Subversion vs. Inciting Subversion

By popular demand, Siweiluozi clarifies the distinction between the crimes of “subversion of state power” (颠覆国家政权罪) and “inciting subversion of state power” (煽动颠覆国家政权罪). The two are often confused, most recently in the case of Zhu Yufu, who was reported here and elsewhere as having been charged with subversion. He was actually charged with inciting subversion, for urging people to take to the streets in his poem, ‘It’s Time’.

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) ….

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.