Teaching June 4: The Cost of Taking Students to the “Dark Side”

For many in China, the events surrounding the June 4, 1989, crackdown on student demonstrations in Beijing have been either consciously or unconsciously forgotten or confined to an official version that justifies the bloodshed. Much of the responsibility for this rests with the way that history is taught in China. The education system emphasizes mastery of approved narratives that present an orthodox account and promote a collective memory of things that the authorities want remembered, and a collective amnesia of things they don’t. There is no room for critical thinking or a process of inquiry. Rather, more often than not, the “truth” of history is presented as a finished product, to be filed away and called upon, when necessary, to justify those in power (or their heirs).

Critical analysis of history and truth appears to have been part of the pedagogical motivation for Zhang Zhongshun (张忠顺), a former lecturer at Yantai University in Shandong Province who was sentenced in 2008 to three years’ imprisonment for “using a cult to undermine implementation of the law.” In his lectures, Zhang introduced controversial perspectives on subjects like June Fourth, the anti-Japanese War of Resistance, and the crackdown on Falun Gong in an effort to exercise students’ critical faculties of discernment and analysis.

Because these perspectives are not allowed to circulate freely in China, Zhang used technological means to evade the government’s Internet censors and was drawn to sources of information connected to Falun Gong, which the authorities have designated as an illegal cult. The transmission of viewpoints and anti-government slogans associated with Falun Gong then became the basis for the prosecution’s criminal charges against Zhang.

In some respects, this aspect of his offense seems rather incidental. Even after stripping away the “cult” references, however, it seems likely that Zhang’s manner of teaching would ultimately land him in trouble. Although Chinese academics have a degree of intellectual freedom to conduct research, this freedom is constrained in the classroom.

On this point, the testimony of Zhang’s former students (included in the translated verdict below) is instructive—however inauthentically scripted some of it might be. Their discomfort at being confronted with the “darker side” of history—subjects that would not otherwise appear in authorized accounts—is palpable. There is a sense that exposing students to such matters creates cognitive dissonance and raises questions, things that ultimately risk misleading younger generations and contributing to instability.

The American scholar Perry Link has noted that by imposing a particular type of memory and forgetting about the events of 1989, the Chinese authorities deflect deeper reflection on a number of serious questions: “What did it mean for China that a nationwide democracy movement was crushed? How did the massacre affect the psyche of the nation? Can there be a recovery, and if so how?” It is hard to imagine such questions being posed, let alone answered, by people who are taught to accept one particular “true” account of history and prevented from engaging in a process that involves grappling with some uncomfortable facts and reconciling dissonant perspectives.

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Yantai Laishan District People’s Court of Shandong Province
Criminal Verdict

(2008) Yan Lai Crim. 1st Inst. No. 6

The prosecuting organ is the Laishan District (Yantai) People’s Procuratorate.

Defendant Zhang Zhongshun, male, born August 19, 1967, in Penglai, Shandong, Han ethnicity, postgraduate education, resides at [redacted by the editor] Laishan District, Yantai, lecturer at Yantai University. On August 28, 2007, he was placed under criminal detention on suspicion of using a cult to undermine implementation of the law. On September 30 of that same year he was formally arrested. He is currently detained in the Yantai Detention Center.

Defense counsel is Cheng Xiaoming and Li Hongjun, lawyers with the Shandong Qianyuan Law Firm.

On December 20, 2007, the Laishan District People’s Procuratorate filed indictment Yan Lai Proc. Crim. Indict. (2007) No. 138 with this court, charging defendant Zhang Zhongshun in a case of using a cult to undermine implementation of the law. This court accepted the case on that same day, formed a collegiate bench in accordance with the law, and held a public hearing to try this case. The Laishan District People’s Procuratorate appointed prosecutor Feng Yonghua to appear in court on behalf of the prosecution. Since this is a major case, the deadline for trying this case was extended by one month with permission of the Shandong High People’s Court. Defendant Zhang Zhongshun and his defense counsel Li Hongjun appeared in court to participate in the proceedings. The trial has now concluded.

The Laishan District People’s Procuratorate alleged that: Between February and July 2007, defendant Zhang Zhongshun, while he was teaching second- and third-year students at Yantai University’s Wenjing College, showed Falun Gong videos on subjects such as the “Nine Commentaries on the Chinese Communist Party,” the “June Fourth” incident, and the “Tiananmen self-immolation incident” on multiple occasions, either using classroom multimedia equipment at the school to visit Falun Gong websites such as epochtimes.com or ntdtv.com or by first visiting the aforementioned websites from his home and then downloading relevant content that he saved to a portable hard drive or portable computer, which he then connected to the classroom multimedia equipment. In support of these charges, the prosecution presented evidence in court including: documentary evidence including an inventory of items and documents seized by the public security organ, with relevant photographs; a work record issued by the public security organ; a search record and record of searching electronic evidence from the public security organ; screenshots from Zhang Zhongshun’s portable computer and portable hard drive; and Zhang Zhongshun’s proof of residence; testimony of witnesses including Cai Chunhua, Lin Xiangyi, Liu Kai, and Yang Yuankun; defendant Zhang Zhongshun’s [confession] and a CD containing the contents of Zhang Zhongshun’s portable computer and portable hard drive. The prosecution maintained that the defendant’s [actions] constitute the offense of using a cult to undermine implementation of the law and requested that this court deliver punishment.

Defendant Zhang Zhongshun and his defense counsel did not dispute the basic facts of the crime as alleged by the prosecution, but defense counsel raised the following defense arguments with respect to whether the defendant’s [actions] constituted a crime: (1) The defendant did not have subjective intent to commit a crime and therefore does not meet the essential criteria for constituting the alleged crime; and (2) the defendant’s actions fall under the category of ordinary unlawful [behavior] and do not reach the level of criminality; therefore the defendant should be acquitted.

In the course of the trial it was ascertained that: Between February and July 2007, defendant Zhang Zhongshun was a lecturer at Yantai University who, while teaching second- and third-year students at Yantai University’s Wenjing College, showed Falun Gong videos on subjects such as the “June Fourth” incident or the “Tiananmen self-immolation incident” on multiple occasions, either using classroom multimedia equipment at the school to visit Falun Gong websites such as epochtimes.com or ntdtv.com by first visiting the aforementioned websites from his home and then downloading relevant content content [sic] that he saved to a portable hard drive or portable computer, which he then connected to the classroom multimedia equipment. In all, more than 200 students watched the Falun Gong videos shown on multiple occasions by defendant Zhang Zhongshun.

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

1. Defendant Zhang Zhongshun’s confession to the public security organ, confirming: “From February 2007 until the end of the semester, while teaching two classes (course in public ethics) of third-year students (more than 100 people) at Yantai University’s Wenjing College, I showed Falun Gong videos on subjects such as the ‘June Fourth’ incident and the ‘Tiananmen self-immolation incident’ on multiple occasions, either using classroom multimedia equipment at the school to visit Falun Gong websites such as epochtimes.com or ntdtv.com or by first visiting the aforementioned websites from my home and then downloading relevant content that I saved to a portable hard drive or portable computer and then connected to the classroom multimedia equipment. Occasionally ‘Nine Commentaries on the Chinese Communist Party’ and other Falun Gong titles would flash across the screen. That was an unavoidable part of using the ‘Freegate’ software to go online; it was part of the ‘Freegate’ software and did not involve any specific content. When playing [the videos], I never spoke and let students watch for themselves in order to allow them to improve their abilities of observation and discerning truth from fiction. I did not play each video for very long. I knew that Falun Gong websites like epochtimes.com and ntdtv.com were attached to the overseas ‘democracy movement’ or organizations opposed to the Chinese government, so I told the students that they must not circulate or fully believe [the videos]. I am not a Falun Gong practitioner and know that Falun Gong has been classified by the state and the government as a cult. I liked to combine real-world situations in my lectures, discussing problems of morality, the social system, and freedom. I have no anti-social or anti-government intentions.”

2. A work record issued by the public security organ, confirming that a parent of a student at Yantai University’s Wenjing College complained to the University Work Committee of the Shandong Party Committee that defendant Zhang Zhongshun was showing videos related to Falun Gong in the classroom and that the public security organ was requested to assist in an investigation after Yantai University received a notice to investigate and punish.

3. The public security organ’s search record, inventory of items and documents seized, and related photographs, confirming that a notebook computer, portable hard drive, desktop computer, and a copy of The Great Consummation Way of Falun Dafa were seized from the defendant’s home, and related characteristics.

4. An electronic evidence search record from the public security organ and an expert examination report issued by the Laishan District (Yantai) Party Committee 610 Office, confirming that the content captured from the defendant’s computer and portable hard drive (the Tiananmen self-immolation case, looking back at June Fourth, indict Jiang Zemin, Nine Commentaries on the Chinese Communist Party, etc.) were edited and produced by the illegal organizations “The Epoch Times” and “New Tang Dynasty” established overseas by the Falun Gong organization and were illegal Falun Gong propaganda.

5. Witness Cai Chunhua (student) confirmed: “Zhang Zhongshun showed [videos] ‘Tiananmen Self-Immolation Case’ and ‘June Fourth Incident’ in class and said that the ‘Tiananmen self-immolation case’ was a fabrication. Zhang Zhongshun mentioned Falun Gong and said that practicing Falun Gong had benefits and could cure illness, meaning that Falun Gong was not as evil as the government said it was.”

6. Witness Lin Xiangyi (student) confirmed: “Zhang Zhongshun began each class by visiting a website called ‘New Tang Dynasty.’ When you visited the site, you could see the phrase ‘Nine Commentaries on the Chinese Communist Party.’ While viewing [the video] ‘June Fourth Incident,’ there was more relating to the ‘Nine Commentaries on the Chinese Communist Party.’ Occasionally, headlines related to Falun Gong would appear, such as ‘Jiang Zemin’s Ban on Falun Gong was Illegal.’”

7. Witness Liu Kai (student) confirmed: “In class Zhang Zhongshun showed us a video called ‘June Fourth Incident.’ Each time he showed it, a banner with ‘Nine Commentaries on the Chinese Communist Party’ would appear at the bottom of the screen.”

8. Witness Yang Yuankun (student) confirmed: “Zhang Zhongshun often showed videos in the classroom, such as the documentary ‘Nail House,’ the video ‘June Fourth Incident,’ and the Falun Gong video ‘Tiananmen Self-Immolation Incident’ (which said that government employees responding to the fire beat the self-immolators to death).”

9. Witness Yang Wei (student) confirmed: “In class Zhang Zhongshun used a notebook computer connected to the classroom multimedia equipment to show videos like ‘June Fourth Incident’ and ‘Tiananmen Self-Immolation Case.’ He said that that the ‘Tiananmen self-immolation case’ was a Communist Party plot and occasionally spoke about the darker side of the Communist Party. There were 110 students in our two third-year classes, and most of the students usually had an opportunity to view [the videos]. The last class of the first half of 2007 involved showing [videos] for the entire class. I felt this was inappropriate.”

10. Witness Cui Liang (student) confirmed: “Near the end of each class during the first half of 2007, defendant Zhang Zhongshun would show some videos, mainly related to ‘June Fourth.’ I felt he shouldn’t show this sort of thing.”

11. Witness Ren Fei (student) confirmed: “Zhang Zhongshun connected a portable computer to the multimedia equipment and showed us some videos on subjects like ‘June Fourth,’ the War against Japan, and the ‘Tiananmen self-immolations.’ Occasionally, phrases would appear such as ‘Nine Commentaries on the Chinese Communist Party’ or ‘Judgment on Jiang Zemin.’ Most classes he would show some. He would have us look dialectically at the Falun Gong question, the tanks crushing students or soldiers firing at students during ‘June Fourth,’ or the ‘Tiananmen self-immolations.’ When showing videos on the War against Japan, he said that the Nationalists’ contribution to [winning] the war was 70 percent. He told us things about the darker side of society that we couldn’t find out through ordinary channels. I felt it was not good to show students these videos. There were more than 100 students in the two classes, and over half of them saw [the videos]. I heard he also showed videos to two second-year classes.”

12. Witness Zhao Fuxin (student) confirmed: “Zhang Zhongshun showed some videos in class, mostly related to ‘June Fourth.’ I felt that it was wrong to do this.”

13. Witness Shi Jin (student) confirmed: “I didn’t attend many of Zhang Zhongshun’s lectures. But when I was in class I saw the online videos that he had prepared to show us students. The videos were related to things like the 1989 turmoil and the ‘Tiananmen self-immolation case’ and dealt mainly with the darker side of politics and society. I didn’t experience these things personally and had questions after watching. It was wrong of him to do this.”

14. Witness Li Wei (student) confirmed: “Basically, during each class Zhang Zhongshun would show us videos like ‘June Fourth Turmoil’ or ‘Tiananmen Self-Immolation Case.’ After watching these, I felt that there was a dark side to society.”

15. Witness Liu Yungang (student) confirmed: “Generally, aside from lecturing in class Zhang Zhongshun would show us some videos like ‘June Fourth Turmoil’ and things from Falun Gong websites. The specific content involved the darker side of society. I felt that as a university lecturer, he should remain consistent with the party center and ought not use his lectures to show these things on the darker side of society—particularly things that affect the national image and stability. His doing this can only mislead those of us from the younger generation.”

16. Witness Guo Jingming (student) confirmed: “The content of Zhang Zhongshun’s classes was different and covered a wider set of issues. He expressed some personal views, mainly on political subjects. I thought he had personality. Sometimes he would go online in class to show some online things; I’m not sure what websites they were, but there were both domestic and foreign sites. It was good to hear these views, and learning about the darker side of society is also a kind of knowledge about society.”

17. Witness Lan Xia (student) confirmed: “Zhang Zhongshun once showed videos on the ‘June Fourth’ student movement in class. The content was rather jumbled and there was more concerning society’s darker side. He said these were some of his own feelings and that he showed them so that we could also experience those feelings.”

18. Witness Gong Guangzhi (student) confirmed: “Zhang Zhongshun connected a portable computer to the classroom multimedia equipment and often showed us videos during class. There were some about the ‘June Fourth’ student movement, the ‘Tiananmen self-immolation case’ and some things from Falun Gong websites. When he visited the websites, Falun Gong content was clearly visible on the page, such as ‘Nine Commentaries on the Chinese Communist Party,’ ‘Global Judgment on Jiang Zemin,’ and other eye-catching phrases. He gave the web addresses to students, but the students couldn’t access the sites. Most of the more than 100 students in the two classes saw [the videos]. I think he also taught second-year students, also more than 100 students. I reminded myself not to pay too much attention to those things and adopted a mental attitude of resistance because I knew those things were bad. From the beginning I was surprised that the university had truly realized ‘freedom of expression’; later, I discovered that I hadn’t learned anything and felt that his way of teaching was mistaken.”

This court finds that defendant Zhang Zhongshun showed Falun Gong propaganda in his classroom on multiple occasions, using a cult to undermine implementation of the law; his actions constitute the offense of using a cult to undermine implementation of the law. The allegations made by the Laishan District People’s Procuratorate are valid. Defense counsel’s argument regarding the defendant’s innocence is contrary to the law and this court cannot accept it. In accordance with Article 300(1) of the Criminal Law of the PRC, [this court] rules as follows:

For the crime of using a cult to undermine implementation of the law, defendant Zhang Zhongshun is sentenced to three years’ imprisonment.

(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 August 28, 2007, to August 27, 2010.)

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 Yantai Intermediate People’s Court. In the case of a written appeal, the original appellate petition must be submitted together with two copies.

Presiding Judge: Gao Xubo
Adjudication Officer: Wang Aiqing
People’s Assessor: Zhang Zhilun

February 28, 2008

Court Clerk: Bi Jiantong

China Plots National Verdict Database

Supreme People’s Court meeting on judicial openness in Liuzhou, Guangxi, May 8, 2013. Photo credit: Gmw.cn

Appeals for public access to court documents may have gained new ground in China. Following a recent upsurge in reporting on miscarriages of justice, plans to establish a national database of court decisions became the main topic of discussion at a meeting convened by the Supreme People’s Court (SPC) on May 8 and 9. The meeting appears to be part of new SPC President Zhou Qiang’s effort to increase the transparency and credibility of the judicial system.

Calls to make court verdicts available online have been around almost as long as the Internet in China. Nearly a decade ago, legal scholars such as Peking University’s He Weifang argued that the online publication of verdicts would bring increased scrutiny and force judges to produce higher-quality judgements. Advocates of online publication also say that it will promote greater public awareness of the judicial system and its procedures.

In the years since, there has been a gradual expansion in both the number of courts that put verdicts online and the scope of decisions that are available for public viewing. In 2007, the SPC issued guidelines urging courts to increase their efforts in this regard, and courts in Henan Province have perhaps gone the farthest, publishing over 440,000 decisions on its court websites as of the beginning of this year. In February 2013, Guangdong High People’s Court President Zheng E said that Guangdong courts would start to publish “all” court verdicts online in the coming months.

In an opinion piece published in the May 12 edition of The Beijing News (translated below), lawyer Liu Changsong welcomes the plans for a national database and provides some examples of how access to court documents can make it easier for people to appeal wrongful convictions. He also cites curbing judicial corruption as an important reason to make verdicts available online.

If plans for a national database are realized, it would be a monumental showing of transparency in China’s often opaque judicial system, but there is good reason to believe that any such database would remain selective. Courts are likely to resist having their work subjected to public scrutiny, and certain types of verdicts are expected to remain outside the public domain. In particular, cases that involve crimes of “endangering state security” are less likely to become public given their political nature and tendency to be classified as involving “state secrets.” Similarly, while Chinese courts have released verdicts in cases of death with two year reprieve (as these sentences are generally commuted to life or fixed-term imprisonment), it would be surprising if they released decisions in all cases of death with immediate execution, as this would shed light on another closely guarded secret: the number of executions—believed to be in the thousands—that China carries out each year.

Although some of these exceptions may seem logical on the surface, they are not based in the law. This is because, while Chinese law allows courts to hear certain cases in closed hearings when issues such as state secrecy or privacy are involved, the law requires that all court verdicts be announced publicly, even for closed trials. Legitimate concerns about personal privacy may justify light redaction of certain court decisions, but complete exclusion or heavy culling of entire verdict categories would simply highlight the division of the legal system into two realms—one open and the other hidden—divided out of political expedience, rather than legal bounds.

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Publishing Court Decisions Will Help Reduce Judicial Corruption
Liu Changsong, The Beijing News
May 12, 2013

The core motivation of making court decisions public is to allow judicial decisions to have oversight from all sectors [of society] and thereby promote judicial fairness.

Recently, the Supreme People’s Court (SPC) held a study meeting on judicial openness in Liuzhou, Guangxi, where publishing court decisions online became a hot topic of discussion. The SPC Judicial Reform Office revealed that a Chinese Judicial Decision Website may be operational within the year (via People’s Court Daily).

Publication of judicial decisions is the issue related to judicial openness that has received the most public attention. With the development of Internet technology, many have dreamed of the ability to freely search for and read online any judicial decision that they care about. Now, that dream will finally become a reality.

The reason that publication of judicial decisions has received so much attention is because of its importance. The [decisions] fully reflect the claims of each party, the court’s finding of fact, and the reasoning behind the court’s decision. They are the basis for appeal and petition when a party doesn’t agree with the decision, as well as the basis for the court’s implementation of the verdict after it takes effect. Even more, [publication of verdicts] is a basis for all sectors of society to monitor and oversee court decisions.

A well-known example can show the difficulties that arise when court decisions are unavailable. In 2005, 10 years after Nie Shubin was executed for rape and murder, the real culprit was discovered. Nie’s mother spent two years petitioning the Shijiazhuang Intermediate People’s Court and the Hebei High People’s Court to re-open the case, but both courts refused to accept the petition without a copy of the court decision. After two years of petitioning, a mysterious person sent Nie’s mother copies of the first- and second-instance decisions by courier, finally enabling her to initiate the petition process.

As Nie’s mother said: “If we’re not even clear about the court’s finding of fact, how can we petition? If we don’t even know the specific document number of the effective verdict, how can we ask for a retrial?” Of course, despite continued petitioning by Nie’s mother, for a variety of reasons there has not yet been any result in the Nie Shubin case. This is something that causes legal professionals to feel deep [regret]. That’s another issue entirely, but one can get a sense of the importance of court decisions from the fact that without a verdict it’s impossible to petition for retrial.

As a lawyer, I’ve also felt the awkwardness of not being able to access court decisions. Last year, I represented the victim’s family in a voluntary manslaughter case. After both the first- and second-instance trials, the victim’s parents did not accept the verdict and wanted to petition for a retrial. They didn’t have a copy of the verdict, so I had to use my connections to get a photocopy from the court so that we could initiate the petition process.

Of course, even the current criminal procedure law does not categorize the immediate family members of a deceased victim as a party to the case or require that they be given a copy of the court verdict. This is a gap in the legislation, but if they could easily go online to search for and copy court verdicts, this gap would be sufficiently filled.

Naturally, the benefit of publishing court decisions online would not merely be to facilitate appeals and court petitions. The core motivation is to allow all sectors [of society] to engage in oversight of judicial decisions and, thereby, promote judicial fairness. Publication of court decisions online can force courts to improve the quality of their decisions, increase the reasoning of the decisions, promote a higher degree of professionalism among judges, prevent and reduce judicial corruption, and increase the credibility of the courts.

Both the constitution and the law have clear provisions about public adjudication, so there is no legal impediment to publishing all court documents online. I understand that the SPC is presently undertaking to establish a Chinese Judicial Decision Website that when fully functional will include all types of verdicts, be updated in real time, contain clear categories, have scientific search functionality, and provide convenient statistical information and automatic analysis. At the same time, I hope that the SPC will issue an authoritative judicial interpretation on the subject of publishing all court decisions online in order to provide even stronger legal protection for judicial openness.

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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How Many More Sacrifices until Rule of Law Reigns?

Zhao Yanjin and her husband read her acquittal verdict in their home after her release. She had spent 10 years in custody. Photo credit: dfdaily.com

On May 6, the China Youth Daily reported on the case of a Hebei woman, Zhao Yanjin, who had stood accused of murdering a neighbor’s child in 2001. In May 2011, after a series of trials, appeals, and conflicting court decisions, the Hebei Higher People’s Court finally acquitted her on the grounds of insufficient evidence. By that time, she had spent nearly 10 years in police custody.

This might have been just one more case of belated exoneration for a suspect victimized by a criminal justice system that too often rushes to solve murder case. But there was an added twist: in Zhao’s case, it took six months for the court’s decision to reach the Baoding Intermediate People’s Court, which was responsible for announcing Zhao’s innocence, and after the decision was announced authorities in Baoding delayed her release for more than a year while they took steps to ensure that the murdered child’s relatives would not protest the decision.

Meanwhile, unaware of the acquittal, Zhao’s husband continued to protest her innocence by petitioning, which landed him in a reeducation through labor (RTL) facility for nearly 10 months—his second RTL sentence for petitioning on his wife’s behalf. In the weeks leading up to her release, court officials repeatedly met with Zhao and had her write a statement promising to remain “low-key” after her release.

Chinese media has recently reported several stories similar to Zhao Yanjin’s. In late April, two men in Zhejiang submitted a claim for 7.02 million yuan (US$1.1 million) in state compensation after a court retrial found insufficient evidence to support their conviction on rape charges nearly 10 years ago. The men say that they had been tortured into confessing. Then on May 3, five men were acquitted of charges stemming from the bombing of a government office in Fujian province—charges for which they, too, had spent a decade in custody while court proceedings stalled because local law-enforcement authorities were unwilling to acknowledge that they had no case beyond confessions coerced through torture.

In the wake of these and other cases, the problem of wrongful convictions has been in the spotlight in recent months. In March, the president of the Zhejiang Higher People’s Court blamed pressure to deal with murder cases and other serious crime for the frequent use of torture to extract confessions. Earlier this week, Shen Deyong, a vice-president at the Supreme People’s Court, warned in an essay in China Court News that mounting wrongful convictions posed an “unprecedented challenge” to China’s court system.

In a commentary posted on a major news portal in Henan Province (where authorities recently announced that judges will held accountable for wrongful convictions), Ning Xinchun reflects on the way that Zhao Yanjin’s husband describes their sacrifices as necessary to promote rule of law development in China. Ning rejects this interpretation, writing that Chinese citizens are much too easily sacrificed to the largely indifferent power of the state. Instead of forgiveness and a willingness to sacrifice oneself in the interest of eventual progress, Ning suggests that such progress is not inevitable and that outrage at the unacceptability of such sacrifices is instead needed to change a criminal justice system that makes people live in fear.

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Citizen Sacrifice Doesn’t Represent Rule of Law Progress
Ning Xinchun
May 6, 2013 dahe.cn

“Without sacrifice, we can’t further the promotion of rule of law,” said Li Jianjun. Li is Zhao Yanjin’s husband. In an effort to proclaim his wife’s innocence, he went all over to engage in petitioning and was sent to re-education through labor more than once. In September 2001, Zhao Yanjin got caught up in a murder case. Over 12 years, she was twice sentenced to life in prison and twice acquitted. Before fully recovering her freedom, she had spent a total of 10 years in a detention center. After the Hebei high court issued its acquittal decision, she was kept in custody for an additional 20 months before she regained her freedom. (Source: China Youth Daily, May 6)

A close look at the news reveals that the experience of Zhao Yanjin and her family is not unique. First, there was the She Xianglin case. Then there was the reversal of the case in Zhejiang of the uncle and nephew surnamed Zhang who had been wrongly convicted for more than 10 years. Then there was the Henan case of the “guaranteed death sentence” for defendant Li Huailiang. In terms of the time involved and the experience of having finally been acquitted and released on grounds of insufficient evidence after going through seven court hearings and three verdicts, the case is much more similar to the case of the bombing at the Fuqing, Fujian, discipline inspection committee office, where five defendants languished for 12 years in prison only to be acquitted and released.

Without doubt, human life cannot be recovered. More than a decade passed in jail, with no career advancement, loss of health, and even changing the fate of the entire family. Under the giant wheels of the state machine, lowly individuals wind up being ground up into scattered dust. Perhaps it’s out of a sorrowful choice to “forgive” or an intentional exaggeration of consciousness [that leads them to say]: “Without sacrifice, we can’t further the promotion of rule of law.”

What this news shows is that, the reality of the justice system is not only a host of procedural problems but the fact that the presumption of innocence is often set aside. Pursuing responsibility in these individual cases perhaps won’t have huge significance for a country’s legal system. But to each citizen, there is nothing in the world more significant. Faced with a shattered family or loss of life, any so-called “huge compensation” is really quite insignificant. In this respect, fairness and transparency of the legal system, adherence to basic legal rationality such as “no crime without sufficient evidence” is the most valuable thing in the lives of ordinary people because it protects people from malicious prosecution under the law.

In Hugo’s masterpiece Les Misérables, there is a representative of the legal system, Javert, who spends his entire life pursuing the main character, Jean Valjean. Here, the law almost becomes a force of evil used to attack ordinary people. Just like these innocent Chinese citizens who have spent long years locked up in jail, Jean Valjean lives his life in the shadow of this kind of evil law, living a life of continual setbacks, vagrancy, jail, and persecution. The only beauty in his life is in his imagining the kingdom of heaven.

Only through strict observance of legal procedure and adherence to legal rationality can we prevent the way that the machinery of state has for a long time waged mistaken wars against citizens. From another perspective, this raises a question that urgently needs to be answered: when citizens fall into deliberate legal traps, how should they use everything from state institutions to civil society to mobilize and organize forces to remedy the situation and clear channels for relief? We’ve seen that when there is no [means to seek] immediate remedy, any person can fall victim to this kind of evil legal system. If you have good luck, you can wait until the facts of the case clear your name; if not, you can spend your life in jail.

But we know that justice is not a matter of hitting the jackpot.

In his brilliant work of philosophy, The Spirit of the Laws, Montesquieu holds rationality to be the first criterion and maintains that ordinary laws are [reflections of] human rationality and that law is the application of human rationality in special circumstances. Today, people do not lack in expectations for rationality, but the progress of a country’s rule of law, besides being built upon the foundation of people’s rationality, must also [be based in] the state’s adherence to rationality, including a pursuit of procedural legality, improving channels for relief, etc.

At the beginning of the essay, the party to the case said that without sacrifice, we can’t further the promotion of rule of law. But society should not take comfort in this kind of magnanimous forgiveness. Instead, we should always bear in mind: citizen sacrifice does not represent social progress; it represents the shame of our rule of law, and nothing more.