On the Legislative Defects and Perfection of the First Paragraph of Article 359 of the Criminal Law

[Abstract]]The provisions of the first paragraph of Article 359 of the Criminal Law on the crime of inducing, accommodating, or introducing others to prostitution and the provisions of the Public Security Administration Punishment Law on inducing, accommodating, or introducing others to prostitution are in accordance with the provisions of the law, and there is a confrontation between crime and non-crime. The Supreme People's court and other departments have not given detailed judicial interpretations, which leads to confusion and confusion in the punishment of such illegal acts in practice. This paper discusses the defects in legislation and the problems in practice, and puts forward suggestions to solve the problem.

Key words]The crime of seducing, hosting and introducing others to prostitution and the improvement of non-crime sentencing.

The first paragraph of Article 359 of the Criminal Law is a specific provision on the crime of inducing, accommodating, or introducing others to prostitution. The specific description is: "Whoever induces, accommodating, or introduces others to prostitution shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or surveillance, and Penalty; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years and a fine". From the aspects of the provisions of this paragraph and its connection with the Public Security Administration Punishment Law, there are confusion and even different sentencing in practice, and even the same behavior is a public security violation in one place, but it is a criminal behavior in the other place. The reason for this situation is that the provisions have defects in legislation, as a result, in practice, law enforcement officers are at a loss as to what to do. This chaotic situation is not only easy to infringe on the legitimate rights of the parties, but also greatly damage the authority of the law and reduce the credibility of law enforcement officers. To this end, the author talk about their own superficial views, with a view to throwing bricks to attract jade, so that the problem can be solved.

Defects and Countermeasures in the Legislation of the First Paragraph of Article 359 of the Criminal Law of 1.
 

The first paragraph of Article 359 of the Criminal Law stipulates: "Whoever lures, shelters, or introduces others to prostitution shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or surveillance, and a fine; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years and a fine". Judging from the statement of the provisions of this paragraph, the crime of inducing, hosting, or introducing others to prostitution is a criminal act in the criminal law. The so-called criminal act in the criminal law, that is, as long as a certain act is committed, it constitutes a crime. Specific to this paragraph of this article, that is to say, as long as the perpetrator commits the act of seducing, accommodating, or introducing others to prostitution, it constitutes a crime, constitutes the crime of seducing, accommodating, or introducing others to prostitution, and shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or Control and be fined; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years and a fine ".

According to Article 67 of the "Public Security Administration Punishment Law": "Whoever lures, introduces, or allows others to engage in prostitution shall be detained for not more than 15 days and may also be fined not more than 5000 yuan; if the circumstances are minor, he shall be detained for not more than 5 days or 500 Fines below yuan.". This article also belongs to the crime of behavior in legal principle, specifically to this article, that is to say, as long as the perpetrator commits the act of inducing, accommodating or introducing others to prostitution, it constitutes a violation of the law on administrative penalties for public security, and shall be detained for less than 15 days and fined not more than 5000 yuan; if the circumstances are relatively minor, It shall be detained for less than 5 days or fined not more than 500 yuan.

Comparing the above two provisions, we can see that in terms of inducing, accommodating and introducing others to prostitution, there is a competition between the first paragraph of Article 359 of the criminal law and Article 67 of the public security administration punishment law, and there is a confrontation between crime and non crime in the punishment of behavior. Judging from the legislative intent of the two laws, it should be said that the act of luring, accommodating, or introducing others to prostitution does not necessarily constitute a crime. If the circumstances are relatively minor, they are violations of the Public Security Administration Punishment Law, and other heavier ones are crimes. Acts are sentenced to fixed-term imprisonment of not more than five years, criminal detention or surveillance, and a fine; if the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not more than five years and a fine.

However, the written provisions of the legislator in the "Criminal Law" and the "Public Security Administration Punishment Law" on luring, accommodating, and introducing others to prostitution violate the original intention of the legislator. The reason for this problem, the reason is that from the legislative technology is that China's criminal law of crime is both quantitative and quantitative, and in the increasingly complex social life of the contemporary, through the "plot", "consequences" and other ways of crime quantitative become more and more difficult. Such a system design will inevitably lead to confusion in practice. In Western countries, criminal law is only qualitative and not quantitative. Any act of anti-social infringement of legal interests is considered a crime. It is only a distinction between felonies, misdemeanors, police offences, etc. The behavior regulated by the crime of violating the police basically belongs to the behavior of violating the social management order, which is similar to the public security punishment in our country.

According to the traditional western concept of the rule of law, all acts of depriving citizens of their life, freedom and property rights should be decided by the judiciary, and the administration should not have this power. So, we can be like Western countries only qualitative not quantitative crime? I think not! At least it's not mature yet. Because in the Chinese concept, crime is a great rebellious and heinous thing. In terms of morality and ethics, crime and criminals are completely denied. But administrative punishment is different. In the eyes of Chinese people, administrative punishment does not contain a strong moral evaluation like punishment. Although violations of the law are also denied by the society, the degree of denial is much lighter. If a person who has been punished wants to gain a foothold in society, he will always bear a heavy moral burden because of his "criminal record", and those who have received administrative punishment will not encounter many obstacles.

To sum up, in considering the technical level of both qualitative and quantitative legislation, the author suggests the following amendments to the provisions of the first paragraph of Article 359 of the Criminal Law: "if the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or public surveillance, and a fine; if the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than five years and a fine". In this way, the contradiction and conflict between this paragraph and the relevant provisions of the Public Security Administration Punishment Law are well resolved, thus truly reflecting that there are laws to follow,

Problems and Countermeasures of the First Paragraph of Article 359 of the Criminal Law of 2. in Practice
 

The above solves the contradiction and conflict between the first paragraph of Article 359 of the Criminal Law and the relevant provisions of the Public Security Administration Punishment Law. Let's talk about the problems and countermeasures in practice of the first paragraph of Article 359 of the Criminal Law.

The first paragraph of Article 359 of the Criminal Law stipulates: "Whoever lures, shelters, or introduces others to prostitution shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or surveillance, and a fine; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years and a fine". We know that whether it constitutes this crime and whether it reaches "serious circumstances" are considered according to the division of "quantity" such as "number of people" or "number of times. Article 3 of the Decision of the Standing Committee of the National People's Congress on the Prohibition of Prostitution and Whoring stipulates: "Whoever lures, shelters or introduces others to prostitution shall be sentenced to fixed-term imprisonment of not more than 5 years, criminal detention and a fine of not more than 5000 yuan; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than 5 years and a fine of not more than 10000 yuan"; article 7 of the notice issued by the Supreme people's Court and the Supreme people's Procuratorate on the implementation of the decision of the standing Committee of the National people's Congress on the prohibition of prostitution and whoring stipulates: which are the acts of "serious circumstances" in the crime of inducing, hosting or introducing others to prostitution? Inducing, hosting, or introducing others to prostitution, if the circumstances are serious, generally have the following circumstances: (1) repeatedly luring, hosting, or introducing others to prostitution; (II) luring, hosting, or introducing many people to prostitution; (III) luring, hosting, or introducing people who know that they have serious sexually transmitted diseases into prostitution; (IV) hosting or introducing young girls under the age of 14 into prostitution; (V) luring, hosting or introducing others to prostitution has other serious circumstances. Article 9 of the "Notice" also stipulates: How should the "others", "many people", and "many times" mentioned in the "Decision" be understood? The "others" in (I) organizing, assisting in organizing, forcing, inducing, accommodating, and introducing others to prostitution mainly refers to women, but also includes men. The "many" of "many people" and "many times" in the (II) "Decision" and this "Answer" refer to the number of "three" or more (including the number of books).

From this, it can be inferred that if the circumstances are serious for more than three people (times) (including the number), then two people (times) (including the number) belong to the "non-serious circumstances" in the crime. Naturally, one person (Times) belongs to the act of public security punishment in violation of the Public Security Administration punishment Law. However, is it really such a simple operation in practice? Although according to the basic principle of the law, "there are laws to follow", the Criminal Law also stipulates that "if the circumstances are significantly minor and the harm is not significant, it is not considered a crime". It constitutes a crime to lure, accommodate, and introduce two people to prostitution, and the statutory penalty is fixed-term imprisonment of not more than five years, criminal detention or surveillance, and a fine. Compared with other criminal acts in terms of social harm, the sentence is obviously heavier.

In recent years, the crime of luring, hosting and introducing others to prostitution has spread from cities to towns to villages. A certain number of people engaged in this field are laid-off workers and farmers in cities and towns. They are forced by their lives or out of ignorance of the law. They lure, accommodate, and introduce others to prostitution once, and obtain illegal gains ranging from tens of yuan to a few yuan. Their criminal methods, criminal motives, and criminal circumstances are generally relatively simple, the degree of harm to society is significantly less than serious criminal crimes such as intentional homicide, robbery, rape, and major theft, and serious economic crimes such as corruption and bribery. Practice has proved that in order to solve this social problem, it is difficult to achieve results by cracking down on heavy penalties alone, and comprehensive management must be implemented. In recent years, it is a rational choice to no longer regard the crime as the scope of "strike hard". It is a man-made crime to be severely punished as a felony, which is out of the current situation of our country and runs counter to the mainstream of international punishment of light punishment.

Therefore, the author believes that the legal penalty for the crime of seducing, accommodating and introducing others to prostitution is unreasonable, and the legal sentencing standard is unscientific and unclear. The five-year demarcation point in the statutory penalty is too large, the "serious circumstances" of the statutory penalty upgrade conditions are not specifically described, and there is no corresponding judicial interpretation, resulting in unclear statutory sentencing standards. What are the general circumstances of luring, hosting and introducing others to prostitution? What is "serious circumstances"? In judicial practice, the phenomenon of inconsistent law enforcement has arisen. In some places, in accordance with the principle of legally prescribed punishment for a crime, three or three times in the "answer" is regarded as multiple times as the standard of "serious circumstances." those who lure, shelter, or introduce others to prostitution will be investigated for criminal responsibility. those who lure, shelter, or introduce others to prostitution for three or three times, if there are no legally mitigated circumstances, shall be sentenced to fixed-term imprisonment of more than five years, resulting in broad range and heavy sentencing; different courts in different regions have different sentencing ranges, which leads to the phenomenon of different punishments for the same crime.

3. Suggestions on Revising and Perfecting the First Paragraph of Article 359 of the Criminal Law
 

To sum up and analysis, the author believes that we should abandon the idea of heavy punishment, conform to the mainstream of international punishment of light punishment, and amend the first paragraph of Article 359 of the Criminal Law as soon as possible on the basis of the rational understanding of the crime of luring, accommodating and introducing others to prostitution, so as to make it more scientific, reasonable and operable, so as to improve the deficiencies of legislation.

With regard to the provisions of the Criminal Law, the author suggests that the first paragraph of Article 359 of the Criminal Law be amended to read: "those who lure, accommodate or introduce others to prostitution, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be sentenced to a fine; if the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years and a fine".

In terms of specific practical sentencing, it is suggested that the standing Committee of the National people's Congress or the Supreme people's Court, the Supreme people's Procuratorate and the Ministry of Public Security should jointly formulate regulations or relevant judicial interpretations on the basis of full study and extensive solicitation of opinions. in terms of "person-times", it can be stipulated as: "more than three times (including this number) is a serious case, more than ten times (including the number) is serious"; in terms of fines, the application of fines can be increased, while the main penalty is lighter, to ensure that those who specialize in luring, accommodating, and introducing others to prostitution in bathing cities, hair salons and other places The crackdown on criminals who have lost the material conditions for continuing criminal activities, the specific provisions are: "If the circumstances are relatively minor, A fine of not less than 5000 yuan but not more than 10000 yuan shall be imposed or imposed alone; If the circumstances are serious, a fine of not less than 10000 yuan but not more than 100000 yuan shall be imposed".

References: Yu Xiangyang and Li Bin: "Three times of hosting prostitution should not be considered serious", published in the 5th edition of the people's Court Daily on May 29, 2009.