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	INTERPRETATION OF THE SUPREME PEOPLE'S COURT AND THE SUPREME PEOPLE'S PROCURATORATE ABOUT INTERPRETATIONS OF THE SUPREME PEOPLE'S COURT AND THE SUPREME PEOPLE'S PROCURATORATE ABOUT OBSCENE ELECTRONIC INFORMATION CRIMINAL CASES

	(Announcement of the Supreme People's Court of the People's Republic of China (No.11 [2004] of the Supreme People's Court), September 3, 2004: The Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Concrete Application of Law in the Handling of Criminal Cases of Making, Reproducing, Publishing, Selling and Spreading Pornographic Electronic Information by Means of the Internet, Terminal of Mobile Communications and Sound Message Stations, which were adopted at the 1323rd meeting of the Judicial Committee of the Supreme People's Court on September 1, 2004, and at the 26th meeting of the tenth procuratorate committee of the Supreme People's Procuratorate on September 2, 2004, are hereby promulgated, and shall come into force as of the date of September 6, 2004)


SUBJECT : INTERPRETATIONS; OBSCENE ELECTRONIC INFORMATION
ISSUING DEPARTMENT : THE SUPREME PEOPLE'S COURT, THE SUPREME PEOPLE'S PROCURATORATE OF THE PEOPLE'S REPUBLIC OF CHINA
ISSUE DATE : 09/03/2004
IMPLEMENT DATE : 09/06/2004
LENGTH : 1,237 words
TEXT :

With a view to punishing such criminal activities as making, reproducing, publishing, selling or spreading pornographic electronic information by means of the internet, terminal of mobile communications or spreading pornographic sound message through sound message stations, maintaining the normal order of public networks and communications, as well as ensuring the lawful rights and interests of the general public, we hereby make the following interpretations on several issues concerning the concrete application of law for handling this sort of criminal cases in accordance with the Criminal Law of the People's Republic of China and the Decision of the Standing Committee of the National People's Congress on Safeguarding the Security of the Internet:

Article 1. In case anyone who makes, reproduces, publishes, sells or spreads pornographic electronic information for seeking profits by means of the internet or terminal of mobile communications, and has any of the following circumstances, he shall be convicted and punished as the crime of making, reproducing, publishing, selling and spreading pornographic articles for seeking profits in accordance with the provisions of paragraph 1 of Article 363 of the Criminal Law:

(1) Making, reproducing, publishing, selling or spreading pornographic films, performances, motion pictures and other video documents for more than 20;

(2) Making, reproducing, publishing, selling or spreading pornographic audio documents for more than 100;

(3) Making, reproducing, publishing, selling or spreading pornographic electronic publications, pictures, articles, and short messages, etc. for more than 200;

(4) The pornographic electronic information made, copied, published, sold or spread by him is clicked for more than 10 thousand times;

(5) Publishing, selling or spreading pornographic electronic information by way of membership, and the registered members are more than 200 persons;

(6) Collecting advertising fees, membership registration fees or other fees by means of pornographic electronic information, and the illegal gains obtained are more than RMB 10 thousand Yuan;

(7) Although the said quantity or amount has not reached the standards prescribed in Item (1) to (6), it has reached more than half of the above-mentioned standards; or

(8) Resulting in serious consequences.

In case anyone conducts any of the acts prescribed in paragraph 1 by such ways as chatting room, forums, instant communications software, or emails, he shall be convicted and punished as the crime of making, reproducing, publishing, selling or spreading pornographic articles for seeking profits in accordance with the provisions of paragraph 1 of Article 363 of the Criminal Law.

Article 2. In case anyone conducts any of the acts prescribed in Article 1, and the quantity or amount has reached five times the standards prescribed in Item (1) through Item (6) of paragraph 1 of Article 1 or more, his act shall be determined as "the circumstances are serious" prescribed in paragraph 1, Article 363 of the Criminal Law; if the quantity or amount has reached 25 times the prescribed standard or more, it shall be determined as "the circumstances are especially serious".

Article 3. If anyone spreads pornographic electronic information by means of the internet or terminal of mobile communications not for seeking profits, and has any of the following circumstances, he shall be convicted and punished as the crime of spreading pornographic articles in accordance with the provisions of paragraph 1 of Article 346 of the Criminal Law:

(1) The quantity has reached to two times the standards prescribed in Item (1) to (5) of paragraph 1 of Article 1 or more;

(2) The quantity has reached to two standards of Item (1) to (5) of paragraph 1, Article 1 or more; or

(3) Resulting in serious consequences.

In case anyone conducts any of the acts prescribed in paragraph 1 by means of chatting room, forums or instant communications software or emails, he shall be subject to the conviction and punishment of the crime of spreading pornographic articles according to the provisions of paragraph 1 of Article 364 of the Criminal Law.

Article 4. In case anyone knowingly provides direct link for pornographic electronic information on the website or web page owned, managed or used by himself, the quantity standard shall be computed in light of the kinds of pornographic electronic information linked.

Article 5. In case anyone spreads pornographic sound message through sound message stations for seeking profits and has any of the following circumstances, the person-in-charge who is directly responsible and other person directly liable shall be convicted and punished as the crime of spreading pornographic articles for seeking profits in accordance with the provisions of paragraph 1 of Article 363 of the Criminal Law:

(1) Spreading to 100 persons or more for one hundred times;

(2) The illegal gains are RMB 10 thousand Yuan or more; or

(3) Resulting in serious consequences.

In case anyone conducts any of the aforesaid acts, and the quantity or amount has reached five times the standards prescribed in Item (1) through (2) of the preceding paragraph or more, it shall be determined as "the circumstances are serious" prescribed in paragraph 1 of Article 363 of the Criminal Law; if the quantity or amount has reached 25 times the prescribed standard or more, it shall be determined as "the circumstances are especially serious".

Article 6. In case anyone commits any of the crimes prescribed in Article 5 of the present Interpretations and has any of the following circumstances, he shall be given a heavier punishment in accordance with the provisions of paragraph 1 of Article 363 and paragraph 1 of Article 364 of the Criminal Law:

(1) Making, reproducing, publishing, selling or spreading pornographic electronic information that describes sexual acts of minors below the age of 18;

(2) Knowingly providing direct link for pornographic electronic information that describes sexual acts of minors below the age of 18 on the website or web page owned, managed or used by himself;

(3) Selling or spreading pornographic electronic information and sound message to minors below the age of 18; or

(4) Forcing subscribers to visit or download pornographic electronic information through methods such as using destructive program or vicious code to revise the computers setup of the subscribers.

Article 7. In case anyone knowingly render aid of links, server trusteeship, network memory space, communications transmission channels, and expenditure settlement for other people for their committing such crimes of making, reproducing, publishing, selling or spreading pornographic electronic information, the person-in-charge who is directly liable and other person directly liable shall be subject to the punishment of conspiracy.

Article 8. In case anyone sells or spreads pornographic books and publications, films, videotapes, tapes, and other pornographic articles carried by physical goods by means of the internet, terminal of mobile communications or sound message stations, he shall be convicted and punished in accordance with the relevant provisions of the Interpretations of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Criminal Cases of Illegal Publications.

Article 9. The "other pornographic articles" prescribed in paragraph 1 of Article 367 of the Criminal Law shall include pornographic video documents, audio documents, electronic publications, pictures, articles, short messages, which specifically describe sexual acts or openly blazon forth pornography and other electronic information of internet and terminal of mobile communications and sound message of sound message stations.

The electronic information relating to physical physiology and medical knowledge and sound information of sound message stations are not pornographic articles. The electronic literature and artistic works containing pornographic contents that are of artistic value shall not be regarded as pornographic articles.