Author of this article ||Lawyer Deng Xiangbin ||Criminal defense lawyer of Guangqiang Law Firm

Doubtful non-prosecution in cases of assisting in organizing prostitution from the perspective of non-prosecution decisions (Part I)

Preamble:

The decision not to prosecute issued by the people's procuratorate is a determination that the perpetrator will not be pursued for criminal responsibility. Summarizing the reasons for not prosecuting a case is an important inspiration for criminal lawyers to handle the defense of specific cases and find arguments in cases.

A decision not to prosecute refers to a disposition decision where, after reviewing a case transferred for prosecution by a public security organ or a case that has been completed by the public security organ's investigation and a case that has been completed by the public security organ's own investigation, it finds that it does not meet the requirements for prosecution or that it is not necessary to prosecute, and does not submit it to the people's court for trial and pursue criminal responsibility in accordance with law.

There are three types of non-prosecution decisions, including statutory non-prosecution (also known as absolute non-prosecution), discretionary non-prosecution (also known as relative non-prosecution), and insufficient evidence to prosecute (also known as doubtful non-prosecution). The legal provisions are based on paragraphs 1 and 2 of Article 177 and paragraph 4 of Article 175 of the Criminal Procedure Law (revised in 2018).

The study of non-prosecution in cases of organized prostitution can provide a practical reference for lawyers' effective defense in the stage of case transfer for review and prosecution, and has extremely important practical significance for effective criminal defense.

In this article, the author systematically sorts out and summarizes the decision not to prosecute for the crime of assisting in organizing prostitution (non-prosecution in case of doubt), and selects typical cases for readers' reference.

1. The concept of the offence of assisting in the organization of prostitution

The crime of assisting in organizing prostitution refers to the conduct of assisting in activities, creating conditions, providing assistance, or removing obstacles in the joint crime of organizing others to engage in prostitution.

2. What is non-prosecution in doubt

Article 175 of the Criminal Procedure Law of the People's Republic of China: When a people's procuratorate reviews a case, it may request that the public security organ provide evidence materials necessary for court trial; Where it is found that there might be circumstances of illegal evidence gathering as provided for in article 56 of this Law, they may be required to explain the legality of the evidence gathering.

When the people's procuratorate reviews a case, it may return it to the public security organ for supplemental investigation if it is necessary to supplement the investigation, or it may conduct the investigation on its own.

In cases of supplemental investigation, the supplemental investigation shall be completed within one month. Supplementary investigations are limited to two times. After the supplementary investigation is completed and transferred to the people's procuratorate, the people's procuratorate is to recalculate the time limit for review for prosecution.

In cases of secondary supplemental investigation, where the people's procuratorate still finds that the evidence is insufficient and does not meet the requirements for prosecution, it shall make a decision not to prosecute.

According to the law, non-prosecution in case of doubt means that a decision not to prosecute should be made when the evidence in the case is insufficient, and it cannot be proved that the criminal suspect has constituted a crime or needs to be investigated for criminal responsibility in accordance with the relevant provisions of the Criminal Law, and the conditions for prosecution are not met.

3. Cases of non-prosecution if there is a doubt about the crime of assisting in organizing prostitution

1. It is found that the facts of the crime in which the number of prostitutes in the prostitution establishment exceeded two or more during the period of the perpetrator's participation are unclear, the evidence is insufficient, and the requirements for prosecution are not met.

Basic facts of the case:

T Procuratorate No. 1 Criminal Non-Prosecution (2020) No. 25

F, together with P (sentenced) and W (sentenced), repeatedly organized a number of prostitutes to engage in illegal prostitution activities at the massage parlor No. **Avenue** in District X. Among them, F is responsible for bookkeeping, guest reception, room arrangement, and lady arrangement.

Grounds for non-prosecution:

After the procuratorate's review and return for supplementary investigation, it was still found that the investigating organ's determination that the facts of the crime in which the number of prostitutes in the prostitution establishment exceeded two or more during the period of F's participation were unclear, the evidence was insufficient, and the conditions for prosecution were not met, and it decided not to prosecute F.

2. The facts of the crime determined by the investigating organs are unclear, the evidence is insufficient, and there is insufficient evidence to prove that the perpetrator clearly knew that the club was engaged in organizing prostitution activities, and does not meet the requirements for prosecution.

Basic facts of the case:

A Public Prosecution Criminal Non-Prosecution (2020) No. 14

Y invested in the registration of *** club, and H served as the legal representative, and the health department of the club organized more than ten prostitutes to provide masturbation and other erotic services. From August 2018 to May 2019, Y and H decided to launch a "new" package to provide erotic services such as oral sex. Mr. W serves as the accountant of the club, responsible for daily statistics and verification of daily operating income and expenses, payroll, management of the club's finances and other related work.

Grounds for non-prosecution:

After the procuratorate reviewed and returned the case for supplementary investigation, it still found that the facts of the crime determined by the investigating organ were unclear and the evidence was insufficient, and there was insufficient evidence to prove that W clearly knew that the club was engaged in organizing prostitution activities and did not meet the requirements for prosecution, and decided not to prosecute W.

3. The facts of the crime identified are unclear and the evidence is insufficient, and the available evidence cannot prove that the perpetrator meets the standards for criminal prosecution and does not meet the requirements for prosecution.

Basic facts of the case:

S Procuratorate Non-Prosecution (2020) No. 55

Mr. F served as the manager of Hotel X, X Street, S District, S City, and took advantage of his position to collect benefits from Mr. O, and facilitate the issuance of prostitution cards by Mr. O, Mr. L, and others in Hotel X, and illegally made a total of 2,000 yuan.

Grounds for non-prosecution:

After the procuratorate reviewed and returned the case for supplementary investigation, it still found that the facts of the crime determined by the investigating organs were unclear, the evidence was insufficient, and the available evidence could not prove that the perpetrator met the standards for criminal prosecution and did not meet the requirements for prosecution, and decided not to prosecute F.

4. The evidence used to prove that the perpetrator subjectively knew that the company he handled and opened was engaged in illegal and criminal activities before helping others use his or her own identity information to go through the company's relevant formalities is insufficient, and does not meet the requirements for prosecution.

Basic facts of the case:

Located in the "X Foot Bath Business Department" located in X Road, X District, X City, X Province, it registered its industrial and commercial business license in the name of S in 2018, but the actual controller of the foot bath business department is Q. Q started its business in 2017, and was previously named "X" Club, but its business license was registered as "X Foot Bath Business Department"), and the store operates a separate private room and rented house set up in the store as a fixed place for engaging in sex trafficking. Q used S's identity information to apply for the store's business license and bank account, and at the same time engraved the private seal named S and the official seal of the X foot bath business department.

Grounds for non-prosecution:

After the procuratorate reviewed and returned the case for supplementary investigation, it still found that the evidence of the crime determined by the investigating organ was insufficient. This case was used to prove that S had insufficient subjective knowledge that the company he had opened was engaged in illegal and criminal activities before helping others use his identity information to go through the company's relevant formalities, and did not meet the requirements for prosecution, and decided not to prosecute S.

5. The perpetrator worked as an accountant in a bathing center with a business license, engaged in general service or labor work, only received normal salary, and did not participate in the management, shareholding, and dividends of the bathing center, and the available evidence cannot prove that he carried out acts such as recruiting or transporting people or acting as bodyguards, thugs, or bookkeepers for others knowing that they were committing criminal activities of organizing prostitution, so their conduct does not meet the requirements for prosecution.

Basic facts of the case:

L Procuratorate Public Prosecution Criminal Non-Prosecution (2018) No. 18

The bathing center on X Road, L District, B City, which provided pornographic services, was seized by the public security organs in L District, and L worked as an accountant in the center.

Grounds for non-prosecution:

L X worked as an accountant in a bathing center with a business license, engaged in general service and labor work, only received normal salary, and did not participate in the management, shareholding, and dividends of the bathing center, and the available evidence could not prove that he had carried out acts such as recruiting and transporting people or acting as bodyguards, thugs, and bookkeepers for others knowing that they were organizing prostitution criminal activities, so L X was suspected of assisting in organizing prostitution and was withdrawn from investigation for the second time, but still found that the evidence was insufficient and did not meet the requirements for prosecution, and decided not to prosecute L.

Summary:

Judging from the above cases, the main reason for the non-prosecution in the case of assisting in organizing prostitution is that the subjective and objective elements of the constituent elements of the crime lack the necessary evidence to prove them, so as to obtain the result of non-prosecution.

In the first case, none of the evidence on record could prove that there were more than two prostitutes in the prostitution establishment during the period in which the perpetrator participated; In the second case, although the perpetrator worked as an accountant at a pornography-related club, none of the evidence in the case could prove that he knew that the club was engaged in organizing prostitution activities and provided accounting services to it. In the third case, the available evidence could not prove that the perpetrator met the standard for criminal prosecution; In the fourth case, there is insufficient evidence to prove that the perpetrator had subjective knowledge that the company he opened was engaged in illegal and criminal activities before helping others to use his identity information to go through the company-related procedures; In the fifth case, the available evidence could not prove that the perpetrator had recruited or transported people, or acted as bodyguards, thugs, or bookkeepers for others, knowing that they were committing criminal activities of organizing prostitution.

Therefore, in practice, when the case of assisting in organizing prostitution has reached the stage of review for prosecution, the defense lawyer may strive for the client not to prosecute if there is any doubt based on the specific circumstances of the case, synthesizing the evidence in the case, and referring to the above-mentioned circumstances of non-prosecution in doubt.

#协助组织卖淫案##不起诉#