By Haiying Yao, reporter of this newspaper, reported from Shanghai (博讯boxun.com)

　　October 27, 2003, 21st Century Talent Report

　　 The day when Kun Hu was “terminated the period for awaiting trial after obtaining a guarantor” and recovered freedom in September, is just the time that Mingzhe Ma, the present Communist Party Chief and Chairman of Ping An Insurance (Group), was dismissed from the general manger position by the Shenzhen Government. Some sensitive people conjecture from the degree of continuous attention of the “case of Fudan Dr.’s unjust detention” from high-level officials of Shanghai and Shenzhen government, and the Ministry of Public Security, that “Mingzhe Ma was dismissed because of this case?” Could Mingzhe Ma, who had moved freely at all corners of the country, be overturned at his own home gate? After all, this is only a subjective forejudge which could not be verified until now.

　　Why Kun Hu is still in danger?

　　At 3:00 pm of October 20, for accurately getting the updated news about the victim, Fudan Ph.D. Kun Hu after being terminated the period for awaiting trial after obtaining a guarantor, the reporter of this newspaper posted a message in the “Xici Hutong” bbs and said that “correspondent in Shanghai is paying attention to the news about ‘Fudan Dr.’s unjust detention’, anyone who knows the inside story please provide clue.” Specifically, the reporter published cell phone number and office number. Only after half an hour, the reporter received an anonymous call to the office by a mysterious man, the caller ID showed that the call was from out-of-city by telephone card.

　　After verification the name and media of this reporter, the first sentence of the man was “how much do you know about other reasons that Mingzhe Ma want to harm Kun Hu?” The reporter said that it’s under investigation. The anonym paused for a while, and the reporter could feel his breath and hesitation from the other end of the telephone line. After half minute, he finally said, “there were lots of media that paid attention to this, but even the most publicly trusted newspaper, acknowledged in China, was suborned by Ping An Company using advertisement investment, and the victim became the tool for the newspapers and reporters to make money. How could I trust you now?”

　　The reporter did his best to explain but the anonym was still in dubitation. Finally, he clearly told the reporter one sentence and hanged up, “Kun Hu’s present circumstance is still not out of danger. If the media still not stand out impartially and the truth not disclosed, his danger will become larger.”

　　As the reporter knows, Kun Hu should be a completely free person from the perspective of law. Where is the “danger”, as the anonym said, from? As early as September 12, Kun Hu had already got the “Decision to Terminate the Period for Awaiting Trial after Obtaining a Guarantor” sent by the Futian Branch of Shenzhen Public Security Bureau by mail. This means that Kun Hu finally recovered to be a free man after being under compulsory measures for 519 days by the Shenzhen police.

　　At afternoon of October 20, a procurator from the Shenzhen Procuratorate who responsible for Kun Hu’s case, confirmed through telephone to the reporter that “the ‘arrest application’ from the Futian Branch of the Public Security Bureau was disapproved according to law for two times. Kun Hu is absolutely in safety.”

　　But until now, why the anonym (maybe Kun Hu himself) says that Kun Hu is still in danger?

　　The reporter called to Kun Hu’s apartment in Shanghai, but no one answered the phone. At morning of October 21, under the help from a reporter who had covered the case originally in 2002, the reporter contacted in difficulty with “Kun Hu” who was resting in his hometown in Shaanxi.

　　After clearly understand the purpose of the reporter, a middle-aged lady of south Shaanxi accent said “you can only send email to him!” When the reporter expressed the eager to talk to Kun Hu directly, a man took the phone and said “we don’t trust reporter, don’t dare to accept interview, and don’t want to draw fire against ourselves.” Judged from the voice, this man is just the anonymous man who called the reporter yesterday, and the man hadn’t denied that he was Kun Hu himself.

　　Why Kun Hu is still so afraid of an already acknowledged unjust case? What make him feel so terrified? Why Kun Hu, who is in deep injustice, chose to “retire” in his hometown and have no plan to take any litigation until now?

　　A friend who had contacted Kun Hu in this September told the reporter, “What make Kun Hu feel unanticipated is that all medias keep in silence in consistent in recent two years and none of the medias report the case publicly. Although temporarily there is no prison disaster at now, but Mingzhe Ma has super-power and no one can anticipate what will happen in the future!” The friend analyzes that “this maybe the reason that Kun Hu leave Shanghai and feel no security”.

　　“Copyright Dispute” Touches off Criminal Case?

　　What make the public confusing about the “case of the Fudan Dr.’s falling victim”, is that what kind of kind and enmity between Kun Hu and Mingzhe Ma actually? And Kun Hu is also a former employee worked for him for two years. As Kun Hu himself don’t want to disclose the truth for consideration of his personal security, after some effort, the reporter still cannot find other ways to understand the truth for the moment.

　　From the known case itself, this is a criminal case touched off by copyright dispute, and this is also the only reason for Kun Hu’s encounter of the prison disaster.

　　Its said that in January 2002, Mingzhe Ma, chairmen of Ping An Insurance Company, reported a case in the name of the company to the Shanglin Police Station of the Futian Branch of Shenzhen Public Security Bureau, and claimed that Kun Hu, a Ph.D. student of Fudan University, took over Ping An Company’s asset. The bases of the accusation are the author’s remunerations of four books that Kun Hu signed for Mingzhe Ma. In the report, Ping An Company accused Kun Hu took over the company’s assets, which were the author’s remunerations of four books published in Mingzhe Ma and others’ name by Beijing Commercial Publishing House. The Commercial Publishing House paid the author’s remunerations of the four books totaled 80,272 RMB, which including 6,089.56 RMB of personal income tax deducted by the Commercial Publishing House.

　　Mingzhe Ma wrote, “things are true” in the report by himself and signed by himself.

　　Kun Hu’s Prison Disaster

　　On April 12, 2002, Kun Hu, who was studying at Fudan, in Shanghai, was detained by the Culture Protection Branch of the Shanghai Public Security Bureau. On April 18, 2002, Kun Hu was detained in the detention house of Shenzhen Futian District.

　　But soon, according to law, the Procuratorate of Shenzhen Futian District disapproved the public security bureau's requests for approval of arrest Kun Hu in the name of “take-over-by-taking-advantage-of-his-office crime”. On May 22, 2002, the People’s Procuratorate of Shenzhen Futian District disapproved the request for arrest Kun Hu, for the reason of “no enough evidence and take-over-by-taking-advantage-of-his-office crime not constituted”. On June 10, the Procuratorate of Shenzhen Futian District disapproved the request for arrest Kun Hu again according to law.

　　But both of the two disapprovals of arrest from the Procuratorate hadn’t make Kun Hu obtain freedom immediately.

　　Until September 12, 2003, after the end of one year guarantor pending trial period to Kun Hu according to law, Kun Hu had already been put under compulsory measures by the public security organs for 519 days, as long as one year and 9 months, including 43 days of criminal detention, 119 days under residential surveillance, and 357 days of awaiting trial after obtaining a guarantor.

　　Some people think that factors outside law in Kun Hu’s case, are the key reasons that make the unjust case could not be settled in time.

　　Shanghai Lawyer’s Legal Viewpoints to the “Unjust Detention Case”

　　On a.m. of October 21, Mr. Hongliang Liu, senior lawyer of Shanghai Huili Law Firm, accepted the reporter’s special interview regarding the related law issues in Fudan Ph.D.’s law case. Firstly, Lawyer Liu agrees with Shenzhen Procuratorate’s decision of “no enough evidence and take-over-by-taking-advantage-of-his-office crime not constituted”.

　　Regarding to Mingzhe Ma’s accusation in the name of Ping An Insurance Company, Lawyer Liu thinks that the key of this issue is the copyright’s ownership of the works. “If Challenging Competition and other works belong to personal works, it should be inappropriate for Mingzhe Ma to accuse in the name of Ping An Insurance Company.”

　　Lawyer Liu thinks if Challenging Competition and other works are not “works created in the course of employment”, which means that not belongs to “drawings of engineering designs and product designs and maps, computer software and other works created in the course of employment mainly with the material and technical resource of the legal entity or other organization and under its responsibility,” or the author had no “contract restriction with the organization”, then the copyright of the works shall be enjoyed by the author personally according to law, and the organization shall have a priority right to exploit the work.

　　“So, it’s violation of the law that Mingzhe Ma accuse in the name of Ping An Insurance Company”, Lawyer Liu said.

　　Is It Appropriate for Mingzhe Ma to Accuse Kun Hu of Take-over-by-taking-advantage-of-his-office Crime?

　　Article 271 of the Criminal Law deemed take-over-by-taking-advantage-of-his-office crime by explicit stipulations as “in cases where a person of a company, enterprise, or any unit, takes over the unit's property by taking advantage of his office, and the amount involved in quite large”. There are four absolutely necessary factors to constitute the take-over-by-taking-advantage-of-his-office crime: the person who committed the crime must be a company employee; the object of the crime must be company asset; the behavior must take advantage of the duty; and the motive must be taking over illegally. All is indispensable.

　　As Lawyer Liu’s analysis, firstly, the time when Kun Hu signed for the author’s remunerations was June of 2000, and the time that he resigned from Ping An Company was March of 2000. So, unless the official resignation was another arrangement or late than June, he posses none employee identity. Secondly, the author’s remunerations were the remunerations after being deducted personal income tax by the Beijing Commercial Publishing House, and cannot deem the author’s remunerations, which had been deducted personal income tax by law, were company asset. Thirdly, Kun Hu was only a normal staff who had no authority in accounting and others, so cannot take advantage of his office. Fourthly, nominally, these author’s remunerations belong to Mingzhe Ma, but actually should belong to Kun Hu who was the authentic author. So, there was no intent to take over illegally. Even all or part of it belong to Mingzhe Ma, this is a civil dispute about property and income. Mingzhe Ma could ask Ku!n Hu to return the related author’s remunerations through the mediation of the People’s Civil Court.

　　Lawyer Liu concluded in one sentence, “the key is that the author’s remunerations don’t belong to Ping An Insurance Company! Copyright ownership is personal, and Hu did nothing related to the problem of take-over-by-taking-advantage-of-his-office.”

　　Above is also the law foundation that the ground-level and the intermediate People's Procuratorate of Shenzhen disapproved the arrest application against Kun Hu for several times.

　　When questioned by the reporter “whether Mingzhe Ma is suspected to the crime of fabricating stories to subject others to criminal investigation”, Lawyer Liu especially emphasized that cannot simply deem Mingzhe Ma suspected to the crime of fabricating stories to subject others to criminal investigation. “Fabricating stories” and “accuse by mistake” are different. “The law stipulates that only fabricating stories and falsifies evidence could belong to the crime of fabricating stories to subject others to criminal investigation. We could not find the above factors of Mingzhe Ma by existing evidence. As for the crime of retaliating against or framing is stipulated as the behavior of retaliating against or framing accusers, petitioners, criticizers, or informants, and obviously that Kun Hu don’t belong to the above groups.”

　　Lawyer Liu thinks that according to the stipulation of the State Compensation Law, for “a wrong detention of a person without criminal facts or without facts evidencing the person with gross criminal suspicion”, the victim has the right to apply compensation. From the view of the state compensation, the key problem is whether the detention was wrong, and the length of the period is only the calculation basis for the compensation.

　　“Kun Hu was detained by the police for 43 days which was verified to be unjust detention at the end, and can absolutely apply for the state compensation”.

　　END (博讯boxun.com)