Determination of illegal publishing behavior
First, the identification of illegal publishing behavior in the crime of illegal business operation
Regarding the determination of whether illegal publication constitutes the crime of illegal business operation, the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Publications defines two kinds of illegal publication? Other illegal business operations that seriously disrupt the market order? ：
First, publishing, distributing, copying and distributing illegal publications that seriously endanger social order and disrupt market order except publications with reactionary politics and political content, infringing copies and obscene articles;
Second, illegally engaging in the publication, printing, reproduction and distribution of publications, seriously disrupting the market order, and the circumstances are particularly serious.
The former is a publication with illegal contents, while the latter is a publication with illegal procedures. Before the introduction of judicial interpretation, some scholars believed that all illegal publishing activities except piracy should be punished as illegal business operations. This view is more pertinent. However, the Interpretation strictly stipulates that publications with illegal publishing procedures need to be particularly serious to constitute a crime.
Therefore, the second case, that is, whether illegal publishing and distribution procedures constitute the crime of illegal business operation and whether it is aggravated, is worth considering. We tend to have only the basic components of this behavior. In view of the fact that publishing conspires with others to sell, lease or illegally transfer the name, book number, serial number and edition number of the publishing unit in order to seek economic benefits, it shows that such behavior constitutes the crime of illegal business operation.
Judicial interpretation clearly stipulates that the illegal publication of illegal publications constitutes the crime of illegal business operation:
(1) The criteria for conviction of unit crime and natural person crime are different. The illegal publishing behavior of this unit is large in scale and serious in harm. The Interpretation stipulates that the standard of illegal publishing behavior of a unit constitutes the crime of illegal business operation is higher than that of a natural person.
(2) The amount and circumstances are equally important in the conditions of conviction. The crime of illegal business operation belongs to the circumstance crime, and the amount is an important criterion but not the only criterion. Therefore, if the amount and quantity are close to the starting point but there are specific circumstances, it constitutes the crime of illegal business operation.
(3) The amount of conviction adapts to the diversity of criminal situations. Considering that in practice, some people may fail to make profits or even lose money or go bankrupt due to illegal business operations, the amount standard adopts one of the illegal income amount and the business amount. As long as one of the two amounts meets the conditions for conviction, it constitutes a crime.
(4) The measurement methods are diversified and have strong operability. In view of the fact that it is impossible to measure the amount of business or illegal income in some cases, the Interpretation stipulates other measurement methods (such as newspapers, periodicals, books and audio-visual publications).
(5) The principle and flexibility of conviction conditions should be combined.
The Interpretation not only stipulates a certain amount range, but also stipulates that the higher people's courts of all provinces, autonomous regions and municipalities directly under the Central Government can determine specific standards for local implementation within the legal amount and quantity standards according to local conditions and social security conditions, and report them to the Supreme People's Court for the record. These regulations on the amount and quantity set an accurate standard for determining that publications with illegal contents constitute the crime of illegal business operation. There is no provision in judicial interpretation for publications with illegal publishing procedures? The circumstances are particularly serious? In practice, the standards should be determined and strictly grasped according to the specific circumstances of the case.
Second, the problems and solutions of judicial interpretation
Judging from the judicial interpretation issued by the Supreme People's Court, there are two main problems:
The first is the criteria for the conviction of illegal publications in the publishing process. Is there anything wrong with the judicial interpretation? The circumstances are particularly serious? How to grasp in judicial practice? I think it should be grasped according to the conviction standard of combining the amount with the circumstances and focusing on the amount? The circumstances are particularly serious? It can be pointed out that publishing, distributing, copying and distributing publications containing reactionary political content, infringing copies, obscene articles and other illegal publications that seriously endanger social order and disrupt market order constitute an aggravated constitution of the crime of illegal business operation.
The second is the crime of publishing, distributing, copying and disseminating publications, infringing copies and obscene articles containing reactionary political content. In strict accordance with the provisions of judicial interpretation, publishing, distributing, copying and distributing publications, infringing copies and obscene articles containing reactionary political content cannot constitute the crime of illegal business operation. The problem is: publishing, distributing, copying and distributing publications, infringing copies and obscene articles containing reactionary political content constitute corresponding crimes, but it may also disrupt market order and the circumstances are serious, which constitutes the crime of illegal business operation. This situation should be imaginative joinder of offenses.
The simplification of judicial interpretation avoids the problems that should be studied in the form of the number of crimes and oversimplifies the problems. Moreover, this may lead to loopholes in the law, that is, publishing, distributing, copying and disseminating publications, infringing copies and obscene articles containing reactionary political content cannot constitute a corresponding crime, but it may also disrupt the market order, and the serious circumstances constitute the crime of illegal business operation. This situation can not be solved under the current judicial interpretation, and can only be handled in strict accordance with the provisions of the interpretation.
Characteristics of illegal publications
The publisher of 1. is not legally qualified.
2. Public offering in the society without approval.
3. Publishing behavior does not conform to the relevant provisions of the state.
4. The contents of the publication violate national laws and regulations.
Classification of illegal publications
1. According to the different characteristics of illegal publications, illegal publications can be divided into three types:
(1) illegally printing publications.
(2) Illegal audio-visual publications.
(3) Illegal electronic publications.
Main types of illegal publications
(1) The publication printed by the publishing unit falsely claimed that it did not exist.
(2) stealing a publication printed in the name of a publishing unit approved by the state.
(three) illegal printing, production of legal publications, publications publicly issued and sold in the society.
(four) publications that are publicly released without the name of the publishing unit or the name of the non-publishing unit.
(5) Printers and contractors print or produce publications without authorization for the purpose of seeking illegal benefits.
(six) members of the publishing unit that have been clearly dissolved reprint or publish publications in the name of the original editorial department without authorization.
(seven) other illegal publishing units to print public publications.
(eight) fraudulent use, misappropriation of publications printed by overseas, Hong Kong, Macao and Taiwan publishing units.
(9) Lack or forgery of printed publications such as book number, serial number, book bar code and SID.
(10) A publication printed by a non-publishing entity without the approval of the publishing administration.
(1 1) Buy and sell publications such as book number, serial number and edition number.
(12) publications published in Chinese mainland by overseas, Hong Kong, Macao and Taiwan publishing units or their institutions in Chinese mainland and their personnel without the approval of the administrative department of press and publication.
(13) Violating the regulations on cooperative publishing and printing on behalf of others, engaging in publishing publications printed by speculative activities.
(14) publications imported or smuggled without the approval of the competent state department.
(15) Publications with serious political problems, obscene or pornographic content, or advocating murder and violence. Even the above-mentioned publications published by state-approved publishing units are illegal publications.
Identification method of illegal publications
(a) Check covers, illustrations and advertisements
The press and publication administration stipulates that it is strictly forbidden to attract readers with pornographic and murderous words and pictures, and most of the covers of pornographic books and periodicals contain pornographic, obscene, murderous and violent pictures; Illegal publications often mark inflammatory directories on the cover, or replace the title with directories, or the font of directories is larger than the title; In order to sell for a long time, the distribution and volume of some publications are deliberately blurred. Illustrations of general illegal publications are often printed with pictures of pornography, obscenity, terror and murder.
(2) View the copyright page
See if the version of the copyright page records the entries in accordance with the regulations and whether the description is accurate and complete. Books published after September (199 1) are generally illegal publications, and the copyright page (or title page) does not have the publisher's re-registration certificate number. Second, see if the club name has been stolen. The version records of illegal publications often steal the names of border provinces (regions) publishing houses or revoked publishing houses, or even fabricate the names of publishing units. Third, see if the printing unit marks it. The printing unit of legal publications is generally a provincial-level designated printing plant, while illegal publications are often marked as non-designated township printing plants or even underground printing plants. Fourth, see if the general distribution (general distribution) unit is ambiguous. Some illegal publications are only vaguely labeled "Issued by Xinhua Bookstore". Which Xinhua Bookstore is it? Not clearly marked. Legal publications are generally issued by the post office, and illegal publications are not marked with the words issued by the post office.
(3) Checking the standard book number refers to checking whether the compilation and arrangement of the standard book number are in compliance with the provisions, whether the prefix or regional code of the publishing house is wrong, whether the check code is correct, whether the book classification number is consistent with the contents of the publication, whether the book number is too much or too little or whether the coding is wrong.
(4) Check the Power of Attorney for Subscription and Distribution of Books and Periodicals. According to the regulations of the Press and Publication Administration, when publishing houses entrust wholesale enterprises to subscribe for and distribute books and periodicals, they must use the Power of Attorney for Subscription and Distribution of Books and Periodicals uniformly printed by the Press and Publication Administration. Therefore, retail bookstores should first check whether the books they sell have a power of attorney issued by the publishing unit. If there is no power of attorney, it should generally be regarded as an illegal business operation.
(5) Check the new book transfer order. Vendors of illegal publications generally distribute and solicit in the form of single-page orders, without using new books or catalogues written by wholesale enterprises such as publishing houses and Xinhua Bookstore. At the same time, you should also check whether the bookstore that issued the allocation form has a wholesale license for general distribution, general distribution or secondary wholesale, whether its distribution channel is legal, whether the book pricing is reasonable, and whether the distribution discount conforms to the routine.
(6) Check the paper quality and printing quality of books. Many pirated books have colorful covers, and some even have anti-counterfeiting marks, which are difficult to be confused with piracy. However, if you carefully look at the page of the text of this book, you will find flaws: first, the paper is yellow and brittle, and the feel is rough; Second, the printing quality is poor, the plate center is not correct, there are many typos, the phenomenon of printing and sticking is common, and the ink coloring is deep and shallow; Third, the binding quality is very poor, the folding is not straight, there are many knives, and there are pages missing or even knives; Due to poor binding, the covers of some books may be separated from the whole book and fall off.
(seven) check the seller and the price. Pirated books are generally not listed in regular bookstores because they are easy to be seized. Most people who sell pirated books and cam-are tourists and vendors who do not have legal business qualifications, such as carts, handbags, stalls and hawkers. Because pirated books from paper, typesetting to printing, the cost is very low, and they don't pay the remuneration, so they evade taxes. Therefore, sellers often sell at a price two or three times lower than the marked price, and set up stalls for new books that are sold at half price, mostly pirated books.
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