Notice concerning Earnestly Interpreting the Supreme People’s Court and Supreme People’s Procuratorate “Regulations concerning Concrete Applicable Law in Adjudicating Criminal Cases on Obscene Goods”

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27 July 1990, Administration of Press and Publications

The  “Regulations concerning Concrete Applicable Law in Adjudicating Criminal Cases on Obscene Goods” promulgated and implemented on 6 July 1990 by the Supreme People’s Court and Supreme People’s Procuratorate (hereafter simply named “Regulations”) are an extremely important judicial interpretation aimed at legal problems encountered during “sweeping pornography”, and have had a vigorous and profound influenced on correctly and forcefully attacking criminal activities of producing, peddling, disseminating and smuggling obscene goods, consolidating the achievements of “sweeping pornography”, further promoting the deep development of the “sweeping pornography” struggle, and strengthening the constant management of the book, newspaper, periodical and audiovisual markets. All localities and all departments must earnestly implement these provisions, fully give rein to the might of the law, and unwaveringly carry on the “sweeping pornography” struggle.

Under the leadership of the Party Centre and the State Council, the “sweeping pornography” struggle that has been launched since July last year has gained great achievements, criminal activities of producing pornography and peddling pornography have been strictly attacked, the situation on the book, newspaper, periodical and audiovisual markets have clearly improved, and the tendency of the grave flood of obscene and sexual publications has been basically stopped, winning strong popular support. But since March of this year, a clear “resurgence” of criminal activities of producing pornography and peddling pornography has emerged. The broad masses are extremely anxious about this, and require the adoption of further measures to investigate, prosecute and attack this.

One important reason for the “resurgence” of criminal activities of producing pornography or peddling pornography is that attacks against criminals producing pornography or peddling pornography have not been powerful, this, in turn, is related to the fact that laws are insufficiently perfect. Since launching the “sweeping pornography” struggle, the phenomena of “replacing punishment with fines, and punishing grave crimes leniently” exist to different degrees in all localities in the investigation and prosecution of cases of producing, peddling, disseminating or smuggling obscene publications, because of the problem that relevant criminal legislation is not suited to the present struggle in some places, resulting in some criminals lucking through the gate. The “Regulations” promulgated by the “Two Supremes” have provided an important legal weapon for the protracted launching of the “sweeping pornography” struggle. These Regulations have, targeting new situations and new problems emerging in “sweeping pornography”, provided a “starting point” of using Article 170 of the Criminal Law, clearly distinguishing the boundary between crime and non-crime, and have resolved the problem of “replacing punishment with fines”; they have provided concrete standards for using the crime of speculation and profiteering to strictly punish criminal acts of producing, peddling, disseminating or smuggling obscene goods, clearly distinguishing the boundary between crime and non-crime, and resolving problems such as “grave crimes being punished leniently” and other weaknesses in attack; they have also provided that, where obscene goods are used to conduct hooligan criminal activities and regular dissemination of obscene goods to society, with grave harm, are to be punished under the crime of hooliganism, as well as that where work units smuggle, produce or peddle obscene goods, constituting a crime, “criminal liability of the directly responsible controlling personnel and other directly responsible persons is investigated for the crime of speculation and profiteering”. These regulations have made it more convenient for us to attack criminals more stably, accurately and ruthlessly. All localities and relevant departments must give high regard to studying, implementing and executing these “Regulations”. In order to do so, all provincial, autonomous region and municipal relevant departments are required to:

(1) Earnestly study and broadly propagate the “Regulations”. Especially public security, procuratorate, judicial, press and publications, culture, radio, film and television, industry and commerce, customs and other departments must organize the broad cadres to study the “Regulations”, grasp their basic content and basic spirit, closely integrate them with the struggles to “strike hard” and eradicate the “six evils” that are being conducted at present, and earnestly implement them.

(2) Relevant departments must conduct a one-time earnest clean-up and inspection of relevant cases that have already been fined. Criminals that should have been strictly punished, but that have only been fined or subject to administrative punishment, where the person in question has not expressed repentance and reform, but continues to engage in illegal publishing activities, or criminals of which the masses believe that punishment has been overly lenient and react strongly, after administrative punishment is imposed, it must be rapidly put forward to judicial organs to strictly deal with them according to the “Regulations”. Cases that have been filed but not yet decided, shall be  compared with the “Regulations” of the “Two Supremes”, and on all cases constituting a crime, links must be vigorously established with public security and judicial organs, and propose criminal liability to be prosecuted according to the law.

(3) The “sweeping pornography” struggle must be closely integrated with attacking illegal publishing activities, dig deep for publishing, peddling, dissemination or smuggling of obscene goods or criminals engaging in illegal publishing activities and timely hand them over to public security or judicial organs for strict punishment according to the law. Criminal activities of illegal publication must be tracked down by following clues, and not only publishers must be punished strictly, printers must also be punished strictly, and the main criminals must be strictly punished without mercy.

Where work units have already conducted rectification in the past, and they publish banned publication again, punishment must be strict, including cancellation of the work unit and prosecution of the legal responsibility of the leaders and relevant responsible persons according to the law.

(4) Public opinion propaganda and social supervision must be strengthened, and the forces of all areas of society must be mobilized to surround and annihilate production of pornography, peddling of pornography and illegal publishing activities. Some model cases must be selected and openly reported, in order to terrify criminals and raise the ideological understanding of the broad masses.

新闻出版署关于认真贯彻执行最高人民法院、最高人民检察院《关于办理淫秽物品刑事案件具体应用法律的规定》的通知

1990年7月26日,新闻出版署

最高人民法院、最高人民检察院于7月6日发布施行的《关于办理淫秽物品刑事案件具体应用法律的规定》(以下简称“规定”),是针对“扫黄”中遇到的法律问题作出的十分重要的司法解释,对于准确、有力地打击制作、贩卖、传播、走私淫秽物品的犯罪活动,巩固“扫黄”成果、进一步推动“扫黄”斗争的深入发展、加强书报刊和音像市场的经常性管理,都将产生积极的深远的影响。各地区、各部门要认真贯彻执行这个规定,充分发挥法律的威力,坚持不懈地开展“扫黄”斗争。

在党中央、国务院的领导下,自去年7月以来开展的“扫黄”斗争取得了很大成效,制黄、贩黄的犯罪活动受到严厉打击,书报刊和音像市场的状况有了明显的好转,基本上遏制住了淫秽色情出版物严重泛滥的势头,深得民心。但是,自今年3月以来,制黄、贩黄的犯罪活动出现了明显“回潮”。对此,广大群众非常担忧,要求进一步采取措施予以查处和打击。

制黄、贩黄的犯罪活动出现“回潮”的一个重要原因是对制黄、贩黄的犯罪分子打击不力,这又与法律不够完善有关。“扫黄”斗争开展以来,由于有关刑事立法同当前斗争存在某些不相适应的问题,各地在查处制作、贩卖、传播、走私淫秽物品的案件中不同程度地存在“以罚代刑、重罪轻判”的现象,致使一些不法犯罪分子侥幸过关。“两高”发布的“规定”,为深入持久地开展“扫黄”斗争提供了一个重要的法律武器。这个“规定”,针对“扫黄”中出现的新情况和新问题,规定了适用刑法第170条的“起刑点”,划清了罪与非罪的界限,解决了“以罚代刑”的问题;规定了适用投机倒把罪惩处制作、贩卖、传播、走私淫秽物品犯罪行为的具体标准,划清了重罪与轻罪的界限,解决了“重罪轻判”等打击不力的问题;还规定了对于利用淫秽物品进行流氓犯罪活动和在社会上经常传播淫秽物品、危害严重的行为以流氓罪论处,以及单位走私或制作、贩卖淫秽物品构成犯罪的,“对直接负责的主管人员和其他直接责任人员,以投机倒把罪追究刑事责任”。这些规定,便于我们更加稳、准、狠地打击犯罪分子。各地有关部门都要重视学习、贯彻、执行这个“规定”。为此,要求各省、自治区、直辖市的有关部门:

(一)认真学习、广泛宣传“规定”。特别是公安、检察院、法院、新闻出版、文化、广播电影电视、工商、海关等部门,要组织广大干部学习“规定”,掌握其基本内容和基本精神,紧密结合当前正在进行的“严打”和除“六害”斗争,认真贯彻执行。

(二)有关部门要按照“规定”,对已立案的有关案件进行一次认真的清理、检查。对本应依法严惩,而只作了罚款或其他行政处罚、本人没有悔改表现,继续从事非法出版活动的犯罪分子,或者经过行政处罚后群众认为处罚偏轻、反应强烈的犯罪分子,要迅速向司法机关提出建议依照《规定》严肃处理。对已立案还未处理的案件,应迅速与“两高”的“规定”予以对照,凡构成犯罪的,要积极与公安司法机关联系,建议依法追究刑事责任。

(三)要把“扫黄”斗争与打击非法出版犯罪活动紧密结合起来,深挖制作、贩卖、传播、走私淫秽物品和从事非法出版活动的犯罪分子,及时移送公安、司法机关依法予以惩处。对非法出版犯罪活动,要顺藤摸瓜,不仅要惩处出版者,也要惩处印刷者,对主要犯罪分子要严惩不贷。

对于已经进行过整顿,又出版违禁出版物的出版单位,必须从严处理直至撤销单位并依法追究领导者和有关责任者的法律责任。

(四)要加强舆论宣传和社会监督,动员社会上各方面的力量围歼制黄、贩黄和非法出版活动。要选择些典型案例公开报道,以震慑犯罪分子,提高广大群众的思想认识。

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