Once abusing on WeChat group, once abusing on others' doorstep, repeatedly "abusing, threatening and threatening" in phone messages, and once throwing bricks and beer on others' doorstep.
These are the four facts that the public prosecution charged Xu with the crime of provoking trouble.
The cause of the incident was that Xu's wife told him that Xu's cousin, Xu Zhan, had repeatedly "sexually harassed" her. Xu's anger was difficult to overcome.
As for the plot of "sexual harassment", Xu's wife and cousin Xu Zhan described it differently: the wife said that her cousin repeatedly harassed her on WeChat, and one night he climbed over the wall into her house and had forced sexual relations with her; Xu only said that the two sides had an ambiguous relationship.
The nature of this relationship has not been tested due to the passage of time, but her husband, Xu Mouchuang, was found guilty of several subsequent abusive and harassment acts. In September 2023, Xu Mouchuang was sentenced by the People's Court of Cao County, Heze City, Shandong Province to 10 months' imprisonment for the crime of causing trouble.
Xu Mouchuang entrusted a lawyer to appeal. In the second instance, the defense lawyer defended Xu's innocence: this matter was caused by family and neighborhood conflicts, and the defendant's behavior may be illegal, but it is not enough to be a crime.
In November 2023, Heze Intermediate People's Court ruled to remand the case for retrial.
On May 22, the reporter of Xiaoxiang Morning News learned from the party that the case will be heard again in the near future.
First instance: the defendant was sentenced for repeatedly abusing and harassing the other party because he found that his cousin and his wife had conflicts in WeChat chat
Xu Mouchuang, a 36 year old native of Caoxian County, Shandong Province, was criminally detained by Caoxian Public Security Bureau on November 25, 2022 on suspicion of making trouble. He was assigned to live under surveillance on December 4, was granted a guarantor pending trial on December 20 of the same year, was granted a guarantor pending trial by Caoxian People's Procuratorate on January 29, 2023, and was granted a guarantor pending trial by Caoxian People's Court on April 17, On September 13 of the same year, it was decided by the Court that Cao County Public Security Bureau would announce a quick arrest, and on the same day, it was monitored by Cao County Public Security Bureau to live.
According to the verdict of the first instance of the case, during the first instance of the case, the People's Procuratorate of Cao County, Shandong Province charged that in November 2019, the wife of the defendant Xu Mouchuang and Xu Mouzhan were found chatting on WeChat by Xu Mouchuang, which led to conflicts between Xu Mouchuang and Xu Mouzhan.
The picture shows the prosecution's allegations
After mediation by intermediaries of the village committee for many times, Xu and Xu signed a settlement agreement on December 13, 2019. The defendant, Mr. Xu, has repeatedly made troubles on the pretext, and now it is found out as follows:
1. At 0:00 on April 20, 2020, the defendant Xu broke into the village WeChat group and abused Xu Zhan;
2. At about 20:00 on July 15, 2021, the defendant Xu broke into the gate of Xu Zhan's second brother's house without any reason;
3. From April 15, 2021 to September 26 of the same year, the defendant Xu kept calling Xu, sending SMS, abusing, threatening, and threatening;
4. At about 16:00 on March 13, 2022, the defendant, Mr. Xu, threw bricks and beer bottles at Mr. Xu's house without any reason.
During the trial, the legal representatives of the victim Xu Mouzhan and others proposed that the defendant Xu Mouzhan threw bricks, smashed the door and insulted the other party many times, which seriously affected the normal life of the victim, and his behavior constituted the crime of provoking trouble.
The People's Court of Caoxian County found that in November 2019, Xu Chuang and the defendant Xu Chuang's wife were found chatting on WeChat, which led to a conflict between Xu and Xu.
After mediation by intermediaries and village committee cadres, Xu and Xu signed a settlement agreement on December 13, 2019, agreeing that they would not investigate each other's legal responsibility, interfere with each other's life, scold or threaten each other. However, since then, the defendant Xu Mouchuang has always been bitter about this matter and has repeatedly used excuses to cause trouble.
In addition, due to the abusive behavior on July 15, 2021, Cao County Public Security Bureau will impose a penalty of administrative detention on the defendant Xu Mouchuang for 5 days on August 11, 2021.
The court held that the defendant, Mr. Xu Chuang, caused trouble without incident, abused and intimidated others at will, undermined social order, and the circumstances were abominable. His behavior constituted a crime of causing trouble and should be punished according to law. The accusation of the public prosecution organ is established.
The picture shows the court judgment
At the same time, the court held that the opinion that the defender "the victim Xu Zhan sent harassment information to the married woman was against traditional morality, and was responsible for the cause of the conflict. It was suggested that the defendant Xu Chuang should be given a lighter punishment" was appropriate, and the court adopted it and gave the defendant Xu Chuang a lighter punishment according to law.
On September 21, 2023, the People's Court of Caoxian County sentenced the defendant Xu to 10 months' imprisonment for the crime of causing trouble.
The wife said she was raped by her husband's cousin, but the other denied that she was only ambiguous when chatting on WeChat
After the judgment of the first instance, Xu refused to accept it and entrusted Wang Shouliang, a lawyer from Beijing Hanji Law Firm, as the defender in the second instance. Wang Shouliang defended his innocence.
Xu Mouchuang introduced that the cause of the case was that his cousin Xu Mouzhan sexually harassed his wife. He claimed that he was relatively short, with a height of 1.62 meters, and was introverted since childhood. Since he went to school, he has not contacted many relatives in the village, but he had a good relationship with Xu Mouzhan. When he grew up, he worked outside all the year round. Xu Mouzhan was engaged in waste purchase business in his hometown and rented his family land.
In 2019, when he returned to his hometown, his wife told him that Xu had repeatedly sexually harassed her, and they began to hate each other. He did abuse Xu for many times, but every time there was a reason, and he didn't think it would constitute a crime.
As for the introduction of the case, the relationship between Xu Chuang's cousin and Xu Chuang's wife, the two parties have different statements.
Xu's wife said that Xu first added her to the exhibition through WeChat and WeChat groups. After adding WeChat, Xu started chatting with her and harassed her repeatedly. One night in April 2019, Xu climbed over the wall and entered her house, had forced sexual relations with her, and threatened not to tell others. She felt ashamed and didn't make a statement about it.
Xu's wife said that one day in October 2019, when Xu had returned to his hometown, Xu called her several WeChat phones again to ask her to meet. She was overwhelmed and told Xu that the other party harassed her on WeChat, but did not tell her everything. The next day, Xu came to the other party's home to give a warning. One day in November 2019, Xu came to her again and said that she would go out to open a house. When Xu came back, she told her truthfully that there was physical conflict between the two sides when he came to the other's house.
When asked by the public security organ, Xu said that he only chatted vaguely with Xu's wife on WeChat. He never talked again after Xu found out about it, and he never had sexual relations with Xu's wife.
"When we talk about family affairs, I praise her and he praises me. Our direct conversation is a bit ambiguous, and there is not too much special language for men and women," said Xu.
Xu Mouchuang has his own version of the four facts accused by the public prosecution.
Xu Mouchuang said that it had been some time since the incident happened in 2019, through the mediation of relatives and others, but someone in the village was already saying that Xu Mouzhan had had a relationship with his wife, which made him more depressed. On the evening of April 19, 2020, he saw Xu Mouzhan in a WeChat group in the village making remarks that seemed to humiliate his wife, so he made insults and counterattacks in the group.
On May 19, 2021, when his wife and two children rode by the gate of Xu's second brother Zhan's house on an electric bicycle, they quarreled with Xu's parents and caused a fight. His wife was detained for 10 days. He rushed back to his hometown to take care of the children. During this period, the other party claimed 40000 yuan from his wife. He went to the place where Xu's parents lived to discuss the matter, but the other party did not open the door, Later, the other party called the police and said that they abused others. On August 11, 2021, he was held in administrative detention for 5 days.
During the period from April 15, 2021 to September 26, 2021, he did abuse each other by text message. "He also called me, scolded a few words and then hung up. When I called, he didn't answer, but I was angry and sent a text message to scold him." Xu said.
Regarding the behavior of throwing bricks and wine bottles accused by the public prosecution organ, Xu Mouchuang said that on March 13, 2022, three years after his grandfather died, he came back to eat with relatives and really drank a lot of wine fragments that day. The next day, the police of the local police station came to the door and said they had received a report that he threw a bottle and brick at Xu's house. Xu said he didn't remember the incident and the police didn't deal with him at that time. Later, he went to work in other places again, and was detained by the local police on November 25, 2022.
The court of second instance remanded the case for retrial on the grounds of unclear facts, and will hold another hearing in the near future
After the judgment of the first instance, Xu Mouchuang said that "the evidence presented in the first instance was incomplete and untrue; the mediation agreement was false, and he did not know about it, not signed by himself, but signed by the village branch; the facts identified in the first instance were untrue, and the cause of the case was that Xu Mouzhan sexually harassed his wife, who was the victim. Although he was wrong, he could not reach the level of a criminal offence, so he should be declared innocent" To appeal.
The picture shows the mediation statement of both parties involved
On November 29, 2023, Heze Intermediate People's Court revoked the first instance judgment and sent it back to Cao County People's Court for retrial on the grounds that the facts in the original judgment were unclear and the evidence was insufficient.
According to Wang Shouliang, a lawyer from Beijing Hanji Law Firm, and Feng Zhiyuan, a lawyer from Beijing Zeheng Law Firm, Xu's defenders, they will defend Xu's innocence again in this retrial.
The two lawyers believed that they did not recognize the "three natures" of some evidence issued by the public prosecution organ, such as the so-called mediation agreement between the village committee and the intermediary, but Xu did not recognize it without his knowledge and signed it for others; The so-called telephone harassment only has call records, no call content; No wine bottles, brick evidence, etc. were thrown. In addition, regardless of the four facts charged by the public prosecution, if these acts are true, they will not meet the criteria for criminalization.
Article 293 of the Criminal Law of our country stipulates that anyone who commits one of the following acts of provocation and trouble making, thus disrupting social order, shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or public surveillance, including chasing, intercepting, abusing or intimidating others, and the circumstances are flagrant. According to the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Causing Aggression (FSH [2013] No. 18) The first paragraph of Article 1 stipulates: "If an actor commits an act specified in Article 293 of the Criminal Law for the purpose of seeking stimulation, venting his emotions, bravado, etc., and making trouble from nothing, it shall be deemed as' provoking trouble '."
Wang Shouliang believes that Xu Mouchuang's behavior is not "making trouble out of nothing", but because his wife was caused by his cousin's "sexual harassment" problem, the nature of his behavior is not enough to commit a crime, and the public security organ should give a warning according to the Public Security Administration Punishment Law. The so-called acts of provocation and trouble making did not reach the level of "bad circumstances". The victim in this case is mainly responsible for the intensification of conflicts, and belongs to neighborhood, family and debt disputes, which should not be considered as a crime.
Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Causing Riots (FSH [2013] No. 18) The third paragraph of Article 1 stipulates: "The perpetrator who, due to marriage, family, neighborhood, debt and other disputes, fights, insults, intimidates others or damages or occupies other people's property is generally not considered as provoking trouble, but continues to commit the preceding acts after being criticized, stopped or punished by the relevant departments, except for those who undermine social order."
Wang Shouliang said that in this case, although the public prosecution organ produced the so-called mediation agreement for mediation by the intermediary of the village committee, Xu Mouchuang himself did not recognize the agreement without knowing it, and his signature was not his own signature. His name was misspelled, and his hand seal was not stamped, so they did not recognize the evidence.
Xu Mouchuang said that after the case happened, he was under great mental pressure and hoped that the retrial would give him a fair judgment.
Xiaoxiang Morning News reporter Cao Wei
