Interpretation of the Supreme People's Court the Supreme People's Procuratorate 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 (II)
Fa Shi [2010] No.3
(Adopted by the Judicial Committee of the Supreme People's Court at its 20/KLOC-0+65438 10 +081483rd meeting and the 28th meeting of the 11th Procuratorial Committee of the Supreme People's Procuratorate).
In order to punish criminal activities such as making, copying, publishing, selling and disseminating obscene electronic information by using the Internet and mobile communication terminals, and disseminating obscene voice information through telephone stations, maintain social order and protect citizens' rights and interests, according to the provisions of the Criminal Law of People's Republic of China (PRC) and the Decision of the NPC Standing Committee on Maintaining Internet Security, some issues concerning the specific application of law in handling such criminal cases are explained as follows:
Article 1 Whoever uses the Internet and mobile communication terminals to make, copy, publish, sell or disseminate obscene electronic information for profit shall be convicted and punished in accordance with Articles 1 and 2 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate 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 the Internet, Mobile Communication Terminals and Voice Stations.
For the purpose of making profits, using the Internet and mobile communication terminals to make, copy, publish, sell and disseminate obscene electronic information containing minors under the age of 14 shall be convicted and punished for the crime of making, copying, publishing, selling and disseminating obscene articles for profit in accordance with the provisions of the first paragraph of Article 363 of the Criminal Law:
(a) producing, copying, publishing, selling and disseminating more than ten video files such as obscene movies, performances and animations;
(2) Making, copying, publishing, selling or disseminating more than 50 obscene audio files;
(3) Making, copying, publishing, selling and disseminating more than 0/00 obscene electronic publications, pictures and articles;
(4) The obscene electronic information produced, copied, published, sold or disseminated has actually been clicked more than 5,000 times;
(5) Publishing, selling or disseminating obscene electronic information by means of membership, with more than 100 registered members;
(six) using obscene electronic information to collect advertising fees, membership registration fees or other fees, and the illegal income is more than 5,000 yuan;
(7) Although the quantity or amount does not meet the standards specified in Items (1) to (6), it reaches more than half of the two items respectively;
(8) Causing serious consequences.
If the number or amount of acts specified in the second paragraph reaches more than five times the standards specified in items (1) to (7) of the second paragraph, it shall be deemed as "serious circumstances" as specified in the first paragraph of Article 363 of the Criminal Law; Those who reach the prescribed standard more than 25 times shall be deemed as "the circumstances are particularly serious".
Article 2 Whoever uses the Internet or mobile communication terminals to disseminate obscene electronic information shall be convicted and punished in accordance with the provisions of Article 3 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate 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 the Internet, Mobile Communication Terminals and Voice Stations.
Whoever uses the Internet or mobile communication terminals to disseminate obscene electronic information containing minors under the age of 14, under any of the following circumstances, shall be convicted and punished for the crime of spreading obscene articles in accordance with the provisions of the first paragraph of Article 364 of the Criminal Law:
(1) The quantity reaches more than twice the standard specified in Items (1) to (5) of Paragraph 2 of Article 1;
(2) The quantity has reached two or more standards in Items (1) to (5) of Paragraph 2 of Article 1 respectively;
(3) Causing serious consequences.
Article 3 If a group mainly used to disseminate obscene electronic information is established through the Internet, with more than 30 members or serious consequences, the founder, manager and main disseminator shall be convicted and punished for the crime of disseminating obscene articles in accordance with the provisions of the first paragraph of Article 364 of the Criminal Law.
Article 4 The founders and persons directly responsible of websites, for the purpose of making profits, knowingly allow others to produce, copy, publish, sell and disseminate obscene electronic information, or allow others to publish it on their own websites or webpages. Under any of the following circumstances, in accordance with the provisions of the first paragraph of Article 363 of the Criminal Law, the crime of spreading obscene articles for profit shall be convicted and punished:
(1) The quantity or amount reaches more than five times the standards specified in Items (1) to (6) of Paragraph 2 of Article 1;
(2) The quantity or amount respectively reaches more than twice the standards in Items (1) to (6) of Paragraph 2 of Article 1;
(3) Causing serious consequences.
If the number or amount of acts specified in the preceding paragraph reaches more than 25 times of the standards specified in Items (1) to (7) of Paragraph 2 of Article 1, it shall be deemed as "serious circumstances" as specified in Paragraph 1 of Article 363 of the Criminal Law; If it reaches more than 0/00 times of the specified standard/kloc-,it shall be deemed as "particularly serious".
Article 5 The website founders and administrators who are directly responsible know that others make, copy, publish, sell and disseminate obscene electronic information, and allow or let others publish on their own websites or webpages. Under any of the following circumstances, in accordance with the provisions of the first paragraph of Article 364 of the Criminal Law, the crime of spreading obscene articles shall be convicted and punished:
(a) the number reaches more than ten times the standard specified in items (1) to (5) of the second paragraph of Article 1;
(two) the number reached more than five times of the two or more standards in the second paragraph of Article 1 (a) to (e);
(3) Causing serious consequences.
Article 6 Telecom operators and Internet information service providers, knowing that they are obscene websites, provide them with Internet access, server hosting, network storage space, communication transmission channels and other services, and collect fees on their behalf. Under any of the following circumstances, the directly responsible person in charge and other directly responsible personnel shall be convicted and punished for the crime of spreading obscene articles for profit in accordance with the provisions of the first paragraph of Article 363 of the Criminal Law:
(1) Providing the above services for more than five obscene websites;
(two) to provide Internet access, server hosting, network storage space, communication transmission channels and other services for obscene websites, and the service fee is more than 20 thousand yuan;
(three) to provide services for obscene websites, and the service fee is more than 50 thousand yuan;
(4) Causing serious consequences.
If the number or amount of acts specified in the preceding paragraph reaches more than five times the standards specified in items (1) to (3) of the preceding paragraph, it shall be deemed as "serious circumstances" as stipulated in the first paragraph of Article 363 of the Criminal Law; Those who reach the prescribed standard more than 25 times shall be deemed as "the circumstances are particularly serious".
Seventh for the purpose of making profits, intentionally providing funds directly or indirectly to obscene websites, or providing fee settlement services by means of advertising. Under any of the following circumstances, the directly responsible person in charge and other directly responsible personnel shall be punished for the crime of making, copying, publishing, selling and disseminating obscene articles for profit in accordance with the provisions of the first paragraph of Article 363 of the Criminal Law:
(a) placing advertisements on more than ten obscene websites or providing funds by other means;
(2) placing more than 20 advertisements on obscene websites;
(3) Providing fee settlement services for more than ten obscene websites;
(4) Providing funds of more than 50,000 yuan to obscene websites by advertising or other means;
(five) to provide fee settlement services for obscene websites, and charge a service fee of more than 20 thousand yuan;
(6) Causing serious consequences.
If the number or amount of acts specified in the preceding paragraph reaches more than five times the standards specified in items (1) to (5) of the preceding paragraph, it shall be deemed as "serious circumstances" as stipulated in the first paragraph of Article 363 of the Criminal Law; Those who reach the prescribed standard more than 25 times shall be deemed as "the circumstances are particularly serious".
Article 8 In the implementation of the acts listed in Articles 4 to 7 of these Regulations, in any of the following circumstances, unless there is evidence to prove that the actor did not know, it shall be deemed that the actor knew:
(a) after being informed in writing by the administrative organ, the above acts are still carried out;
(2) Failing to perform the statutory management duties after receiving the report;
(three) to provide Internet access, server hosting, network storage space, communication transmission channels, fees, fees and other services. For obscene websites, and the service fee charged is significantly higher than the market price;
(four) placing advertisements on obscene websites, and the click rate of advertisements is obviously abnormal;
(five) other circumstances that can be identified as known to the actor.
Article 3 Whoever repeatedly produces, copies, publishes, sells or disseminates obscene electronic information within 11 years, and the accumulated amount or amount constitutes a crime, shall be convicted and punished according to law.
Article 10 Where a unit commits the crime of making, copying, publishing, selling and disseminating obscene electronic information, it shall be in accordance with the Criminal Law of People's Republic of China (PRC), the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Making, Copying, Publishing, Selling and Disseminating Obscene Electronic Information by Using the Internet, Mobile Communication Terminals and Voice Stations, and the corresponding standards of conviction and sentencing for individual crimes as stipulated in this Interpretation.
Article 11 If a crime of making, copying, publishing, selling or disseminating obscene electronic information is committed for the purpose of making profits, the people's court shall comprehensively consider the illegal income and social harm of the crime and impose a fine or confiscate property according to law. The amount of fines is generally more than one time and less than five times the illegal income.
Article 12 Interpretation of the Supreme People's Court and the Supreme People's Procuratorate 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 The term "website" as used in this interpretation refers to a content providing site that can be accessed through Internet domain names and IP addresses.
A website that aims at producing, copying, publishing, selling or disseminating obscene electronic information or is mainly engaged in producing, copying, publishing, selling or disseminating obscene electronic information after its establishment is an obscene website.
Thirteenth previously issued judicial interpretation is inconsistent with this interpretation, this interpretation shall prevail. On May 7th, 2008, at about 0/2, Luo Liang (a pseudonym) suspected of manufacturing and selling obscene articles online was arrested in Pingxiang. So far, the first case of manufacturing and selling obscene articles in Pingxiang City was successfully solved, and Luo Liang's pornographic website "China Meituan. com" was destroyed. The police of Anyuan Branch of Pingxiang Public Security Bureau seized 1640 obscene CDs at their residence, involving more than 200,000 yuan. Regrettably, the suspect in this case was actually a graduate of a famous university.
"I'm sorry my parents, I can't face them. I really want to kneel down and cry and loudly say' I'm sorry' to them ... "On May 14, 2008, Luo Liang told reporters with shame in Pingxiang No.1 Detention Center. The practical guide to criminal law crimes-the crime of making, selling and spreading obscene articles is the first large-scale practical reference book for handling criminal cases in China. Including:
1, authoritative interpretation of criminal law experts; 2, the criminal law charges and penalties of practical problems and difficult problems to explain;
3. Criminal law amendment, NPC decision, legislative interpretation, judicial interpretation and their understanding and application;
4. Typical difficult cases approved by the Supreme People's Court;
5. Standard judgment documents audited by the Supreme People's Court;
6. Relevant laws, administrative regulations and departmental rules for handling criminal cases;
7. Appendix This book is an essential tool for prosecutors, lawyers, lawyers to handle criminal cases.
At the same time, it is also an important teaching reference book of criminal law in public security political and legal colleges. With its authority, pertinence, comprehensiveness and practicality, this series has an important position and great guiding significance in the field of criminal law book publishing in China.