| From the birth of the Internet, the electronic information with pornography has targeted network, the largest audience information platform, by upgraded forms and contents; especially in recent years, such criminal offence as using mobile phone or mobile phone website to spread electronic information with pornography has become a malignancy in cyberspace, once very rampant.How to punish a crime related with pornography under the principle of a legally prescribed punishment for a specified crime in accordance with the criminal law and relevant judicial interpretations? From the current judicial practice and theoretical research of our country, the research of crimes related with pornography is of great theorecical importance, which can provide a reasonable punishment for a crime related with pornography in practice.At present, electronic information with pornography belongs to obscene articles that are prescribed in the criminal law, which is not only widely acknowledged by people in theory and in practice in China, but also generally recognized in the foreign criminal law.It is reasonable for electronic information with pornography to be prescribed as obscene articles in Judicial Interpretation. But due to the complexity of information technology, it is not easy to define accurately the essence of electronic information with pornography. Obviously, the correct definition of the essence of electronic information with pornography will undoubtedly help the understanding of Judicial Interpretation made by the Supreme People’s Court of Law as well as the conviction and punishment of relevant cases.But with the development of society, people are becoming more and more tolerant towards the social phenomena containing information with pornography; especially when our society is in rapid development, people’s ideas are changed accordingly.Those articles that are included in pornographic information yesterday may be cleared out today. Consequently, a dynamic opinion is quite necessary for the judgement of electronic information with pornography.Crime related with electronic pornography is an important part of the current network crime. The study on them will improve the anti-computer crime theory system, and further enrich the theory of criminal law in China. From some focus cases, such as a "nude chat" case,"prostitution with message" case, which caused many disputes, the pornographical electronic information as mentioned in the judicial interpretation is still unclear. However, some electronic information with pornography does cater a kind of human need. Therefore, the infringement upon lawful rights and interests as well as asphyxia of the Internet will become unavoidable if in practice extending even panning criminal punishment to the acts of disseminating electronic information with pornography.Therefore, under the principle of a legally prescribed punishment for a specified crime, it is the boundary of punishing the related crime and non crime to attribute the reasonable definition, the nature, types and the general standard of judgment of electronic information with pornography. The biggest characteristic of crimes related with electronic pornography is the behavior, including behavior results and other circumstances. What especially needs further study is the variety of behaviors.Compared to real life, in which the actor lends, rents or sells the obscene goods to others face to face, the way of Network dissemination of electronic information with pornography is more rich and complex. Especially when the implementation of crimes related with electronic pornography is mostly by computer system, the identification of these crimes needs further confirmation.Under normal circumstances, the behaviors of using the internet to spread pornographic materials include uploading and downloading pornographic materials, establishing hyperlinks point to display obscene articles, and some network help.Moreover,in the process of determination of crimes related with electronic pornography, the number of obscene articles, the click number of pornographic information, the registered number of pornographic sites, as well as the profit level of communicators in a crime related with electronic pornography all influence conviction and sentencing in different aspects.In China, every network user shall not illegally publish pornographic electronic information; each website builder and each controller directly responsible for website has the reason to believe that nobody else will publish electronic pornography on his site.In the judicial level, judicial authorities shall strictly abide by the principle of a legally prescribed punishment for a specified crime and shall not prescribe or identify a specific case by the means of fiction. Based on the analysis, the act of perpetrating concerning crimes related with electronic pornography (profit-making or non-profit-making) shall be embodied in such actions as using internet, the mobile communication terminal, and information service center to produce, copy, publish, sell and communicate pornographic electronic information, that is, directly violating the management order in the Chinese cultural market relating to sexual morality.Thus, in the crimes related with electronic pornography,only the direct actions of producing,copying,publishing,selling,and communicating pornographic electronic information are regarded as criminal behaviors(formally taking the concept of criminal), while other actions are considered common behaviors.(helping behavior or instigation behavior)Taking such knowledge systems as modern criminal law (especially the criminal law theory of cyberspace), Social Science, Criminology, the computer information technology as the leading theory analysis methods, with the combination of practical investigation, an empirical analysis of the focus cases, etc., it is possible to form an analysis system to study crimes related with electronic pornography not only in theory but in practice.As for the criminal punishment of the offender of pornographic electronic information crime, we should determine the charge and give the sentencing. In the course of conviction and weighing of punishment of pornographic electronic information crime, we should make a distinction between one crime or several offences. Furthermore, we should firmly implement the policy of quick and severe punishment according to law, in the course of inflicting punishment on the offenders. We should also maintain a Cautious attitude to the policy quick and severe punishment according to law. When determining the Sentencing circumstances, we should consider the specific legal practice, and rationally determine all kinds of sentencing circumstances, so as to avoid the unfairness in the course of sentencing. |
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