Legal analysis
The subject of this crime is the general subject, that is, a natural person who has reached the legal age of criminal responsibility and has the ability of criminal responsibility. Units can also constitute this crime. Subjectively, this crime is intentional, but the actor does not have to make a profit. In some cases, it can also constitute indirect intent. For example, if the actor watches obscene articles by himself and turns a blind eye to others' onlookers, causing adverse effects, he can be punished according to this crime. Actors' motives may be varied, such as letting others share the excitement, or pleasing others, or inducing others to fall. Negligence does not constitute this crime. If the actor is irresponsible for his work and neglects to spread books, periodicals, pictures, etc. Those with obscene content cannot be punished as crimes. The object of this crime is the state's management order of obscene articles. Spreading obscene articles in society will do harm to people's physical and mental health, especially teenagers, and it is easy to induce illegal and criminal activities. Combating the crime of spreading obscene articles in society according to law is undoubtedly of great significance for maintaining social order, purifying social air, protecting people's physical and mental health and promoting spiritual civilization construction. The object of this crime includes all kinds of obscene books and periodicals, newspapers, pictures, films, video tapes, audio tapes, obscene toys, entertainment articles, daily necessities and other obscene articles printed with obscene words and patterns. The mode of communication can be direct dissemination of naked obscene articles, or a makeover, deliberately adding obscene plots to works of art, or deliberately adding obscene descriptions to novels.
Strictly identify the scope of obscene articles. Scientific works about human physiology and medical knowledge are not obscene articles, and literary and artistic works with artistic value containing pornographic content are not regarded as obscene articles.
Strictly grasp the concept of communication. Personal collection or dissemination among relatives and friends should be criticized and educated, and obscene articles should be collected, but this does not constitute this crime.
Strictly grasp the element of "serious circumstances".
The boundary between this crime and the crime of making, copying, publishing, selling and spreading obscene articles for profit
There are obvious differences between the two crimes, which are mainly manifested in: the crime of spreading obscene articles is subjectively not for profit. Then the crime must be for profit. As a new crime, the former crime exists independently, and its practical significance lies in making up for the subjective limitations of the latter crime. The crime of spreading obscene articles will be punished regardless of whether there is a profit-making purpose subjectively.
legal ground
Article 363 of the Criminal Law of People's Republic of China (PRC) shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the circumstances are especially serious, they shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated. Whoever provides a book number for others and publishes obscene books and periodicals shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or only be fined; Whoever knowingly publishes obscene books and periodicals and provides the ISBN shall be punished in accordance with the provisions of the preceding paragraph.