1. Basic circumstances of the case
On February 12, 2023, Zhai Moumou, a college student in City B of Province A, contacted **Queen Moumou through a prostitution card, and after negotiating a sexual service of 400 yuan**, he agreed on a location for **Yi. After Zhai Moumou arrived at the transaction place to meet Wang Moumou, he suspected that Wang Moumou was different from the **, and took the initiative to give up having sex with Wang Moumou, and sent Wang Moumou away after giving him 100 yuan.
On February 13, 2023, the C County Public Security Bureau found that Zhai Moumou constituted **, and the circumstances were relatively minor, and imposed a punishment of five days of administrative detention on Zhai Moumou.
2. Administrative reconsideration
Zhai Moumou was dissatisfied and filed an administrative reconsideration with the people of County C. He believes that the facts found in the punishment decision are unclear, that he did not have sexual relations with Wang, and that the procedures of the public security organs were illegal.
The people of County C believe that in this case, the applicant, Mr. Zhai, negotiated the transaction with the woman and the place of the transaction, and had already started to implement it, which constituted an act of ***; Because they did not actually have a relationship, they should be given a lighter punishment. In accordance with Article 66 of the Law of the People's Republic of China on Public Security Administration Punishments, and in conjunction with the Reply of the Ministry of Public Security on the Characterization of the Use of Money as a Medium for Sexual Acts or the Occurrence of Sexual Acts and the Failure to Pay Money, the respondent imposed a penalty of five days of administrative detention on Mr. Zhai. The applicant's reasons are unfounded in law and the evidence is insufficient, so they are not supported. A decision was made to uphold the administrative penalty decision made by the respondent C County Public Security Bureau.
3. Relevant Provisions
1.Law of the People's Republic of China on Public Security Administration Penalties
Article 66, paragraph 1**, shall be detained for between 10 and 15 days, and may be concurrently fined up to 5,000 RMB; where the circumstances are more minor, they are to be detained for up to 5 days or fined up to 500 RMB.
2.Reply of the Ministry of Public Security on the Characterization of the Use of Money as a Medium for Sexual Acts or the Occurrence of Sexual Acts and the Payment of Money (2003) (hereinafter referred to as the "Reply").
It refers to the act of having sexual relations between unspecified members of the opposite sex or between people of the same sex using money or property as a medium. The subjects of the act have subjectively reached an agreement on ***, have negotiated **, or have already paid money or property, and have already started to carry it out, but have not yet had sexual relations due to reasons other than their own subjective will; or those who have already had sexual relations, but have not yet paid money or property, can be dealt with in accordance with the law. The former conduct shall be given a lighter punishment.
3."Interpretation (II) of Issues Concerning the Implementation of the Law of the People's Republic of China on Public Security Administration Penalties by Public Security Organs" (hereinafter referred to as "Interpretation (II)").
2. On the issue of legal liability for violations of the administration of public security if the purpose is not achieved.
Where the perpetrator prepares tools or creates conditions for carrying out conduct violating the administration of public security, punishment is not to be given. (Preparation for violations).
Where the perpetrator voluntarily renounces carrying out conduct violating the administration of public security or automatically and effectively prevents the violation of the administration of public security from occurring, and no harm is caused, punishment is not to be given; where harm is caused, punishment shall be commuted. (Suspension of Offence).
Where the perpetrator has already begun to carry out conduct violating the administration of public security, but has not succeeded due to reasons other than their own will, they shall be given a lighter punishment, commuted punishment, or no punishment. （Attempted offence
Fourth, the "Reply" stipulates that four conditions must be met to punish *** who has not yet had sexual relations
If the "*** behavior that has not yet had sexual relations" referred to in the reply is to be processed, the following four conditions must be met at the same time:
1) ** The woman and the prostitute have subjectively reached an agreement on ***.
* The woman has the idea of selling her body for money, the client has the idea of paying money to buy sexual services, and the woman and the client of the prostitute reach an agreement on the upcoming *** act.
2) It has been negotiated or money or property has been paid.
* The woman and the client have negotiated the specific ** that is, the prostitution fee for the sexual services provided by both parties, or the two parties have paid the negotiated prostitution fee.
c) has already begun to implement.
*The woman and the prostitute are ready to carry out *** behavior after negotiating the prostitution fee. In practice, common acts of initiation include ** women and prostitutes going to the agreed ** place; Prostitutes began to screen ** women; **Female, prostitute client** service ready for **easy; **Women provide services such as chest thrust, masturbation, and oral masturbation for prostitutes.
(4) For reasons other than their own subjective will, they have not yet had sexual relations
* When a woman and her client are ready to have sex, they are unable to have sex due to objective reasons. A common situation in practice is:Caught by the police when he was about to have sex
5. College students who voluntarily give up ** should not be punished
1) The public security organs and administrative reconsideration organs believe that Zhai XX constitutes **, and the punishment is in accordance with the provisions.
It can be seen from the administrative punishment decision of the county C public security bureau and the administrative reconsideration decision of the people of county C that the public security organs and the administrative reconsideration organ both believe that the prostitute Zhai Moumou has negotiated a good transaction point and transaction with the ** queen and has started to implement it, but has not had sexual relations. According to the provisions of the "Reply", Zhai Moumou's behavior constitutes ** and should be punished lightly.
2) Zhai Moumo and Wang Moumou have subjectively reached an agreement on ***, and the two parties have negotiated the prostitution and the location of the transaction, and began to implement it.
In this case, the prostitute Zhai Moumou has the idea of **, and the queen has the idea of **, and the two have already negotiated *** and agreed on the specific location of **, and Zhai Moumou and Wang Moumou agreedBehaviour is subjectively agreed；Prostitute Zhai Moumou contacted **Queen Moumou through the prostitution cardThe two parties negotiated a prostitution fee of 400 yuan, and agreed on the place of *** transaction; The prostitute Zhai Moumou and the ** Queen Moumou were together according to the agreementArrived at the place of trading, and the implementation has begun
3) Zhai Moumou voluntarily gave up ** and did not meet the penalty conditions stipulated in the "Reply".
The prostitute Zhai Moumou and the ** queen Moumou arrived at the transaction place together according to the agreement, and Zhai Moumou found that Wang Moumou had an ugly appearance and was inconsistent with **, and took the initiative to give up ** behavior. Although the ** queen is ugly, the prostitute Zhai Mou Mo can still continue to carry out ** behavior. The prostitute Zhai Moumou did not have sexual relations for reasons other than his own will, but wasSubjectively and voluntarily gave up the ** behavior, so as not to have sex with ** Queen XX. Zhai Moumou's behavior constituted **, but he took the initiative to give up **,Zhai Moumou's ** behavior does not meet the conditions specified in the "Reply": "due to reasons other than his own subjective will, he has not yet had sexual relations".Therefore, Zhai Moumou cannot be punished in accordance with the reply.
4) Zhai XX has no harmful consequences and constitutes the suspension of illegal acts; The "Interpretation (2)" should be applied, and Zhai XX should not be punished.
There is no actual victim of the endangered social management order, so there is no harmful consequence。According to the "Interpretation (II)" IIOn the issue of legal responsibility for violations of the administration of public security that fail to achieve their goals: where the perpetrator voluntarily abandons carrying out the violation of the administration of public security or automatically and effectively prevents the violation of the administration of public security from occurring, and no harm is caused, punishment is not to be given; where harm is caused, punishment shall be commuted. Zhai Moumou automatically gave up the implementation of ** behavior and did not have sexual relations with ** Queen XX, and Zhai Moumou and Wang Moumou's *** behaviorThere are no actual harmful consequencesIf it constitutes an illegal act, it shall not be punished.
To sum up, I personally think,The public security organs should determine that Zhai XX constitutes **, and at the same time make a decision not to punish him。The decision of the public security organ to place Zhai Moumou under administrative detention for five days was inappropriate, and the decision of the administrative reconsideration organ to uphold it was also inappropriate.
About the Author:
Lawyer Guo Xiaohang
Position: Director and Senior Partner of the Criminal Defense Center of Chongqing Jinmu Jinyang Law Firm.
Education experience: Bachelor of Laws from Southwest University, Master of Investigation from Chinese People's Public Security University.
Work experience: He has handled and reviewed criminal cases, public security cases, and traffic cases in public security organs for more than 10 years.
Areas of expertise: Criminal Defense, Drunk Driving Defense,Pornography, gambling, drugs, public security penalties, temporary seizure, revocation of driver's licenses, traffic penalties, administrative reconsideration, administrative litigation
Performance: bail in criminal cases, non-prosecution, probation；**Administrative penalties such as gambling and revocation of driver's licenses have been revoked or the range of penalties has been reduced
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