| The online pornographic live broadcast is a by-product of the network live stream economy,and with the development of network technology and the popularization of communication equipment,the online pornographic live broadcast has gradually become a common and high-incidence illegal crime.In today’s society,it has gradually become a consensus that online pornographic live broadcast is illegal.However,due to the short rise of online live broadcast,the relevant provisions in the current legal norms system,especially in the criminal department law,are still very deficient.At present,there is still a great controversy about the legal nature of online pornographic live broadcast,which leads to different choices of specific criminal law regulation charges.Online pornographic live broadcast is totally different from online pornographic recording and broadcasting and online "soft pornographic" live broadcast,which is fundamentally different.According to judicial practice and the number of people participating in live pornographic broadcast,online pornographic live broadcast can be simply divided into point-to-point online pornographic live broadcast and face-to-face online pornographic live broadcast.Due to many reasons,there is still no unified conclusion on the determination of the crime of punishing online pornographic live broadcasts.The main controversial viewpoints are: the conviction of organizing obscene performances,the conviction of spreading obscene articles for profit,and the conviction of gathering people for fornication.All three viewpoints are reasonable and supported by practical cases in judicial practice.In fact,if an act is illegal and constitutes a criminal crime,the criminal act must meet all the constitutive requirements of the crime,and the online pornographic live broadcast must meet all the constitutive requirements of the crime before the crime can be established.Because the online pornographic live broadcast does not have the dissemination behavior in the sense of criminal law,and in essence,it does not belong to(manufacture)obscene articles,and the profit-making purpose is not the fundamental standard for determining the nature of the online pornographic live broadcast,so the online pornographic live broadcast behavior does not constitute the crime of spreading obscene articles for profit.The online pornographic live broadcast with face-to-face participation only meets the objective elements of the crime of gathering people for fornication,which cannot solve the problem of how to punish the online pornographic live broadcast as a whole.At the same time,the subjective purpose of the online pornographic live broadcast is completely different from the subjective requirements of the crime of gathering people for fornication,and the evaluation of the online pornographic live broadcast with the crime of gathering people for fornication is contrary to the legislative purpose of this crime,so the online pornographic live broadcast does not constitute the crime of gathering people for fornication.There are a large number of organizational behaviors in online pornographic live broadcast,and in essence,online pornographic live broadcast belongs to obscene pornographic performances using information network tools,so it fully conforms to the constitutive requirements of the crime of organizing obscene performances.It can be concluded that online pornographic live broadcast should be punished by the crime of organizing obscene performances,and both individuals and units can constitute the crime of organizing obscene performances.In this paper,through literature collection,case collation and comparative analysis,in order to clarify the punishment scheme of online pornographic live broadcast,in order to be beneficial to practice. |
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