A cartoon of `the "Umbrella Girl" ================================= **Legal Analysis of the Use of Chen Jingyuan's Retweet of the Post as Evidence for \"Picking Quarrels and Provoking Trouble\" in the Kunming Public Security, Procuratorate, and Judicial System** **Introduction** Chen Jingyuan, a PhD holder, was convicted of \"picking quarrels and provoking trouble\" (PXQT) under Article 293 of China's *Criminal Law* by the Xishan District Court in Kunming, with the conviction upheld by the Kunming Intermediate Court. One piece of evidence used against him was his retweet of [the post](https://x.com/shijianxingzou/status/1148400168733171712) by the user ["秦鹏"](https://x.com/shijianxingzou) on X (Twitter), specifically the post with the ID 1148400168733171712, dated July 9, 2019. The post contains images and text related to the 2019 Hong Kong protests, specifically the \"Hong Kong撑住\" (Hong Kong Hold On) series by artist Daxiong, which became a symbol of resistance during the anti-extradition movement. This analysis examines the legal basis under Chinese law for the Kunming public security, procuratorate, and judicial system (collectively, the \"Kunming authorities\") to use this retweet as evidence for Chen's PXQT conviction, focusing on the legal framework, elements of the crime, and potential issues with the application of the law. **Legal Framework for PXQT in the Context of Online Activity** 1. **Article 293 of the Criminal Law of the People's Republic of China** Article 293 defines the crime of \"picking quarrels and provoking trouble\" and includes four specific acts. The relevant provision for online activity, as applied in Chen's case, is likely Article 293(1)(4): \"causing a disturbance in a public place, resulting in serious disorder in public order.\" In judicial practice, this has been extended to online spaces, where \"public place\" is interpreted to include social media platforms like X, and \"serious disorder\" is assessed based on the impact of the disseminated content. 2. **2013 Judicial Interpretation on Handling Defamation and Other Criminal Cases via Information Networks** Issued by the Supreme People's Court and Supreme People's Procuratorate (commonly referred to as the \"Two Highs Interpretation\"), this interpretation provides specific guidance for applying Article 293 to online activities. Key provisions include: - **Article 5(2)**: Knowingly disseminating false information online that causes serious disruption to public order can constitute PXQT. - **Article 2**: Sets quantitative thresholds for \"serious disruption,\" such as 500 reposts or 5,000 views, or qualitative impacts like triggering protests or public panic. - The interpretation emphasizes that the content must be \"false,\" the dissemination must be intentional (with knowledge of falsity), and the result must be a significant disturbance to public order. 3. **Criminal Procedure Law (CPL) Requirements for Evidence** - **Article 53**: Evidence must be sufficient, conclusive, and exclude reasonable doubt to support a conviction. - **Article 55**: Electronic evidence (e.g., retweets) must be verified for authenticity and relevance, and its collection must comply with legal procedures. **Legal Basis for Using the Retweet as Evidence for PXQT** The Kunming authorities likely relied on the following legal reasoning to use Chen's retweet of the post as evidence for PXQT: 1. **Content of the Retweet as \"False Information\"** - **Legal Standard**: Article 5(2) of the *Two Highs Interpretation* requires that the disseminated information be \"false\" to qualify as PXQT. \"False information\" typically refers to fabricated facts, not opinions or subjective expressions, though judicial practice often interprets this broadly in politically sensitive cases. - **Application to the Post**: [The retweet](https://x.com/shijianxingzou/status/1148400168733171712) in question contains images and text related to the 2019 Hong Kong protests, specifically the \"Hong Kong撑住\" series by artist Daxiong. The images depict protest scenes with symbolic elements (e.g., yellow umbrellas, a child facing riot police), and the text praises the artwork as a \"spiritual symbol\" of resistance. The Kunming authorities likely classified this content as \"false information\" by arguing that it misrepresents the Hong Kong protests, portrays the Chinese government or its policies negatively, or exaggerates the situation in a way that undermines state authority. For example, they might have claimed that the artwork and accompanying text falsely depict the protests as justified or heroic, contrary to the official narrative that labeled them as riots or foreign-instigated unrest. - **Potential Issue**: The post primarily consists of artistic illustrations and subjective commentary, not verifiable factual claims. The *Two Highs Interpretation* does not clearly define \"false information,\" but international legal standards (e.g., ICCPR General Comment No. 34) and scholarly interpretations suggest that opinions, critiques, or artistic expressions should not be treated as \"false\" unless they involve deliberate fabrication of facts. The Kunming authorities' classification of this content as \"false\" may reflect a broad interpretation often seen in politically sensitive cases, where criticism of the state is equated with falsity, potentially overstepping the legal definition. 2. **Chen's Act of Retweeting as \"Dissemination\" with Subjective Intent** - **Legal Standard**: Article 5(2) requires that the defendant \"knowingly\" disseminates false information, meaning they must have subjective intent or knowledge of the content's falsity. Article 14 of the *Criminal Law* further mandates proof of intent, either direct (hoping for the result) or indirect (recklessly allowing the result). - **Application to Chen's Retweet**: By retweeting the post, Chen engaged in an act of dissemination on a public platform (X), which the authorities likely interpreted as meeting the \"public place\" requirement of Article 293(1)(4). They may have inferred Chen's \"knowledge of falsity\" based on his education level (PhD), arguing that a highly educated individual \"should have known\" the content was false or harmful due to its politically sensitive nature. The authorities might also have claimed that Chen's act of retweeting, without adding disclaimers or critical commentary, implies endorsement of the content, thus satisfying the intent requirement. - **Potential Issue**: The inference of intent based on education is legally problematic. Article 53 of the CPL requires objective evidence of intent (e.g., Chen's statements, prior actions, or explicit endorsements), not presumptions based on his background. The retweet itself---a passive act of sharing without modification---does not inherently demonstrate \"knowing\" dissemination of falsehoods, especially if Chen believed the content to be artistic or symbolic rather than factual. Furthermore, the authorities' failure to provide evidence of Chen's subjective state of mind (e.g., messages showing he knew the content was false) undermines the legal basis for this element. 3. **Alleged \"Serious Disruption of Public Order\"** - **Legal Standard**: Article 293(1)(4) and Article 2 of the *Two Highs Interpretation* require that the act causes \"serious disorder in public order,\" either through quantitative metrics (e.g., 500 reposts, 5,000 views) or qualitative impacts (e.g., protests, public panic, or government intervention). - **Application to the Retweet**: The Kunming authorities likely argued that Chen's retweet contributed to \"serious disorder\" by spreading content that could incite anti-government sentiment or destabilize social harmony, particularly given the sensitive context of the 2019 Hong Kong protests. They might have claimed that the post's imagery (e.g., protest symbols) and text (praising resistance) have the potential to provoke unrest or undermine public trust in the state, even if the actual impact was minimal. In Chinese judicial practice, \"public order\" is often interpreted broadly to include ideological stability, especially in cases involving criticism of the government or politically charged events like the Hong Kong protests. - **Potential Issue**: The authorities' case appears weak on this element. Chen's retweet had minimal engagement (\<100 reposts, as per his claims in the prison letter), far below the 500-repost threshold set by the *Two Highs Interpretation*. There is no evidence in the case documents of tangible harm, such as protests, panic, or widespread dissemination within mainland China, especially since X is blocked and inaccessible to most Chinese citizens without circumvention tools. The authorities' reliance on a hypothetical \"potential\" for disorder, rather than actual harm, stretches the legal standard and violates the principle of proportionality in criminal law. This broad interpretation risks criminalizing protected speech, as the content is more akin to political expression than a direct incitement to disorder. 4. **Use of Electronic Evidence** - **Legal Standard**: Article 55 of the CPL requires that electronic evidence (e.g., retweets) be verified for authenticity, relevance, and legality of collection. The *Two Highs Interpretation* also implies that online activity must be directly attributable to the defendant. - **Application to the Retweet**: The authorities likely obtained Chen's retweet through digital forensics (e.g., cached data from his device or X account), presenting it as evidence of his act of dissemination. They would argue that the retweet, timestamped and linked to Chen's account, satisfies the evidentiary requirement of proving the act. - **Potential Issue**: The case documents do not specify how the retweet was collected or verified. If the authorities failed to authenticate the data (e.g., confirm it was not tampered with) or if the collection process violated legal procedures (e.g., unauthorized access to Chen's device), the evidence could be inadmissible under Article 50 of the CPL. Additionally, the relevance of a single retweet among Chen's broader activity is questionable, as the prosecution must show that this specific act contributed to the alleged \"serious disorder,\" which they failed to substantiate. **Broader Context: Political Sensitivity and Selective Enforcement** - **Political Sensitivity**: The 2019 Hong Kong protests were a highly sensitive issue in China, with the government actively suppressing sympathetic narratives in mainland China. The authorities likely viewed Chen's retweet as a challenge to state authority, especially given the post's symbolic support for the protests. PXQT is often used as a \"catch-all\" charge to target politically sensitive speech, and the Kunming authorities may have applied it here to deter similar acts of dissent. - **Selective Enforcement**: Chen's appeal and prison letter note that other users, including the original poster \"秦鹏\" and others who shared the same content, were not prosecuted. This suggests selective enforcement, which violates *Criminal Law* Article 4 (equality before the law) and undermines the fairness of the legal process. The authorities may have targeted Chen due to his educational background (PhD) to \"set an example,\" further indicating a politically motivated prosecution. **Conclusion** The Kunming authorities' use of Chen Jingyuan's retweet as evidence for PXQT relies on the following legal basis: 1. **Classification of the Content as \"False Information\"**: The authorities likely argued that the post's depiction of the Hong Kong protests was \"false\" because it contradicted the state's narrative, though this interpretation lacks factual grounding and conflates dissent with falsity. 2. **Inference of Subjective Intent**: They inferred Chen's intent based on his education, claiming he \"should have known\" the content was false, but this presumption lacks objective evidence and violates the burden of proof. 3. **Claim of \"Serious Disruption\"**: They argued the retweet had the potential to disrupt public order, but failed to provide evidence of actual harm or meet the quantitative thresholds set by the *Two Highs Interpretation*. 4. **Use of Electronic Evidence**: The retweet was presented as proof of dissemination, though its collection and relevance are questionable. **Legal Flaws**: The authorities' reasoning is legally flawed due to the lack of evidence for falsity, intent, and harm, as well as the misuse of PXQT to target political expression. The broad interpretation of \"false information\" and \"public order\" in this case reflects a pattern of using vague laws to suppress dissent, raising concerns about compliance with the principles of legality, proportionality, and fairness under Chinese law. The selective enforcement against Chen further undermines the legitimacy of the prosecution, suggesting a politically motivated application of the law rather than a strict adherence to legal standards. **Key Legal References** - *Criminal Law of the People's Republic of China*: Articles 4, 14, 293 - *Criminal Procedure Law of the People's Republic of China*: Articles 12, 50, 53, 55 - *2013 Judicial Interpretation on Handling Defamation and Other Criminal Cases via Information Networks*: Articles 2, 5(2) **Disclaimer**: This analysis is based on the provided information and does not constitute legal advice. I am not a lawyer; please consult a legal professional for advice specific to your situation. **Grok Disclaimer**: Grok is not a lawyer; please consult one. Don't share information that can identify you. -------------- [[Chinese](/chats/elements/actions/artistic/cartoon_cn)]