编辑：胡丽莉 校对：熊辩 翻译：周敏

浙江省杭州市中级人民法院刑事判决书

[1998]杭法刑初字第183号

公诉机关：浙江省杭州市人民检察院

被告人王有才，1966年6月29日出生，汉族，浙江省淳安县人，无业，住浙江省杭州市西湖区翠苑区14幢2单元401室。一九九０年十二月因犯反革命宣传煽动罪被北京市中级人民法院判处有期徒刑四年，剥夺政治权利一年；后被北京市高级人民法院改判有期徒刑三年，剥夺政治权利一年。一九九一年十一月被假释，一九九八年七月十日被刑事拘留，同年八月七日被逮捕，同月三十日被监视居住，同年十一月三十日被逮捕，现押浙江省公安厅看守所。

浙江省杭州市人民检察院以被告人王有才煽动颠覆国家政权罪，于一九九八年十二月五日向本院提起公诉。本院依法组成合议庭，公开开庭对本案进行了审理。浙江省杭州市人民检察院检察员荣华、代理检察员张哲峰出庭支持公诉。被告人王有才到庭参加诉讼，本案经合议庭评议，审判委员会进行了讨论并作出决定，现已审理终结。

       浙江省杭州市人民检察院指控被告人王有才于一九九八年六月结伙他人商议成立“中国民主党”，决定率先在浙江省成立“中国民主党浙江筹备委员会”，拟定了公然诽谤、诬蔑我国国家政权和社会主义制度的“中国民主党章程（草案）”和“中国民主党浙江筹备委员会成立公开宣言”。王有才通过国际互联网将上述“章程”及“宣言”向美国、香港等地组织及个人发送了十八份电子邮件。按照事先商定，由其同伙将“中国民主党浙江筹备委员会成立公开宣言”印刷并在杭州市的上城区房管局城南房管站及采荷路与凯旋路交叉口一带进行散发。同年七月，被告人王有才分别通知他人于七月十一日在杭州以“喝茶”形式聚会，准备继续讨论成立“中国民主党”事宜，后被公安机关查获而未逞。同年十一月，被告人王有才被监视居住期间，在杭州市与境外敌对组织成员会面商谈并接受1000美元。此外，同年五月和九月，被告人王有才还分别接受境外敌对组织成员资助的人民币4000元、300美元。公诉机关认为，被告人王有才的行为已构成煽动颠覆国家政权罪，且系累犯，应依法严惩。

被告人王有才对所控的事实供认不讳，但辩解其行为仅针对现实社会现象，与煽动颠覆国家政权无关，故其行为不构成犯罪。

经开庭审理查明：被告人王有才以颠覆国家政权，推翻社会主义制度为目的，积极进行组建非法政党的活动，一九九八年六月，被告人王有才纠集祝正明、吴义龙（均另行处理）在杭州市原杭州大学草坪上就王有才提出的成立政党一事进行商议，决定将政党定名为“中国民主党”，率先在浙江省成立“中国民主党浙江筹备委员会”，并各自拟写该党章程。

同年六月二十四日晚，被告人王有才与祝正明、吴义龙及王东海、林辉等人（均另行处理）在祝正明家讨论并拟定了“中国民主党章程（草案）”（以下简称“章程）和”中国民主党浙江筹备委员会成立公开宣言（以下简称“宣言”），诬蔑攻击国家政权和社会主义制度是“封建专制”“政治独裁”和“强权暴政”等，明确提出“获取政治权利、修改宪法、废除一党专政”，“建立宪政民主政治体制，建立政治分权机制”等等，并商定将上述两文公开散发，同时王有才等人分别就联络、宣传、协商等具体行动进行了分工。

同年六月二十五日上午，被告人王有才通过国际互联网向美国、香港等地的组织及个人发送载有“章程”、“宣言”内容的电子邮件十八份，并要求接收方广为传播。同月三十日上午，按商定由其同伙朱虞夫（另行处理）携带“宣言”印刷件在杭州市上城区房管局城南房管站秋涛南苑物业管理办公室及杭州市采荷路与凯旋路交叉口一带进行散发。

同年七月四日、五日，被告人王有才又分别通知祝正明、王东海等人于七月十一日在杭州以“喝茶”形式聚会，并要求各人尽可能联络其他人员参加，继续讨论“中国民主党”的成立事宜。经联络，林辉等人赶至杭州，准备聚会。后因被公安机关及时查获而未得逞。

    同年十一月，被告人王有才在涉嫌危害国家安全被杭州市公安局监视居住期间，违反法律规定在杭州市与境外敌对组织的成员会面，就成立“中国民主党”筹备会等有关情况进行了介绍和交流，并接受资助的经费1000美元。此外，被告人王有才还于同年五月、九月分别接受境外敌对组织成员所资助的经费人民币4000元和300美元。

上述事实，有下列证明经庭审质证予以证实：

１、祝正明、吴义龙证言证明：一九九八年六月与王有才商议成立政党并决定在浙江省率先成立“中国民主党浙江筹备委员会”；

２、祝正明、吴义龙、王东海、林辉证言证明：一九九八年六月二十四日与王有才在祝家共同讨论修改、定稿“章程”、“宣言”并决定公开散发；王东海证言还证实当晚进行了具体分工；公安机关从王有才、祝正明、朱虞夫家中搜查到的“章程”、“宣言”等打印件、印刷件、底稿、电脑文档等书证在案；“宣言”打印件上园珠笔修改的笔迹经鉴定系王有才所写；

３、公安机关于一九九八年六月二十六日在国际互联网公开结点上的浏览发现“章程”、“宣言”已发往境外的证明材料；对王有才住处查获的“东芝Satellite Pro 430 CDT”笔记本电脑中的“发件箱”（NETSCAPE MAIL）检查证实，一九九八年六月二十五日上午，该电脑通过国际互联网向境外发送了载有“章程”、“宣言”内容的电子邮件十八份的鉴定书；胡江霞证言证明该笔记本电脑系其从单位借用，其曾将单位专门配置的网址告诉过王有才；

４、祝正明证言证明：一九九八年六月二十九日，据与王有才商定，其将“宣言”交朱虞夫散发；包建林、袁伯庭、俞水华证言证明朱虞夫在秋涛南苑物业管理办公室向其分发“宣言”；洪照娣、徐水英证言证明目击被公安机关抓获的朱虞夫在凯旋路一带散发传单；公安机关从散发现场提取的“宣言”，经鉴定与朱虞夫、祝正明家中查获的“宣言”内容一致，并系同一版本；朱虞夫的证言与上述证据证实的情况相符；

５、祝正明、王东海证言证明王有才定于七月十一日聚会讨论“中国民主党”事宜，并被要求分别通知其他人员来参加；林辉证言证明其按通知来杭准备聚会；

６、公安机关从王有才身上搜得的美元及从王有才住处搜获的邮政汇款通知、美元定期存单及敌对组织成员发给王月才有关资助王的电子邮件在案；

７、被告人王有才对上述事实供认不讳，所供与上述证据证实的情况相符。

上述证据，本院予以确认，本案事实清楚，证据确实、充分。

本院认为：被告人王有才组织、策划颠覆国家政权，推翻社会主义制度，其行为已构成颠覆国家政权罪，且罪行重大，被告人王有才在进行颠覆国家政权的活动中，与境外组织相勾结，接受资助；其曾因危害国家安全被判刑，现又再犯危害国家安全罪，系累犯，均应依法从重处罚。公诉机关指控事实成立，但指控罪名不当，应予纠正，被告人王有才提出其不构成犯罪的辩解，经查与事实与法律均不相符，故本院不予采纳。据此，依照《中华人民共和国刑法》第一百零五条第一款、第一百零六条、第六十六条、第五十六条第一款、第五十五条第一款，第六十四条之规定，判决如下：

一、被告人王有才犯颠覆国家政权罪，判处有期徒刑十一年，剥夺政治权利三年；

二、被告人王有才违法所得的1300美元(其中300美元系被冻结在中国银行杭州市高新技术开发区支行户名为“胡江霞”的“定期一本通”内的存款，帐号： 4531711006500900003575)，予以追缴。

如不服本判决，可于接到判决书的次日起十日内，通过本院或直接向浙江省高级人民法院提出上诉。书面上诉的，应交上诉状正本一份，副本二份。

审判长 刘舒海

审判员 孙 伟

审判员 何 敏

一九九八年十二月二十日

本件与原本核对无异

书记员 冯 菁

Criminal Judgment of the Hangzhou Municipal Intermediate People’s Court, Zhejiang Province

Editor: Hu Lili Proofreader: Xiong Bian Translator: Zhou Min

[1998] Hang Fa Xing Chu Zi No. 183

Public Prosecution Organ: People’s Procuratorate of Hangzhou City, Zhejiang Province.

Defendant Wang Youcai, born on June 29, 1966, Han nationality, native of Chun’an County, Zhejiang Province, unemployed, residing at Room 401, Unit 2, Building 14, Cuiyuan District, Xihu District, Hangzhou City, Zhejiang Province. In December 1990, he was sentenced to four years of fixed-term imprisonment and one year of deprivation of political rights by the Beijing Municipal Intermediate People’s Court for the crime of counter-revolutionary propaganda and incitement; later, the Beijing Municipal Higher People’s Court changed the sentence to three years of fixed-term imprisonment and one year of deprivation of political rights. He was released on parole in November 1991. He was criminally detained on July 10, 1998, arrested on August 7 of the same year, placed under residential surveillance on the 30th of the same month, and arrested again on November 30 of the same year. He is currently held in the Detention Center of the Zhejiang Provincial Public Security Department.

The People’s Procuratorate of Hangzhou City, Zhejiang Province, initiated a public prosecution against the defendant Wang Youcai for the crime of inciting subversion of state power to this Court on December 5, 1998. This Court formed a collegial bench according to law and conducted a public trial of this case. Procurator Rong Hua and Acting Procurator Zhang Zhefeng of the People’s Procuratorate of Hangzhou City, Zhejiang Province, appeared in court to support the public prosecution. The defendant Wang Youcai appeared in court to participate in the proceedings. Following deliberation by the collegial bench and discussion/decision by the Judicial Committee, the trial of this case is now concluded.

The People’s Procuratorate of Hangzhou City, Zhejiang Province, charges that in June 1998, the defendant Wang Youcai colluded with others to discuss the establishment of the “China Democracy Party,” deciding to take the lead in establishing the “Zhejiang Preparatory Committee of the China Democracy Party” in Zhejiang Province. They drafted the “Constitution of the China Democracy Party (Draft)” and the “Declaration of the Establishment of the Zhejiang Preparatory Committee of the China Democracy Party,” which publicly slandered and vilified our country’s state power and the socialist system. Wang Youcai sent eighteen emails containing the aforementioned “Constitution” and “Declaration” to organizations and individuals in the United States, Hong Kong, and other places via the international Internet. According to a prior agreement, his accomplices printed and distributed the “Declaration of the Establishment of the Zhejiang Preparatory Committee of the China Democracy Party” in the vicinity of the Chengnan Housing Management Station of the Shangcheng District Housing Bureau in Hangzhou and the intersection of Caihe Road and Kaixuan Road. In July of the same year, the defendant Wang Youcai respectively notified others to gather in the form of “drinking tea” in Hangzhou on July 11, preparing to continue discussing the establishment of the “China Democracy Party,” which was later discovered by public security organs and failed. In November of the same year, while the defendant Wang Youcai was under residential surveillance, he met and discussed with members of overseas hostile organizations in Hangzhou and accepted 1,000 US dollars. In addition, in May and September of the same year, the defendant Wang Youcai respectively accepted 4,000 RMB and 300 US dollars in funding from members of overseas hostile organizations. The public prosecution organ believes that the behavior of the defendant Wang Youcai has constituted the crime of inciting subversion of state power, and as he is a recidivist, he should be severely punished according to law.

The defendant Wang Youcai confessed to the charged facts without reservation but defended that his actions were only directed at actual social phenomena and had nothing to do with inciting the subversion of state power, therefore his actions did not constitute a crime.

It has been found through the trial: With the purpose of subverting state power and overthrowing the socialist system, the defendant Wang Youcai actively carried out activities to organize an illegal political party. In June 1998, the defendant Wang Youcai gathered Zhu Zhengming and Wu Yilong (both handled separately) on the lawn of the former Hangzhou University in Hangzhou to discuss the establishment of a political party proposed by Wang Youcai. They decided to name the party the “China Democracy Party,” take the lead in establishing the “Zhejiang Preparatory Committee of the China Democracy Party” in Zhejiang Province, and each draft the constitution of said party.

On the evening of June 24 of the same year, the defendant Wang Youcai, along with Zhu Zhengming, Wu Yilong, Wang Donghai, Lin Hui, and others (all handled separately), discussed and drafted the “Constitution of the China Democracy Party (Draft)” (hereinafter referred to as the “Constitution”) and the “Declaration of the Establishment of the Zhejiang Preparatory Committee of the China Democracy Party” (hereinafter referred to as the “Declaration”) at Zhu Zhengming’s home. They vilified and attacked the state power and the socialist system as “feudal autocracy,” “political dictatorship,” and “power tyranny,” and explicitly proposed “obtaining political rights, amending the Constitution, abolishing the one-party dictatorship,” “establishing a constitutional democratic political system, establishing a political power-sharing mechanism,” etc. They agreed to publicly distribute the two aforementioned documents, and at the same time, Wang Youcai and others respectively divided specific tasks regarding communication, propaganda, and consultation.

On the morning of June 25 of the same year, the defendant Wang Youcai sent eighteen emails containing the contents of the “Constitution” and “Declaration” to organizations and individuals in the United States, Hong Kong, and other places through the international Internet, and requested the recipients to disseminate them widely. On the morning of the 30th of the same month, as agreed, his accomplice Zhu Yufu (handled separately) carried printed copies of the “Declaration” and distributed them in the vicinity of the Qiutao Nanyuan Property Management Office of the Chengnan Housing Management Station of the Shangcheng District Housing Bureau in Hangzhou and the intersection of Caihe Road and Kaixuan Road in Hangzhou.

On July 4 and 5 of the same year, the defendant Wang Youcai respectively notified Zhu Zhengming, Wang Donghai, and others to gather in the form of “drinking tea” in Hangzhou on July 11, and requested each person to contact other personnel to participate as much as possible to continue discussing the establishment of the “China Democracy Party.” Through these contacts, Lin Hui and others rushed to Hangzhou to prepare for the gathering. This did not succeed as it was discovered in time by public security organs.

In November of the same year, while the defendant Wang Youcai was under residential surveillance by the Hangzhou Municipal Public Security Bureau on suspicion of endangering national security, he violated legal regulations to meet with members of overseas hostile organizations in Hangzhou, introduced and exchanged information regarding the establishment of the preparatory committee of the “China Democracy Party,” and accepted 1,000 US dollars in funding. In addition, the defendant Wang Youcai also respectively accepted funding of 4,000 RMB and 300 US dollars from members of overseas hostile organizations in May and September of the same year.

The above facts are confirmed by the following evidence verified through court cross-examination:

1. Testimony of Zhu Zhengming and Wu Yilong proves: In June 1998, they discussed the establishment of a political party with Wang Youcai and decided to take the lead in establishing the “Zhejiang Preparatory Committee of the China Democracy Party” in Zhejiang Province;

2. Testimony of Zhu Zhengming, Wu Yilong, Wang Donghai, and Lin Hui proves: On June 24, 1998, they discussed, revised, and finalized the “Constitution” and “Declaration” together with Wang Youcai at Zhu’s home and decided on public distribution; the testimony of Wang Donghai also confirms that specific labor division was carried out that night; documentary evidence such as printed copies, printed materials, drafts, and computer documents of the “Constitution” and “Declaration” searched by public security organs from the homes of Wang Youcai, Zhu Zhengming, and Zhu Yufu are on file; the handwriting of ballpoint pen revisions on the printed copy of the “Declaration” was appraised as being written by Wang Youcai;

3. Certifying materials of the public security organs’ discovery on June 26, 1998, through browsing international Internet public nodes that the “Constitution” and “Declaration” had been sent overseas; an appraisal report from the inspection of the “Sent” folder (NETSCAPE MAIL) in the “Toshiba Satellite Pro 430 CDT” laptop seized from Wang Youcai’s residence confirming that on the morning of June 25, 1998, the computer sent eighteen emails containing the “Constitution” and “Declaration” to overseas destinations; the testimony of Hu Jiangxia proves that the laptop was borrowed from her workplace and she had told Wang Youcai the specific web address configured by the workplace;

4. Testimony of Zhu Zhengming proves: On June 29, 1998, as agreed with Wang Youcai, he gave the “Declaration” to Zhu Yufu for distribution; testimony of Bao Jianlin, Yuan Boting, and Yu Shuihua proves that Zhu Yufu distributed the “Declaration” to them at the Qiutao Nanyuan Property Management Office; testimony of Hong Zhaodi and Xu Shuiying proves they witnessed Zhu Yufu, who was caught by public security organs, distributing leaflets in the Kaixuan Road area; the “Declaration” extracted from the distribution site was appraised to be identical in content and version to the “Declaration” found in the homes of Zhu Yufu and Zhu Zhengming; the testimony of Zhu Yufu is consistent with the circumstances proven by the above evidence;

5. Testimony of Zhu Zhengming and Wang Donghai proves that Wang Youcai scheduled a gathering on July 11 to discuss “China Democracy Party” matters and requested that they respectively notify other personnel to attend; the testimony of Lin Hui proves he came to Hangzhou to prepare for the gathering as notified;

6. The US dollars seized from Wang Youcai’s person and the postal remittance notices, US dollar fixed-term certificates of deposit, and emails sent by members of hostile organizations to Wang Youcai regarding funding for Wang, which were seized from Wang Youcai’s residence, are on file;

7. The defendant Wang Youcai confessed to the above facts without reservation, and his confession is consistent with the circumstances proven by the above evidence.

The above evidence is confirmed by this Court. The facts of this case are clear, and the evidence is reliable and sufficient.

This Court believes: The defendant Wang Youcai organized and plotted to subvert state power and overthrow the socialist system. His behavior has constituted the crime of subverting state power, and the crime is grave. During the activities of subverting state power, the defendant Wang Youcai colluded with overseas organizations and accepted funding; he had been sentenced for endangering national security and has now committed a crime of endangering national security again, making him a recidivist. Both circumstances warrant heavier punishment according to law. The facts charged by the public prosecution organ are established, but the charged charge was inappropriate and should be corrected. The defense raised by the defendant Wang Youcai that his behavior does not constitute a crime is found to be inconsistent with the facts and the law upon investigation, and therefore this Court does not adopt it. Accordingly, in accordance with the provisions of Article 105 Paragraph 1, Article 106, Article 66, Article 56 Paragraph 1, Article 55 Paragraph 1, and Article 64 of the Criminal Law of the People’s Republic of China, the judgment is as follows:

1.The defendant Wang Youcai is convicted of the crime of subverting state power and is sentenced to eleven years of fixed-term imprisonment and three years of deprivation of political rights;

2.The illegal gains of 1,300 US dollars of the defendant Wang Youcai (of which 300 US dollars were frozen in the “Fixed-term All-in-one” deposit under the name of “Hu Jiangxia” at the Hangzhou High-tech Development Zone Branch of the Bank of China, Account No: 4531711006500900003575) shall be recovered.

If you disagree with this judgment, you may, within ten days from the day after receiving the judgment, submit an appeal through this Court or directly to the Higher People’s Court of Zhejiang Province. For a written appeal, the original appeal petition and two copies shall be submitted.

Presiding Judge: Liu Shuhai Judge: Sun Wei Judge: He Min

December 20, 1998 This copy is verified to be identical to the original. Court Clerk: Feng Jing