Recently, King&Capital lawyers Wang Xinlong and Li Song represented two suspected cases of dissemination of obscene materials, both of which resulted in non-approval and non-prosecution, and effectively prevented the parties from being put under administrative detention again. The lawyers obtained the basic information of the cases through meeting the suspects, combined with sincere, concise and efficient communication with the organizing police officers. And this is the basis in the review and approval period to the procuratorial organs and elaborated the relevant defense opinions. After the two suspects involved in the case, Xia Mou, He Mou (both surnamed) were not approved by the procuratorial authorities to arrest, change the mandatory measures to bail pending trial. Review prosecution stage, the procuratorial organs in accordance with the law to make a decision not to prosecute.

He mou in the procuratorial organs not prosecuted, the public security organs to make the punishment of administrative detention. In this regard, the defense counsel in accordance with the law to put forward a reasonable defense, give priority to the protection of the freedom of the client, administrative detention is not implemented. According to the Ministry of Public Security relevant approval [public reply (2004) No. 1], if the behavior of the perpetrator of criminal detention in accordance with the law and administrative detention in accordance with the law is the same behavior, the public security organs in accordance with the law of the ruling of the administrative detention, the time of criminal detention should be offset against the time of administrative detention. If the perpetrator has been placed in criminal detention for a period longer than the period of administrative detention decided upon in accordance with the law, the administrative detention shall no longer be enforced, but the decision on administrative detention must be delivered to the person being punished. Therefore, he should not be executed administrative detention, after communication to confirm, he was exempted from administrative detention.

Dissemination of obscene materials is a relatively common crime in judicial practice. In practice, the defense of this crime mainly focuses on the number of dissemination, the impact of dissemination, the harm of the content, the existence of illegal income (distinguishing between this crime and the crime of dissemination of obscene materials for profit), the existence of sentencing circumstances and other aspects. In the two cases mentioned above, our opinions on not to be arrested and not to be prosecuted mainly included the following aspects:

One

From the analysis of the behavioral characteristics of the case, the subjective malignancy of the perpetrator is small, and the social harm is relatively low.

First of all, the scope of dissemination of the video involved is a key factor. When defending against this crime, it is first necessary to consider the number of people involved, the geographical scope and other factors in order to more comprehensively assess the social harm of the crime.

At the same time, the nature and content of the obscene video is the key to the assessment of the case, and the nature and severity of the obscene information should be examined in detail in order to more accurately assess the social harm.

Finally, whether or not minors are involved is an extremely sensitive factor. If the target of dissemination involves minors, the crime is usually considered more serious and the sentence is heavier. In order to ensure that the punishment is commensurate with the crime, the court should be prompted to make a comprehensive weighing of the above factors when making a decision, so as to ensure that the punishment not only complies with the law, but also reflects the substantive characteristics of the crime.

Specific to the case:

1

From the perspective of the number of videos disseminated, the number of videos suspected of being disseminated in this case is relatively small, the length is short, and the degree of harm is relatively small.

2

From the perspective of the harmfulness of the disseminated content, the videos suspected of being disseminated in this case were not obtained in an abusive manner, nor did they involve the content of minors. The social harm is relatively small.

3

From the point of view of the source of the disseminated content, the vast majority of the videos disseminated in this case are forwarded, not produced by themselves with a deliberate plan, and are videos that have already been disseminated on the Internet.

4

From the perspective of the scope of influence of dissemination, in this case, the dissemination of the video platform can not be normally logged in our country, the scope of dissemination is relatively limited. It cannot be ruled out that the viewers come from countries and regions where the video in question is not recognized as illegal content, therefore, the number of clicks should be determined in accordance with the principle of favoring the defendant.

5

From the perspective of awareness of illegality, the perpetrator in this case did not recognize that his act constituted a crime at the beginning, and thought that he was using overseas software and the viewers were also overseas people. There was a mistake in recognizing the illegality of the law, and the subjective malignancy was relatively small.

6

From the perspective of the measures taken by the perpetrator, the perpetrator took the initiative to stop committing the acts in question, deleted the software in question at least half a year ago, and has not logged in since then. The time involved was relatively far from the time of the crime in this case.

Therefore, although the crime of dissemination of obscene materials involved in the case is mainly based on the number of relevant videos, the scope of dissemination, the illegal income, the consistent performance of the perpetrator, as well as the obscene electronic information, the dissemination of the object of whether the minors involved, and other circumstances, to comprehensively assess the social hazards, and appropriately determine the penalties, and to ensure that the crime and responsibility of the punishment are appropriate.

II

The subjective and intentional aspect of the perpetrator's dissemination of obscene materials

In handling such cases, it is necessary to carefully analyze the perpetrator's words and deeds, the motives behind the behavior, the way of dissemination and other evidence to comprehensively determine whether there is subjective intent. If the perpetrator does not have the motive of pursuing economic benefits or satisfying the need for stimulation, and only shoots the video for the purpose of recording, and does not intentionally disseminate the obscene articles, then it can be determined that the perpetrator does not have the subjective intent to commit the crime.

Three.

The perpetrator takes timely measures to delete the video and eliminate the influence

If the perpetrator takes active measures to delete the video and avoid expanding the influence, it also proves that his subjective malice is small and the social harm is not great, which is an important factor that can be considered in sentencing.

IV

The existence of sentencing circumstances in this case

Specifically, if the perpetrator exists the positive sentencing circumstances such as self-surrender, guilty plea, first-time offender and occasional offender, the lawyer should also focus on prompting the judiciary the existence of sentencing circumstances of the case when making comments.

In recent years, the dissemination of obscene material crime has been widely concern. The above defense point of view for this kind of case has certain universality, but each case has its own special place, need to combine the specific case situation carefully combing the flow of funds, comprehensive analysis of the whole case evidence, only comprehensive, detailed, accurate grasp of the defense strategy, can for the parties to fight for the best case results.