A netizen’s comments on the report about the professor Xu’s release
Below is a detailed legal analysis in English of the Kunming public security and judicial system’s use of Chen Jingyuan’s retweet of the post from the Twitter account “Gao Yu” as evidence for the crime of “picking quarrels and provoking trouble” under Chinese law. The analysis evaluates the legal basis, shortcomings, and errors in this approach, based on Article 293 of the Criminal Law of the People’s Republic of China and the Interpretation of the Supreme People’s Court and Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Defamation and Other Crimes Committed via Information Networks (hereinafter referred to as the “Two Highs Interpretation”). This analysis relies solely on existing knowledge and provided case documents, without external searches.
Overview of the Tweet
Tweet Content: Posted by “Gao Yu” on July 18, 2020, at 03:38 UTC:
Text: “許章潤先生向香港電台提供清華大學週三對他發出開除處分後的照片，先生接受這一紙公文，特留影紀念，依然是坦蕩開懷的大笑。戚戚的校方，你們給予許先生的，不過是你們當奴才和幫兇的罪證。” (Translation: “Professor Xu Zhangrun provided a photo to Radio Television Hong Kong, taken after Tsinghua University issued his dismissal notice on Wednesday. He accepted the document and took the photo to commemorate the moment, still smiling openly and cheerfully. To the pathetic school authorities, what you have given Professor Xu is nothing but evidence of your servility and complicity.”)
Context: Xu Zhangrun, a law professor at Tsinghua University, was dismissed for publishing critical articles. Gao Yu posted this tweet to report the event and included commentary criticizing the university’s actions.
Chen Jingyuan retweeted this post, and the Kunming public security and judicial system used this retweet as one piece of evidence for the charge of “picking quarrels and provoking trouble,” alleging that he disseminated false information and disrupted public order.
Legal Basis Analysis
The Kunming authorities’ use of Chen’s retweet as evidence for “picking quarrels and provoking trouble” must satisfy the constitutive elements under Article 293 of the Criminal Law and Article 5(2) of the Two Highs Interpretation:
Objective Element: Disseminating false information.
Subjective Element: Knowing the information is false and intentionally disseminating it.
Harmful Consequence: Causing serious disruption to public order.
1. Objective Element: Disseminating False Information
Authorities’ Basis:
The tweet discusses Xu Zhangrun’s dismissal by Tsinghua University and includes Gao Yu’s criticism (“the school authorities are servile and complicit”), which the authorities likely deemed as “insulting and attacking the core national leadership and the current political system” (as stated in the first-instance judgment), and thus classified as “false information.”
Chen’s act of retweeting was considered “dissemination.”
Legal Analysis:
Definition of False Information: Article 5(2) of the Two Highs Interpretation requires the information to be “fabricated” or “distorted.” The tweet reports Xu Zhangrun’s dismissal (a factual event, confirmed by media such as CNN) and includes Gao Yu’s commentary (“the school authorities are servile and complicit”), which is a subjective opinion, not subject to a true-or-false standard.
Nature of the Content: Xu Zhangrun’s dismissal is an objective fact, and Gao Yu’s commentary is an opinion, not a fabrication. The authorities failed to provide evidence of “falsity” (e.g., an official rebuttal), and merely labeling it as “insulting and attacking” deviates from the legal requirement.
Retweeting Behavior: Chen only retweeted the post without editing or commenting, making his action passive and not fully consistent with the active “dissemination” of false information.
Shortcomings and Errors:
Lack of Evidence for Falsity: The tweet is based on a factual event, and the commentary is a subjective opinion. Classifying it as “false” lacks legal grounding.
Misapplication: Retweeting non-original content does not fully meet the requirement of actively “disseminating false information.”
2. Subjective Element: Knowing the Information is False and Intentionally Disseminating It
Authorities’ Basis:
The first-instance judgment inferred Chen’s “knowledge” of the falsity based on his “high education level” (stating he “should be able to distinguish right from wrong”), and his retweeting was deemed intentional dissemination.
Legal Analysis:
Proof of Intent: Article 55 of the Criminal Procedure Law requires subjective intent to be proven with evidence. Chen claimed his retweeting was for academic research and that he lacked the ability or intent to verify the truth, with no confession admitting knowledge of falsity.
Issue of Inference: Inferring “knowledge” based on education level violates the principle of subjective culpability, as it lacks direct evidence (e.g., continued posting after a warning).
Intent of Retweeting: Chen did not comment or promote the tweet, and his behavior (low activity, fewer than 100 followers) does not support an intent to “disseminate.”
Shortcomings and Errors:
Unfounded Inference: There is no evidence to prove Chen “knew” the tweet was false, making the inference legally invalid.
Misjudgment of Intent: Retweeting does not necessarily indicate an intent to “disseminate,” especially without considering academic or informational motives.
3. Harmful Consequence: Causing Serious Disruption to Public Order
Authorities’ Basis:
The judgment stated that the retweeting “caused serious disruption to public order.”
Legal Analysis:
Quantitative Standard: The Two Highs Interpretation implies a certain scale of dissemination (e.g., 500 retweets or 5,000 views). Chen’s account had fewer than 100 followers, and his total retweets were fewer than 100, with no specific data on this tweet’s reach.
Specific Facts: The authorities provided no evidence of actual disruption (e.g., riots, panic, or social impact), relying solely on a conclusory statement.
Causal Link: The tweet discusses an academic issue (Xu Zhangrun’s dismissal and the university’s actions), and Chen’s low-impact retweet is unlikely to cause “serious disruption.”
Shortcomings and Errors:
Lack of Consequence: There is no factual or data-driven evidence of “serious disruption,” failing to meet the quantitative threshold.
Absence of Causality: The authorities did not establish a direct link between the retweet and any disruption.
4. Legality of Evidence and Procedure
Authorities’ Basis:
The tweet’s content (electronic data) was presented as evidence and deemed legally obtained after examination.
Legal Analysis:
Legality of Evidence: The extraction of the tweet may be procedurally legal, but Chen’s prison letter alleges the evidence was “carefully selected and fabricated,” suggesting potential tampering, which would violate Article 52 of the Criminal Procedure Law.
Examination Procedure: The first-instance trial was not public, and Chen’s defense was restricted; the second instance did not hold a hearing, rendering the examination process superficial and failing to address defense objections (e.g., the content is not false).
Shortcomings and Errors:
Procedural Flaws: The lack of transparency and restricted examination undermine the evidence’s credibility.
Evidence Application: The tweet only proves the act of retweeting, not falsity or harm.
Overall Assessment of Legal Basis
Reasonableness of the Basis:
The authorities relied on Article 293 and the Two Highs Interpretation to frame the charge of disseminating false information, which formally aligns with China’s legal framework for controlling online speech.
The tweet’s sensitive content (Xu Zhangrun’s dismissal and criticism of the university) may have been perceived as a threat to social stability, fitting China’s judicial practice of suppressing dissent.
Shortcomings and Errors:
Erroneous Determination of Falsity: The tweet is based on a factual event, and the commentary is a subjective opinion. Classifying it as “false” lacks legal grounding, violating the principle of legality.
Improper Inference of Intent: Inferring “knowledge” based on education without evidence violates subjective culpability principles.
Lack of Harmful Consequence: The authorities failed to prove “serious disruption” or meet the quantitative threshold, rendering the charge baseless.
Procedural Deficiencies: Non-public trials and restricted examination undermine the evidence’s legitimacy.
Relation to the Overall Evidence in the Case
Overall Evidence: The case involves multiple retweets, with this tweet being one piece of evidence. Other retweets (e.g., art pieces) were similarly not proven “false,” and the overall evidence chain fails to support the three constitutive elements.
Role of This Tweet: Due to its political sensitivity (Xu Zhangrun’s dismissal), this tweet was likely highlighted by the authorities as “insulting and attacking,” but it does not rectify the overall weakness of the evidence chain.
Conclusion
The Kunming public security and judicial system’s use of Chen Jingyuan’s retweet of the Gao Yu tweet as evidence for “picking quarrels and provoking trouble” has a superficial legal basis under Article 293 and the Two Highs Interpretation, but it is fraught with significant flaws:
Lack of Evidence for Falsity: The tweet is based on a factual event, and the commentary is a subjective opinion. Classifying it as “false” lacks legal grounding.
Improper Inference of Intent: There is no evidence to prove Chen “knew” the tweet was false, and the inference violates legal principles.
Absence of Harmful Consequence: The authorities failed to demonstrate “serious disruption” or meet the quantitative threshold.
Procedural Flaws: Non-public trials and restricted examination undermine the evidence’s legitimacy.
The use of this retweet as criminal evidence fails to support the constitutive elements of the charge, reflecting the authorities’ tendency to use “picking quarrels and provoking trouble” to suppress sensitive speech. Under strict legal standards, this evidence is insufficient to sustain a guilty verdict, and the conviction risks judicial unfairness.
This analysis is based on the case documents and tweet content, as of March 23, 2025. For a deeper analysis, further evidence details could be requested, but this is beyond the current scope.
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[Chinese]