By Wang Yonghang, an attorney in Dalian City, Liaoning Province

(Clearwisdom.net) It's a fatal mistake to have charged Falun Gong practitioners with "crimes of sabotaging the implementation of the state's laws and executive regulations by utilizing an evil religious organization." I have written several open letters, calling for the jurisdiction department to correct this huge mistake and legal indignity. Among all these letters, the one sent out to the Supreme People's Procuratorate and the Supreme People's Court on July 20, entitled, "Huge Mistakes Made in the Past, Calamities Should Be Cleared Quickly Today" is the most elaborated about the views regarding relevant laws.

However, no matter how urgent and anxious my calls for attention have been, all these letters sank into the sea like mud. Of course, there were also unwanted reactions, such as when the authorities temporarily retained my attorney's certificate and the law office terminated their contract with me.

It isn't enough to issue a statement to help the court change its unconstitutional position against Falun Gong practitioners. We must advocate in person. Coincidently, I heard that Falun Gong practitioners Ms. Gu Li and Ms. Qiu Shujing (alias: Qiu Shuping) had been charged with "sabotaging the implementation of the state's laws and executive regulations by utilizing an evil religious organization," and will attend the hearing. A warm-hearted attorney had already decided to defend Gu Li, while Qiu Shujing was without aid. Hearing the news, I immediately decided to defend her innocence. The briefing is as follows.

Seeing the frailty of these two plaintiffs, I appealed to the chief justice's sense of humanity and respectfully requested that the ladies handcuffs be removed, but he refused my request.

During the investigation, the prosecutor even used underhanded interrogations tactics, by asking questions such as, "Have you ever distributed cult materials about Falun Gong?" I protested twice, but when I protested for the second time, the chief justice stopped me, warned me and recorded it in the court's file.

When it was my turn to question Ms. Qiu Shujing, I asked her questions from the following two positions:

Q: Qiu Shujing, since the issue of "cult" is involved in this case, during this period of time, have any police officers or public prosecutors ever told you what is a "righteous religion" when they met you?

A: No.

Q: Do you think any law has the right to decide whether a certain belief is a cult?

A: No, I don't think it has the right to do so.

Q: To constitute "a crime of sabotaging the implementation of the laws," a person must be unsatisfied with or be against the implementation of any state's law or executive regulation because he/she believes that such an implementation harms his/her own interests. Are you unsatisfied with any national law or executive regulations?

A: No.

Q: Do you know how to sabotage the implementation of a law or executive regulations?

A: No, I don't.

At this moment, the public prosecutor suddenly protested. I didn't hear clearly why he protested. But the chief justice supported him and stopped my further questioning of Ms. Qiu. Coincidently, I had asked my plaintiff all the questions I had planned to at that time.

During the evidence stage of the trial, the prosecutor provided a lot of "evidence," including the confiscated desktop, printer, pamphlets and disks. He interrogated the plaintiff about the "evidence" piece by piece. It was obvious that the prosecutor made great efforts in this case.

We had no evidence to submit to the court, nor did I plan to be entangled in the facts. That is to say, I wanted to defend Ms. Qiu Shujing's innocence, based on her admission to the fact that she had clarified the truth about the persecution of Falun Gong.

I had planned to distribute the original version of Article 300, the Criminal Law, to the officials in the court session and the public prosecutor before I started speaking, so that they could have some reference. However, when it was my turn to express the opinion, the chief justice refused my favor. I had to read out the content of Article 300 (3 clauses) of the Criminal Law before starting to defend Ms. Qiu Shujing.

Article 300 of the Criminal Law says:

Clause 1: Whoever organizes and utilizes superstitious sects, secret societies, and evil religious organizations or sabotages the implementation of the state's laws and executive regulations by utilizing superstition is to be sentenced to not less than three years and not more than seven years of fixed-term imprisonment; when circumstances are particularly serious, to not less than seven years of fixed-term imprisonment.

Clause 2: Whoever organizes and utilizes superstitious sects, secret societies, and evil religious organizations or cheats others by utilizing superstition, thereby giving rise to the death of people is to be punished in accordance with the previous paragraph.

Clause 3: Whoever organizes and utilizes superstitious sects, secret societies, and evil religious organizations or has illicit sexual relations with women, defrauds money and property by utilizing superstition is to be convicted and punished in accordance with the regulations of articles 236, 266 of the law.

Criminal Law of China emphasizes the four essential elements of the constitution of crime: object of a crime, subject of a crime, subjective aspects and objective aspects. From the content of the three clauses of Article 300, the Criminal Law, we can clearly see that there are specific objects of a crime in both Clause 2 and Clause 3, while there should be an object of a crime in Clause 1 for the constitution of sabotaging the state's law or executive regulations. That is, which specific state's law or executive regulation is sabotaged. Since law and executive regulation are used as paralleled terms here, the word "law" must carry its meaning in a narrow sense, not including jurisdiction or department regulations. However, in this case, we could not locate the implementation of which state's law or executive regulation my client had sabotaged.

It had been pointed out in the official publications concerning both understanding of the Criminal Law and jurisdictional interpretation that whoever commits a crime must be found to have committed the crime intentionally from the subjective aspects. In Ms. Qiu's case, the object could not be found and it had not been determined whether Qiu Shujing had sabotaged the implementation of the law intentionally or negligently from the subjective aspects. At the same time, the objective aspects didn't exist in this case because Qiu Shujing didn't sabotage any law to any extent, or cause any social harm or interference with the law. That is to say, the crime in this case lacked the three elements and were not applicable to Qiu Shujing.

First, as to the definition and differentiation between "righteous religion" and "evil religion," it does not belong to legal issues, but is a topic in the scope of one's belief system. Since the appearance of religion in human society, there have been disputes about righteous religions and evil religions. In today's world, nobody will believe that Christianity is an evil religion, but it was persecuted as an evil religion for 300 years at the beginning of its establishment. Since the differentiation of righteous religion and evil religion is not a legal issue, it is not in keeping with the spirit of contemporary law to include the two words "evil religion" in the law. Therefore, the defense argues that the crime charged in this case, that is, "utilizing evil religious organizations," does not constitute a crime. However, this is not the subject and key part of the charges in this case, it only refers to what form has been utilized to constitute illegal action. Moreover, whether a belief is an evil religion or not is not the topic that we can discuss clearly here.

Second, the subject and key part of the crime with which Ms. Qiu is charged in this case is "sabotaging the implementation of the state's law and executive regulations." However, the public prosecutor failed to determine which "law" or "executive regulation" and its implementation Qiu Shujing has "sabotaged."

2. If the crime of "utilizing the evil religious organization to sabotage the implementation of the state's law and executive regulations" exists, the plaintiff must be intentional in subjective aspects. However, Falun Gong practitioner Qiu Shujing does not even know which "state law" or "executive regulation" threatens her own interest, not to mention whether she sabotaged the implementation of the law intentionally or negligently.

3. Sabotaging the implementation of law is different from violating the law. An average person does not know at all how to "sabotage" the implementation of a certain law.

In conclusion, the defense believes that whether the so-called evidence provided in this case is true or not, no matter how much of the "evidence" is provided, it cannot testify that Qiu Shujing has prevented and sabotaged the implementation of a certain law or executive regulation (that is, the usual practice in social activities), and caused social harm. Therefore, the court cannot charge her for the crime mentioned in this case. In this sense, it is wrong to have detained, arrested and prosecuted Qiu Shujing. Therefore, I make a plea to the court that Qiu Shujing be found innocent and that she be released immediately.

It is obvious that the public prosecutor didn't expect that I would make such an argument. His prosecution rested solely on the facts of the case, while I didn't even mention a word about the facts, but defended only from the respect of applicable law. As long as the action in question doesn't constitute a crime, his facts are not criminal facts no matter how many he provides. In my opinion, the public prosecutor only said one sentence, "It is sabotaging the implementation of law if a person is utilizing an evil religious organization."

It was clear that the prosecutor was very devoted to the case. He was clear-headed and responded very quickly. Maybe he could be an excellent public prosecutor in many cases, but today what he faced were the challenges of Chinese law in its entirety.

The chief justice gave me another chance to make some supplements. I pointed out that what the public prosecutor said was a misunderstanding of Article 300, the Criminal Law. To express my opinion, I raised a rhetorical question: If utilizing an evil religious organization is equivalent to sabotaging the implementation of the law, what is the necessity of Clause 2 and 3?

I expressed my points completely during my summation, which are worth acknowledging here.

After the session, I submitted to the court one copy of "Huge Mistakes in the Past, Calamities Should Be Cleared Quickly," an article published on www.epochtimes.com, as an attachment.

If neither the person(s) responsible nor a passerby can realize the fallacy of a mistake, everyone will be confused and no one will recognize the problem. However, if one person can point out the fallacy, then everyone can be aware of it, and after consideration, realize that the mistake must be corrected. I believe that the officials at Jinzhou District Court dared not violate Article 300 of the Criminal Law to sentence these two innocent persons.

I also hope that people of legal backgrounds, both domestic and abroad, or people who are concerned about the regulation of law in China, analyze the crimes imposed upon Falun Gong practitioners from the respect of law and the four elements of the constitution of a crime. Within only several minutes, you will likely find that the fallacy of charging Falun Gong practitioners with the crime of "sabotaging the implementation of the state's law and executive regulations by utilizing evil religious organization" is very obvious! For the purposes of this article, I will not review the numerous calamities Falun Gong practitioners have suffered in the name of such a nonsense crime during the past nine years.

August 27, 2008.

Posting date: 9/16/2008
Original article date: 9/16/2008
Category: Open Forum
Chinese version available at http://www.minghui.org/mh/articles/2008/8/30/185015.html

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