A few days ago, for transferring old books online, Fujian Xiamen lawyer Yang Hui was administratively punished by the local cultural bureau in a rare case, with a fine of more than RMB 280,000. After the hearing, Yang Hui’s defense lawyer pointed out that the punishment was absurd and it was a secret hearing in disguise.
On May 19, the Cultural Market Enforcement Brigade in Jimei District, Xiamen City, Fujian Province, formally issued an administrative penalty decision for Yang Hui’s book sales on “Confucius.com” (abbreviated as “Confucius.com”), with a fine of more than 280,000 yuan.
According to the decision, Yang Hui did not obtain a publication business license, but registered and opened a bookstore on the second-hand book trading website Kong.com to distribute publications; he also used his real-name WeChat account to sell publications. It was found that the cumulative business turnover was RMB40,499.60, which constituted “unauthorized publication and distribution business”.
Previously, on April 21, the local culture department made a decision on the proposed penalty, and the hearing was held on May 13. Yang Hui’s lawyer recounted the hearing in detail in the chapter of “Culture Bureau to Check One Two: Hearing”, including seven parts, such as preparation, commissioning, evidence, procession, presentation, cross-examination and epilogue.
Yang Hui appointed Zou Lihui from Fujian and Wenyu from Guangdong as his attorneys. Lawyer Zou Lihui set out to research evidence from Kong.com to prove that the business model of Kongfuzi used book network is C2C (full name Consumer to Consumer) – from consumer to consumer, the relationship between book lovers is mutual exchange rather than business activities, so there is no need to apply for a license.
Several lawyers reached a legal consensus and agreed that reselling used books does not constitute an administrative violation and that the penalty is wrong. Yang Hui personally also believes that just pleading is not enough, it has to be pointed out that it is the Cultural Affairs Bureau that broke the law. “And its degree of illegality is rare for thousands of years. Whether according to the human rights declaration, the constitution or the Qin or Qing laws of the past, there would be no such punishment.”
Yang Hui is a Christian who has been practicing law for more than a decade. In the past five or six years, he has started doing Christian rights cases and other sensitive cases, including Falun Gong cases and the 12 Hong Kong people case.
As a result, Yang Hui has been repeatedly interviewed by the Justice Bureau. In February this year, the Cultural Bureau of Jimei District suddenly investigated him for “illegally engaging in publication distribution,” and he was forced to resign from his law firm and have his lawyer’s license cancelled due to the intervention of the Political and Legal Committee.
In the hearing, Yang Hui’s side pointed out that “even if other departments want to use your hands to repair Yang Hui, you should find a passable excuse. Such a joke of an excuse will have a great impact on the reputation of your unit.”
At the final stage of presentation, Yang Hui asked the other side to first confirm the composition of the data identified as operating amount of 40,499.6 yuan. In response, law enforcement brigade Wu Yuanping replied specific components: 1. Kong network sales of 33,949.6 yuan; 2. WeChat for 6,550 yuan, of which Wu 4,000 yuan, Li 2,550 yuan. Yang Hui then asked, “How can I prove the amount of transactions on my WeChat?” He replied that it was proved in “Exhibit 1”.
But the evidence was “the lead material and correspondence from the superior is a secret document” as the reason, can not be cross-examined.
Yang Hui said, even the most basic amount of business are in the confidential documents, need confidential documents to prove, such critical evidence can not be cross-examined, the whole hearing is just a formality.
“Second, I reasonably determined that the amount identified in the middle of ‘Exhibit I’ is the amount that Tencent, an unscrupulous company with no business ethics, continued to leak further privacy to third parties following the leakage of my basic personal information. Third, the government violated my freedom of communication and communication secrets in violation of the law. And the evidence obtained in violation of the law is used as an accusation against me. Fourth, such evidence is also denied to us for cross-examination in the name of state secrets. The substantive procedure is doubly illegal.”
Finally, he just added to the title of his article by reading, “I am the sheep in Aesop’s fable.”
Absurd punishment
Yang Hui’s lawyer, Zou Lihui, said in an interview that he personally believes that “there are many violations of law by law enforcement agencies and this case should be able to be overturned. In the Punishment Decision, he didn’t even dare to state the process of our evidence, cross-examination and debate. Not the slightest citation of our opinions, and not the slightest consideration of our opinions.”
According to the introduction, Beijing Ancient Castle Books Co., Ltd. opened the “hole network” is a C2C model. In other words, the activity of transferring one’s old books is not a business activity. If it is a business activity, there must be a party that is operating, and it is both parties are consuming. This means that it is an exchange activity between consumers and book lovers.
Zou Lihui elaborated her main point, since selling books on Kong.com is C2C, from consumer to consumer, which already excludes the concept of operation and distribution. Since the concept of business and distribution is ruled out, you can’t punish him. Moreover, Kong.com stipulates that you only need to upload an ID card and upload a few books for trading, so if there is a mistake, it is Kong.com’s fault.
She said, “We cited the regulations of the State Council, like this second-hand trading market qualification access, management review is by the company that set up this trading network to review. Now it turns out that the company that opened the second-hand trading site is not at fault and not punished, but it came to provide evidence to let the Xiamen side to punish Yang Hui, this is very absurd.”
“Yang Hui is a consumer, and other consumers of books to communicate with each other, there is no process from the publisher to the consumer, the process has been completed, so we believe that this is not distribution, not business activities. If it is not distribution and not business activities, then Yang Hui is not the target of punishment for illegal distribution. So the whole (enforcement) is wrong.”
“If it is said that old books can not be sold, then the old books (can only) either burned or torn, I even sold to the rag collector is ‘illegal distribution’, because sold to his rag collector is also sold. It’s really absurd. If the exchange of old books is illegal distribution, I want to buy a suite to contain these old books, either to destroy it.”
Lawyer: “disguised as a secret” hearing
It is worth noting that in the “punishment decision”, clearly mentioned that the relevant evidence including the superior referral clue materials and letters, Tencent provided Yang Hui personal WeChat related basic information records.
The “Administrative Punishment Decision” made by the Xiamen Jimei District Cultural Market Comprehensive Law Enforcement Brigade. (Twitter image)
Zou Lihui said, “The evidence cited by the law enforcement agencies at the time was all refuted by us. In the process of refuting them, they did not make any rebuttal. Except for the first (evidence) which said it was transferred from a higher level and was confidential and could not be disclosed.”
“We offer the rebuttal that, first, evidentiary materials involving secrets are not defined by their law enforcement agencies themselves, they are defined by strict law. Second, even if the material is involved in secret, it is not that it should not be cross-examined, only that it should not be cross-examined in public. But they said that they want to consult their superiors, and we think this reason is not valid. And this time, among the “punishment decision”, the public use of secret documents that have not been verified by the law, which are illegal.”
For which part of the content belongs to the confidential documents, Zou Lihui said, “he said is a secret document is not public we do not know, according to the background of the whole case, I personally speculate that it should be the state security department of what the proposal, may be so.”
Zou Lihui pointed out that the hearing is not secret, but disguised secret. “One is that the transcript of the hearing does not allow us to take pictures, and the evidence he presented, and does not provide copies; the evidence we adduced was provided to him. But the evidentiary materials on which they based their punishment were only shown to us and then withdrawn, and we were not allowed to make copies. We were not even allowed to copy the transcript of the hearing, which is tantamount to disguised secrecy.”
“We applied for a copy of the simultaneous audio and video recording, he told us to write the application, and now the simultaneous audio and video recording has not been given to us. We asked in court to copy the hearing transcript is also not allowed, these are illegal.”
The reason for this operation, Zou Lihui believes that “he is afraid of it, because he is that untenable. In fact, he can follow the example of judicial openness, now the court trial cases are live, he not only did not open to the community, even our clients and lawyers he did not dare to open.”
Zou Lihui said, “At first they did not even show the evidence, we repeatedly asked the host to let them show. And in the process, as we protested, the host obviously suppressed us, not allowing us to speak, repeatedly threatened us, if we do not listen to his command, we will be thrown out.”
In addition, Zou Lihui said, a law enforcement brigade is not qualified to impose penalties, especially for an amount as large as more than 280,000. According to the regulations of the State Council, administrative penalties should be the competent cultural authorities, the Jimei District Cultural and Tourism Bureau to make the right to impose penalties, but now it has become the enforcement brigade under this bureau (to make the right to impose penalties), indicating that he obviously exceeded his authority. And the whole punishment is not filed.
“He only said that there are clues handed over from the higher level, but he did not dare to disclose which one was handed over from the higher level. Even if the referral is from a superior, the case must be examined and filed before the punishment can be investigated, but the whole process is not filed. Since there is no case, no investigation can be conducted, let alone punishment. So the whole procedure is illegal.”
Yang Hui told reporters, how to deal with administrative penalties these two days they discuss, in principle, will continue to reconsider, etc..
Zou lawyer said, “I am suggesting that Yang Hui lawyer first apply for reconsideration, if the reconsideration decision is not convinced then file a lawsuit, exhaust all legal means, do not let go of any opportunity. Specific to Yang Hui’s own decision, because he is the client.”
“Our evidence is very full, and Yang Hui specially bound it into a book. That day because the other party did not provide us with the evidence, Yang Hui also wanted to reciprocate not to give him, and then I insisted on providing evidence, but the other party would not dare to give us the evidence, it shows that his heart is very dark, we are open and justified.” She said.
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