| In 1979,145 of the Criminal Law established the basic content of libel,in 1997,Criminal Law the 246 th of libel charges and the legal punishment modified,2015 Criminal Law Amendment(Nine)on the relevant supplementary.Libel infringes the legal benefits of citizen’s reputation but due to the lack of right consciousness and self-protection ability,reputation in a long period do not get the attention of people.At the same time,libel generally should be handled by law only when victims prosecute,however,even if a person’s right of reputation is damaged,he/she will take little action to bring a lawsuit.Therefore,compared with other crimes,the incidence of libel crime is low,which leads to the lack of theoretical attention to it and few research results.With the progress of our society,and awakening and improving of people’s right consciousness,libel is diverse in ways,fast in spread speed and wide influence especially in the network era,therefore,defamation cases are increasing year by year.Based on this fact,libel gradually arouses the attention of theorists,and has obtained research results.However,given that the current research on defamation is relatively simple,systematic research is relatively insufficient,and there are still some problems in relevant legislation and judicial interpretation.Therefore,the theoretical discussion on the crime of defamation still needs to be further studied.The article uses literature analysis,empirical research,comparative analysis,and other research methods.Investigated the in-scope and out-of-scope legislation,analyzes the constitutive elements of defamation crimes and the relevant boundaries that should be grasped in defamation crime identification,and necessary discussion was made on the defects existing in the defamation legislation in China.In addition to the introduction and conclusion,the article is divided into four parts:The first part is about the investigation of defamation legislation inside and outside the domain.The development of defamation legislation in China has experienced a long period of development since ancient times,legislation for the crime of defamation in the civil law system and the Anglo-American law countries has its own characteristics.Historical experience is worth considering,and the rational content of foreign legislation is worthlearning.Comparing the legislation on defamation between Chinese and foreign countries lays an important foundation for a more comprehensive understanding of the content and inadequacies of China’s current defamation legislation and further improvement.The second part is the composition of defamation.Like other crimes,the composition of defamation must also have four elements.(1)There are many different opinions on what is the object of defamation.The article believes that the object of the crime should be the citizen’s right of reputation.While protecting the citizen’s reputation,it should also consider the limits of freedom of speech.In special circumstances,defamation can also infringe social order and national interests.(2)Objective aspects of defamation should grasp the following: Regarding defamation,there are two kinds of doctrines of “single behavior”and “complex behavior” in academic circles.The “single behavior theory” thinks that defamation behavior can be distributed only.The compound behavior says that the act of defamation must be fabricated and disseminated.It only spreads without fabricating false facts and does not constitute defamation.The article agrees with the compound behavior that the act of defamation is the act of fabricating false facts out of thin air and spreading their contents to others;the object of defamation is usually considered to be only natural persons,and defamation must be serious enough to constitute a crime.(3)The main body of defamation is a natural person who reaches the age of 16 or above and has a normal spirit.With the advent of the Internet age,the Internet rampant behavior has become a new type of criminal means of defamation,and the subject of defamation has gradually become diversified.The article discusses the subjects of fabricators and distributors,communicators of internet information,and Internet service providers.(4)The subjective aspect of defamation is intentional.According to the general view,the subjective aspect of defamation can only be direct and deliberate,and whether indirect intention can be a subjective aspect of defamation,there is controversy in the academic world.The article takes a positive attitude and knows that the fabrication and dissemination of false facts will damage the reputation of others,and still hope or let the subjective mental attitude of the damage result be subjective to fault.The third part is the confirmation of defamation crimes.In the confirmation of defamation,attention should be paid to grasping two boundaries: First,the boundary between sin and non-crime.There are different degrees of difference between defamation and generaldefamation in terms of behavioral level,behavioral object,subjective aspect,and subject of behavior;the second is the boundary between this crime and another crime.The article compares defamation crimes with insulting crimes,false accusation crimes,damage to Commercial reputations and commodity reputations crimes,and analyzes the similarities and differences between defamation crimes and other crimes,and can further understand the characteristics and composition of defamation crimes.In the fourth part,the issue of defamation legislation in China and its improvement.The246 offense provisions of the Criminal Code of China provide a clear legal basis for conviction and sentencing in practice.However,with the changes of the times,the development of information technology,the emergence of network forms,the practice of defamation,the target of crimes,the subject of crimes,the seriousness of the circumstances,and the scope of non-private prosecution have become increasingly apparent.On the basis of analyzing the problems,the article has targeted and proposed scientifically defined defamation,expanding the scope of the subject of the crime and the target of the crime,further clarifying the criteria for determining the seriousness of the case,clarifying the scope of non-private prosecution,and so on,so that the Crime legislation is more scientific and more reasonable. |
