Research On The Determination Of The Electronic Obscene Information Spreading Crime Via Network

The appearance of Internet provides favorable conditions for the rapid transmission of information but it gives nutrition for the growth of pornographic culture online as well. Electronic obscene information spreading crime via network malignantly spreads everywhere these years, seriously pollutes Internet environment and destroys sexual practice and sexual ethics. It becomes an enormous threat to the healthy development of juveniles and a tumor in the virtual space. Based on the peculiarity of Internet environment, electronic obscene information spreading crime via network has some new features when compared with traditional crime of spreading obscene articles so a series of new problems emerge in judicial determination. It is necessary and beneficial for the judicial practice to thoroughly study this crime. This article has 5 parts:Part 1 is about object determination of electronic obscene information spreading crime via network. Electronic obscene information via network refers to the digitized information that is stored on non-printable storage medium, described sexual behavior and propagates pornography. And it can reappear in picture, voice and animation on computer and such equipment. Its "obscenity" standard shall be judged subject to the current situation of Internet environment and subjective feelings of general netizens.Part 2 focuses on the behavioral pattern of electronic obscene information via network. The specific behaviors of such crimes include uploading, downloading and hyperlink. The determination of these three behaviors shall be subject to "openness" and "diffusibility". The doer would be incriminated only when the behavior causes the public spreading of electronic obscene information and has subjective culpability. "Naked chatting" is a new form of cyber pornography crime. Obscene video is made via the camera on one side and broadcasted via cameras of other computers. The electronic obscene information is transmitted and reappears in this process so "naked chatting" essentially belongs to behaviors to spread electronic obscene information.Part 3 analyzes whether some special subjects shall undertake the punishment and responsibility of electronic obscene information spreading crime. The special subjects of such crimes include network service provider, administrator of QQ group and WeChat group and surfing service places (cybercafe). Network service provider, as the omission criminal of the crime, shall have the ability and duty to review electronic obscene information and its omission results in the serious consequence specified by law. Administrators of QQ group and WeChat group may become the accomplices in the crime when they do not intervene in members spreading electronic obscene information. Cybercafe has the obligation to supervise surfing behaviors of personnel in its business scope and its responsibility is generally administrative. The cybercafe would be incriminated as an accomplice if it knows the doer is spreading electronic obscene information and still provides service. The owner of the cybercafe would be incriminated as the principal offender in the crime when he/she shares electronic obscene information in LAN.How to determine "intention" in the electronic obscene information spreading crime via network is discussed in Part 4. Cognition of such crime is a difficulty in the subjective determination. It mainly includes the cognition of the "obscenity" of electronic information and cognition of "openness" of spreading behavior. The specific determination shall be comprehensively judged by combining general cognition of citizens and empirical law. The other difficulty in subjective intention determination of such crime is the judgment of the "awareness" of network service provider. It shall be determined progressively based on the factors of technical level, technical cost, review right and duty of care.Incrimination standards of electronic obscene information spreading crime via network are discussed in Part 5. Incrimination standards of the crime include "actual clicks", "quantity of electronic obscene information", "member quantity" and "profit amount". Judicial interpretation does not gives a specified calculating method so the legislative spirit and harm to the society shall be comprehensively considered in the practice.