Research On The Judicial Identification Of Online Obscene Live Broadcastin

At present,there is a crime of live broadcasting obscene performance in the network live broadcasting industry,but a series of disputes have arisen in the judicial practice.In view of these disputes,the author starts from three parts,analyzes the existing problems and puts forward suggestions for judicial determination on the basis of defining the online obscene live broadcast.The first part is the definition of network obscene live broadcast.First of all,in view of the deficiency of the definition of network broadcast in the communication industry,the definition in the sense of criminal law is put forward combining the subject of behavior,behavior mode and behavior content.Secondly,it points out that online pornographic live broadcast has six characteristics:infringement of legal interests,obscenity,real-time,interactive,profit-making and extensive audience,and divides online pornographic live broadcast into eight types according to the purpose of behavior,object of behavior,behavior mode and number of participants.Finally,the network obscene live broadcast is compared with pornographic live broadcast and network naked chat.The second part is about the problems existing in judicial identification of network obscene live broadcast.Combined with judgments related to online pornographic live broadcast,four main problems existing in judicial recognition are sorted out: first,there is no clear regulation on online pornographic live broadcast in Criminal Law,and in practice,it has been identified as the crime of spreading pornographic materials for profit,the crime of organizing pornographic performances,and so on,the phenomenon of different sentences in the same case.Second,there is confusion in the identification of the number of crimes of the derivative network obscene live broadcast,such as the joint obscene live broadcast between broadcasters and other broadcasters or the formation of groups to attract audiences with obscene electronic information and obscene live broadcast.Third,the relationship between the three main subjects of online obscene live broadcasting,such as the streamer,platform and audience,is not clear.Fourth,there are some problems in the identification of the plot of network obscene live broadcast,such as the disunity of investigation scope and the disunity of identification standard of aggravating plot.The third part is to put forward suggestions for the problems existing in the judicial identification of network obscene live broadcast.First,on the basis of the full demonstration of the elements of the crime of spreading obscene materials for profit and the crime of organizing obscene performances,it is more reasonable to define the crime of organizing obscene performances.The second is to put forward their own crime number treatment suggestions for two common derivative types of network obscene live broadcast,such as multi-person interaction type and "group transmission" type.Third,in the identification of joint crimes,it is proposed that legitimate live streaming platforms and live streamers do not constitute joint crimes,while illegal live streaming platforms should constitute joint crimes with live streamers,and the audience with high participation degree should also be included in the regulation of joint crimes.The fourth is the identification of the plot,combined with the practice of network obscene live broadcast number of viewers,the number of times,illegal income and other circumstances identification suggestions and sentencing reference.