1. Cases
Intermediate People's Court of City A.
Administrative Judgments.
The public security administrative punishment decision made by the Public Security Bureau of County B on February 25, 2005 determined that Zhou Moumou asked Wang Moumou to masturbate for him at about 22 o'clock on February 23, 2005 in the bathroom of Village D, Town C, County B, and the two parties were seized by the public security organs on the spot during the negotiation. Zhou's behavior violated the provisions of Article 30, Paragraph 1 of the "Regulations of the People's Republic of China on Public Security Administration Punishments", and it was decided to give Zhou a warning and a fine of 1,000 yuan.
The first instance upheld the public security administrative punishment decision made by the defendant B County Public Security Bureau on February 25, 2005.
After trial, the Intermediate People's Court of City A held that the Ministry of Public Security stipulated in Gong Fu Zi [2003] No. 5 "Reply 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".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. ”
It can be seen from this that ** is the act of having sex with money and property between unspecified people of the opposite sex or the same sex, including masturbation, masturbation, ** and other behaviors. For those who have not yet had sexual relations, the following conditions must be met at the same time to constitute an act of ***: (1) the subjects of the act have subjectively reached an agreement on ***; (2) It has been negotiated or money or property has been paid; (3) Implementation has already begun.
Combined with this case, the appellant Zhou and Wang had subjectively reached an agreement on *** (that is, Wang had masturbated for him), but the appellant Zhou and Wang had only been discussing the ** issue, and had not yet reached an agreement, let alone masturbated. Therefore, the appellant Zhou's conduct did not meet the constitutive elements of **, and the appellee B County Public Security Bureau erred in determining that the appellant Zhou's above-mentioned acts constituted **, and its punishment of the appellant Zhou XX in accordance with the first paragraph of Article 30 of the "Regulations of the People's Republic of China on Public Security Administration Punishments" was an improper application of law and should be revoked in accordance with law. The trial court's judgment upholding the penalty was improper and the decision was revoked.
In accordance with the provisions of Article 54 (2) Item 2 and Article 61 (2) of the Administrative Litigation Law of the People's Republic of China, the Intermediate People's Court of City A made the following judgment: revoke the administrative judgment of the People's Court of County B;Revoke the public security administrative punishment decision of the County B Public Security Bureau.
2. Relevant provisions
Law of the People's Republic of China on Public Security Administration Punishments
Article 66, paragraph 1**, shall be detained for not less than 10 days but not more than 15 days, and may be concurrently fined up to 5,000 yuan;where the circumstances are more minor, they are to be detained for up to 5 days or fined up to 500 RMB.
Reply to the Question of the Qualitative Treatment of Sexual Acts Involving Same-Sex Sex Using Money as the Media" Gong Fu Zi [2001] No. 4.
Acts of improper sexual relations between unspecified members of the opposite sex or between people of the same sex using money or property as a medium, including oral masturbation, masturbation, **, etc., are all *** acts, and the perpetrator shall be dealt with in accordance with law.
Reply on the Characterization of the Use of Money as a Medium for Sexual Acts or Sexual Acts and Payments of Money" Gong Fu Zi [2003] No. 5.
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. If the negotiation has not reached an agreement, it does not constitute a punishment and should not be punished
Masturbation is also one of the most important behaviors, for those who have not yet masturbated the behaviorIf it is processed in accordance with the *** behavior, according to the above approval,The following conditions must be met at the same time: (1) the actors have subjectively reached an agreement on ***;(2) It has been negotiated or money or property has been paid; (3) Implementation has already begun.
In this case, the prostitute Zhou Moumou and the queen Moumou reached an agreement on ***, and Wang Moumou masturbated for Zhou Moumou. When Zhou Moumou and Wang Moumou were negotiating**, they were arrested by the public security organs. Zhou Moumou and Wang Moumou have not yet negotiated and reached an agreement on masturbation, and do not meet the conditions stipulated in the above reply. Therefore, the acts of Zhou and Wang did not constitute ***, so the court of second instance revoked the administrative penalty decision.
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: More than 10 years of experience in handling and reviewing criminal, public security and traffic cases in public security organs.
Areas of expertise: Criminal DefenseDrunk driving defense, pornography, gambling and drug security punishment, temporary seizure or revocation of driver's license traffic penaltiesAdministrative reconsideration and administrative litigation
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