News

Introduction

In May 2022, a group of weird color illustrations made headlines on the front pages of major media. Although the characters in the picture are cartoon children, they do not have any youthful vitality, but have dull eyes, tongue half sticking, obscene shapes, and obscene lines. The overall painting style is weird, such as in the underworld. It is revealed that such "Paintings" are actually illustrations of primary school textbooks published by a well-known education publishing house in China, and have been actually put into use for nearly a decade.

(the picture is quoted from the network)

After the exposure of the incident, the crowd was excited and opinions varied. After the public's emotions are vented, it is undoubtedly a top priority to avoid such incidents in the future. On the occasion of the arrival of the June 1st Festival, how to educate and protect children is bound to become a hot topic again. The author attempts to analyze the criminal legal responsibilities of all parties in the "toxic textbook" illustration (hereinafter referred to as "toxic illustration") incident from the perspective of the legal person, and think about what lessons relevant parties can learn from it.

1、 Analysis on criminal responsibility of textbook editor's negligence

As we all know, the book matching is a very important organic part of a work. Excellent matching can add luster to the work as a whole, while bad matching will be disappointing. This is especially true for primary school textbooks, because primary school students' reading ability of language is still shallow. If appropriate illustrations are attached, it can greatly help students understand the meaning of the text. At the same time, children in primary school have a strong ability to imitate and absorb, but lack the ability to judge the value of right and wrong. Because of this, vulgar and bad illustrations may bring serious negative effects, especially at the critical stage when students' young hearts need enlightenment and guidance, it is easy to lead children astray, and even cause long-term psychological shadow.

As many netizens pointed out, the decadent and depressed mental outlook of children reflected in the illustrations of this textbook, the "random entry" of all kinds of blonde and blue eyed foreigners, the hanging of five-star red flags, and even the "crossing" scene of Japanese military aircraft during World War II have been divorced from the scope of aesthetic differences, but a reflection of some bad taste and wrong ideas. It is not too much for netizens to shout "toxic". Although an Education Publishing House issued an apology after the event, in view of the seriousness of the matter, the author believes that the person responsible may bear criminal responsibility according to law.

First of all, with regard to the quality requirements that primary school textbooks should meet, Article 38 of China's compulsory education law stipulates that "textbooks are compiled in accordance with national educational policies and curriculum standards, the content is streamlined, the necessary basic knowledge and skills are selected, and they are economical and practical to ensure quality". Article 3 of the measures for the administration of primary and secondary school textbooks issued by the Ministry of education in 2019 stipulates that "primary and secondary school textbooks must reflect the will of the party and the state. They must adhere to the guiding position of Marxism, reflect the requirements of the Sinicization of Marxism, reflect the style of China and the Chinese nation, reflect the basic requirements of the party and the state for education, reflect the basic values of the country and the nation, and reflect the accumulation of human cultural knowledge and innovative achievements". Article 37 of the administrative measures stipulates: "in case of any of the following circumstances, the teaching materials shall be withdrawn from use and no longer included in the catalogue of teaching books: (1) there are problems in the political direction and value orientation of the teaching materials. (2) there are serious scientific errors in the teaching materials. (3) commercial advertisements or disguised commercial advertisements are embedded in the teaching materials. (4) improper means are used to affect the examination and selection of teaching materials. (5) Other situations that textbooks should be withdrawn from use ". It can be seen that the relevant "problem illustrations" exposed in this incident, as a key part of the textbook, not only violate the core socialist values, but also obviously violate the law. They should be withdrawn from use immediately according to law and should not be used as teaching books.

In terms of the main body of responsibility, considering that the above textbooks were published ten years ago, according to Chapter III (project approval and approval of textbook compilation), Chapter IV (preliminary examination and test of textbooks) and Chapter V (examination and approval of textbooks) of the Interim Measures for the administration of the compilation and approval of textbooks for primary and secondary schools issued in 2001, a primary and secondary school needs to go through many links from approval, preliminary examination, test, examination and approval from the project approval to the use. Therefore, if there is a problem with the final textbook, the operator of the above links may become the subject of responsibility.

In terms of specific responsibilities, Article 38 of the measures for the administration of textbooks for primary and secondary schools in 2019 stipulates that "...... depending on the seriousness of the circumstances and the impact caused, the higher level or the education administrative department at the same level shall circulate a notice of criticism, order to stop the violations, and the competent department or the unit shall give corresponding sanctions to the relevant responsible persons according to the regulations. The units and individuals with serious circumstances shall be included in the negative list; those suspected of committing a crime shall be investigated for criminal responsibility in accordance with the law." Article 128 of the law on the protection of minors also stipulates that "Any functionary of a state organ who neglects his duty, abuses his power, engages in malpractices for personal gain, and damages the legitimate rights and interests of minors shall be punished according to law." In this incident, considering the poor quality of the "toxic illustrations", the wide range of influence, the length of the use event, the number of minors infringed and other comprehensive factors, The author believes that the behavior of the relevant responsible person is in line with the situation in Article 397 of the criminal law, "the staff of state organs are seriously irresponsible for their work, do not perform or do not seriously perform their duties, resulting in heavy losses to public property, the interests of the state and the people", that is, they are suspected of dereliction of duty and should bear corresponding criminal responsibility.

2、 Criminal law analysis on whether "poisonous illustrations" belong to child pornography

The most disturbing part of the "toxic illustrations" is that they are full of hints of minors' soft porn. For example, some lines are full of obscenity. Some pictures openly show the close-up of children's private parts, showing them as objects of gaze and materialization, which is obviously offensive to the public. But what is more disturbing is that such "soft pornography" may not be subject to criminal punishment according to the current criminal law and judicial precedents.

Article 364 of the criminal law (Crime of disseminating pornographic materials) stipulates: "Whoever disseminates pornographic materials to minors shall be severely punished"; At the same time, article 367 stipulates that "scientific works related to human physiology and medical knowledge are not obscene. Literary and artistic works of artistic value containing pornographic content are not considered obscene". This explanation is of course reasonable and necessary, but it can be used to justify the illustrations in the textbook in this event. In judicial practice, the "soft pornographic" works, which are common in the current society, are rarely characterized as pornographic articles. If "toxic illustrations" cannot be regarded as obscene goods in the sense of the criminal law, there will be no heavy punishment, which is undoubtedly worrying.

In fact, there is no solution to this dilemma: in many developed countries, the legal judgment standard for child pornography is different from that of ordinary pornographic works; Even in some countries where ordinary pornographic works are legalized, child pornography is still illegal. In the United States, according to the standards set by the Federal Supreme Court in the Ferber case in 1982, child pornography, even if it is not pornographic in the general sense, is still illegal and is not protected by the Constitution on freedom of speech; The judgment of child pornography does not need to consider whether it has literary and artistic value. In Germany, adult pornography is considered legal, but it is a serious crime to disseminate pornography to minors; If child pornography is disseminated in a commercial or gang manner, the maximum penalty is 15 years' imprisonment. In Canada, holding, browsing or reading a certain amount of child pornography is a felony; If a foreigner is found to have child pornography on his mobile phone or computer when entering the country, he will be repatriated immediately and will not be allowed to re-enter the country. Most European and American countries have severely cracked down on child pornography and provided separate public reporting channels to protect the rights and interests of minors.

Unlike general pornographic pornography, child pornography is more obscure and implicit, and often appears in the form of "soft pornography", causing more far-reaching harm and impact. China has ratified the Optional Protocol on the sale of children, child prostitution and child pornography in the Convention on the rights of the child as early as 2002, but at the legislative level, child pornography has not been listed clearly for heavier and stricter punishment. At present, in society, some people with vulgar and illegitimate values pursue stimulation and eyeball popping. In addition, some lawbreakers pursue profits, some people have weak legal consciousness, and the relevant supervision and punishment are not enough. The comprehensive effect of various factors has resulted in the widespread dissemination of soft pornographic materials full of minors. Now, the above content has been grandly listed in primary school textbooks, which is undoubtedly a warning bell.

If China adopts the internationally accepted principle to distinguish adult pornography from juvenile pornography, then "toxic illustrations" will be enough to be included in the category of child pornography, thus causing criminal responsibility. However, in terms of current judicial practice, there are still many obstacles to characterize "toxic illustrations" as obscene goods in the sense of the current criminal law. In any case, it is certain that distinguishing adult pornography from child pornography in law and cracking down on the latter more severely will be a legislative trend in line with the social value of criminal law in the future.

3、 Analysis of criminal responsibility of hanging the national flag upside down in "toxic illustrations"

It can be seen from the online screenshot that the five-star red flag was openly hung upside down in the "toxic illustration". The national flag is a symbol of national sovereignty, and the wrong expression of the national flag means to belittle the image of the country. So, does such behavior constitute a criminal offence?

According to Article 299 of the criminal law, insulting the national flag and national emblem refers to the crime of insulting the national flag and national emblem, and refers to the act of deliberately insulting the national flag and national emblem of the people's Republic of China in public by burning, damaging, scrawling, defiling, trampling, etc. It can be seen that the wrong display of the national flag in public publications is not included in the current written law of our country. There are dozens of results of searching "crimes of insulting the national flag and national emblem" in databases such as the judicial documents network, which only involve the behavior of the actor trampling and burning the national flag by physical means. It can be seen that in the current judicial practice, it is still difficult to criminalize the "unconventional" form of insulting the national flag. In judicial practice, if the wrong flag is used in publications, the case is often closed with administrative punishment.

According to common sense, the social harm caused by hanging the national flag upside down in the "toxic illustrations" is actually no less than the behavior of defacing the national flag by physical means; Because defacing the national flag in a physical way, its influence only extends to the audience who witnessed it; The use of wrong national flag illustrations in public textbooks has affected primary school students across the country. If the former needs to bear criminal responsibility, and the latter is only fined, I'm afraid it's difficult to convince the public. Starting from the principle that the realization of the social purpose of criminal law is compatible with crime and punishment, this has to be said to be a loophole. In the future, the criminal law and the national flag law will continue to be improved. Whether the act of insulting the national flag in the form of publications should be criminalized will be a topic worthy of discussion.

4、 Does Wu's behavior constitute the crime of espionage?

Some netizens believe that Wu, the author of "toxic illustrations", once worked for many foreign institutions, and his behavior was ordered by foreign governments, so he was suspected of espionage. China has always been the focus of attention of overseas spy organizations. Indeed, many overseas spy intelligence agencies use various methods and means of manpower and technology to instigate and develop personnel, spy and steal State secrets, and carry out various infiltration and sabotage activities, causing serious harm to China's national security interests. So does Wu's behavior constitute the crime of espionage?

The crime of espionage is one of the crimes against national security in the criminal law, and the crime of endangering national security refers to the act of deliberately endangering the sovereignty and territorial integrity and security of the people's Republic of China, subverting the state power and overthrowing the socialist system. In current judicial practice, espionage is mostly manifested in participating in foreign espionage organizations or accepting the tasks of espionage organizations and their agents, stealing state secrets and handing them over to the above-mentioned espionage agencies or agents. The "toxic illustrations" produced by Wu are suspected of damaging the physical and mental health of primary school students and objectively infringing on national interests, but whether they are enough to rise to the level of endangering national security in the sense of the criminal law is still questionable.

According to this, the author believes that Wu and his "studio" should undoubtedly be seriously investigated and punished for producing "toxic illustrations", but unless there is further evidence that Wu's motive for creating illustrations is indeed the inspiration of foreign spy agencies, according to the current disclosure, it is difficult to identify him as guilty of espionage.

Epilogue

The exposure of the "toxic illustrations" incident has exposed many problems still existing in China's education system, which is a heavy lesson for all aspects of society. At the legal level, the author believes that the relevant parties can draw the following lessons:

First of all, for educational publishing institutions, the compilation and review of teaching materials should be implemented in strict accordance with laws, regulations and rules such as the compulsory education law and the measures for the administration of primary and secondary school teaching materials. If the illustrations are outsourced to a third-party institution, the subject qualification background of the other party to the contract should be carefully checked in accordance with laws and regulations such as the government procurement law, and strict acceptance procedures should be performed for the deliverables, It cannot be decided based on the unilateral propaganda of the other party or the relationship between the two parties. Wu, the artist involved in the case, has extensive communication and claims to enjoy many honorary titles in the industry, but his so-called "design studio" was found to lack key subject qualifications such as industrial and commercial registration information after the incident; Such risks can be avoided if legal professionals check at the beginning of the contract.

Secondly, for the educational regulatory agencies, we can learn from the effective practices of Germany, Japan and other countries, combined with the actual situation of our country, so that the textbook examination and approval system can truly embark on the legal track. It is suggested to establish a unified and standardized legal system for the examination and approval of teaching materials from the perspective of legislation, and establish clear and scientific standards for the examination of teaching materials. It is not only necessary to examine the text of teaching materials, but also important contents such as illustrations in the text should not be missed; We should also establish an efficient and transparent information disclosure system and public participation system, solicit and listen to public opinions in time, so that people can have the opportunity to participate in the examination and approval of textbooks through formal channels such as hearings or online submission of revision opinions; In addition, we should also set up the corresponding supervision mechanism and relief ways after the event, so as to facilitate all sectors of society to exercise the right of supervision. If there is a dispute, we can get an objective and fair ruling.

Finally, for the legislators of criminal laws and regulations, China's current crackdown on child pornography is still significantly behind developed countries. Child pornography not only seriously damages the physical and mental health of teenagers, but also pollutes the social environment, which should be the focus of the criminal law. Unfortunately, according to China's current criminal law and judicial precedents, it is difficult to find a provision or precedent that treats child pornography differently from ordinary pornographic materials; So that soft pornographic works involving minors are rampant in the current society, and even appear openly in primary school textbooks. On the occasion of the children's day in the new year, the author sincerely appeals to legislators to review the relevant provisions, formulate separate standards for criminalizing child pornography and crack down on it, so that the future "flowers of the motherland" can really enjoy a sunny day.