Rules for Determining "Public" Circumstances in Crimes Related to the Harm of Children's Physical and Mental Health and Their Judicial Application

Abstract

The determination of "public" in crimes related to the harm of children's physical and mental health varies in severity, affecting the consistency and continuity of judicial standards. Through legal hermeneutics analysis, this paper proposes a determination rule based on the "functional substance theory" and centered on "perceived possibility." The scope is expanded from physical to virtual, recognizing that live online broadcasts watched by multiple people in real time qualify as "public," while recorded broadcasts do not; temporary closure of public places, resulting in the loss of the possibility of perception by unspecified individuals, does not constitute "public." A determination path based on three dimensions—"degree of openness," "people density," and "visibility of behavior"—is constructed to define the "openness and unspecified nature" of public places. This provides support for the rule of law process of proportionality between crime and punishment and offers guidance for resolving the dilemma of lenient sentencing and the disregard for aggravating circumstances.