People's Justice: The nature of obscene materials should be determined by judges according to the standards of ordinary people

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Summary of the trial

The subject of judging the nature of obscene materials is the judge, and the standard of judgment followed is the standard of ordinary people in society. The appraisal of pornographic materials by public security organs and press and publication departments is an administrative determination of illegality made by administrative organs in accordance with the law, and is evidence for judges to determine the nature of pornographic materials. The nature of the obscene material should be judged by the judge in accordance with the principle of wholeness, according to the standards of ordinary people in society, and in light of the cultural environment in which the act was conducted, whether the items involved in the case are obscene and of scientific and artistic value.

Basic facts of the case

Public prosecution organ: Shanghai Huangpu District People's Procuratorate.

Defendants: Zhang Wenxiao, Yuan Lubiao, Feng Xuan, Xia Yi Mardan Litifu, Nancy.

Zhang Wenxiao set up Beijing Xiaoyan Technology Co., Ltd. (hereinafter referred to as Xiaoyan Company) and served as the legal representative, organizing a number of female models to take nude photos and videos in many public places in Beijing, Shanghai, Guangzhou, Shenzhen, Xiamen and other cities, including university campuses and shopping malls, and successively hired Feng Xuan and Yuan Lubiao from 2018 to early 2019 to be responsible for photography, videography and editing of videos and photos, and defendant Shayi Mardan Litifu was responsible for website maintenance and uploading photos. video, defendant Nancy is responsible for administrative management and uploading photos, videos, etc. The relevant photos and videos are edited and uploaded to website A, which is registered overseas, and the photos and videos on the website must be subscribed to and paid for membership. When subscribing, the website can be redirected to website B operated by Xiaoyan Company, where gift cards of different denominations are sold, and the purchased gift cards can be used to pay for the subscription fee of website A, and the defendant Zhang Wenxiao and others make profits in this way.

After investigation, the public security organs arrested the five defendants, and after appraisal by the Shanghai Municipal Public Security Bureau's Obscene Materials Examination and Appraisal Center (hereinafter referred to as the Municipal Bureau Appraisal Center), 1,027 photos and 55 video files were obscene materials among the photos and videos submitted for inspection. During the first-instance trial, an appraisal team composed of the Appraisal Center of the Shanghai Municipal Public Security Bureau and the Shanghai Municipal Press and Publication Bureau determined that 47 video files and 632 photos of the video and photo files submitted for inspection were obscene materials.

Adjudication Results

After trial, the Shanghai Huangpu District People's Court held that the defendant Zhang Wenxiao, together with the defendants Yuan Lubiao, Feng Xuan, Xia Yimardan Litifu, and Nancy, produced obscene photos and videos for the purpose of making a profit and disseminated them on the Internet, and their conduct constituted the crime of producing and disseminating obscene materials for profit. In the joint crime, the defendant Zhang Wenxiao is the principal offender, and the defendants Yuan Lubiao, Feng Xuan, Xia Yimardan Litifu, and Nancy are accomplices and should be given a lighter punishment in accordance with law. Defendants Yuan Lubiao, Feng Xuan, Xia Yi Mardan Litifu, and Nancy truthfully confessed the facts of the crime after being brought into the case, and may be given a lighter punishment in accordance with law. Defendants Shaymardan Litifu and Nancy pleaded guilty and accepted punishment and may be given lenient punishments. In accordance with the provisions of Article 363, Paragraph 1, Article 25, Paragraph 1 and Paragraph 4 of Article 26, Article 27, Paragraph 3 of Article 67, Article 52, Article 53, and Article 64 of the Criminal Law, and Article 15 of the Criminal Procedure Law, the defendant Zhang Wenxiao was sentenced to 2 years and 10 months imprisonment and fined 200,000 yuan for the crime of producing and disseminating obscene materials for profit; The defendants Shayimadan Litifu and Nancy were sentenced to 8 months imprisonment and fined 20,000 yuan respectively for the crime of disseminating pornographic materials for profit; the defendants Shayimardan Litifu and Nancy were sentenced to 8 months imprisonment and fined 20,000 yuan respectively for the crime of producing and disseminating pornographic materials for profit; the illegal gains and tools involved in the crime should be confiscated.

After the first-instance verdict was announced, Zhang Wenxiao and Yuan Lubiao were not satisfied and appealed. Zhang Wenxiao, Yuan Lubiao, and Yuan's defenders believe that the photos and videos involved in the case are body art, not obscene materials, and this case does not constitute the crime of producing and disseminating obscene materials for profit. Zhang Wenxiao's defender argued that the first-instance appraisal agency did not have appraisal qualifications, that the appraiser should have an interest in the case, and that the appraisal standards were confusing; the university photography professor proved from a professional perspective that the photographs involved in the case had artistic value, and that the photographs involved in the case had won awards in different photography contests before and after the first-instance judgment, so the photographs involved in the case were not obscene materials, and this case should not be found to be the crime of producing and disseminating pornographic materials for profit.

After trial, the Shanghai No. 2 Intermediate People's Court ruled to reject the appeal and uphold the original judgment.

Case Analysis

The controversy between the prosecution and defense in this case over the nature of the videos and photos involved in the case is very representative in criminal cases involving obscene materials. The focus of the dispute in this case is whether the nude videos and photos taken by the defendant in public places such as campuses and shopping malls are obscene materials. The prosecution and defense engaged in a heated debate over whether the videos and photographs in this case were found to be obscene materials based on the opinions of the joint appraisal team of the Municipal Bureau Appraisal Center and the Shanghai Municipal Press and Publication Bureau, or whether they were found to be works of art with artistic value based on the opinions of professionals such as art and photography professors. In the end, the courts of first and second instance found that the videos and photos taken by the defendants Zhang Wenxiao and others were obscene materials, and that the acts of Zhang Wenxiao and others constituted the crime of producing and disseminating obscene materials for profit. I. The appraisal opinion on the determination of the essence of obscene materials is one of the types of criminal evidence, and refers to the analysis and judgment opinions put forward by the evaluator on specialized issues from a scientific or technical perspective, and is a factual judgment. [1] Administrative appraisal refers to the appraisal of professional issues made by administrative organs and their authorized departments in accordance with the provisions of the law and on the basis of professional knowledge. Administrative designation, on the other hand, is a type of administrative confirmation, which refers to the administrative subject's determination of the legal status, legal relationship, and legal facts of the counterpart in accordance with the law. [2] An administrative appraisal is a judgment of facts, while an administrative determination is a judgment of illegality. Obscenity is a normative element in the composition of crimes, and the determination of the nature of obscene materials requires value judgment on the basis of cognitive activities. Obviously, the determination of the nature of obscene materials is a judgment of illegality, and its nature is an administrative determination. Although the term "appraisal" is used in the relevant regulations of the State Press and Publication Administration, the Ministry of Public Security and other departments on the identification of pornographic materials, and in practice, the public security organs or the press and publication departments have applied the cloak of appraisal to the identification of pornographic materials, but in essence it is still a determination of illegality. For some specialized technical issues, judges lack relevant professional and technical knowledge, and need evaluators to analyze and judge specialized issues. For such factual judgment results, i.e., appraisal opinions, if the appraisal institution or evaluator has the corresponding qualifications and the appraisal procedures are lawful, the appraisal opinion should be the factual basis for the judge's judgment of illegality. The role of the administrative determination of obscene materials in criminal trials is essentially the relationship between the administrative law and criminal law significance of the same article. Although for the purpose of uniformity of legal order, the interpretation of the constituent elements of criminal law cannot ignore the provisions of the relevant administrative law, in particular the literal conceptual terminology. [3] It is precisely for this reason that in practice, in cases involving pornographic materials, the public security and press and publication departments will determine the nature of pornographic materials, but this administrative determination is not mandatory and superior to the judicial authorities in handling legal issues. In this case, the nature of the appraisal of obscene materials issued by a joint appraisal team composed of the public security organs and the press and publication departments was an administrative determination. In the trial, the judge's judgment on the nature of the obscene material is not determined by the administrative determination. In this case, the defender argued that the joint appraisal team did not have the qualifications for appraisal and had an interest in the case, which violated the procedural provisions on recusal. As mentioned above, the appraisal is not a judicial appraisal opinion, and the review of the administrative determination does not apply to the review procedure of the appraisal opinion. According to the provisions of the 1993 Circular of the Press and Publication Administration and the Ministry of Public Security on Issues Concerning the Appraisal of Obscene Videotapes and Pictures, the press and publication management departments at or above the provincial level and the audio-visual centralized management departments shall be responsible for the appraisal of other publications officially published and distributed by domestic publishing units; Where parties submit different opinions on the appraisal conclusions and need to be re-evaluated, an appraisal team composed of departments such as for publicity, press and publication, audio-visual centralization, and public security organs at the prefectural or municipal level shall conduct a new evaluation. The standards for the evaluation of obscene videotapes and pornographic images are to be implemented in accordance with the relevant provisions issued by the Standing Committee of the National People's Congress, the State Council, and the Press and Publication Administration. After Zhang Wenxiao et al. and their defenders raised different opinions on the original appraisal opinions, the court of first instance entrusted an appraisal team jointly formed by the Municipal Bureau Appraisal Center and the Shanghai Municipal Press and Publication Bureau to conduct an appraisal, which complied with the provisions of the Press and Publication Administration and the Ministry of Public Security, and had the qualifications for appraisal, and the appraisal standards and procedures also complied with the provisions. There is no doubt about the qualifications of the administrative determination as evidence, and the form and content of the evidence should be reviewed by the judge as the basic information for judging the nature of the obscene material. II. Individual Differences in the Era of Obscenity and the Measurement of Scientific and Artistic Values According to the provisions of the Criminal Law, obscene materials refer to obscene books, periodicals, films, videotapes, audio tapes, pictures and other obscene materials that specifically depict sexual acts or explicitly promote pornography. Scientific works on human physiology and medical knowledge are not obscene materials, and literary or artistic works with artistic value that contain pornographic content are not considered obscene materials. From this provision, it can be seen that the identification of obscene materials needs to meet the requirements of both positive and negative aspects, that is, the positive element of the positive direction - obscene nature, and the negative element of the reverse - has no scientific or artistic value. This means that obscenity and science and art cannot exist at the same time, and in fact it is not uncommon for works to have both obscene and scientific and artistic values. Whether it is obscene or scientific and artistic value, the judgment of these two attributes greatly depends on the value orientation of people, and different individuals may have completely different feelings about the judgment of obscenity and artistic value due to different experiences, cultures, and artistic accomplishments. However, the people who judge the obscenity may not be able to identify the value of science and art, but those who recognize the value of science and art have already noticed the obscenity, and their judgment of the value of science and art is often based on the analysis of obscenity, and they believe that obscenity is a kind of reflection, criticism, ridicule, and a means to highlight the value of art. Some chapters of "Dream of Red Chambers" also have a large number of white descriptions of sexual acts, but "Dream of Red Mansions" is not only not considered obscene, but has become a classic masterpiece because of its portrayal and criticism of human nature and the times. Sichuan painter Li Zhuangping created the oil painting "Oriental Goddess Mountain Ghost Series" with his daughter's nude, and different groups of people have completely different evaluations of the paintings. However, "Dream of Red Mansions" was considered a banned book for a long period of time, and similar works with advanced artistic concepts like "The Goddess of Wushan", the mainstream evaluation of it in the future may also be different. From these two examples, it can be seen that the nature of obscene materials should be judged first of all by following the principle of wholeness, secondly by the standards of ordinary people in society, and finally by considering the cultural environment in which the act was conducted. (1) The Principle of WholenessThe common law system has the famous Ross formula for judging obscenity, and obscenity is judged according to the standards of wholeness, ordinary people, and modern communities. [4] It can also be seen from the provisions of the Criminal Law of the Mainland on obscene materials that the artistic value of literary and artistic works is the overall evaluation of the work, reflecting the principle of wholeness in judging the nature of obscene materials. If the overall artistic and cultural value is denied only because there are pornographic descriptions in individual passages or lengths in the work, then many masterpieces in the fields of literature and art in ancient and modern China and foreign countries will be branded as obscene materials. (2) The standard for judging the nature of pornographic materials should be based on the views of professionals or the feelings of ordinary people in society, which can be glimpsed from the basis for punishment for crimes of pornographic materials. Most of the criminal law scholars recognize the theory of infringement of legal interests, and the philosophical basis of the theory of legal interests is utilitarianism, that is, the purpose of law is to "pursue the happiness of the greatest number of people", and if there is no infringement of legal interests, criminal punishment cannot be initiated, that is, the principle of damage. [5] Utilitarianism, in its development, held that offense was also a form of damage, and that if the act offended others, it should also be limited by law. In mainland criminal law theory, it is generally believed that the punishment basis for the crime of obscene materials is that the disclosure of pornographic materials is harmful to the concept of normal sexual behavior of ordinary people and makes ordinary people feel ashamed,[6] which is the embodiment of the offense theory, but the offense theory cannot fully explain the position of the mainland criminal law on the punishment of the crime of obscene materials. The Criminal Law of the People's Republic of China stipulates five types of crimes involving obscene materials, and the punishment rules for these crimes have a clear orientation, that is, the punishment for profit-making is heavier than free, the punishment for blatant dissemination is heavier than covert dissemination, and the punishment for juvenile crimes is heavier than for adult crimes. It is difficult to explain the offensive theory that the criminal dissemination of obscene materials for profit is more concealed than that of free dissemination, and the audience of the dissemination is smaller, but the punishment is heavier. In this regard, some scholars believe that the mainland's criminal legislation on pornographic materials takes into account the moralistic, paternalistic, and utilitarian positions, and that no monistic stance can clearly explain the rationality of the mainland's criminal legislation on pornographic materials. [7] For example, the moralistic theory of prohibition of exploitation holds that the exploitation of obscene material is to exploit the weakness of human nature and to gain advantage of it, which is clearly more immoral, which may explain the heavier punishment for the crime of profiting from obscene material. Whether it is utilitarianism, which pursues the greatest happiness for the greatest number of people, or moralism, which believes that "society is a community of ideas, and society cannot exist without sharing ideas about politics, morality, and ethics",[8] or other complementary interpretations, they all reflect that the law has to take into account the concepts and feelings of the greatest number of people and ordinary people when evaluating the nature of obscene materials. Therefore, the basis for punishment for the crime of obscene materials determines that the judgment of the nature of obscene materials should follow the standards of ordinary people in society. (3) The cultural environment at the time of the actAlthough it is difficult for the general public to gain the aesthetic feelings of purity, beauty and courage from the oil painting of "The Goddess of Wushan", it is undeniable that there is no shortage of fans among art professors, painters and other people. If it is considered that the exhibition and trading of the "Goddess of Wushan" series of oil paintings to professionals in the avant-garde art exhibition constitutes the crime of obscenity, it seems that it also violates the public's simple concept of justice on crime and punishment, which shows that the oil paintings of "The Goddess of Wushan" still have their intrinsic value. In 1973, the U.S. Supreme Court, in Miller v. California, amended the Ross formula to find that obscene material lacked "serious literary, artistic, political, or scientific value." The place where the actor is located, the object he is facing, and the surrounding cultural context are all factors that reflect whether the serious value is asserted and recognized. Therefore, the cultural environment in which the act was conducted should be taken into account when judging the nature of the obscene. 3. Judges should judge the nature of pornographic materials according to the standards of ordinary people in society, and there is a kind of trial inertia in the trial of crimes involving pornographic materials, that is, the judgment of the nature of pornographic materials should adopt the administrative determination of the administrative organ. In this case, the defendant and his defender objected to this inertia, arguing that it was contrary to procedural justice for the public security organ, as the case-handling organ, to issue an appraisal of the nature of the obscene material in this case, and that the videos and photographs taken by the defendant should be determined to be works of art based on the views and feelings of professionals such as art and photography professors. Essentially, this view is to transfer the right to determine the nature of obscene materials from the hands of administrative authorities to experts with professional artistic qualities. In criminal trials, the determination of the nature of obscene materials is directly related to the issue of crime and innocence, so there is no doubt that the judicial determination of the nature of obscene materials should be in the hands of judges, who should make value judgments on the nature of the items involved in the case and determine whether they are pornographic materials based on the standards of ordinary people in society and comprehensively considering the cultural environment in which the act was conducted. First of all, it should be up to the judge to conduct an evidentiary review of the administrative determination of obscene materials. At present, there are still different opinions in practice on what type of evidence should be used for the review of an administrative determination, but no matter what kind of evidence is theoretically classified, as long as it is used as evidence in criminal proceedings, it can be reviewed according to the elements of evidence. Formally, it is necessary to examine whether the subject of the administrative designation has the corresponding qualifications and authority, and even the competent administrative entity can only make the administrative determination within the scope of its authority; examine whether the administrative determination is genuine, whether the items pointed to by the determination are the same as the items involved in the case, and whether there are omissions or duplications in the quantity; and in terms of content, it is necessary to examine whether the normative documents followed by the administrative determination are effective, whether the evaluation standards for similar items are uniform, and so on. Second, for works that may have both obscene and scientific and artistic value, the principle of wholeness should be followed in determining whether they are obscene. For the videos and photos taken by Zhang Wenxiao, it is necessary to start from the whole and consider the value and significance of obscenity to the whole. Most of these videos and photos are based on the theme of nudity in public places and other places, and are not communicated and displayed at the artistic level, but cater to sexual fetishes through the Internet, pursue excitement and attract people's attention, and are not automatically recognized as having artistic value. Thirdly, the identification of obscene materials should follow the standards of ordinary people in society, and the judgment standards should be based on ordinary people's shame about sex and good sexual morality, and universal values should be injected into legal judgments. [9] However, the perspective of ordinary people in society is always influenced by the era in which they live, so the review and judgment should be based on the social customs and national cultural background of the place where the act was made. [10] In this case, the photos and videos involved in the case were taken in some landmark buildings, libraries and other public places, and some videos with titles such as "suddenly took off his clothes in front of the bus stop in a public place and were naked for dozens of seconds" and "when there are male maintenance workers in the house, take off all his clothes" and other videos have been divorced from the reality of life, judging by the good concepts of ordinary people in society, and cannot appreciate the beauty of art, and cannot only draw the conclusion that they have artistic value from the perspective of professionals and art professors and from the perspective of surrealism. Finally, consider the cultural context in which the perpetrator acts. In this case, the defender pointed out that a number of photography and art professors believed that Zhang Wenxiao's works "interpret the depression and loneliness of young people in the hustle and bustle of the city in a surrealist style, and are Zhang Wenxiao's artistic practice activities to think about the real society with philosophical thoughts". However, in this case, Zhang Wenxiao provided the videos and photos he took to the public on overseas websites for no difference and for a fee, and provided monthly and annual gift cards and other sales methods, which can hardly be considered as trading works of art with "philosophical thoughts" and "interpretation of oppressive loneliness", and asserting the serious artistic value of videos and photos. [Note][1] Song Yinghui and Zhen Zhen, Criminal Procedure Law, Chinese Renmin University Press, p. 195. [2] Ma Ansheng, Research on Administrative Behavior, Shandong People's Publishing House, 2008, p. 308. [3] Chen Xiaobiao and Liu Feng, "Research on the Judicial Application of Administrative Determination in Administrative Crimes", Journal of Southwest University for Nationalities, No. 3, 2022. [4] Joel Feinberg, The Moral Boundaries of Criminal Law: Harmless Wrongdoing, translated by Fang Quan, The Commercial Press, 2013, p. 11. [5] Sone Weihiko, Fundamentals of Criminal Law, translated by Li Hong, Law Press, 2005, p. 29. [6] Zhang Mingkai, Criminal Law, Law Press, 2016, p. 1166. [7] Luo Xiang, "On the Punishment Basis and Identification Standards of the Crime of Obscene Materials", Journal of Zhejiang Gongshang University, No. 6, 2021. [8] De Fulin, The Legal Compulsion of Morality, translated by Ma Teng, China Legal Publishing House, 2016, p. 13. [9] Jiang Xiaoyan, "The Criteria for Judging the 'Obscenity' of Obscene Materials: Based on Social Perception", Law Review, No. 1, 2011. [10] Jin Honghao and Zhang Gaoyuan, "Key Points of the 'Four Genders' Review of the Crime of Online Dissemination of Obscene Materials", China Prosecutors, No. 14, 2021. Author: Yuan Ting, Xia Jing Author's Affiliation: Shanghai No. 2 Intermediate People's Court Case No. First instance: (2021) Hu 0101 Xingchu No. 06 Second instance: (2021) Hu 02 Xingzhong No. 1152

Source: People's Justice, Cases, Issue 26, 2023.