党第4803独立支部主任”。此后，谢万军又向被告人张邵峰越南邮箱发送了《中国茉莉花通讯》、《中国茉莉花行动专辑》、《反共救国、全民起义》等反宣文章。

3. 利用微博、QQ空间、手机短信等传播方式，大肆散布传播反宣文章，积极宣扬西方民主思想和暴力革命理念。2011年4月3日，被告人张绍峰向其网友“MZ滥情”发送《九评共产党》电子邮件。2011年5月7日，张绍峰向其网友“无枫叶的枫叶”发送《中国过渡政府义工短期培训班》电子邮件。2011年10月8日，张绍峰向其网友“309945463”发送《民运领袖培训手册》电子邮件。2011年4月14日，张绍峰在其空间发表《至MZ同仁的一封信》。2011年9月2日，张绍峰在其空间发表《如何申请美国的政治庇护，参考一下，大家一块去》。2011年9月17日，张绍峰在其空间发表《如何加入中国民主党》。2011的10月8日，张绍峰在其空间上发表《民运经费如何筹措》。2011年12月3日，张绍峰在其空间发表《关于建立人民组织的方案初稿》。2012年1月26日，张绍峰在其空间发表《中共百万国旗领像入藏村寺引民众怒潮》等多篇反宣文章。上述文章敌视中国共产党、仇视社会主义制度，恶意攻击中华人民共和国政府，对“法轮功”邪教组织诋毁我党和政府的“九评共产党”、“三退”、“刘晓波获2010年诺贝尔”表示推崇。同时煽动国内利益群体走向街头，通过“维权”等方式表达不满诉求，向政府施压，煽动民众做暴力革命不做颜色革命，阴谋颠覆中华人民共和国国家政权、推翻社会主义制度。

上述事实，有公诉机关提交，并经庭审质证、认证的下列证据证实：

1. 庆阳市公安局网络安全保卫支队远程勘验检查工作记录对张邵峰使用的电子邮箱、个人空间、上网地点进行的远程勘验检查笔录
2. 证人张庆旭、张耀宗等人的证言。
3. 电子数据：张邵峰越南邮箱内关于中国民主党内容的邮件；入党申请，中国民主党干部任职通知，中国民主党党员登记证。张邵峰空间发表的文章及与他人的邮件往来，发送华夏民主联盟章程等。
4. 书证：公安部确认“中国民主党”为敌对组织的文件等。
5. 鉴定结论；
6. 被告人张邵峰的供述。

本院认为，被告人张绍峰通过网络参与组建非法组织，加入敌对组织，利用微博、QQ空间、手机短信等传播方式，多次发表反动宣传文章，大肆散布有损于国家政权和社会主义制度的言论，歪曲事实，恶意攻击中国共产党和中华人民共和国政府，损害国家政权形象，其主观上具有煽动颠覆国家政权的犯罪故意，客观上实施了煽动颠覆国家政权的行为，其行为已构成煽动颠覆国家政权罪。公诉机关指控的犯罪事实清楚、证据确实、充分，罪名成立。关于被告人张邵峰提出其参加非法组织只是为了申请政治庇护，移民美国，发表文章只是宣传西方民主思想，并无煽动颠覆政府之意图的辩解理由，与查明的事实不符，且由于网络用户多、分布广，犯罪信息传播速度快，社会危害性极大，故对其行为应当依法惩处。关于张邵峰的辩护人提出张邵峰的行为不符合煽动颠覆国家政权罪的犯罪构成的辩护意见，因张邵峰具有完全刑事责任能力，其发表了攻击党、攻击政府、攻击社会主义制度的言论，表明其有明显的犯罪动机，客观上又实施了危害国家安全的犯罪行为，且本罪为行为犯，行为人只要具有煽动颠覆国家政权、推翻社会主义制度的行为，不管其所煽动的对象是否相信或者接受其所煽动的内容，也不管其是否去实施所煽动的有关颠覆活动，均不影响犯罪的构成。因此，辩护人的此项辩护意见不予采纳。关于辩护人提出被告人张邵峰发表文章的行为，属于我国《宪法》规定的言论自由范畴的辩护意见亦不能成立，言论自由虽是宪法赋予公民的一项基本权利，但公民必须依法行使该权利，不得损害国家利益和安全，因此，辩护人只强调被告人权利而忽视被告人义务的观点，不予采纳。鉴于被告人张邵峰能够主动解散其建立的“国民共济会”QQ群，在侦查及法庭审理过程中，能如实供述自己的犯罪事实，并主动揭发其他非法组织的犯罪行为，认罪、悔罪态度较好，依法可从轻处罚。经本院审判委员会讨论决定，依照《中华人民共和国刑法》第一百零五条第二款、第五十六条、第六十七条第三款和全国人大常委会《关于维护互联网安全的决定》第二条第（一）项之规定，判决如下：

被告人张邵峰犯煽动颠覆国家政权罪，判处有期徒刑一年六个月，剥夺政治权利一年。

（刑期从判决执行之日起计算，判决执行前先行羁押的，羁押一日折抵刑期一日，即自2012年6月13日起至2013年12月12日止）。

如不服本判决，可在接到判决书的第二日起十日内，通过本院或者直接向甘肃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 李 瑛
代理审判员 杨维荣
代理审判员 陈 媛

二〇一二年十一月七日

书 记 员 王 微

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