Translated by China Aid Association
Esteemed chief judge and judges,
Appointed by the defendant’s family members and assigned by Jietong Law Firm of Beijing, I am the defense counsel for defendant Li Wenxi. Below is my defense argument to indictment No. 256 (2013) of Xiaodian District People’s Procuratorate of Taiyuan Municipality based on the evidence provided by the prosecutor and the evidence provided by the defense and in accordance with the relevant laws of our country.
First of all, according to Article 3 of the Criminal Law of China, defendant Li Wenxi should not be convicted and punished.
(Chinese characters on the photo read: Xiaodian District People’s Court of Taiyuan Municipality; 2:46 p.m. May 9, 2013, just before the start of the trial in the Taiyuan religion case against Ren Lacheng and Li Wenxi)
Article 3 of China’s Criminal Law states: “For acts that are explicitly defined as criminal acts in law, the offenders shall be convicted and punished in accordance with law; otherwise, they shall not be convicted or punished.” This article, which is simply referred to as the "Nulla poena sine lege" principle, in everyday language means that one cannot be punished for doing something that is not prohibited by law.
This "nulla poena sine lege" principle was added to the Criminal Law in 1997 and the creation of this principle was a legislative milestone. The basic meaning of this "nulla poena sine lege" principle is that the law upon which a conviction and sentencing are based must be a law enacted by the National People’s Congress and the Standing Committee of the National People’s Congress. At the same time, not only must the crime be clearly named, but the stipulations for the crime must be clear and must not be vague. Otherwise, according to the "nulla poena sine lege" principle, even if the law contains a corresponding crime but the stipulation of this crime is vague and unclear, then in this situation, this crime cannot be used to convict and sentence.
In this case, Article 225 of the Criminal Law governing illegal business operation cited by the prosecution in indicting the defendant Li Wenxi of illegal business operation violates the legal provisions of the "nulla poena sine lege" principle. In recent years, academic circles have referred to this clause [in Article 225] as a "pocket clause" [into which many different crimes can be made to fit]. This clause violates the requirements of the "nulla poena sine lege" principle mainly in the following two ways:
1. The vagueness and lack of clarity in Article 225 of the Criminal Law with regard to the crime of illegal business operation shows confused legal logic for the following reasons:
Article 8 of the Law of the People’s Republic of China on Legislation stipulates that with regard to crimes and punishment, only laws can be enacted, and the law referred to in the Law on Legislation are those written and promulgated by the National People’s Congress and its Standing Committee.
However, the provisions of Article 225 of the Criminal Law are that violating government regulations, engaging in illegal business operations, disrupting market order and causing serious consequences constitute the crime of illegal business operation. Of these, violating "government regulations" already falls outside the legal scope of laws written and promulgated by the National People’s Congress and its Standing Committee.
The confused legal logic here lies in the fact that Article 225 of the Criminal Law is itself a legal provision written by the National People’s Congress and its Standing Committee, but the [reference to] “government regulations” in the clause inevitably permits judicial organs to use stipulations formulated by other departments that fall outside the law written by the National People’s Congress and its Standing Committee. With regard to this, the current academic thinking is that [the phrase] " in violation of State regulations " in Article 225 of the Criminal Law is a way to describe a non-existent crime that creates a high degree of uncertainty about the substance of the crime of “illegal business operation” that could eventually lead to the crime being defined by administrative regulations rather than by the law.
2. The vagueness and lack of clarity in Article 225 of the Criminal Law on the definition of illegal business operation is evident in the abstract nature of the "closing loopholes clause" for the following reasons:
(Chinese characters on the photo read: Former site of the Grace Rain Bookstore, violently raided by Taiyuan authorities at 9:20 a.m. on March 28, 2012)
The so-called “closing loopholes clause” here refers to “other illegal business operations that seriously disrupt market order.” Here, “seriously disrupt market order” appears to be a description of conduct, but this description itself is highly abstract and can be used on all other criminal acts covered in Section 3 of the Criminal Law. Moreover, according to the definition in modern Chinese dictionaries, business operation refers to planning and management, and when specifically applied to a market economy, any type of market activity can be considered business operation; that is to say, this provision can in no way differentiate the nature of an act.
In a word, this lawyer regards the "nulla poena sine lege" principle as not only a legislative principle but also a judicial principle. That is to say, if the legal provision of a crime is vague and unclear, the judicial organ must not use such a provision to convict and sentence a defendant. Therefore, given the abstract ambiguity and the confused legal logic of the above-mentioned Article 225 of the Criminal Law and the fact that it goes against the "nulla poena sine lege" principle, the"nulla poena sine lege" principle should be followed and defendant Li Wenxi not convicted and sentenced. This "nulla poena sine lege" principle came into being as a result of the summation of the historical experiences of: the overreaching of the 1957 the Anti-Rightists Movement; the post-1959 anti-Rightist struggles, especially the 10-year Cultural Revolution when democracy and the legal system were willfully trampled on, human rights were barbarically violated and a large number of kind-hearted and innocent people were struggled against, their homes searched and they were bullied, tortured, arrested, jailed and physically punished and even executed with no due process. This principle is also [the basis of] China’s accession to international covenants. Therefore, the authority of the "nulla poena sine lege" principle as stipulated in Article 3 of the Criminal Law should safeguarded and upheld.
Second, defendant Li Wenxi should not be convicted and sentenced according to the “Interpretation of the Supreme People’s Court on Issues Regarding the Specific Application of the Law in Hearing Criminal Cases Involving Illegal Publications.”
Article 11 of the “Interpretation of the Supreme People’s Court on Issues Regarding the Specific Application of the Law in Hearing Criminal Cases Involving Illegal Publications" states: "Those who violate the stipulations of the state and publish, print, copy and distribute illegal publications not included in this interpretation and that seriously harm public order and disrupt market order, if the circumstances are serious, should be convicted and sentenced on the charge of illegal business operation in accordance with Clause 3 of Article 225 of the Criminal Law.” With regard to this, defense counsel believes that this interpretation seriously exceeds [the court’s] authority and violates the law and is therefore invalid for the following reasons:
In the 1990s, the State Council submitted to the Standing Committee of the National People’s Congress for discussion “The Law of the People’s Republic of China on Publications (draft)” proposed by State Press and Publication Administration. However, because of the serious nature of publishing and as a precaution, the Standing Committee of the National People’s Congress in the end had the State Council release in 1997 the “Regulations on Publication Administration”; to date, there still is no law on publications. So what is the significance of the “Regulations on Publication Administration”?
Article 9 of the Law of the People’s Republic of China on Legislation stipulates that for matters for which no law has yet been enacted, "the National People’s Congress and the Standing Committee thereof have the power to make a decision to enable the State Council to enact administrative regulations in respect of part of the matters concerned for the time being, except where the matter relates to crime and criminal sanctions, the deprivation of a citizen’s political rights, compulsory measure and penalty restricting the personal freedom of a citizen, and the judicial system.” Article 10 of the “Law of the People’s Republic of China on Administrative Penalty” states: “Administrative penalties, with the exception of restricting freedom of person, may be created by administrative rules and regulations.”
Accordingly, we can conclude that the “Regulations on Publication Administration” mean that they are administrative rules and regulations; that with regard to publications, administrative penalties — except for restricting a person’s freedom — can be created; and that in this situation in which the state has not enacted a law on publications, activities related to publishing matters can only violate administrative rules and regulations and are not criminal activities.
Furthermore, Article 8 of the Law of the People’s Republic of China on Administrative Penalty states: "Types of administrative penalty shall include: (1) disciplinary warning; (2) fine; (3) confiscation of illegal gains or confiscation of unlawful property or things of value; (4) ordering for suspension of production or business; (5) temporary suspension or rescission of permit or temporary suspension or rescission of license; (6) administrative detention; and (7) others administrative penalties as prescribed by laws and administrative rules and regulations."
Therefore, based on basic legal knowledge and on legal logic, the Supreme People’s Court can only give interpretations within the scope of administrative penalty as prescribed by the “Law of the People’s Republic of China on Administrative Penalty.” That is to say, with regard to penalties involving illegal acts of publishing, judicial organs must not in the course of providing interpretation add new types of administrative penalty, much less add new types of penalties.
In a word, the above judicial interpretation on the penalty for illegal activity in publishing matters goes beyond the scope of the administrative penalties as prescribed in the “Law of the People’s Republic of China on Administrative Penalty” by adding the category of criminal activity to the penalties for illegal activities in publishing matters. Furthermore, according to China’s Constitution and the Law on Legislation, the right of interpretation of the law is held by the Standing Committee of the National People’s Congress. Therefore, the above judicial interpretation by the Supreme People’s Court is an interpretation that exceeds the court’s authority and is an interpretation that violates the law and cannot be used as a basis for this case.
Third, the prosecution’s charge against defendant Li Wenxi lacks sufficient evidence in the following ways:
1. The prosecutor’s indictment accuses defendant Li Wenxi of operating the Enyu Bookstore as a joint venture with Ren Lacheng. This clearly does not square with the facts.
(Chinese characters on the photo read: Taiyuan No. 2 Detention Center where Li Wenxi, prisoner number 1B07, and many other Christians are held; photo taken May 10, 2013)
According to written evidence submitted to the court by the prosecution, the defendant’s statements, testimonies from other witnesses and what the defense counsel learned from his own investigation, Grace Rain Bookstore in Yingze District of Taiyuan was losing money and therefore signed a joint-venture contract with Beijing Morning Light Book and Cultural Dissemination Company, Ltd. The seal of Beijing Morning Light Book and Cultural Dissemination Company, Ltd. is on the contract. The defendant Li Wenxi is only the deputy general manager of Morning Light Book and Cultural Dissemination Company, Ltd. of Beijing and signed the contract only because he had been authorized by Beijing Morning Light Book and Cultural Dissemination Company, Ltd.. Therefore, according to China’s Contract Law, the party in the joint venture contract is Beijing Morning Light Book and Cultural Dissemination Company, Ltd., not the defendant Li Wenxi.
2. The charge in the prosecution’s indictment that the defendant and Ren Lacheng sold 780 copies of “Hymns” does not conform at all to the facts.
According to written evidence submitted to the court by the prosecution, the defendant’s statements, testimonies from other witnesses and what the defense counsel learned from his own investigation, the defendant Li Wenxi doesn’t know anything at all about the production, printing and sale of the “Hymns.”
3. The prosecution charges that Joel, Amos, Jonah, Nahum, Zechariah, Micah are all illegal publications, which is not true.
The audio books listed above were purchased by Beijing Morning Light Book and Cultural Dissemination Company, Ltd. from Guangzhou New Era Video and Audio Company. Defendant Li Wenxi was not in charge of nor involved in [the process] from purchase to the delivery to Grace Rain Bookstore. As to whether these were illegal publications, not only is the defendant Li Wenxi ignorant, so was Beijing Morning Light Book and Cultural Dissemination Company, Ltd. When this became a [criminal] case, Beijing Morning Light Book and Cultural Dissemination Company, Ltd. contacted Guangzhou New Era Video and Audio Company about this matter; their answer was that the above-mentioned publications are standard publications and they even provided certification to Morning Light Book.
4. The law upon which the prosecution bases its conclusions about authorization cannot be used as the basis
According to the Shanxi Provincial Bureau of Press and Publication’s “Authorization of Publications,” which is based on Article 22 of “Provisions for the Administration of the Publications Market,” which defense counsel read and found to stipulate in this way: "When establishing a publications general distribution enterprise， publications wholesale enterprise， publications retail enterprise， or when other work units or individuals engage in the business of general distribution， wholesale or retail of publications， the work unit or individual shall， apart from fulfilling the conditions specified in Articles 6， 8 and 10 hereof， conform to the plans for establishment of publications distribution points formulated by the General Administration of Press and Publishing and the press and publishing administrative departments of provinces， autonomous regions and municipalities directly under the central government." From this it is clear that there is no legal relationship between this regulation and the conclusions about authorization [of publications], so the legal basis for this authorization cannot be used.
5. The prosecution’s view of defendant Li Wenxi as the main party to the act does not conform with the facts
The evidence submitted to the court by the prosecution and the evidence submitted to the court by the defense counsel show that Li Wenxi, as the general deputy manager of Beijing Morning Light Book and Cultural Dissemination Company, Ltd., was only in charge of the business development of Beijing Morning Light Book and Cultural Dissemination Company, Ltd., which was to study the locations of future prospective bookstore locations, building new bookstores and other "hardware" affairs of the business; he was not in charge of the running the bookstore and its management after the bookstore opened. The defense counsel has learned that the management model at Beijing Morning Light Book and Cultural Dissemination Company, Ltd. is that the store manager is responsible for day-to-day business operations after the head of the company approves and builds the bookstores at various locations. Furthermore, defendant Li Wenxi is not a shareholder of Beijing Morning Light Book and Cultural Dissemination Company, Ltd., nor is he on the company board or a company manager. Therefore, there is no factual connection nor legal connection between defendant Li Wenxi and the decisions and execution of business operations at Grace Rain Bookstore. It is totally wrong for the prosecution to regard defendant Li Wenxi as the main party who acts on the day-to-day decisions made at Grace Rain Bookstore.
To sum up the above, according to the "nulla poena sine lege" principle as prescribed in Article 3 of China’s Criminal Law, and according to China’s Constitution, the Law on Legislation, the Law on Administrative Penalty and other substantive laws, and the Criminal Procedural Law, the prosecution’s charge against defendant Li Wenxi has no basis in fact nor in law. Finally, to safeguard the dignity and authority of the law, defense counsel asks the People’s Court to rule that defendant Li Wenxi is not guilty.
To:
Xiaodian District People’s Court of Taiyuan Municipality
Defense Counsel:
Lawyer Zhu Jiuhu
Jietong Law Firm of Beijing
May 9, 2013
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