Contents
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Historical-Legal Context of “Inciting Subversion” Historical-Legal Context of “Inciting Subversion”
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From Counter-Revolution to Endangering State Security From Counter-Revolution to Endangering State Security
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The Constitutional Context The Constitutional Context
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Prosecution of Inciting Subversion Prosecution of Inciting Subversion
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The Defense of Liu Xiaobo The Defense of Liu Xiaobo
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Technical Arguments: Subjective and Objective Elements Technical Arguments: Subjective and Objective Elements
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Arguing for the Importance of Context Arguing for the Importance of Context
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The Free-Expression Argument The Free-Expression Argument
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Necessity of Legislative Reform Necessity of Legislative Reform
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Procedural Justice Procedural Justice
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Other Defense Strategies Other Defense Strategies
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Biography as Defense Biography as Defense
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Measurement of Social Harm Measurement of Social Harm
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Distinction between “State Power,” “Government,” and “Ruling Party” Distinction between “State Power,” “Government,” and “Ruling Party”
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Conclusion Conclusion
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2 The Sky is Falling: Inciting Subversion and the Defense of Liu Xiaobo
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Published:August 2012
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Abstract
This chapter examines Liu as a target of criminal prosecution. It provides a careful and detailed historical review of the offence of inciting subversion, on which Liu was convicted. The chapter traces the legislative change from “counter-revolutionary crimes” to “crimes endangering state security” and the accordingly changing elements and nature of subversion offences. In the second half, Rosenzweig provides an analysis of the defenses that Liu Xiaobo and his lawyers presented in the trial. The chapter concludes that, given the offence of subversion is so vaguely defined, defenses are hard to come up with and of little legal consequence. This analysis thus supports the conclusion that prosecution of “subversion” only serves the purpose of silencing political speech.
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