After the case of Ma Yaohai became a hot topic in society, many voices said that the crime of gathering people to commit adultery should be abolished, but Yao Yong 'an said that even according to the existing laws, Ma Yaohai could not be convicted.
"What is a crime? To put it simply, it is to violate the criminal law, endanger society and punish according to law. " Yao Yong' an said that Ma Yaohai's "spouse exchange" behavior is not stipulated as a crime in the criminal law; Ma Yaohai's behavior is not harmful to society.
"The crime of gathering people for fornication belongs to the crime of disturbing public order. Only by doing it in public can public order be disturbed. They just do it in their own homes, which has no impact on society, let alone breaking the law. What about crime? " Yao Yong 'an said that gathering people to commit adultery should be the same as gathering people to fight. Two groups of people fight everyone, regardless of the object. That's called gathering people to commit adultery. He said that exchanging spouses is an "emotional and voluntary act" and cannot be counted as adultery.
Lawyers believe that the crime of gathering people for fornication violates social public order, while the activities of Ma Yaohai and others do not involve money transactions, and are also closed and hidden, so they do not violate the social public order protected by criminal law. The sexual gathering involved in this case should belong to the category of private rights and should not be punished by criminal law. Yao Yong 'an said that the result of the trial will be determined by the interpretation of "gathering people for fornication". "But the problem now is that there is no authoritative explanation for gathering people to commit adultery, and there is no explanation in legislation, justice and theory."
He Bing, deputy dean of the Law School of China University of Political Science and Law, said that it is really difficult to define gathering people for fornication.
"What is it? I don't know, three or more. This is a general explanation, but it is not authoritative knowledge; The word promiscuity is not very clear. This is a word with strong moral color. Not a description of behavior, but a description of morality. "
He Bing believes that the legal significance of the Ma Yaohai case is to remind the law, "When people's social concepts and rules of conduct have changed, how should they change?" He Bing thinks it's time to revise the crime of gathering people for fornication. Ma Yaohai's case is just an opportunity to amend the law.
As for how to amend it, He Bing said that "a comparative study is needed to see how other countries define' gathering people for fornication'."