There is a saying in Chinese about tossing out a brick in order to attract jade (抛砖引玉). It means to make some statement of possibly mediocre quality in the hope that it will attract a high quality response. My blog post of yesterday on the Luo Daiqing case was just such a brick, and it has elicited a nice piece of jade from reader Kazuaki Shimazaki, offering a different (and carefully documented) legal interpretation of what’s going on. When I first read his comment (which I am reproducing here because it deserves a separate post), I thought that he was definitely right and that my earlier analysis had been wrong, but on reading the relevant rules more closely, I’m now not so sure. Here is his comment below, with my comments interpolated in italics. For reader convenience, I’m adding some links to his comment that were not in the original.
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Fairness obliges me to dissent here. It is not a work of constitutionalism or human rights, but it is defensibly consistent with the criminal statute and its judicial interpretation. The relevant lines (in Chinese for brevity are):
Criminal Law
第293条 有下列寻衅滋事行为之一，破坏社会秩序的，处五年以下有期徒刑、拘役或者管制：
（二）… 辱骂 … 情节恶劣的；
plus the clarification in the Joint Interpretation on Internet Speech Crime
第五条利用信息网络辱骂 … 情节恶劣，破坏社会秩序的，依照刑法第二百九十三条第一款第(二)项的规定，以寻衅滋事罪定罪处罚。
with 情节恶劣 as clarified in Joint Interpretation on Causing Disturbances:
第三条 … 辱骂 … 破坏社会秩序，具有下列情形之一的，应当认定为刑法第二百九十三条第一款第二项规定的“情节恶劣”：
（一）多次… 辱骂… 他人，造成恶劣社会影响的；
If it is (4), there would at least be a claim about 起哄闹事 (raising a commotion) and 公共秩序严重混乱 (serious disruption of public order). Such phraseology was not in the judgment. The term 恶劣社会影响 is. So, it is (2).
This is not correct. The claim of 起哄闹事 (raising a commotion) does appear in the judgment, in the paragraph in which the court announces its findings, immediately before the paragraph announcing the sentence. By contrast, the term 辱骂 (“berate”), which Kazuaki discusses below, does not appear in the judgment. Thus, a key term from subparagraph (4) does appear, while a key term from subparagraph (2) does not appear. This is why I’m not convinced that Kazuaki is right, and am not quite ready to give up the theory that Luo was sentenced under subparagraph (4).
Kazuaki is, however, correct to note that the phrase 造成恶劣社会影响 (creating an odious social influence) does appear in the judgment. This exact term appears in Art. 3(1) of the Joint Interpretation on Causing Disturbances, which is an interpretation of subparagraph (2) of Article 293 of the Criminal Law. That’s why I’m not convinced that Kazuaki is wrong. I’m still on the fence.
The key word is 辱骂, which ChinaLawTranslate translates to “berate”. They may be playing it conservative (by eliminating qualifiers), but the second glyph by itself is “berate” (speak in a critical way vehemently/loudly/angrily). The first glyph serves as an adverb, for “insultingly”. So basically it is vehement critical expression that damages dignity and reputation.
You can see the emphasis on 40 times, to satisfy “多次” (multiple times). They also mentioned “丑化国家领导⼈形象” (twisted the image of state leaders) and “侮辱国家领导⼈” (insult of state leaders). Well, OK, uh, at least he wasn’t praising them and the pictures are not very dignified. They did also mention 虚假 (false), but that may just be to defeat any justification by claim of Truth.
The court couldn’t seem to make up its mind what the actual offense was and who or what was the victim. Sometimes it said “vilifying (literally, ‘uglifying’) the image of state leaders” (丑化国家领导人形象); sometimes it said “vilifying the image of the state” (丑化国家形象); a single time, the court mentioned distributing pictures “insulting to state leaders” (侮辱国家领导人). Note again that the court never mentioned the key term from subparagraph (2) that would have to apply in order to make it stick: 辱骂 (“berate”). Moreover, the object of the berating can, under the law, only be a person (他人). All the language about insulting the state is, under subparagraph (2), legally irrelevant.
For the 破坏社会秩序 part, the Chinese allows the interpretation that 辱骂 by itself is a means of doing so (a possibility ChinaLawTranslate turned into a certainty in its translation). But in this case, they might have an independent base which may explain why he was picked when the witness, a Mr. M (马某), was not, though he used to put up similar posts.
The court’s use of 破坏社会秩序 (sabotaging social order) does not help us choose between subparagraph (2) and subparagraph (4), because it appears in the chapeau of Article 293 as a general requirement for the crime under any of the four prongs.
It would seem Mr. Luo impersonated Mr. M when putting up his “insulting” pictures. In addition to the base wrongness of impersonation, in China such pictures risk both legal and social (from “patriots”) liability. If, for example, Mr. M got hit by administrative or criminal sanctions for the acts of Mr. Luo, there would be a clear perversion of justice that would harm social order. It would also conform with a layman’s plaintext read of 情节恶劣.
Perhaps, but that didn’t happen.
So, if you ignore the part all this could be avoided if greater weight was given to the Constitution’s freedom of speech provision, it is at least statutorily defensible.
For the public part, it’s not part of the 293(2) definition. Second, as a matter of fact, Chinese do find their way to Twitter, including Mr. M (who claimed he had a never-used registration which was later deleted). Third, the matter of law is actually interesting because as far as I know, Chinese legislation (including subordinate) does not impose an obligation to refrain from viewing Twitter. If you can access Twitter in China without VPN (or other “get-around” tools), you are not liable.
Chinese administrative law concepts are heavily based on German-Japanese theories. Since there is no obligation yet the Great Firewall acts to prevent you from doing so, its action is one of 即時強制 (immediate enforcement, in German Unmittelbarer Zwang). The administrative body is allowed to take direct action, but you are not under obligation. So, is Twitter a public space in Chinese law (you are under no obligation to not go there … the State just seems to make it hard for you to do so)?
I agree that it is not per se an offense under Chinese law to go onto Twitter. Otherwise Hu Xijin and many Chinese diplomats would be punishable. And some Chinese inside of China manage to do it. But not many. So my argument still stands: it seems quite a stretch for the Chinese government to label as a public space a part of the internet that it strives mightily, and largely successfully, to keep the Chinese public out of.
For the final dissent, the point of double punishment is obvious but since public security offenses are a variant of administrative offence, and they are designed for quick play by non-legal professionals (police, in this case), for “either-way” offenses the chance of an honest misjudgment in fact or law is there.
While a certain restraint might be expected, if serious “mistakes” can’t be corrected, then the logical outcome is that suspects of either-way offenses will be held in criminal detention while the authorities cogitate on which one they want.
Further, if there are legal flaws in the public security punishment in the first place, what may have happened is that the punishment was technically invalidated on review. In any case, the judge took care to count it towards his criminal sentence, so at least in effect he wasn’t actually punished twice.
I agree with the last point. In theory, of course, there is a difficulty caused by the fact that the criminal sentence was not imposed in ignorance of the administrative sentence. If in some Platonic world, we could say he objectively “deserved” a sentence of six months less ten days, then he has been punished twice. But I think in this case Kazuaki’s take is correct as a practical matter.
Finally, we would have none of this confusion if the court would do its job as a legal institution and tell us under which precise prong of Article 293 Luo was convicted instead of being so vague.
I would argue that the court convicted Luo under subpara. (4).
In their joint 2013 Internet Speech Crime Interpretation (translated here: https://www.chinalawtranslate.com/en/spc-and-spp-interpretation-on-internet-speech-crimes/), the SPC and SPP interpreted subpara. (4) to prohibit (a) the online dissemination of (b) false information one fabribated or clearly knew to be fabricated, thereby (c) causing a commotion and (d) serious disruption of public order. [[a] 编造虚假信息，或者明知是编造的虚假信息，[b] 在信息网络上散布 . . . [c] 起哄闹事，[d] 造成公共秩序严重混乱的，依照刑法第二百九十三条第一款第（四）项的规定，以寻衅滋事罪定罪处罚] (art. 5, para. 2).
The court specifically cited this article as a basis for its verdict in the penultimate paragraph (starting with “本院认为”). It also explicitly cited elements (a)–(c) [利用信息网络散步丑化国家的虚假信息，起哄闹事、引发围观], while also vaguely referencing element (d) [破坏社会管理秩序].
Like you said, the court didn’t use the word “辱骂,” which (appears to me) would have been necessary to convict someone under subpara. (2), as interpreted by art. 5, para.1 of the Internet Speech Crime Interpretation.
But I agree that the court’s ruling isn’t a model of clarity.
I think we can all agree on your last sentence!
Oh, thanks for giving me a full post back. I’m honored. And darn, you are right, 起哄闹事 is in that mass of simplified glyphs. But I’ll still side with 293(2) being the more probable article. It seems you and Changhao Wei are giving weight to the Action, so 丑化 is not exactly 辱骂, while giving low weight to the absence of the exact Consequence (造成公共秩序严重混乱).
China’s criminal law grew off Russo-Soviet theories. For example up to today the dominant theory is still quadpartite (Criminal Subject, Criminal object, Subjective aspect and Objective aspect) rather than German-type tripartite (Objective+Subjective elements of Definition, Unlawfulness and Culpability) or Common Law bipartite (actus and mens rea).
The important differences here are a greater emphasis on Consequences (both Russian and Chinese Criminal Codes are explicit that an act that’s insignificantly harmful is not a crime even if it meets the formal definition) and the increased importance of analysis of the criminal object – the harmed social relationship/interest (roughly analogical to legal interest in German theory, but more critical).
As Wei Luo points out in the China chapter of The Handbook of Comparative Criminal Law (location 4385, or page 146/660):
“… if there is no identifiable specific object, there is no crime.
To determine which specific object of crime is being violated is an important part of deciding which crime has been committed.” Example follows where cable stealer had his crime reclassified from 265 (property crime) to 124 (public safety) based on a perception of which interest is worst hit.
Article 293 is part of Chapter VI, Section I (Disruption of Social Order). The primary object of every crime in section (277-304) is societal (aka public) order. But depending on the crime, there may also be secondary objects being violated. In 293’s case these are
（一）随意殴打他人，情节恶劣的: Health
（二）追逐、拦截、辱骂、恐吓他人，情节恶劣的: Depending on the act, a citizen’s security or dignity
（三）强拿硬要或者任意损毁、占用公私财物，情节严重的: Property
（四）在公共场所起哄闹事，造成公共场所秩序严重混乱的: None
If you look at it through this prism, you can see 1-3 have two objects being hit, while (4) only has one. To make it an equal crime to the others, the social order must be hit especially hard (in essence, if the others are Health+Order or Dignity+Order or Property+Order, 4 would be Order+Order).
From this consideration, the lack of an explicit mention of 造成公共秩序严重混乱 is not small, and cannot be covered by the more generic and weaker 破坏社会管理秩序 (any damage might suffice for this one), while 丑化 still hits the same object (dignity) as 辱骂 – that’s why I gave more weight to the former than latter.
Thanks for this very informative analysis. You might be right. Two things still give me pause: (1) Is it really likely that the judges themselves are engaging in this kind of highly sophisticated analysis, or that it is something that they just instinctively understand? Maybe. I’d like to hear from folks with a PRC legal education and some professional experience there. (2) Changhao notes that the court talked about false information. This is relevant to subparagraph (4) but not subparagraph (2).
What seems most likely to me is that the court is not actually doing a sophisticated analysis and thinking very hard about which specific prong applies. They are just throwing it all into the hopper, thinking, “This is a bad guy and he needs to be punished.” (Or perhaps, “We have to punish this guy if we know what’s good for us.”) As MOFA spokesperson Jiang Yu said in 2011, “Don’t use the law as a shield.“