Is it illegal for Mr and Mrs Zhang to watch porn at home? Obviously, this is the premise of different views. The answer to this question needs to be examined from two aspects.
First of all, whether Mr. and Mrs. Zhang have the freedom to watch porn at home. We know that freedom is an important legal right of citizens and an important content of human rights. Compared with public power, freedom has pre-existing significance in fact and logical order, which is a very important legitimacy of the existence of rights. Therefore, the constitutions and laws of various countries have effectively confirmed and guaranteed citizens' freedom rights. China citizens enjoy extensive freedoms in political, social and family life. Due to many reasons such as writing style, it is impossible for the law to confirm all kinds of freedoms that citizens should enjoy one by one by listing, but to restrict some freedoms that cannot be exercised temporarily according to the needs of the situation. Therefore, in a country ruled by law, people generally abide by the principle of freedom unless prohibited by law. In connection with this case, neither China's criminal law nor the regulations on administrative penalties for public security prohibit citizens from watching DVDs at home. The Regulations on Prohibiting Obscene Articles issued by the State Council 1985 only prohibit people from watching or watching in public places, and the regulations were abolished in 200 1. The only thing that can be related is a notice of the Ministry of Public Security on "Eliminating Six Harms" issued by 1990. However, the Notice did not have a legal form at the beginning, but was issued in order to comply with the Regulations of the State Council. If the principal law is abolished, it should of course be invalid; And because of the violation of the constitution, it will be further studied. From this point of view, there is nothing illegal in the behavior of the Zhang couple. Although the relevant police personnel think that the place to watch pornographic films is not at home, but at the clinic (public place). In this regard, we believe that legal residence includes not only the place where citizens live in their daily lives, but also temporary residence (such as rented hotel rooms). In this case, the location, residence and office are unified, and the residence and office are separated, and it is only the residence after work. Therefore, it cannot be established. At this point, we can easily see that before the case happened, Mr. and Mrs. Zhang did not conflict with public power because of their illegal behavior, thus providing an excuse for public power to intervene.
Second, whether the couple went beyond the necessary limits when exercising their freedom. We live in a society made up of people. When everyone enjoys his own freedom, he actually studies law. Will cross or even conflict with the freedom of others. In order to avoid conflicts or contradictions, the law stipulates the boundaries of freedom in advance to ensure that freedom is only exercised within a certain range. It's like Posner summing up Muller's expression, "Your right ends at the tip of my nose". So, did Mr. and Mrs. Zhang's behavior "collide" with the rights of others? Judging from the facts of the case, the lawyer specifically clarified that there were double Red Velvet curtains at that time, and the newlyweds without exhibitionism had gone to bed. It is human nature to pull the curtains. Obviously, it is impossible for an image to jump out of the window and affect others. Of course, we have not forgotten the voice problems raised by individual scholars. If Mr. and Mrs. Zhang make their voices loud enough, intentionally or unintentionally, which can really affect the good life of their neighbors and produce conflicts of private rights, then the police need to intervene and define the boundaries of rights. However, if we don't ignore the fact, we will notice that Zhang's father, a newly-married daughter-in-law, lives in an outhouse and watches DVD by himself (if it is really a DVD). Zhang and his wife said that at that time, it was only a scene of a foreign woman taking a bath, and there was no male appearance or other obscene behavior, and the police did not produce evidence to the contrary), so they were courageous and let the obscene voice stimulate the elderly father-in-law. This is beyond the imagination of any normal person. If the sound is not fully developed in the clinic, how can it fly to the neighbor's house? So, how do the police explain the so-called receiving reports from the masses? We believe that, on the one hand, in recent years, there is still a phenomenon that local finance returns fines to public security organs, which has greatly mobilized the enthusiasm of the police to "generate income". Some criminal police teams even put aside criminal cases and arrested prostitutes who should have been under the control of the public security department. Therefore, in this case, the police cannot provide evidence of receiving the report, and the possibility that the police lie and take the initiative to "generate income" is not ruled out. If so, this case is not only a typical case of public power infringing on private rights, but also a typical case of police extorting money from the people by using public power. On the other hand, there is indeed the possibility that someone will report it. Although this report may be based on some disgraceful reasons, according to the requirement that a policeman must go out, the police finally got a legitimate reason to intervene in the case. However, the police should also realize that all they have to do is to clarify the boundaries of rights there (especially after arriving at the scene), rather than seizing items for fines.
(2)
The subject qualification of law enforcement personnel is in doubt. We know that law enforcement activities can only be carried out by state administrative organs and their official staff on behalf of the country. As a more important and special power, the police's administrative law enforcement has stricter requirements. Even a fine below 50 yuan, a lighter public security punishment like warning, if implemented by non-public security personnel, must go through strict entrustment procedures. What are the identities of the three "policemen" who entered Zhang's home in this case? According to the police, "at that time, they went to three people, all wearing police uniforms, but because they didn't have police titles, they really didn't call the police." If we are not "unfamiliar with law enforcement" and are not familiar with the construction of the police as a law enforcement team, we have to know that everyone in the official police force in the country has a unique alarm number in the country. Because one of the leading ideas of setting up alarms is to let the general public supervise the behavior of the police through alarms. Therefore, as long as it is a regular policeman, there must be an alarm. The police rank is a rank symbol awarded to the official police according to their service years, positions and titles. Getting a police rank is not the reason for getting a police rank. On the contrary, to have a police rank, you must have a police rank. In this case, Wei Shiping, deputy director of Baota Branch, told the reporter, "Although two of them are not official policemen, they belong to the local public security establishment (whether they are similar to security guards, the author's note) ... Another policeman passed the people's police recruitment examination last year and has been approved by the Shaanxi Provincial Public Security Bureau to be employed as official policemen, but they have not gone through the formalities and have not been awarded the title." It can be seen that after the qualitative leap has not been achieved, the first two are not policemen at all. So three people enforce the law, what is the legitimacy! Although He Hongliang (probably an ordinary policeman), the director of the police station, rushed to the scene after the conflict with Zhang, can we legalize the previous behavior of the three people and prove that Zhang's previous behavior of blocking or even hitting people was hindering the execution of official duties?
(3) In a democratic society ruled by law, the inviolability of citizens' houses is an important right of citizens. As a western proverb says, every family has its own problems.
Castle (everyone's home is his fortress) The master can engage in various activities that are harmless to others in his "fortress"; As for public power, we should adhere to the principle that power is restricted and the law cannot be authorized, advocate that power should serve and demand rights, and oppose official standard and power (power) standard. In this case, no matter whether Mr. and Mrs. Zhang's behavior of watching porn at home touches the "nose tip" of others, anyone without law enforcement power has no right to break into their fortress and enforce the law against them, because the rule of law emphasizes procedural rules; Even if the police enter their houses, they can't seize TV sets, DVD players and other items without any legal basis. It is even more important not to become angry from embarrassment after being exposed by the media. Just as some policemen said, "If you don't believe it, you can't cure him", but instead, they upgraded public security cases to criminal cases to show the majesty of power, thus going further and further on the wrong road.