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Pu Zhiqiang, a well-known rights lawyer and former China Media Project fellow, was detained by authorities in Beijing in early May after he participated in a private event to commemorate the 25th anniversary of the June 4th Incident. Pu remains in custody and authorities announced last week that they would move ahead to prosecute Pu on charges of “creating a public disturbance” (even though the event was private) and “illegally obtaining the personal information of citizens.”

Pu Zhiqiang
[ABOVE: Pu Zhiqiang, a prominent Chinese lawyer and public intellectual, was detained by authorities in Beijing in early May 2014. Source: Wikipedia.]

The following is our translation of a recent post by Shanghai lawyer and academic Zhang Xuezhong (张雪忠) that has been actively deleted from China’s internet and social media. In it, Zhang argues the reasons why Pu Zhiqiang is not guilty.

We have included the original Chinese post after the English.

Lawyer Pu Zhiqiang has not committed any crime
— a preliminary analysis of the Pu Zhiqiang case

Zhang Xuezhong
June 13, 2014

Pu Zhiqiang is one of the most noted human rights lawyers in China. Today, the Beijing police announced via its official Weibo that “with approval from the prosecution authorities, the Beijing Municipal Public Security Bureau has arrested Pu Zhiqiang on June 13, 2014 on charges of picking quarrels and provoking troubles, and illegally obtaining citizens’ personal information.” Considering the facts of the case that are circulating on the Internet, (I) believe that the actions of Mr Pu do not constitute criminal offences. Below is an analysis of the two charges against him:

1. Illegally obtaining citizens’ personal information

It is said that the police charged Mr. Pu on the ground that he has requested information on business registration on behalf of some media organizations. If that is the case, Pu’s action does not constitute the crime of illegally obtaining citizens’ personal information under Article 253(a) of the Criminal Law.

First, shareholders of companies invest money and share the risk of the failure of the company. Under the limited liability system of shareholders, every company must disclose important information through the registration bodies of industry and commerce in order to protect the interest of potential business clients. The goal of company registration is to provide disclosure of information. This is the reason why Article 6, Clause 3 of the PRC Company Law clearly provides that “the public can request information on company registration at company registration authorities, (while) company registration authorities should provide such services.” Therefore, it is impossible to make it a crime for lawyers to seek information on any company on behalf of anybody.

Secondly, according to the provisions of Article 253 Section 1 Clause 2 (of the Criminal Law), illegally securing information refers to obtaining information by stealing or by methods in violation of the law. When a lawyer makes inquiries of a company’s registration information at the Administration for Industry and Commerce, they inquire according to the regulations and procedures stipulated by the Administration, or the lawyer will not be able to get the information. Under such circumstances, if the lawyer’s inquiry was illegal, the Administration would also have acted illegally by allowing the inquiry. It is therefore totally ridiculous for the Beijing police to consider a lawyer’s inquiry of business information an illegal act.

2. The crime of picking quarrels and provoking troubles

It is believed that police made these charges because Mr. Pu conducted a closed-door meeting at a friend’s home with Xu Youyu, Hao Jian, Hu Shigen, Liu Di, and others, to discuss an incident that happened 25 yeas ago. The police charge could possibly include two aspects. First, it is the action of attending the meeting. Second, it could be the act of distributing a group photograph on the Internet after the meeting. But both actions could not be construed as committing the crime of picking quarrels and provoking troubles.

First, Article 293 Clause 1 of the Criminal Law provides that “Whoever disrupts the social order by committing any of the following provocative and disturbing acts shall be sentenced to imprisonment of not more than 5 years, criminal detention or control: (1) Assaulting any other person at will, with execrable circumstances; (2) Chasing, intercepting, reviling or intimidating any other person, with execrable circumstances; (3) Taking or demanding forcibly or vandalizing or occupying at will public or private property, with serious circumstances; or (4) Making trouble in a public place, which causes a serious disorder of the public place. ”

Let us not discuss here the question if it is reasonable to legislate such a “pocket crime” (Translator’s note: “pocket crime” refers to the vague definition of the charges that anything can be stuffed into it.). The actions of the defendant in a private venue do not come under any clause of the above provision and should not be construed as committing the crime of picking quarrels and provoking troubles.

Second, “The Interpretation of Issues about Applicable Laws Dealing with Criminal Cases of Using Information Networks to Slander,” issued jointly by the Supreme People’s Court and the Supreme People’s Procuratorate provides that “the dissemination of false information on information networks, which one has either invented or clearly knows to be fabricated information, or the organizing or inciting of others to disseminate it on information networks, creating an uproar and causing serious public disorder, is to be convicted and punished as the crime of ‘provocation and causing disturbances’ in accordance with article 293(4) of the Criminal Law.”

It defies common sense as well as the principles of criminal law for the above Interpretation to define Internet space as public space for the purpose of criminal law. But let us set aside the question of whether the Interpretation makes sense. The fact is that the defendant has published a group photo of the gathering on the Internet, and did not fabricate or distribute false information. Hence, it is inappropriate to apply the provisions of the above Interpretation to him.

What happened 25 years ago is a true historical event. We now have a citizen of a country discussing historical facts that took place in his own country. This is a tragic and fearful situation, one that is often referred to as the state of “daoluyimu”, (Translator’s note: that friends would only acknowledge each other by eye contacts in public, since they are too afraid to talk to each other for fear of retaliation by oppressive authorities.)

The discussion above shows that Mr. Pu’s actions do not constitute crimes in a fundamental sense. ( I ) hope that the Beijing police authorities will withdraw immediately the erroneous charges against the defendant, and cease from oppressing the innocent and sparking public furor.

Zhang Xuezhong’s original Chinese-language post, which has now mostly disappeared from social media and blog sites in China, follows:

浦志强律师何罪之有?
————关于浦志强案的初步法律分析

张雪忠

浦志强是中国最著名的人权律师之一。今日,北京警方官方微博发布的消息称,“经检察机关批准,2014年6月13日,北京市公安局以涉嫌寻衅滋事罪、非法获取公民个人信息罪对浦志强依法执行逮捕。”但据目前网传的案情而言,浦志强律师的行为根本不构成犯罪,现对本案所涉的两个罪名依次分析如下:

一、非法获取公民个人信息罪

据称,警方对浦律师的这一指控,是因为他曾受一些媒体之托,查询过一些公司企业的工商登记资料。若是如此,浦的行为根本不构成刑法第253条之一第2款规定的非法获取公民个人信息罪。

首先,公司股东仅以出资为限,承担公司经营失败的风险;基于这种股东有限责任制度,任何公司于设立时,都必须通过工商登记向公众公示各种重要信息,以保障潜在交易者的交易安全。公司企业工商登记的目的和宗旨,即在于信息之公开。正是因为如此,《公司法》第6条第3款特明确规定:“公众可以向公司登记机关申请查询公司登记事项,公司登记机关应当提供查询服务。”可见,律师为任何人查询任何公司的工商登记资料,都不可能构成犯罪。

其次,依刑法第253条之一第2款的规定,非法获取是指以窃取或者违法的方式获取。律师到工商局查询公司的工商登记信息,都是按照工商局要求的程序和手续进行的,否则就不可能获得工商局的查询许可。在这种情况下,如果是律师的查询是非法的,那等于说工商局准许查询的许可也是非法的。可见,北京警方把律师依法查询工商资料的行为视为犯罪,简直是荒谬绝伦。

二、寻衅滋事罪

据信,警方的这一指控,是因为浦志强律师与徐友渔、郝建、胡石根、刘荻等人,在朋友家召开闭门会议,研讨二十五年前发生的一次事件。警方指控的事可能包括两个方面:一是开会的行为;二是会后在网上发布合照的行为。但这两种行为都不可能构成寻衅滋事罪。

第一,刑法第293条第1款规定:“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:(一)随意殴打他人,情节恶劣的;(二)追逐、拦截、辱骂、恐吓他人,情节恶劣的;(三)强拿硬要或者任意损毁、占用公私财物,情节严重的;(四)在公共场所起哄闹事,造成公共场所秩序严重混乱的。”

这里,我们姑且不讨论这一“口袋罪”立法是否合理的问题。本案当事人在私人场所开会的行为,不可能归入上述条款中的任何一项规定,因此不可能构成寻衅滋事罪。

第二,两高《关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释》第5条第2款规定:“编造虚假信息,或者明知是编造的虚假信息,在信息网络上散布,或者组织、指使人员在信息网络上散步,起哄闹事,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。”

上述解释把网络空间界定为刑法上的公共场所,本来就既违背社会常识,也违反罪刑法定原则。但这里,仍姑且不谈论这一解释是否合理的问题。本案当事人开会的合照,在网上公布,也绝非编造或散布虚假信息,因此不可能适用上述解释的规定。

二十五年前发生的事件,是一起真实的历史事件。一个国家的公民,在自己朋友的家中,研讨自己国家发生过的史实,这种行为如果也能构成犯罪的话,那甚至比人们常说的“道路以目”还要可怕和可悲。

综上所述,浦志强律师的行为根本就不构成犯罪,希望北京警方立即撤销对当事人的错误指控,不要再一意孤行地迫害无辜、触犯众怒。

2014年6月13日

 

Republished from the China Media Project on June 16th, 2014