The Legal Daily reported that a woman from Quzhou, Zhejiang Province was sentenced to six months' imprisonment, suspended for one year and fined 5,000 yuan by Longyou County Court for "spreading obscene articles for profit". There are problems in the application of the judgment law in this case, which violates the principle of legality. The reason for this is the following：
Judging from the provisions of Article 363 of the Criminal Law on the crime of spreading obscene articles for profit, there are three key elements that constitute this crime: first, the profit-making purpose of the act; Second, the objective aspect of behavior must be to "spread" to the unspecified public; Third, the dissemination must be "obscene articles".
Although the defendant's behavior in this case is socially harmful, although it is subjectively profitable, that is, for the purpose of making profits, the defendant's behavior in this case does not have the two elements of "dissemination" and "obscene articles". In the absence of a specific definition of "communication" in criminal law, it is generally understood that "communication" refers to "widespread communication" to an unspecified public. Obviously, the naked chat object of the defendant in this case is targeted or specific, and does not belong to our general understanding of "communication." More importantly, although the defendant's behavior in this case belongs to "obscenity", according to Article 367 of the Criminal Law, obscene articles refer to books, films, videos, audio tapes, pictures and other obscene articles that specifically depict sexual behavior or publicly publicize pornography.
In this case, the defendant "spread" not obscene "articles" but physical displays. Even according to the "other obscene articles" stipulated in Article 9, Paragraph 1 of Article 367 of the Criminal Law, Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Making, Copying, Publishing, Selling and Disseminating Obscene Electronic Information by Using Internet, Mobile Communication Terminals and Voice Stations in 2004, the content of the defendant's "dissemination" in this case is not explained by this article (including specifically depicting sexual behavior or openly promoting pornography).
It is incorrect to think that the defendant photographed his naked body with a camera and then spread it to others through the Internet, and the nude image of this person belongs to "obscene articles" in the criminal law. This is because imaging through instant messaging tools does not form a "file", but is synchronized with transmission. Obviously, the defendant's behavior in this case is not to shoot an image-"video file" first, and then transmit it to the other party for viewing, that is, the defendant did not upload the "video file". In a word, although the defendant's behavior in this case is socially harmful.
Although subjectively for profit, the defendant's behavior in this case does not have the two elements of "dissemination" and "obscene articles". What it transmits through the network is not the "video file" stipulated by the criminal law, but the body image transmitted synchronously. Therefore, the judgment in this case belongs to the error of applicable law, and the judge's understanding of the defendant's behavior and related issues violates the principle of legality. ?
Although the network environment needs to be purified, the behavior of naked chatting is a kind of behavior that harms society, but this does not mean that judges can convict naked chatting on the network before the criminal law clearly stipulates that it is a crime. The duty of a judge is to faithfully enforce the law. As far as a case is concerned, the judge's judgment on this case seems to be defending the mainstream moral standards of society. However, in the sense of the rule of law, the concept of justice that violates the principle of legality runs counter to the concept of the rule of law.
As far as this case is concerned, compared with the guilty verdict, if the judge makes an innocent verdict, although objectively conniving at the defendant and other similar behaviors, he still adheres to the principle of the rule of law and respects the concept of the rule of law.