China ” Disturbing The Peace” -“picking quarrels and provoking troubles”

Well used terminology that I must admit has always left us somewhat lost in translation. If you are the same you’ll find the following published to the China Law-Lis this week, very informative

On March 1, 2022 an article entitled “National Committee of the Chinese People’s Political Consultative Conference Member Zhu Zhengfu: A Proposal to Abolish the Crime of Disturbing the Peace in Due Course” was published on page 12 of the “People’s Political Consultative Daily” (?????).

The full article was published by Baidu (https://baijiahao.baidu.com/s?id=1726079190961095864), and a shorter version was published on the website of the People’s Political Consultative Conference (http://www.rmzxb.com.cn/c/2022-03-04/3064649.shtml).

A full translation of the Baidu version is included below.

Translator’s Notes: This is not the first time someone has noted problems with the crime of Disturbing the Peace (????, also commonly literally translated as “picking quarrels and provoking troubles” for more on why I have chosen to translate this as “disturbing the peace,” see “State Prosecutions of Speech in the People’s Republic of China:

Cases Illustrating the Application of National Security and Public Order Laws to Political and Religious Expression, pp. 21-22, https://www.feichangdao.com/publications/state-prosecutions-vol-1).

For example, Liu Zhiqiang (???) and Song Haichao (???),  two academics at the Guangzhou University Institute for Human Rights, noted:

“Three Characteristics of the ‘Judicial Interpretation of the Crime of Disturbing the Peace.'” (?????????”??”??), Academics (???), Issue No. 5, May, 2020. See http://blog.feichangdao.com/2020/09/prc-scholars-judicial-interpretation-on.html.

While not mentioned in the reporting about Zhu’s proposal, the crime of disturbing the peace is often used to prosecute political speech, both online and in physical venues. The following examples are all from 2019:

• A court found Dong Zehua & Yuan Shuai guilty of disturbing the peace on the grounds that Dong “wore a T-shirt with sensitive markings on it and took photos in Tiananmen Square and posted the photos online” and Dong and Yuan “interviewed foreigners in Tiananmen Square and made inquiries into sensitive topics.” See “State Prosecutions,” pp. 513-515).

• A court found Jie Ruixue guilty on the grounds that she “stood in an area crowded with tourists in the vicinity of the national flag pole in Tiananmen Square wearing a white t-shirt upon which was written ‘Freedom of Speech, Vindicate June Fourth, Oppose Repeating the Tragedy.'” See “State Prosecutions,” pp. 513-515).

• A court found an individual surnamed Wang guilty of disturbing the peace on the grounds that he used Twitter to repost, like, and comment on a large number of posts relating to major domestic incidents published by foreign reactionaries, including:

• Hu Wei proves the authenticity of Guo Wengui’s revelations;
• The Communist Party of China controls all the resources . . . the working people can only get a piece of the pie;
• If China has the best socialist system in the world, why is the quality of each generation lower than the last?;
• The Communist Party seizes power in order to kill people;
• The Communist Party of China will never open the Internet . . . their end is at hand;
• The Communist Party of China has become an interest group and will devour the private sector;
• as well as content about ‘June Fourth,’ ‘Tibet,’ and ‘The Mirror Group.’ See “State Prosecutions,” p. 715.
• Xu Doe – Denigrating Party and State Leaders and Police Groups – 2019 (partial translation, see page 717)

• A court found an individual surnamed Cheng guilty of disturbing the peace on the grounds that he used Twitter to post and repost 471 tweets on the Internet that denigrated and berated others, and denigrated the image of the Party and the government. See “State Prosecutions,” p. 717.

• A court found an individual surnamed Xu guilty of disturbing the peace on the grounds that he used Twitter to post and repost content that “berated Party and State leaders, and assailed the socialist system, soldiers, and police groups.” See “State Prosecutions,” pp. 717-718.

National Committee of the Chinese People’s Political Consultative Conference Member Zhu Zhengfu: A Proposal to Abolish the Crime of Disturbing the Peace in Due Course

The crime of disturbing the peace is a crime derived from the crime of hooliganism in the 1979 Criminal Law. Article 293 of our country’s Criminal Law:

Lawyer Zhu Zhengfu, a member of the National Committee of the Chinese People’s Political Consultative Conference, said that in practice, the crime has gradually become a new “pocket crime” similar to the crime of hooliganism. The reason is that there are obvious defects in this crime, and many concepts related to this crime are too vague, which not only creates confusion in judicial practice, but also is easily abused, resulting in excessive criminalization in society. To this end, Zhu Zhengfu will submit a proposal for the “Timely Repeal of the Crime of Disturbing the Peace” at the Two Sessions this year.

Zhu Zhengfu believes that the constitutive elements of the crime of disturbing the peace lack of clarity. Clarity is the basic requirement of a legally prescribed punishment. However, it is difficult to accurately define the expression of specific criminal conduct constituting the crime of disturbing the peace. For example, what kind of “pursuing, obstructing” conduct in public venues has the characteristics of undermining social order?  In addition, he believes that the expressions “without cause,” “willfully,” “severe circumstances” and “causing severe chaos in public venue order” in the crime of disturbing the peace are too vague, and these are the key elements of the crime.

Although the Supreme People’s Court and Supreme People’s Procuratorate have issued a relevant judicial interpretation (N.B. This is a reference to the Interpretation of the Supreme People’s Court and Supreme People’s Procuratorate Regarding Certain Issues on the Handling of Cases Applying the Crime of Disturbing the Peace, ????????????????????????????, which became effective on July 22, 2013) clarifying, for example, that a perpetrator shall have subjective motives such as “seeking excitement, venting emotions, behaving in an arrogant and overbearing manner, or being deliberately provocative,” nevertheless in specific cases differing opinions may exist when it comes to subjective judgments about a perpetrator. In practice, some people have been convicted of the crime of “disturbing the peace” because of excessive debt recovery methods. How does one judge subjectively whether a reaction to the recovery of legal debts is being deliberately provocative or done with just cause? The judicial interpretation is still unable to eliminate the ambiguity of the line that demarcates this crime.

In addition, the crime of disturbing the peace overlaps with various other provisions of the criminal law. The behavioral characteristics of this crime stipulated in Article 2 of the Two Supremes’ 2013 Judicial Interpretation?N.B. see text of that article included below) overlaps with the crime of intentional injury (If the crime of intentional injury is constituted, the starting point of sentencing can be determined within the corresponding range according to the following different situations: if intentional injury causes one person to be slightly injured, the starting point of sentencing can be determined within the range of fixed term imprisonment of not more than two years and penal detention . . .), Article 3 with the crime of berating, Article 4 with crimes of robbery and intentional destruction of property, and Article 5 with crime of gathering crowds to disrupt public venue order.

Furthermore, there are logical defects in the nature of the crime of disturbing the peace. On the one hand, some of the same acts would not meet the standards for establishing a case under the laws that directly punish those acts, but they can constitute the crime of disturbing the peace. For example:

• Intentional injury causing minor injury does not constitute the crime of intentional injury, but it may constitute the crime of disturbing the peace;
• Causing property loss of 2,000 yuan does not meet the standard to establish a case for the crime of intentional destruction of property (the standard is 5,000 yuan), but it can constitute the crime of disturbing the peace (the standard for filing a case is 2,000 yuan).

On the other hand, the starting point for sentencing the crime of disturbing the peace is five years or less, which results in acts that do not constitute an offense with a lighter punishment, but that may constitute the crime of disturbing the peace with a heavier punishment. Zhu Zhengfu said that in this example, something may not constitute the crime of intentional injury or the crime of intentional destruction of property, both of which are punished with sentences of less than three years, but may constitute the crime of disturbing the peace with heavier penalties. This is not only a paradox in the legislative system, it also does not conform to the principle of the degree of punishment being proportional to the degree of culpability.

The most important thing is that the harmful behaviors targeted by the crime of disturbing the peace have been dealt with by corresponding laws, and the abolition of this crime there will not result in any legal gaps. Much of the conduct covered by this crime is covered in the Public Security Administration Punishments Law. For example, Articles 42, 43, and 49 of that law stipulate the punishment standards for insulting, threatening others, intentionally injuring others, and intentionally destroying public or private property. From this it can be seen that “administrative penalties can also be imposed on conduct that does not constitute crimes and endangers the society, and the law will let them go unchecked. Criminal law is not the only means to crack down on conduct that endangers society. Therefore, rejecting the use of vague provisions to gather more conduct within the scope of the criminal law is not only required under the principle that there must be a specific crime for any legally prescribed punishment, it is also the embodiment of restraint in the application criminal law.

The existence of the crime of disturbing the peace to a certain extent is conducive to punishing conduct that endangers social order and maintaining social stability, but the various drawbacks of this crime are also obvious. The selective enforcement of the law by the government agencies ultimately damages the legitimate interests of the people and detracts from the people’s respect for, and faith in, the law. Therefore, Zhu Zhengfu proposes that the crime of disturbing the peace should be abolished in due course.

https://baijiahao.baidu.com/s?id=1726079190961095864

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????: 2022-03-01 14:49?????
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