How to identify the use of obscene videos to solicit customers to sell products?

Published:

2022-04-18

Brief of the case During the period from September 26, 2017 to March 27, 2018, in order to promote the male health products operated by his WeChat circle of friends, Zhang Moumou successively established WeChat chat groups named "XXX Leisure Entertainment Group 1 (Group Plus Group Leader)", "XXX Leisure Entertainment Group 2 (Group Plus Group Leader)" and "XXX Leisure Entertainment Group 3 Group Plus Group Leader/No Words. Later, in order to increase his popularity, Zhang Moumou forwarded obscene videos and links in the group. After identification, 400 videos forwarded by Zhang moumou in "group 1 of so-and-so leisure entertainment (group 1 plus group owner)" are obscene articles, 344 videos forwarded in "group 2 of so-and-so leisure entertainment (group 2 plus group owner)" are obscene articles, and 341 videos forwarded in "group 3 of so-and-so leisure entertainment plus group owner/forbidden words" are obscene articles. After the case, the procuratorate of first instance prosecuted the case to the court on suspicion of spreading obscene materials for profit. After trial, the court of first instance held that Zhang was not subjectively profit-making, so his behavior did not constitute the crime of spreading obscene materials for profit, but constituted the crime of spreading obscene materials. Zhang was sentenced to one year and six months in prison. After the judgment of the first instance, the procuratorate filed a protest, believing that the purpose of profit-making required by the crime of spreading obscene articles includes not only direct profit-making through the dissemination of obscene articles themselves, but also indirect profit-making by means of the dissemination of obscene articles. Therefore, the defendant Zhang Qiuying subjectively has the purpose of making profits and should be recognized as the crime of spreading obscene articles for profit. The original judgment made improper restrictive interpretation of "profit, it is wrong to apply the law and the sentence is too light. The facts and evidence found by the court of second instance were the same as those of the court of first instance, but it adopted the protest opinion of the procuratorate and commuted Zhang to the crime of spreading obscene materials for profit, sentenced to three years' imprisonment and fined 5000 yuan. Focus Issues Zhang Moumou's use of obscene materials to attract customers and promote products can be recognized as the crime of spreading obscene materials for profit. legal analysis The main difference between the crime of spreading obscene materials for profit and the crime of spreading obscene materials is that the former requires the purpose of making profits, while the latter does not. In this case, in order to attract customers and sell male health products, Zhang Moumou posted obscene video links in the WeChat group. Regarding this behavior of using obscene materials to promote legal products, whether it constitutes the crime of spreading obscene materials for profit or the crime of spreading obscene materials, in judicial practice There is controversy. In the cases retrieved by the author, some courts have determined that this kind of behavior belongs to commercial drainage, and the intention is to increase attention. The act of spreading obscene videos does not bring benefits to the perpetrator, so it does not meet the crime of spreading obscene materials for profit. The standard of "profit-making. Judgments that hold this view are: jiang mouyang's case of spreading obscene articles [case number (2019) Zhejiang 0624 punishment no 211], Xiang mourong's case of spreading obscene articles [case number (2018) Zhejiang 0523 punishment no 191], Xie moujia, Liu mou's case of spreading obscene articles [case number (2017) Ji 1181 punishment no 71], Jiang moujuan's case of spreading obscene articles [case number (2018) Zhejiang 0881 no. 238 at the beginning of punishment]]. However, some courts hold that the "profit-making purpose" in the crime of spreading obscene materials includes not only the direct profit by spreading obscene materials, but also the indirect profit by means of spreading obscene materials. The dissemination of obscene materials by the perpetrator is a means to increase product attention and promote products. It is an indirect profit by means of disseminating obscene materials. In addition to this view held by the court of second instance in this case, Zhang moujuan, Zhang mouzhu and others also held this view in the case of making, copying, publishing, selling and spreading obscene articles for profit [case number (2019) zhe 10 punishment final 753]. The author believes that the actor uses obscene materials to attract customers and then sell products, which can not be regarded as the "profit-making" plot in the crime of spreading obscene materials for profit, but can only constitute the crime of spreading obscene materials. The specific reasons are as follows: The use of obscene videos by 1. to attract customers and then sell products for profit does not belong to the situation of using the Internet to spread obscene materials for profit as stipulated in legislation and judicial interpretations. The crime of obscene materials corrupts the social atmosphere, corrupts people's soul, and induces other crimes. Therefore, the criminal law of our country has been increasing its crackdown. Article 170 of the 1979 Criminal Law stipulates that "whoever produces or sells pornographic books or paintings for the purpose of profit shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and may also be fined". At that time, the crime of this article was the crime of making and selling obscene books and paintings. The law did not provide for the production and sale of obscene materials other than obscene books and paintings, and other acts related to obscene materials. Article 2 of the Decision of the Standing Committee of the National People's Congress on Punishing Criminals Who Smuggling, Producing, Selling or Disseminating Obscene Articles (hereinafter referred to as the Decision) of December 28, 1990 stipulates: Whoever, for the purpose of making profits, ...... sells obscene articles shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be sentenced to a fine or confiscation of property. Article 8 of the "Decision" defines obscene materials as "books, periodicals, films, video tapes, audio tapes, pictures and other obscene materials that specifically depict sexual behavior or explicitly promote pornography". The "Decision" changed the object of the crime of making and selling pornographic books and paintings in Article 170 of the 1979 Criminal Law from the original pornographic books and paintings to obscene books, films, video tapes, audio tapes, pictures or other obscene materials. The statutory maximum penalty has also been increased from the original three-year fixed-term imprisonment to life imprisonment, and the provisions on unit crimes have been increased, which has greatly increased the punishment for such crimes. On the basis of the comprehensive absorption of the "Decision" in the Criminal Law of 1997, a crime of organizing obscene performances was added, which also demonstrated the determination of our government to punish the crime of obscene materials. However, in 1997, the criminal law did not specify the standard of "profit-making" when amending the criminal object and sentence of the crime of spreading obscene materials for profit. Until 2004, the Supreme People's Court and the Supreme People's Procuratorate jointly issued the "Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases Using the Internet, Mobile Communication Terminals, and Voice Stations to Make, Copy, Publish, Sell, and Disseminate Obscene Electronic Information" (hereinafter referred to as "Interpretation"). Article 1 of the "Interpretation" clearly stipulates: "For the purpose of making profits, those who use the Internet or mobile communication terminals to produce, copy, publish, sell and disseminate obscene electronic information, publish, sell and disseminate obscene electronic information by means of membership system, with more than 200 registered members, or use obscene electronic information to collect advertising fees, membership registration fees or other fees, with illegal gains of more than 10000 yuan, Convicted and punished for the crime of making, copying, publishing, selling or disseminating obscene articles for profit." This provision confirms at the level of judicial interpretation that the dissemination of obscene electronic information for profit includes both direct and indirect profit-making. Among them, direct profit-making means that as long as the perpetrator completes the crime of spreading obscene materials, he can directly obtain illegal profits. The specific manifestations are as follows: first, the perpetrator directly disseminates obscene electronic information through the website to obtain high network fees or short message fees; second, the user registers to join the obscene website and becomes a member through payment to watch or obtain obscene information. Indirect profit-making means that after the perpetrator has completed the criminal act of spreading obscene materials, it is necessary for the perpetrator or a third party to carry out other acts in order to obtain profits. Indirect profit-making is a newer and more popular way of making profits, mainly by providing free obscene information files to attract network users, increase the click-through rate of the website, and improve the popularity of the website, so as to attract advertisers and obtain high advertising fees. Different from the traditional direct profit-making method, the benefits obtained by indirect profit-making do not come directly from obscene materials, but from commercial advertising revenue paid by third parties. The spread of obscene materials plays a role in promoting the generation of benefits. In this case, Zhang Moumou posted obscene video links in multiple WeChat groups he formed, with the intention of increasing popularity and increasing attention to the male health products he sold, thereby creating business opportunities for the sale of legal products and increasing the probability of transactions. The behavior itself did not directly charge the members of the group, nor did it earn high advertising fees. The key to Zhang's profit is the profit from the sale of male health products, which is obviously different from the profit-making method identified in the 2004 interpretation. 2., according to the principle of adaptation of crime, responsibility and punishment, Zhang's behavior should not be identified as the crime of spreading obscene materials for profit. According to the provisions of Article 364 of the Criminal Law, those who spread obscene materials shall be sentenced to a maximum of two years' imprisonment without a fine. As for the crime of spreading obscene materials for profit, because it has the subjective purpose of "making profits", the social harmfulness of its behavior is obviously greater than that of simple communication, and the criminal law has obviously cracked down on it. According to the provisions of Article 363 of the Criminal Law, the legal maximum penalty for the crime of spreading obscene materials for profit can be up to life imprisonment, and at the same time a fine or confiscation of property. It can be seen that whether a certain act of spreading obscene materials can be recognized as having a profit-making purpose becomes the key to determine what kind of crime and what kind of legal punishment is applicable. In this case, Zhang Moumou's use of obscene materials to solicit customers to sell products does not belong to the profit-making situation expressly stipulated in the 2004 Interpretation. Whether it can be recognized as other indirect profit-making methods requires the judge to conduct justice on the "profit-making" plot. Interpretation. According to the requirements of the principle of adaptation of crime and punishment, when we interpret the terms of a crime, we need to consider the statutory penalty stipulated in the law and the severity of the sentence that may eventually be pronounced according to this law, so that the conclusion of the interpretation conforms to the principle of adaptation of crime and punishment. The crime of spreading obscene materials for profit is only because it needs to be "for profit" in the constituent elements, and the statutory penalty is far more important than the crime of spreading obscene materials. For this reason, we should strictly interpret the "profit-making" plot, so as to exclude those minor acts of spreading obscene materials for indirect profit from the crime. The modesty of criminal law is one of its fundamental principles, and penalties can only be used if they are forced to do so, and those who can use lighter penalties should not be sentenced to heavier penalties. Judging from the provisions of the "Interpretation" in 2004, the "profit-making" of the dissemination of obscene materials on the Internet mainly includes two ways: directly charging service fees for the dissemination of obscene materials, and indirectly earning high advertising fees through websites or web pages. Either way, the interests obtained by the perpetrator come from the obscene electronic information or the act of spreading obscene electronic information itself. There is a direct and inevitable causal relationship between the way of making profits and the act of spreading obscene electronic information. In this case, Zhang Moumou, as a micro-trader, set up a WeChat group to continuously add people to the group and publish obscene video links in the WeChat group for group members to browse. The purpose is to expand the audience of the goods sold, increase trading opportunities and increase the sales volume of the goods. In other words, Zhang's publication of obscene materials in WeChat groups does not necessarily lead to an increase in the sales of male health products he sells. Zhang's final benefit comes from the male health products sold, not the obscene materials themselves or the act of spreading obscene materials. There is no direct and inevitable causal relationship between this profit-making method and the act of spreading obscene materials. In addition, in the 1. second instance of this case, the public prosecution organ did not provide evidence to confirm Zhang's actual profit. However, Zhang Moumou used obscene materials in the WeChat group to solicit customers to sell products. The court of first instance found that it constituted the crime of spreading obscene materials and sentenced him to one year and six months. The court of second instance adopted the protest opinion of the procuratorate and held that it constituted the crime of spreading obscene materials for profit, and sentenced Zhang to three years' imprisonment and a fine of 5000 yuan. The different determinations of the same facts by the court of first and second instance made Zhang's sentence very different, which obviously violated the principle of adaptation of crime, responsibility and punishment and the modesty of criminal law. Therefore, the author believes that in the case of Zhang Moumou using obscene videos to solicit customers to promote products, the court of first instance determined that the behavior only constituted the crime of spreading obscene materials. The facts were found to be correct and the applicable law was accurate. Zhang Moumou's judgment on the court of first instance It is also recognized. The court of second instance adopted the protest opinion of the procuratorate to change the crime, believing that Zhang's behavior was an indirect profit-making situation, and then found him guilty of the crime of spreading obscene materials for profit, and sentenced him to three years' imprisonment and a fine of 5000 yuan. The judgment thinking and determination logic of the court of second instance are obviously contrary to the spirit of the 2004 Interpretation, and also violate the principle of consistency of crime, responsibility and punishment and the principle of modesty of punishment, which is an error in the application of law.

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