Recently, the case of online writer Dogwazitianyi (formerly named Liu Moumou, hereinafter referred to as Tianyi) who was sentenced to 10 and a half yearsimprisonment in the first instance for producing and selling pornographic articles has aroused concern.
At 10 a.m. on December 17, the second instance of Wuhu Intermediate Peoples Court of Anhui Province opened to hear the case. The prosecution and the defense launched a heated debate on the number, amount and the seriousness of the sale of obscene books and periodicals.
Ultimately, the prosecutor thinks that the case is clear in nature, but some facts have not been clarified, and some procedures are flawed. He suggests that the court of second instance send it back for retrial. The trial lasted two hours, and the court did not pronounce a verdict in court.
The second instance of the case was broadcasted live on the China Open Court Network. As of its publication, the frequency of examination by the court has reached 24.67 million broadcasts.
Peng Mei News (www.thepaper.cn) combed the focus of the trial according to the live video of the trial.
1. Are they pornographic books?
According to the court information, Tianyi was born in 1986 and began to write De Mei novels (describing gay love) in 2009. According to the Global Times Wechat, Tianyi is well-known in the circle of delaying American literature, because her delaying American novel contains heavy taste content, such as the story of 17-year-old boy raping his own male teacher in her book Occupation.
Earlier, the first instance of Wuhu County Court in Anhui Province found Tianyi to be illegal profit-making. It created many pornographic books and magazines, including Occupy, which specifically described sexual behavior and pornography. It created and sold about 7,000 copies. It made an illegal profit of 150,000 yuan. It was guilty of making and selling pornographic articles for profit. It was sentenced to 10 years and 6 months in prison and fined 50,000 yuan.
In the second instance trial, Wu Zonglin, Tianyis defense lawyer, proposed that the case identified the seizure as an illegal procedure for the identification of obscene publications, which did not have the effect of proof in criminal cases.
Lawyers cited four reasons: First, on November 6, 2017, the Wuhu Municipal Public Security Bureau, the investigative organ of the case, received a report from the masses to investigate the work room of the Observatory involved in the case (one of the Taobao stores selling books involved in the case). However, the date of the appraisal was earlier than that of the investigation, which was October 23. According to the provisions of the procedure for handling criminal cases by public security organs, the appraisal of criminal cases should be made after approval by the person in charge of public security organs at or above the county level. In this case, there is no such letter of appointment or power of attorney, which is not procedural justice. 2. The testers ability and content of the appraisal certificate are not clear. It has neither been checked and detained by the procuratorial organ, extracted according to law, nor confirmed by the signature of the parties. It is impossible to determine the legality, relevance and objectivity of the appraisal. 3. The appraisal certificate does not explain the appraisal process. 4. According to the provisions of Article 147 of the Criminal Procedure Law, after the appraiser has made the appraisal, he shall write the appraisal opinion and sign it. No one signed the certificate of appraisal in this case. I dont know how many people participated in the appraisal, and there is no way to talk about the level of qualifications.
In the opinion of the prosecutor, the expert testimony in this case is flawed in procedure.
According to the prosecutor, the book Occupation was identified as a pornographic publication by the Quality Supervision and Inspection Center of the Published Products of the State Administration of Press, Publication, Radio, Television and Television. However, the appraisal was not signed by the appraiser and did not attach the appraisal qualification of the appraiser. Therefore, the appraisal was defective in procedure. At the same time, the public prosecutor believes that the identification before seizure properly reflects the legitimacy of the public security organs in handling cases.
How can the public security organs seize other peoples books if they dont get this appraisal opinion to prove that they are obscene publications? The prosecutor retorted.
2. How many copies have been sold?
The judgment of the first trial confirmed that Tianyi and He Mou, the director of the printing plant, had produced about 7000 obscene books and periodicals.
Wu Zonglin, a defense attorney for Tianyi, believes that the Wuhu County Public Security Brigade made a special account of the sales data on May 10, 2018, stating that all the books printed and published by Tianyi were accepted for printing, thus calculating that a total of 4876 copies were printed in Tianyi.
In response, the public prosecutor asked Tianyi about the record of the sales volume in the first instance. At the first instance, the public prosecutor claimed that the website sold more than 4900 copies, sent 1700 copies to the Observatory studio, and withheld 398 copies at home, adding up to about 7000 copies. Tianyis answer at that time was no comment. ?
In the second instance, Tianyi said that only 398 copies were detained at home, while the other copies were not clear.
In court, the prosecutor said that the sales volume was not only a one-day statement, but also a successful screening in the exported spreadsheet, which contained 3764 records of obscene books. The order was created from April 3, 2015 to January 5, 17, totaling 4944 copies. Then, the Public Security Bureau of Wuhu County conducted a remote survey of the witnesss Taobao account, confirming that the Taobao shop and the Observatory studio sold 1326 obscene books written by Tianyi. With 398 bibliographies detained on the spot, totaling nearly 7,000 copies, this figure is not a problem, not only more than 4,000 copies as the defender said, therefore, Tianyis behavior has reached the standard of especially serious circumstances.
3. How much is the profit?
The amount of illegal profit is one of the important bases for sentencing.
During the trial, Tianyis defense lawyer said that the sale amount of Tianyi appraised by the public security organs was 150,000 yuan, but printing needed money. After removing the costs of sealing (cover design), proofreading and mailing, Tianyis profit was about 100,000 to 120,000 yuan. Lawyers argue that when the court of first instance judges, it equates the amount of business operation with illegal profit, which confuses the two concepts and aggravates the crime of Tianyi.
Tianyi said in court that the profit of 150,000 yuan includes a lot of costs, but I am not particularly clear whether there is a specific one.
The public prosecutor did not give any relevant opinions on the issue raised by the lawyer.
4. Is the plot particularly serious? Is the judicial interpretation applicable 20 years ago?
Lawyer Wu Zonglin believed that Tianyis crime did not reach particularly serious circumstances.
Lawyers claim that, according to Article 8 of the Supreme Law of 23 December 1998, Interpretation of Several Questions Concerning the Specific Application of Law in Criminal Cases involving Illegal Publications, the production and sale of pornographic articles with particularly serious circumstances exceeded 5000 copies and amounted to more than 150,000 yuan, but this case did not reach this level.
Wu Zonglin pointed out that the above judicial interpretation was made in 1998. In the past 20 years, Chinas economy has been developing rapidly. We should be aware of the reality of society and keep pace with the times.
Lawyers also believe that Tianyi has the conditions of lightness and mitigation.
Lawyers said that on November 21, 2017, during the interrogation of the public security department, Tianyi confessed all the facts of the crime, and at the same time disclosed the printing house for which the prohibited books were printed and provided the address of the factory; on November 25, the case-handling organ captured the director of the printing factory, who was the second defendant in the case. According to the relevant judicial interpretation of the Supreme Law, when criminals come to the case, they report and expose other peoples crimes, including criminals in joint crimes, accomplices and other crimes other than joint crimes, which should be recognized as meritorious performance after being verified.
According to the above, lawyers believe that the sentences imposed by the first instance every day for ten years and six months are too heavy. Therefore, they request the court of second instance to revoke the original judgment and impose appropriate and reasonable punishment on the defendant in the case.
The prosecutor said that there was only one judicial explanation for the case of making and selling obscene goods for profit. In the absence of a new judicial interpretation, there is no problem in applying the judicial interpretation.
According to the prosecutor, according to Tianyis sales volume and amount, it has met the criteria of particularly serious circumstances. As for the meritorious performance mentioned by the defender, the procuratorate believes that Tianyi should confess truthfully in the process of interrogation by the public security organs, which is her legal obligation. And her criminal act is the act of making obscene articles together with the printer, and it is also a part of confession, which does not constitute meritorious service.
5. Is the printer involved in the sale of obscene articles?
In fact, there are five defendants in the case: Tianyi, the owner of the printing house He Mou, the worker Yang Mou, the proofreader Lin Mou, the owner of the Observatorys online shop Ge Mou. In the second instance, except Yang Mou-mou, the remaining four people appealed.
According to court information, the first instance of Wuhu County Court found that the owner of the printing factory He Mou and Yang Mou illegally took over printing business in Taobao online shop without obtaining business license and printing business license. Besides printing dirty books and periodicals of Tianyi, they also illegally printed other illegal publications, totaling 11,000 copies.
Finally, He was convicted of the crime of making and selling pornographic articles for profit, committing the crime of illegal business operation, and jointly executed a fixed-term imprisonment of 10 years and 6 months, with a fine of 270,000 yuan; Yang Mou was convicted of the crime of illegal business operation and sentenced to two years and six months of fixed-term imprisonment, three years of probation and a fine of 100,000 yuan.
He appealed that he did not have the act of trafficking, nor did he help trafficking, and should not be regarded as trafficking in obscene goods.
The Procuratorate deems it inadmissible.
According to the prosecutor, the director of the printing plant gave a statement in the transcript. According to Tianyis instructions, he printed the books well and helped deliver the goods according to the orders provided by Tianyi. Tianyi has always provided the printer with the address of the person who needs books. The printer has packed a book for Tianyi and sent it by express delivery. It can be seen that the act of selling books for Tianyi generations is considered as the crime of selling obscene articles.
The printer also argued that the novel had a relatively small area of dissemination, less harmful to society, and that the same works were also exhibited at the exhibition.
The procuratorate also considers it inadmissible.
The prosecutor said that the exhibition works were legal and in accordance with the law. Comrades were not homosexual related works. The printer confused the difference between comradesnormal works and obscene articles. At present, the case finds that the director of the printing plant is particularly serious because the number of obscene works has exceeded the standard of serious circumstances more than five times, and more than 5,000 copies (11,000 copies in total) have been illegally operated. This data not only contains the corresponding records of Taobao, but also the statements of other defendants.
6. Is the proofreading of the books and periodicals involved too heavy a sentence? ?
Lin Mou-mou was born in 1986. His undergraduate major is Applied Psychology. In the first instance of the case, she was found to have proofread, typesetted and sealed Tianyis books and periodicals from 2015 to 2017. She charged a fee of 500-600 yuan for each book. The total profit was 3100 yuan. She was sentenced to four yearsimprisonment and fined 10,000 yuan.
In the second instance trial, Lin Mous appeal denied that he participated in proofreading, and did not know the specific content of his books.
Lin Moumou said that although she knew that Tianyis creative direction involved sexual description, and inferred that her books also had sexual description, but did not read the content of the novel, design does not need to read, so it is not clear what the content of the novel is, can not be sure that the book is obscene. At the same time, Lin Mou also thinks that she is only responsible for the design work, after the design submission, follow-up printing, sales do not understand, there is no division, according to this calculation of the number of cases involved, not fair.
Lin Moumous defense attorney adds that it is not Lin Moumous painting that first finds a painter to draw a good picture and then finds Lin Moumou to process it.
According to the prosecutor, Lin Moumou mentioned in her statement that she had been helping Tianyi with typesetting and cover design since 2015. The typesetting is to arrange and typesetting the electronic books sent by the author, and then make them as PDS format for the author to print. Cover design is based on the requirements of the author.
At the same time, the prosecutor also pointed out that Lin Mou mentioned in her statement that she knew Tianyi was the author of the Internet, and that the stories she created and wrote were stories between gays, which contained pornographic and sexual content. Tianyis fans are known as putrid women and fellow women. The book is very popular and many people know Tianyi.
Therefore, the procuratorate believes that there is no problem in the first trial judgment that Lin Mou-mou and Tianyi constitute a joint crime, and in the first trial judgment, the sentencing circumstances have been reduced again according to Lin Mou-mous situation, which does not belong to the excessive sentencing.
Finally, the public prosecutor proposed that the defendant Tianyi, He, Lin and Ge had a clear definition of the crime of producing and selling pornographic articles and illegal business, but some facts were not clarified, and some procedures were flawed. It was suggested that the court of second instance should return the case to retrial.
Source of this article: Peng Mei News Responsible Editor: Gan Wenbin_NBJS7621