A Link to the paper of “An Objective Evaluation of Xi Jinping”

Legal Analysis of the Use of Chen Jingyuan’s Retweet of the “RFI Chinese” 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 a Twitter post by “RFI Chinese - Radio France Internationale” on X (Twitter), specifically the post with the ID 1489382838067765248, dated February 3, 2022. The post is titled “网络文摘：客观评价习近平” (“Online Digest: An Objective Evaluation of Xi Jinping”) and includes a link to an article along with a photo of Xi Jinping. The Kunming public security, procuratorate, and judicial system (collectively, the “Kunming authorities”) used this retweet as evidence for Chen’s PXQT conviction. This analysis examines the legal basis under Chinese law for this use, 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, “public place” has been extended to online spaces, such as 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:

   • 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 “RFI Chinese” 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 in question is titled “Online Digest: An Objective Evaluation of Xi Jinping,” with a link to an article and a photo of Xi Jinping. Based on the post’s title and subsequent user comments, the article likely evaluates Xi Jinping’s leadership, policies, or personal background, potentially including critical or negative remarks. For example, comments on the post mention phrases like “shallow and foolish” or “the emperor’s new clothes,” suggesting the article may portray Xi in a negative light. The Kunming authorities likely classified this content as “false information,” arguing that it contradicts the official narrative of Xi Jinping as a revered leader, potentially “distorting facts” or “maliciously evaluating” him in a way that undermines his image and social stability.

   • Potential Issue:

     • Nature of the Content: The article’s title, “An Objective Evaluation of Xi Jinping,” indicates it is a commentary or opinion piece rather than a factual report. The content likely consists of subjective analysis or criticism, not verifiable factual claims. The Two Highs Interpretation requires “false information” to be factually inaccurate and fabricated, not merely critical or dissenting opinions. International legal standards (e.g., ICCPR General Comment No. 34) and scholarly interpretations suggest that political commentary and criticism are protected forms of expression and should not be deemed “false” unless they involve deliberate fabrication of facts.

     • Lack of Factual Basis: The authorities did not provide evidence (e.g., official refutations or fact-checking) to demonstrate that the article’s content was factually false. Labeling it “false” simply because it deviates from the state’s narrative violates the Criminal Procedure Law Article 53 requirement for clear and sufficient evidence.

     • Political Bias in Classification: Classifying critical evaluations as “false” conflates political dissent with criminal behavior, exceeding the scope of Article 293 and violating the principle of legality (nullum crimen sine lege).

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:

     • Lack of Evidence for “Knowing” Intent: Under Criminal Law Article 14, subjective intent requires proof that the accused knew the information was false and intended or was reckless about causing harm. The authorities provided no direct evidence (e.g., Chen’s statements, prior actions, or messages) to show he knew the article was false. Retweeting, especially without modification, does not inherently demonstrate “knowing” dissemination of falsehoods, particularly if Chen viewed the content as an opinion piece rather than a factual claim. Chen’s appeal and prison letter assert he was uncertain of the content’s truthfulness and acted out of academic curiosity, undermining the “knowing” element.

     • Improper Presumption: Inferring intent from Chen’s education violates the Criminal Procedure Law Article 12 (presumption of innocence) and Article 53 (burden of proof). The court’s assumption that a PhD holder “should know” the content was false reverses the burden of proof, requiring Chen to disprove intent rather than the prosecution proving it.

     • Political Motivation: The authorities’ focus on the content’s political sensitivity suggests they equated dissent with criminal intent, rather than proving Chen’s actual knowledge or intent to cause disorder, reflecting a politically driven application of the law.

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 critical of Xi Jinping, which could incite anti-government sentiment or destabilize social harmony, especially given the sensitivity of content involving the national leader. They might have claimed that the article’s negative portrayal (e.g., “shallow and foolish” or “the emperor’s new clothes”) has 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, particularly in cases involving criticism of the government or its leaders.

   • Potential Issue:

     • Failure to Meet Quantitative Thresholds: The Two Highs Interpretation Article 2 sets clear metrics for “serious disruption” in online cases: 500 reposts or 5,000 views, or actual harm like protests or public panic. Chen’s retweet, as part of his broader activity, involved an account with fewer than 100 total reposts over 20 years (per his appeal and prison letter), far below the 500-repost threshold. The authorities provided no evidence that this specific retweet met the quantitative criteria or caused measurable harm (e.g., protests, panic).

     • Limited Reach of X in China: X is blocked in mainland China and accessible only via circumvention tools (e.g., VPNs), significantly limiting its audience. The authorities did not explain how a retweet on a platform with restricted access could cause “serious disruption” within China, especially with such low engagement.

     • Presumption of Harm: The authorities likely presumed harm based on the content’s political sensitivity rather than proving actual disruption. This approach contradicts the Criminal Procedure Law Article 53, which requires clear evidence of consequences, and violates the principle of proportionality in criminal law, as the 20-month sentence is disproportionate to the unproven harm.

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 CPL Article 50. Additionally, the relevance of a single retweet among potentially many posts is questionable without demonstrating its specific contribution to the alleged “serious disorder.”

Broader Context: Political Sensitivity and Selective Enforcement

• Political Sensitivity: Content involving the national leader, Xi Jinping, is highly sensitive in China, and the government maintains strict control over related narratives. The authorities likely viewed Chen’s retweet as a challenge to state authority, especially given the article’s potentially critical tone. The Criminal Law Article 293 is often used as a “catch-all” charge to target politically sensitive speech, and its application here aligns with this pattern.

• Selective Enforcement: Chen’s appeal and prison letter note that the original poster, “RFI Chinese,” and other users who shared the same content were not prosecuted, suggesting selective enforcement. This violates Criminal Law Article 4 (equality before the law) and raises concerns about the authorities’ motives, potentially indicating a politically driven prosecution aimed at “setting an example” due to Chen’s educational background (PhD).

Conclusion

The Kunming authorities’ use of Chen Jingyuan’s retweet of the “RFI Chinese” post as evidence for PXQT relies on the following legal basis:

1. Classification of the Content as “False Information”: The authorities likely argued that the article’s critical evaluation of Xi Jinping was “false” because it contradicted the state’s narrative, though this classification lacks factual grounding and conflates dissent with falsity.

2. Inference of Subjective Intent: They inferred Chen’s “knowing” 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 article is a commentary, not a factual claim, and does not meet the legal definition of “false information.”

• The inference of intent lacks evidence, violating the presumption of innocence.

• The retweet’s minimal engagement and lack of tangible harm do not constitute “serious disruption.”

• Selective enforcement and political motivations suggest an abuse of Article 293 to suppress dissent rather than a legitimate application of the law.

This case reflects a broader pattern of using PXQT to target politically sensitive speech, highlighting the need for clearer legal definitions and stricter adherence to evidentiary standards to prevent misuse of the law.

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.**

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