What's the Difference Between Subversion and Inciting Subversion?

According to Chinese Human Rights Defenders, on Wednesday the Wuhan Intermediate People's Court convicted Li Tie of subversion and sentenced him to 10 years in prison. This is the latest in a recent series of heavy punishments handed down against democracy advocates in China and illustrates the government's intent to respond harshly to those it views as political threats.

The lede in the Reuters coverage of the sentencing reads:

A Chinese court has sentenced a writer to 10 years in prison on subversion charges for writing essays that urged people to defend their rights, a relative said, the third person to be sentenced on such charges in less than a month.

This initially left me confused. Have three people been sentenced for subversion in China in less than a month? Not if the other two are Chen Wei and Chen Xi, who were both convicted of "inciting subversion." In fact, the Reuters piece accurately goes on to say exactly that, but then reports that the Hangzhou political activist Zhu Yufu was recently indicted on subversion charges. Actually, it was "inciting subversion."

I don't mean to pick on this one piece, as the problem is actually quite widespread. I don't even mean to pick on the foreign press corps in China (though some will probably argue that it's too late) because I suspect the problem often originates at the editing stage, as seemingly superfluous words are cut to save space and facilitate readability.

I'm here to tell you that, as far as the law is concerned, "subversion" and "inciting subversion" are not synonymous or interchangeable. The difference has important ramifications, especially in light of my earlier discussions about sentencing.

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One possible source of confusion is the fact that these two offenses are defined together in a single article of the Criminal Law, Article 105. The first paragraph sets out the crime of "subversion":

Among those who organize, plot or carry out acts to subvert the state power or overthrow the socialist system, the ringleaders and the others who commit major crimes shall be sentenced to life imprisonment or fixed-term imprisonment of not less than 10 years; the ones who take an active part in it shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years; and the other participants shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights.

The offense of "inciting subversion," about which I've written before, is defined in the second paragraph:

Whoever incites others by spreading rumors or slanders or any other means to subvert state power or overthrow the socialist system shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention, public surveillance or deprivation of political rights; and the ringleaders and the others who commit major crimes shall be sentenced to fixed-term imprisonment of not less than five years.

First off, you'll see that the two offenses involve different sorts of behavior: "organizing, plotting, or carrying out" subversive acts on the one hand versus "inciting others" to do so "by spreading rumors or slanders or any other means." In other words, "subversion" is primarily an offense of association or concrete action—the individual must be personally involved with actions designed to lead to overthrow of the political system—whereas "inciting subversion" is an offense of expression in which the danger lies in the alleged potential for that expression to lead others to want to overthrow the political system.

As a rule of thumb, then, individuals involved in any kind of organization like the China Democracy Party or the New Youth Study Society will most likely be charged with subversion. Individuals who have published articles critical of the government are usually punished with inciting subversion. Unfortunately, that distinction doesn't alway hold in practice (a point to which I'll return below).

Comparing the two offenses, you should also note the different standards for sentencing. Generally speaking, sentences for "subversion" tend to be heavier than sentences for "inciting subversion." Punishment for "serious" subversion starts at 10 years in prison and carries the possibility of life imprisonment, whereas punishment for "serious" cases of inciting subversion range from five to 15 years in prison (and only very rarely exceed 10 years).

Although I haven't seen the indictment or verdict in Li Tie's case, this report from Radio Free Asia suggests that prosecutors may have aimed to have Li punished under the penalty for "serious" subversion. If so, then the 10-year sentence given to Li would fall in the lower end of that range. By contrast, the 10-year sentences given to Liu Xianbin and Chen Xi were quite heavy for the crime of "inciting subversion," the consequence of treating their crimes as serious and adding on extra time for recidivism.

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One might ask whether it ultimately really matters whether a person is imprisoned for 10 years for "subversion" or for "inciting subversion"—the end result is the same. If the goal is, as I have previously suggested, getting perceived troublemakers "off the grid" for a long period of time, then one might expect the authorities to use whatever crime seems to "fit" the situation best or even (as is sometimes alleged) decide on the sentence first and then come up with the charges.

Sometimes the "fit" is not perfect. It's hard for me to interpret Li Tie's case without having access to court documents, but it appears as if many of his alleged crimes involved articles that he published—which would ordinarily fall under the category of incitement. On the other hand, He Depu was convicted of "inciting subversion" despite being an active member of the China Democracy Party—whose other members were almost universally convicted of subversion.

The problem is that the offenses of "subversion" and "inciting subversion" were written into law before the Internet came along and destroyed the clear distinction between speech and association. Many Internet cases involve a combination of association and expression. If I post articles advocating the need for an opposition party to a group of people in a chat room, is that organization or incitement? If my articles focus more on the structure or goals of my opposition party, then it might be argued that I'm organizing a subversive group. If my articles focus more on criticizing the tyranny of one-party rule, then it could very likely be construed as incitement.

This question came up for me in the early days after Liu Xiaobo was taken into custody for his involvement with Charter 08. I hypothesized at the time (and still believe) that part of the reason why there was such a long delay before formally charging Liu was because investigators were trying to decide whether Charter 08 was primarily an organization or a political manifesto.

But although there is some ambiguity about how charges of "subversion" and "inciting subversion" are applied in the Chinese criminal justice system, courts ultimately decide on one offense or the other when rendering a verdict. Reporting on Chinese political cases should remain mindful of these distinctions in order to help present the most accurate representation of how China uses state security charges against those who hold different political views.

See also:
Heavy Punishment and the Ongoing Crackdown in China (10 January) and
More on Heavy Punishment and the Ongoing Crackdown in China (13 January)

More on Heavy Punishment and the Ongoing Crackdown

In my last post, I argued that the most important factor behind the heavy sentences recently handed down in China for "inciting subversion" is not the authorities' crackdown against dissent but, rather, the fact that the individuals who were being punished all had prior convictions for inciting subversion.

I later had a brief exchange on Twitter with someone I know to be knowledgeable about cases like these and the legal issues involved. His comments have led me to a partial rethink of how the sentencing works in cases like this. In this post, I want to look briefly at the example of Chen Wei, whose verdict has been made public by Chinese Human Rights Defenders.

Chinese verdicts are not necessarily a good record of everything that goes into determining a sentence, especially in political cases like these. But one can usually find an outline of the basic legal reasoning used by the court to determine the length of the sentence.

First, though, a word about sentencing for the offense of "inciting subversion." Fixed-term imprisonment for this offense can range anywhere from six months to 15 years, depending on the severity. According to Article 105(2) of the Criminal Law of the PRC, the only guideline is that ordinary offenses should be punished by up to five years in prison, whereas if the crime is "very serious," a sentence of no less than five years is indicated.

There are thus two levels of sentencing for "inciting subversion": from six months to five years for "ordinary" offenses and from five to 15 years for "very serious" offenses. I would argue that in practice there are actually three levels, with the "very serious" level divided in half at 10 years. As far as I know, Liu Xiaobo is the only person who has been sentenced to more than 10 years for inciting subversion since that offense became part of China's criminal code in 1997. I therefore see that upper range as territory "reserved" for those who are considered to be the "worst of the worst."

Towards the end of Chen Wei's verdict, the court explains how it reached its determination of how to sentence Chen. First:

陈卫在互联网上发表的文章多，煽动性强，影响范围大，属罪行重大。

The articles published on the Internet by Chen Wei were numerous, strongly inciting in nature, and the scope of their influence was large; [therefore], his crimes were very serious.

The evidence for this finding is a mixture of subjective and objective factors. The assessment of the "inciting nature" of the articles is based on a reading of the texts themselves, involving the isolation of selected passages illustrating Chen's alleged intent to incite overthrow of the political order. The objective factors are cited earlier in the verdict:

截止2011年2月25日，陈卫在“民主中国”、“中国人权”、“议报”等网站上发表的11篇文章，共计网页链接37个，点击数8 524次。

As of 25 February 2011, the 11 articles Chen Wei posted on websites such as "Democratic China," "Human Rights in China," and "ChinaEWeekly" had links to 37 websites and a total of 8,524 hits.

This evidence is intended to support the prosecution's charge in the indictment that:

(陈卫)所发表的文章被广为链接、转载、浏览，影响十分恶劣

The articles published [by Chen Wei] were widely linked to, reposted, and read, [resulting in/causing an] extremely bad impact.

I am not aware of the existence in China of any objective standard upon which to judge the impact of views expressed on the Internet, though I suspect that there may be some internal regulations on this since this kind of evidence has been showing up in verdicts for "inciting subversion" since at least the trial of Hu Jia in 2008.

In any case, the court makes clear that the alleged impact of Chen Wei's writings pushed him into the "very serious" sentencing range, meaning that a sentence of at least five years could be expected. That is where Chen's prior criminal record comes into play:

陈卫曾因危害国家安全犯罪被判处刑罚，刑罚执行完毕后再犯危害国家安全罪，系累犯，依法应从重处罚。

Chen Wei was previously given a criminal punishment for crimes of endangering state security and again committed a crime of endangering state security after that punishment had been served; this constitutes recidivism, and in accordance with the law punishment should be heavier.

In other words, where Chen's punishment falls within the range of five to 15 years' imprisonment is influenced by his status as a recidivist. Again, I would argue a sentence of greater than 10 years for "inciting subversion" enters territory "reserved" for only those who are deemed to be the "worst of the worst." So, Chen Wei's sentence of nine years satisfies the requirement that he be punished on the heavier end of the spectrum within the range indicated for "very serious" offenses.

Chen's lawyers argued that he shouldn't be treated as a recidivist because there is no legal basis for treating the crime of "counterrevolutionary propaganda and incitement" as an offense under the category of "endangering state security." While technically true, the categories of "counterrevolution" and "endangering state security" have been treated as interchangeable in practice ever since the Criminal Law was revised in 1997. It is therefore not surprising that the court basically ignores the argument and asserts the equivalence of the two types of offense for the purposes of Article 66.

I continue to believe that, as a practical matter, prior conviction for political offenses was a decisive factor in determining the length of punishments given last year to Liu Xianbin, Chen Wei, and Chen Xi. It is therefore misleading to compare the length of these recent sentences with the length of sentences given to first-time offenders like Hu Jia or Du Daobin and say that the difference shows evidence of a crackdown.

I will concede the possibility, even probability, of "crackdown influence" on the criteria determining what distinguishes "ordinary" from "very serious" offenses. Given that these criteria appear to be based on both subjective judgments about what constitutes "incitement" and more objective (but opaque) measures of influence, there is plenty of room for the overall political climate or direct intervention from above to influence sentencing.

But one looks, as I have, at the details of the dozens of known cases for "inciting subversion" that have been adjudicated since 1997, I think it is impossible but to conclude that history of prior convictions is one of the main determinations of where punishment falls in the sentencing spectrum.

Heavy Punishment and the Ongoing Crackdown in China

Earlier today, the Committee to Protect Journalists issued a news alert on the recent conviction of veteran Chinese democracy activist Chen Xi, who was sentenced late last month to 10 years in prison for "inciting subversion."

In the alert, Bob Dietz, CPJ's program coordinator for Asia, is quoted as saying: "The severe sentence given to Chen Xi for online writing indicates that Chinese authorities are tightening their control of dissent. Penalties against government critics appear to be growing harsher."

As evidence for this trend of harshness, CPJ points to the sentences handed down last year to Liu Xianbin, Chen Wei, and Chen Xi, all in the range of 9-10 years, and rightly contrasts that to the sentences of up to five years normally handed down for that offense. By contrast, they cite earlier sentences given to Hu Jia, Chen Daojun, and Du Daobin, all of whom served less than four years.

I don't disagree that the recent sentences are heavy. I'm less convinced, however, that the sentences themselves are clear evidence of a crackdown on dissent in China. This is because the length of the sentences in each of these cases can be attributed in large part to mandated penalty-intensification under Chinese law.

According to Articles 65 and 66 of the Criminal Law of the PRC, heavier punishment is indicated for offenders who commit a second crime under the category of "endangering state security" after having served a prison sentence for a previous offense under the same category (including "counterrevolutionary" crimes under the 1979 criminal code. There is no time limit for state security offenses, meaning that heavier punishment is automatically mandated for a second conviction.

Let's look at the records of these recent cases:

Liu Xianbin (10 years): sentenced to 2-1/2 years' imprisonment for "counterrevolutionary propaganda and incitement" in 1992; sentenced to 13 years' imprisonment for subversion in 1999.

Chen Wei (9 years): sentenced to 4 years' imprisonment for "counterrevolutionary propaganda and incitement" in 1994.

Chen Xi (10 years): sentenced to 3 years' imprisonment for "counterrevolutionary propaganda and incitement" in 1990; sentenced to 10 years' imprisonment for "organizing and leading a counterrevolutionary group" in 1996.

By contrast, recidivism did not appear to be a factor in sentencing Liu Xiaobo (11 years in 2009), who, though detained for "counterrevolutionary propaganda and incitement" after June Fourth was ultimately exempted from criminal punishment. The harshness of that sentence can thus properly be seen as a direct response to Liu's alleged crimes. Likewise for the sentencing of He Depu (8 years in 2003.

The heavy sentences given to Wang Xiaoning (10 years in 2003) and Zheng Yichun (7 years in 2005) were the result of a different type of mandated intensification. Their state-security crimes were determined to have been committed in league with "overseas entities" and thus subject to heavier punishment under Article 106 of the Criminal Law.

Note that I'm not saying that there is no crackdown underway or that the punishments that were handed down are justified. I believe that China's use of criminal sanctions against "inciting subversion" is a clear violation of international human rights law protecting free expression.

What I am saying is simply that Liu Xianbin, Chen Wei, and Chen Xi were given heavy punishments not simply because of any ongoing crackdown but more because of their persistent and long-standing political activism, for which each of them has spent a considerable amount of the past two decades behind bars. I think it gives us a better understanding of how the government cracks down on dissent to recognize that it's precisely these kinds of veteran activists whom the authorities want "off the grid" and that the legal system is designed to enable them to do so.

China's Criminal Procedure Law Revision Revisited

On Monday, China's National People's Congress Standing Committee reviewed a new draft revision of the Criminal Procedure Law (CPL), marking one step closer to the expected passage of the legislation at the full session of the NPC in early March.

Presumably, the present CPL draft incorporates at least some of the comments and criticisms submitted by the public during the month-long period of public consultation that followed the publication of the full text at the end of August.

One of those criticisms, as loyal readers of this blog will recall, concerned a proposal that would allow investigators to hold suspects in certain types of cases (involv ing offenses of endangering state security, terrorism, and major corruption) to be held under "residential surveillance" in a designated location without providing any notification to family members of the detainee's whereabouts or alleged offense. This proposal has been roundly criticized both inside and outside China as a measure that would legitimate the practice of secret arrest and enforced disappearance and put China in contravention of its obligations as a signatory to the International Covenant on Civil and Political Rights.

Yesterday's news saw headlines suggesting that the latest CPL draft would "eliminate 'secret detention.'" More specifically, it appears to refer to elimination of a provision in the earlier draft that would allow police to avoid notifying relatives of formal arrest of a suspect within 24 hours "in cases involving serious offenses such as endangering state security or terrorism" when doing so would possibly impede the investigation.

Since the full text of the current draft hasn't been made public, it's hard to know whether similar changes have been made to problematic provisions concerning criminal detention and "residential surveillance." If so, then it would truly be a improvement to the legislation and a retreat from embracing measures that have been criticized as an unacceptable strengthening of law enforcement authority at the expense of individual rights.

But if the only change has been made to the one provision on formal arrest, then it would be wrong to accept the characterization of the revision as "elimination of 'secret detention'" and hard to accept the change as a satisfactory step to address public concerns.

It would be a bit like a surgeon removing a tumor from a patient while ignoring other, equally cancerous tumors elsewhere in the patient's body. The surgeon knows that the tumors are there, because they have been pointed out to him by other cancer experts, but the surgeon only removes the one, believing that he can satisfy the patient, the patient's family, his fellow physicians, and the public at large by displaying what he's done. Meanwhile, the cancer continues to ravage the patient's body.

It may not be the best metaphor for the ongoing CPL revision, but hopefully it gets my point across. Public pressure, both domestic and international, may be the only hope if China is to avoid passing a CPL including such rights-abusing measures as the proposed provisions on "residential surveillance." If the claim that such provisions have been "eliminated" is taken seriously without clear proof and the pressure dissipates, then the cancer of unchecked police power to target those deemed as political threats will metastasize.

UPDATE: According to this article from Southern Metropolis Daily, it appears that the second draft of the revised criminal procedure law has not eliminated the exceptions for criminal detention and residential surveillance that would allow investigators not to notify a suspect's family members under certain conditions. The newspaper quotes Chen Guangzhong, an establishment legal scholar who has been promoting criminal procedure reform in China for much of the past three decades, as voicing a certain amount of concern, saying: "There's nothing frightening about not notifying the family for a 37-day criminal detention, but not notifying the family for a six-month residential surveillance is rather long."

Bo Xilai, Meng Jianzhu, and the 18th Party Congress

As the 18th Party Congress of the Chinese Communist Party approaches, there is already lots of speculation as to the composition of the next Politburo Standing Committee (PBSC), the party's core leadership group. There are an unusually large number of expected vacancies this time around, with only two incumbent members, Xi Jinping and Li Keqiang, remaining on while the other seven current members step aside after having passed the conventional retirement age. With so many spots up for grabs—and not just one, but two former party leaders representing very different political constituencies likely to stick around throughout the decision-making process—the behind-the-scenes jockeying is likely to be energetic.

A lot of the current speculation is focused on the question of whether Bo Xilai, who is currently the party boss in Chongqing Municipality, or Wang Yang, Guangdong party boss, or both, will be elevated to this elite leadership group. Each is seen to represent two distinct political styles, with Bo's populism, promotion of "red culture," and emphasis on social equality posing a sharp contrast to Wang's more liberal attitude toward economic and political reform. If one is elevated at the expense of the other, it could hint at the preferred political tone of the next leadership group. If both make the standing committee, it creates the potential for competition or even fragmentation within the leadership of a kind that the CCP has been keen to avoid ever since 1989.

A related issue that is of particular interest to me is who will become the next head of the Central Politico-Legal Commission (CPLC) and take the reins from Zhou Yongkang as China's "security czar." For months, I've been predicting that Bo Xilai might wind up being the man for the job, especially given his high-profile campaign against corruption in Chongqing. This would potentially be a bad news for any remaining hopes that China would move more resolutely towards rule of law, given that Bo's campaign has not shown much appreciation for procedural justice or the role of defense lawyers.

There are those, however, who think that Meng Jianzhu, currently heading the Ministry of Public Security (MPS), will get the nod for CPLC secretary. (For example, such a scenario was put forward in the most recent issue of Hong Kong's Open Magazine.) The thinking seems to be that the party's overriding interest in preserving social stability necessitates having police interests represented within the top party leadership, and since present CPLC head Zhou Yongkang was a former MPS head, he creates a kind of legacy or precedent for moving the MPS chief into the CPLC position.

I'm still skeptical about Meng's chances. Since 2002, the secretary of the CPLC has been a member of the PBSC. There is no known requirement that this be so, though, so it's possible in theory that the CPLC position could be given to a member of the full 25-member Politburo. However, I suspect that assigning the position to a "mere" Politburo member would be seen as a reduction of power for the security portfolio, and given the importance of political and social stability in present-day China, it just doesn't seem likely.

On the other hand, giving Meng Jianzhu a seat on the PBSC would represent a serious elevation of his position within the party, considering that he is presently only a member of the Central Committee (which has hundreds of members) and not the Politburo. My reading of recent history leads me to conclude that it is unusual for party members to be named to the PBSC without having already been a member (or at least an alternate member) of the Politburo. Unusual but not unheard of: both Xi Jinping and Li Keqiang were named directly to the PBSC without prior membership on the full Politburo, but one should perhaps see those as moves made to groom future national leaders in anticipation of a transition to a new leadership generation. There is no such rationale for Meng, who will turn 65 in 2012 and thus (like Zhou) only be eligible to serve a single term as CPLC secretary.

Wang Shengjun, the current president of the Supreme People's Court, would be an interesting choice for CPLC secretary, especially given the apparent move away from having public security chiefs hold the concurrent position of politico-legal committee secretary at the provincial level. Like Meng, Wang is currently only a member of the Central Committee, but he has the advantage of experience within the party's politico-legal committee system as well as a stint as the head of public security in Anhui Province. But Wang will be 66 years old next year, presumably making him too old for a spot on the PBSC. Moreover, there have been recent online rumors that he is suffering from cancer.

Unless I'm missing something, then, I just don't see Meng Jianzhu getting bumped up to the PBSC just in order to have another former Minister of Public Security hold the CPLC post. And, of the other "candidates" whose names have been put forward for possible elevation to the PBSC, I don't see any others besides Bo who would fit "naturally" into the CPLC portfolio. In fact, one could imagine that part of Bo Xilai's motivation for engaging in his high-profile crime-busting campaign in Chongqing was to justify a spot for himself on the PBSC, since there are apparently some party leaders who see him as a bit of an opportunist and a wild-card who might upset the delicate consensus that has been cultivated within the party leadership since the early 1990s.

So, for now at least, my "money" is still on Bo Xilai. But I am but an amateur in the field of Zhongnanhai-watching, which is (with all due respect to those who engage in it for a living) a bit of a fool's game to begin with. As I may have mentioned before, I'm a historian by training and temperament, so predicting the future is not my forte. When I was in college and reading Western analyses of the Cultural Revolution written as it was unfolding, I came across a quote that I attribute (and paraphrase—both with some uncertainty) to John K. Fairbank, the great historian of late imperial China: "The historian's after-the-fact reconstruction of the past is less courageous—and less foolhardy—than trying to predict the future."

Pu Zhiqiang: Initial Opinions Regarding the "Fake Tax Case" (Translation)

Some have taken exception to the "knee-jerk" way in which Western media have approached Ai Weiwei's case, feeling that they have uncritically presented this as the heroic struggle of a dissident artist against government repression without inquiring into whether there might be any validity to the tax charges against him.

It is legitimate to ask whether Ai Weiwei or, more accurately, the Fake Cultural Development Company, owes taxes. One might think that this is merely an objective fact, but, actually, it is a determination that should be based upon a proper, fair, and transparent procedure. As lawyer Pu Zhiqiang details in his recent analysis of the case, which I have translated below, there is good reason to challenge the legitimacy of the determination that has been made.

I believe it is also legitimate to raise questions about political motivations behind the prosecution because of the particular way in which the police intervened in this case prior to any investigation by tax authorities (something that Liu Xiaoyuan noted previously), the fact that Ai's disappearance was carried out in the context of dozens of other detentions of activists and lawyers that were unambiguously political in nature, and the way in which the propaganda machinery has been mobilized to smear his reputation and "cast him out" of the ranks of the people.

That's all I'll say for now, because I've expended my allotment of brain cells for today and you still have a lot of reading left to do.

We have been entrusted by Beijing Fake Cultural Development Limited (hereafter “Fake Company” or “Fake”) to provide legal services in that company’s tax matters (hereafter “Fake tax case” or “tax case”). At the request of Fake Company and after making initial acquaintance with the background and associated matters concerning the “tax case” and having ascertained the circumstances of the “disappeared” Ai Weiwei, Wen Tao, Liu Zhenggang, Hu Mingfen, and Zhang Jinsong, our analysis and opinions are as follows:

I. The detention of Ai Weiwei et al. appears to have “exceeded authority” and been in violation of the law

On the morning of 3 April 2011, renowned artist Ai Weiwei was taken away by police before completing border-exit formalities at Beijing International Airport. Up until 22 June, when Ai Weiwei was “released on guarantee pending further investigation” and returned home, his family never received any official notification and had no means of knowing the charges alleged, the coercive measures taken, or the place of detention.

At 12 noon on 3 April, the Beijing Public Security Bureau carried out a search of Ai Weiwei’s residence for nearly 12 hours, seizing a total of 127 items, including computers, portable hard drives, video discs, and books. The inventory of items seized was issued in the name of the Chaoyang District Branch of the Beijing Public Security Bureau. No search was made of the finance office of Fake Company. Ten employees of Ai Weiwei’s studio were taken by police to the Nan’gao Police Station for questioning until the early morning [the next day].

At 2 p.m. on 3 April, Ai Weiwei’s assistant, Wen Tao, was forced into a black Buick by four men wearing plain clothes and taken away. Having lost contact with him, his relatives went to the Nan’gao Police Station [responsible for] the area where the incident occurred and reported a kidnapping. On the evening of 24 June, Wen Tao was escorted home by Beijing Public Security personnel, who demanded that he not discuss details of his detention publicly or have any contact with Ai Weiwei. During Wen Tao’s disappearance, his family did not receive any paperwork. Wen Tao to this day does not know for what offense he was secretly detained for 83 days.

At approximately 11:30 p.m. on 6 April, the Beijing Local Taxation Bureau and the [Beijing] Public Security Bureau went to Beijing Huxin Financial and Accounting Services Limited, which had been entrusted to keep the accounts of Fake Company, and seized original vouchers, accounting vouchers, accounting documents, tax vouchers, balance sheets, and profit/loss statements and other accounting documents of Fake Company dating from 2000 until February 2011. One hour later, at 12:47 a.m., Xinhua News Agency issued a report in English, stating: “Ai Weiwei is being investigated according to law on suspicion of economic crimes.”

On 7 April, the Beijing Public Security Bureau Economic Crime Investigation Unit brought Fake Company accountant Hu Mingfen, who had been visiting relatives in Lanzhou, back to Beijing, at which point Hu lost contact with family. Up until 13 June, when Hu was “released on guarantee pending further investigation,” [Hu’s] family never received any official paperwork [regarding her whereabouts]. The conditions of Hu Mingfen’s “release on guarantee” was that she leave Beijing and have no further contact with anyone at Fake Company or publicly discuss the circumstances of the case.

On 7 April, Ministry of Foreign Affairs spokesman Hong Lei told a press briefing: “Ai Weiwei is being investigated according to law by the public security organ on suspicion of economic crimes.

At 3 p.m. on 8 April, the Beijing Local Taxation Bureau and Beijing public security agents went to the accounts office of Fake Company and seized all financial and accounting documents, contracts, and chops from 2005 to 2010, at which point for the first time Fake Company was issued a Tax Inspection Notice and Inquiry Notice and the company’s legal representative Lu Qing was requested to go to the Beijing Local Taxation Bureau on 12 April for questioning.

At 7 p.m. on 9 April, Fake Company shareholder and financial manager Liu Zhenggang (male, age 49) was forcibly dragged away from his residential community in Haidian District by four men in plain clothes and taken to an unknown location. His wife later went to the Dazhongsi Police Station in Haidian District to report a kidnapping. From that point until the time on 11 June when [Liu] was “released on guarantee pending further investigation,” his relatives did not know his whereabouts and received no official paperwork. Liu Zhenggang was “released on guarantee” on condition that he leave Beijing and have no further contact with anyone at Fake Company or publicly discuss the circumstances of the case.

At 1 a.m. on 10 April, Ai Weiwei’s driver Zhang Jinsong (male, age 43) lost contact after leaving his friends. His relatives went to the Nan’gao Police Station in Chaoyang District to report him missing. Up until 23 June, when he was “released on guarantee pending further investigation,” [Zhang’s] relatives did not know his whereabouts and never received any official paperwork.

At 9:30 a.m on 12 April, after the company had been searched numerous times and four employees “disappeared” one after another, the No. 2 Audit Office of the Beijing Local Taxation Bureau carried out its first questioning of Fake Company legal representative Lu Qing.

On 15 May, Lu Qing was taken to the Chaoyang District [Branch] Public Security Bureau to see Ai Weiwei, who had been brought there from his secret place of detention. Ai Weiwei had been required not to reveal anything about his detention or questioning, and Lu Qing was told that Ai was only “suspected of economic crimes.”

On the evening of 22 June, Ai Weiwei was “released on guarantee pending further investigation.” That evening, Xinhuanet issued a short news item saying: “The public security organ carried out an investigation of Ai Weiwei in accordance with the law on suspicion of economic crimes and discovered that Beijing Fake Cultural Development Limited, which is actually controlled by him, carried out criminal acts such as evasion of a large amount of tax and intentional destruction of accounting documents. In light of Ai Weiwei’s good attitude in admitting his crimes and the fact that he suffers from chronic illness, combined with his multiple expressions of willingness to pay the taxes owed, Ai Weiwei has been released on guarantee pending further investigation in accordance with the law.”

Ai Weiwei notes that during the 81 days that he was secretly detained, the focus of questioning was on “suspected inciting subversion of state power.” After Ai Weiwei was “released on guarantee,” police issued no legal document and Ai Weiwei to this date is not clear about the charge under which he has been “released on bail pending further investigation.”

On 27 June, the No. 2 Audit Office of the Beijing Local Taxation Bureau [issued a] Notice of Administrative Penalty for Taxation, saying that Fake Company had evaded taxes and needed to a tax penalty of 12.21 million yuan. The office clearly stated that “the target of punishment is Fake Company, not Ai Weiwei.”

The company’s business license and tax registration form make clear that Beijing Fake Company was established as a limited liability company on 29 November 2000 with registered capial of 100,000 yuan, of which 80,000 had been put up by Lu Qing and 20,000 by Liu Zhenggang; that the company’s legal representative was Lu Qing and that Liu Zhenggang was the person responsible for financial matters and taxation matters; and that there were four employees. Its scope of operations was: organizing cultural and artistic exchanges, organizing exhibits, corporate image planning, graphic design, film and television planning, photographic services, arts and crafts design, furniture design, home design, and home decoration and design. From its establishment in 2000 until the present, Fake Company had continuously entrusted Beijing Huxin Financial and Accounting Services Limited to handle its accounts and file its tax returns.

Ai Weiwei was merely a designer for Fake Company and not a manager, accountant, or cashier responsible for financial matters; thus, he is not a “person of primary responsibility or other directly responsible person” as defined in [Article 31 of the] Criminal Law, and there is no concept of so-called “person in actual control” in tax cases. The Tax Management Law does not provide for holding anyone other than the taxpayer (which in this case is Fake Company) responsible, so there is clearly no factual or legal basis for the Ministry of Foreign Affairs or the Xinhua News Agency to say that “Ai Weiwei is suspected of economic crimes” or that “Fake Company, which is actually controlled by Ai Weiwei, evaded a large amount of tax. This is [an instance of] the law enforcement agency using the Ministry of Foreign Affairs and Xinhua News Agency to release fabricated information to frame a party.

According to the law, the public security organ does not have legal authority to handle administrative matters concerning taxation; only when Fake [Company] resists enforcement of an administrative punishment over taxation and the taxation authorities transfer the tax case to the public security organ may public security file a case for investigation and pursue criminal responsibility of the relevant responsible person. Therefore, there was no legal basis for the public security organ to step in before taxation authorities had begun investigating the “Fake tax case” and secretly detain Ai Weiwei and four others and search Fake [Company’s] accounts and seize items on 6 April and 8 April. [By doing so,] they exceeded their authority and violated the law in their handling of the case.

II. Beijing taxation authorities’ handling of the “Fake tax case” involves multiple procedural violations and unclear factual determinations, and its administrative act lacks legality and should be revoked in accordance with the law

On 29 June, Fake Company submitted a written request for a hearing. Fake [Company] reminded the taxation authorities numerous times that its accounts should be “returned in full” as soon as possible in order to ensure Fake’s ability to exercise its right of defense, but the taxation authorities replied verbally that “the books are with public security.” Twice, Fake expressed written opposition to the local taxation bureau about [the decision] not to hold a public hearing. The local taxation bureau replied verbally that because the case concerned the “commercial secrets” of a third party, a public hearing could not be held.

On 14 July, the No. 2 Audit Office held a secret “hearing.” Besides Fake’s legal representative and appointed counsel, no others were allowed to observe the proceedings, during which the local taxation authorities were unable to produce any request by a third party to protect its secrets. Clearly, this closed hearing was in violation of the law. During the hearing, the taxation authorities were unable to produce any original documents that had been seized by public security, making it impossible for Fake’s counsel to express an opinion about the authenticity and integrity of the photocopied documents.

Fake contends that it cannot accept a decision make by the tax authorities based on faulty procedure and inconclusive evidence and, moreover, that it is impossible for it to take responsibility when financial records may have been destroyed or altered during this period [of investigation]. On 19 July, the taxation authorities notified Fake to go to the Shibalidian Police Station in Chaoyang District to review the original account books, but because public security organs are not legally authorized to “handle tax matters” and a police station is not an appropriate place to store financial records, we recommended that Fake Company refuse these arrangements to “review the files.” A the same time, we again demanded that the taxation authorities return the accounts in full and select another date to hold an open and legal hearing.

On 1 November, the No. 2 Audit Office finally issued a Decision on the Handling of Taxes and a Decision on Administrative Penalty for Taxation, ordering Fake to pay within 15 days a total of more than 15.22 million yuan in taxes, late fees, and fines, of which more than 8.45 million yuan was taxes plus late fees and 6.77 million yuan was the fine.

We maintain that the aforementioned decisions were based on factual findings that are not clear and serious procedural violations and that the [tax] authorities were clearly cleaning up for the public security organ’s “Ai Weiwei case.” In order to protect Fake Company’s legal rights, we recommend requesting that an administrative review be held in accordance with legal procedure and that a decision about whether to file an administrative lawsuit be held in reserve, pending the conclusion of the administrative hearing.

III. Analysis of Fake’s way to protect its rights in accordance with the law

According to Article 88 of the Tax Collection and Administration Law of the PRC, Fake can only request an administrative review if it first pays back the more than 8.45 million yuan in taxes and late fees or puts up a commensurate guarantee. Given that Fake does not acknowledge the legalist of the [tax authorities’ decisions regarding taxation and penalties] we do not recommend that Fake “pay back the taxes” and instead should pay a tax guarantee in order to have the right to pursue review and litigation without resulting in outside misunderstanding and misinterpretation.

To help Fake “buy itself a way” to protect its rights, Ai Weiwei’s mother Ms Gao Ying and his younger brother Ai Dan decided to mortgage Ai Qing’s former residence in exchange for Fake’s right to have an administrative hearing. Beginning on 2 November, we entered discussions with the taxation authorities about the procedures for mortgaging [the property], but the Property Rights Exchange Center notified us that only an individual or a financial institution, not an administrative organ like the taxation authorities, could serve as the mortgagee. This meant that oversights in the policies between government agencies would result in Fake being unable in fact to mortgage Ai Qing’s former residence as a taxation guarantee.

On 9 November, the taxation authorities issued a Tax Affairs Notice ([file number] 2d Aud. Tax Not. [2011] No. 7), demanding that Fake “select one of the three methods of guarantee, mortgage, or pledge” in accordance with the Provisional Measures for Tax Payment through Guarantee.

People from throughout society came to aid and support Ai Weiwei’s tax dilemma and, in only 10 days between 4 and 13 November, nearly 30,000 people remitted more than 8.69 million yuan in loans. This demonstrates that the public supports Ai Weiwei personally and supports his “guarantee” that Fake Company will use judicial channels to protect its rights, and Fake has won the opportunity to defend itself and seek a just resolution to the problem. Fake decided to pledge its bank book as a pledge to guarantee its payment of taxes. Even though the law clearly provides for this, the local taxation bureau notified us that bank regulations prohibit an administrative organ like the local taxation bureau from acting as the lawful recipient of a pledge, so it would be impossible to put up the bank book as a pledge.

Since the deadline imposed by the taxation bureau was drawing near, on 16 November Fake Company was forced to agree to the local taxation bureau’s method of transferring cash into a tax guarantee funds account. Having completed the relevant procedures, [Fake] has obtained the right, in accordance with the law, to request an administrative review within 60 days.

Fake Company will select a date to request an administrative review. We will take good care of this opportunity to protect [the company’s] rights, one that came at an incredibly high cost, put forth all effort in the review and any possible litigation, and report the progress of the administrative review to the public in a timely and detailed manner.


Pu Zhiqiang
Counsel in the Fake Tax Case

18 November 2011

Translation: "Elimination of 'Ai Weiweis' is the Trend of Society"

I'm not sure why I feel compelled to translate these things. As a piece of invective, it pales in comparison to this earlier example. But since there seems to be no shortage of interest in this story and I'm never one to back down from a diversion, here it is.

This is a very rough and sometimes loose translation the latest attack on Ai Weiwei to appear in the pages of the Global Times newspaper, in a commentary most likely penned by the editor, Hu Xijin. I didn't bother to check whether the Global Times already produced an English version of this masterpiece. If not, then I suppose I've just done them a favor. I hope they'll make sure to contact me so that I can tell them where to send their check.

Elimination of “Ai Weiweis” is the Trend of Society
“Shan Renping”

Ai Weiwei, who has been “borrowing money to pay his taxes,” recently told the foreign media that 30,000 people had “lent him” US$1.4 million (approximately 8.8 million yuan). The foreign media also quoted Ai Weiwei’s supporters as saying that this is the result of “official pressure” and that the response was much greater than donations to the Red Cross. It seems that Ai Weiwei really wants the outside world to believe that he has received the support of “all of Chinese society.”

Is 30,000 people a large number? China has a population of 1.3 billion, and it is said that there are more than 100 million people using Sina Weibo! Ai Weiwei hoped to “borrow” 15 million yuan; to date he has received just over half that amount. If the funds received had greatly exceeded 15 million and the “lenders” reached several tens of thousands or even a million, it would be a perfect bit of “political performance art” for Ai Weiwei to shout his “thanks” on the one hand while returning the excess cash on the other. It’s too bad that Ai Weiwei has to prove to the world that, even though he was only able to borrow half the funds, the money received is still really “a lot.”

Ai Weiwei symbolizes the “political dissident” that the Western world supports with all their might. All Chinese people who are interested in politics know who he is. Ordinary Chinese who never heard of him or cannot recall who he is mostly have no interest in his kind of games of political opposition.

The West has supported many Chinese “dissidents.” The Western press once widely called Wei Jingsheng “the father of Chinese democracy.” That “father” is now in some corner of the United States carrying out “small actions” that Western reporters don’t even bother reporting on.

Ai Weiwei is just the freshest name on a very long list of people who have mostly been forgotten. The West supports Ai Weiwei and the others on the list, so small circles of people who surround them form in Chinese society. People like Ai Weiwei shouldn’t think that the reason those small circles don’t extend to all of society is all because of “government repression.” True popular sentiment cannot be suppressed. Over the past 30 years, “Ai Weiweis” have periodically sprouted up only to crash to earth like a meteor. Contrary to their predictions, China has only continued its rise. Their elimination through this great progress is the true trend of society.

China is an amazing country, one in which everyone has a story to tell and opinions about the country are hard to unify. There are an infinite number of irritants along China’s overall path, any one of which can be easily magnified in the Internet age into a “sign of the times” so that it drowns out things of much greater significance. Ai Weiwei’s true market is overseas, so to avoid being drowned out within China he has to do these controversial things non-stop.

It must be said that without the support from foreign powers, Ai Weiwei would be “nothing.” The pressure Ai Weiwei’s actions face from Chinese realities is actually a reaction to external forces that use Ai Weiwei to push China around. Ai Weiwei is only willing to be a fulcrum for Western leverage against China.

Of course, Ai Weiwei and others like him are not completely without opportunities. If the Chinese government makes a huge mistake or Chinese society loses its judgment under the encouragement of outside opinion, then the future is up for grabs. Actually, the future of “Ai Weiweis” is linked to China’s misfortune.

I think it’s probably better that those “Ai Weiweis” be unlucky. Let their appearance serve as a warning to China in its flourishing period. As I said earlier, there will always be [those who] pressure a rapidly developing China to move in reverse, and they always represent their opposition to the people as “representing the people.” From Wei Jingsheng to Ai Weiwei, this effort never really goes anywhere, but it also never really stops. China’s hidden worries are eternal.

I wonder how many of those 30,000 people who lent money to Ai Weiwei were from inside China and how many were from outside. I hope that the Chinese among them really understood what they were doing and weren’t simply following some sensationalist slogans.