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2010年5月20日南京市秦淮区法院对南京某大学原副教授马尧海等22人“聚众淫乱案”作出一审判决,22名被告人均犯有聚众淫乱罪,其中,马尧海被判处有期徒刑三年六个月,其他21名被告人分别被判处免予刑事处罚到两年六个月有期徒刑不等。该案件从媒体曝光到进入司法程序,一直受到社会各界的广泛关注。于此伴随而来的是对该案的颇多争议。媒体曝光后,普通民众特别是网民积极参与到案情的讨论,逐渐形成声援马尧海的一边倒趋势。而随着马尧海案件从社会层面进入司法层面,许多法学家和社会学家加入到支持马尧海的阵容中。他们从法律和社会两方面表达了对该案件的看法。对于本案,笔者更希望当事人和旁观者能够归于理性。客观、公正地分析案情,从法律和社会两个层面上评价聚众淫乱罪的现实地位。笔者也基于此目的对该案的争议点进行梳理,阐述自己的观点,根据现有的司法框架对该案进行法律评价。
On May 20, 2010, Nanjing Qinhuai District Court made a verdict of first instance against 22 people such as Ma Yaohai, former associate professor at a certain university in Nanjing, and a trial verdict of “polygamy and promiscuity.” All 22 defendants committed crimes of mass mobilization and sexual promiscuity, among which, Ma Yaohai was sentenced to 3 years imprisonment In the first six months of the year, the other 21 defendants were sentenced to exemption from criminal punishment and imprisonment of two years and six months respectively. The case from the media exposure to enter the judicial process, has been widespread concern in all sectors of society. What follows is a lot of controversy over the case. After the media was exposed, ordinary people, especially Internet users, actively participated in the discussion of the merits and gradually formed an one-sided trend of solidarity with Ma Yaohai. With the Ma Yaoyao case from the social level into the judicial level, many jurists and sociologists to join the team to support Ma Yaohai. They expressed their opinions on the case both in law and in society. For this case, I hope that the parties and bystanders can be rational. Objectively and impartially analyze the facts of the case, and evaluate the actual status of the crime of mob gathering for lepers from the legal and social levels. Based on this purpose, the author also sorts out the controversial points of the case, elaborates his viewpoint and makes a legal evaluation of the case according to the existing judicial framework.