Study On The Criminal Law Regulation Of Illegal Publication Of Bl Personal Novels

The content of BL literature is to describe male love.In the past ten years,it has formed a kind of subculture phenomenon with an expanding audience.BL personal novels are born in response to the needs of a large number of BL audiences,this kind of self-publishing publications that do not go through formal publishing channels are sold through network studios and have gradually formed a mature mode of operation.Meeting the needs of writers,Network Studios and readers,there are also many negative effects at the same time.In terms of content,there may be a certain risk of pornography,violence and bad orientation,and because the profits are directly divided between the studio and the author,there is the possibility of tax evasion.Compared with other illegal publishing activities,it has obvious particularity,Most BL personal novels have already been vetted and published online before publication,and those who buy it to keep it in print have read the original online work.Circulation is based on demand and is difficult for the general public to access,and there is no ownership dispute over copyright.After sorting out the relevant legal provisions on illegal publication,I divide illegal publication into two categories: content violation and procedural violation.Content violation refers to illegal publication containing rebellious,insulting or obscene contents,procedural violation refers to the publisher's behavior of publishing without publishing permission or not fulfilling the formal publishing procedures,both of which may be involved in the illegal publication of the BL personal novels.Through two typical cases,I analyze the situations that the crime of making,copying,publishing,selling and spreading obscene articles for profit and the crime of illegal business operation are respectively applied to the illegal publication of BL personal novels,and finds the criteria for determining the "obscenity" of obscene articles and the identification agencies should be further clarified.In the determination of obscenity,Japan mainly adopts the standard of "social universal concept",judges make judgments according to the cognition of the general public,while the United States refines the concept of "Contemporary Community Standard" on the basis of a series of cases,it is up to the jury to determine,based on the perception of the particular community,and the literary,artistic,political or scientific value of the work could counteractobscenity.I suggest that we should take an objective and descriptive approach to specify the criteria for the identification of obscenity as much as possible,and at the same time give it a certain degree of flexibility by referring to "social communication" or "contemporary community standards",making the definition of obscenity itself have an inherent vitality that keeps pace with the Times.In the subject of identification,the Administrative Department of Press and publication can take the lead and set up a neutral organization which is relatively independent of the police,prosecutors and judges to identify obscene articles.When BL personal novels are identified as obscene articles,it is necessary to adopt criminal regulations,at the same time,we should reconstruct the identification standard of the serious circumstances in the relevant judicial interpretation.If the identification conclusion of BL personal novels is not obscene,in view of the principle of “no penalty without a law ” and the modesty of Criminal Law,we should interpret the elements of the crime of illegal business operation that "seriously disturb the market order and the circumstances are especially serious" in the judicial interpretation in a substantive way,and analyze the legal interests infringed by the crime of illegal business operation,and makes an objective judgment based on the related factors of the affected market.At the same time,we should go back to the essence of illegality,that is,the judgment of social harmfulness.The intervention of criminal law shouldbe limited,and the boundary between administrative punishment and criminal sanction should be made clear,to prevent the crime of illegal business operation from being expanded.