This column reinterprets that "invasive" sexual behavior should be regarded as prostitution in the sense of criminal law, and "invasive" should be understood from the enumerated ways of "anal sex" and "oral sex" and enter the relatively closed organs of the human body. Compared with "openness", things like "masturbation" and "breastfeeding" should be excluded.
Understanding and interpretation of some issues concerning the application of law in organizing, forcing, luring, sheltering and introducing prostitution criminal cases.
Author:, Party Jianjun, Lu,, (the Supreme People's Court), published in People's Justice (Application) 20 17 No.22, Trial of Criminal Investigation Cases.
Background and drafting process In judicial practice, it is found that there are many problems of inconsistent applicable laws when trying criminal cases of organizing, forcing, luring, sheltering and introducing prostitution in various places. The Supreme People's Court has accepted requests from several high courts for instructions on such cases, and many problems have been found in the investigation. The Supreme People's Court and the Supreme People's Procuratorate issued "Answers to Several Questions on Execution" in 1992 1 1 (hereinafter referred to as "Answers"), but the provisions on criminal responsibility in the Decision of NPC Standing Committee on Prohibiting Prostitution and Whoring (hereinafter referred to as "Decision") attached to this answer have been absorbed by the current criminal law. 20 13 the supreme court cleared up the judicial interpretation and announced the abolition of the answer. Therefore, it is necessary to unify and standardize the application of laws to deal with such cases.
20 12 after discussion, the judicial Committee of the Supreme People's Court decided to establish the project "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Criminal Cases of Prostitution and Whoring" (hereinafter referred to as "Interpretation"). The fourth court of criminal trial of the undertaking department set up a drafting group to draft a draft for comments, conducted extensive research and solicited the opinions of the higher people's courts across the country, and successively held research forums attended by comrades from the higher courts in Jiangsu, Sichuan, Guangdong, Hebei, Hainan, Zhejiang and Guangxi and some middle and primary courts. On August 29th, 20 15, Amendment IX to the Criminal Law was promulgated and implemented, and the crimes of organizing, forcing prostitution and assisting in organizing prostitution involved in the Draft Interpretation were revised. Since then, the drafting group has revised the draft judicial interpretation according to the relevant provisions of the Ninth Amendment to the Criminal Law, and held many discussions with the heads of the Public Security Bureau of the Ministry of Public Security, some provincial public security departments and some city and county public security organs, and fully discussed the draft interpretation. An expert demonstration meeting was held, and a coordination meeting was held with relevant ministries and commissions under the auspices of the National People's Congress Standing Committee (NPCSC) Law Committee. After full consultation on relevant issues in the draft interpretation, it was finally decided that the Supreme People's Court and the Supreme People's Procuratorate would jointly issue the interpretation. After revising the draft interpretation of the "two highs", on May 8, 20 17, the the Supreme People's Court Judicial Committee adopted the draft interpretation through discussion, and on July 4, 20 17, the 12th Procuratorial Committee of the Supreme People's Procuratorate adopted the draft interpretation through discussion. This interpretation shall be implemented as of July 25, 20 17.
Understanding the concept of "prostitution" in the sense of criminal law There is a certain controversy in the theoretical circle, especially in judicial practice. There is a consistent understanding: (1) The behavior of providing sexual intercourse services and collecting property in the traditional sense should be recognized as prostitution. (2) Men can also provide prostitution services. With the development and change of society, men will have sex with unspecified women in order to obtain material benefits. Understanding this phenomenon as prostitution has been confirmed by legislation and justice. 1979 article 140 of the criminal law stipulates: "whoever forces a woman to engage in prostitution shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years." Article 169 stipulates: "Whoever lures or shelters women into prostitution for the purpose of making profits shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or public surveillance; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years and may also be fined or confiscated. " It was decided to refine the crime of forcing women into the crime of organizing (others) prostitution and the crime of forcing (others) prostitution, and to modify the crime of luring and sheltering women into the crime of luring, sheltering and introducing (others) prostitution, adding the crime of luring young girls into prostitution. 1997 when the criminal law was revised, the expression of the crime of organizing, forcing, luring, sheltering and introducing prostitution in the Decision was adopted. (3) Anal sex and oral sex should be included in the category of prostitution. This is not only a breakthrough in the traditional concept of prostitution, but also can be recognized by the public. Under the reality and legal provisions that men can engage in prostitution and women can engage in prostitution, anal sex and oral sex are obviously the main ways of same-sex prostitution, and heterosexual prostitution can also take anal sex and oral sex. The * * * sex of the three is that one party's genitals enter the other party's body, which is an invasive sexual activity. And from the perspective of sexually transmitted diseases, these three ways can cause the spread of sexually transmitted diseases.
The most controversial issue is whether providing non-invasive but contact pornographic services such as masturbation can be regarded as prostitution in the sense of criminal law. In this regard, different places have different understandings and academic disputes are not small. After extensive investigation, full argumentation and consultation, the drafting group still failed to reach an agreement. However, on February 1 day, 2006, the Ministry of Public Security issued the Official Reply on Qualitative Handling of Money Intermediary Behavior among Same-sex People with the word [200 1] No.4. According to "Regulations of the People's Republic of China on Administrative Penalties for Public Security" and "the National People's Congress Standing Committee (NPCSC)'s Decision on Prohibiting Prostitution and Whoring", improper sexual relations between unspecified opposite sex or same sex, including oral sex, masturbation, sodomy, etc., belong to prostitution and whoring, and the perpetrator should deal with them according to law. Can this reply be used as a basis for identifying the concept of prostitution in the sense of criminal law? We believe that the concept of prostitution in criminal law is strictly within the scope of legislative interpretation and should not be interpreted by judicial organs. However, the following points should be clarified in judicial practice: First, the judicial interpretation does not explain the concept of prostitution and whoring, which belongs to the reasons of authority, but this does not affect the handling of judicial practice in various places. Second, administrative violation is not equal to criminal offence, and the concept of violation is not equal to the concept of crime. Violation of administrative regulations is not the same as constituting a crime. The reply of the Ministry of Public Security can still be used as the basis for administrative punishment and related administrative litigation cases, but it cannot be used as the basis for conviction. The expanded interpretation of administrative regulations can bring all sexual acts into prostitution and whoring for administrative punishment, but the establishment of criminal charges, the definition and interpretation of criminal acts should follow the principle of modesty, and judicial interpretation should not expand the interpretation of criminal law. Therefore, in judicial practice, how to identify prostitution in the sense of criminal law should be based on the basic meaning of criminal law, combined with the general understanding of the public and the criminal psychological expectations of citizens, and strictly follow the principle of a legally prescribed punishment for a crime. Accordingly, it is not appropriate to explain the concept of prostitution in criminal law. The criminal law does not clearly stipulate that masturbation belongs to "prostitution" in the sense of criminal law, so it is not appropriate to criminalize related acts. Third, under the current circumstances, prostitution in the sense of criminal law cannot be limited to sexual intercourse. Sexual acts such as anal sex and oral sex other than sexual intercourse should be recognized as prostitution in the sense of criminal law according to law. Fourth, when the conditions are ripe, it is suggested that the legislature make corresponding explanations or direct legislative provisions.