| With the development of the Internet,it is known that the era that you can receive what you need without going outside has arrived.With the help of the Internet,people’s quick exchange of information and instant communication turn into reality.The "global village" is the most vivid interpretation of this powerful virtual space.However,when the Internet brings all these convenience for our living and working,it,at the same time,gives birth to the gray zone,where some criminals take advantage of to carry out the crime.As for the Internet,because of its neutrality,fast speed and huge influence,it can make the harm lager easily than that caused by the traditional crime.The Network Defamation is one of the typical network crimes,what the criminal need is just to click the mouse,and then all those rumors can be widely spread on the major website.Taking a crime costs less with less difficulty as well,even though the damage of it is significantly improved.In view of the more and more crime recently,the supreme people’s court has relevant "interpretation" in 2013,and also the "ninth amendment of the criminal law" is beginning to deal with the network crime by making detail and special regulations in 2015.This paper mainly focuses on discussing about the controversial issues of the network defamation,which includes the elaboration and analysis for the key problems.And finally it tries to explore the scientific system of how to determine the network defamation,of which the main content can be divided into four parts:Firstly,in the aspect of act requirements of the network defamation,based on the environment of the Internet,the act of completely fabricating and partially fabricating can lead to equally serious harmful consequences.And in consideration of following the principle of priority protection in the legal interest,both of those two acts should be incorporated into the meaning of the ’fabrication’ of the network defamation in the Criminal Law;And then,at the same time,publicity should not be taken as a necessary condition of the dispersal behavior in the network defamation.Whether it is distributed actively or passively,it should be mainly judged on the basis of whether the behavior can be known to unspecified persons or whether the actor avoids it to be known by the other people successfully;and as for the relationship between fabrication and dispersal behavior,because of the fact that only the dispersal behavior also can cause serious violations of legal interests through the network "armies",it is necessary to regard the only dispersal behaviour to be the complete condition of the criminal act of the network defamation,in stead of asking for both fabrication and dispersal behaviour to be taken at the same time.After that it is good for realizing the original legislative intention,and adapting well to the development of the modern network society,and avoiding the possibility that the criminals take use of the original seemingly meaning of the legal rules to get rid of the legal responsibilities.Secondly,in the subjective aspect of the judicial determination of the network defamation,it should be based on the judicial practice of the network defamation and also taken the background of the development of the network into consideration.The indirect intention should be understood as the certain meaning of the subjective condition of the network defamation,instead of separating it from the subjective intention arbitrarily.And at the same time,in consideration of the fundamental purpose of criminal law,which is to protect citizens’ legal interests,whether the actor have the purpose of“spreading the fake content in the public " or not is not a direct subjective standard of judicial determination.It is to avoid narrowing the extent of punishment improperly and weaken the legal protection to the citizens’ rights and interests in personality and honorary.Thirdly,for the "plot" elements of the network defamation,there is theoretical support and practical significance in the quantified provisions of judicial interpretation.Trough the analysis of plenty of cases,it is rational to conclude a scientific data basis in judging the serious plot,which is conducive to the specific application of laws and avoid the excessively expansion of the judicial discretion.But it still needs to keep paying attention to those related cases,and if necessary,some other circumstances that meet the standard of "serious circumstances" should also be increased in the plot condition of the network defamation,in order to keep pace with the times in realizing the judicial protection of the citizens’ rights and interests of personality and honorary along with the development of the times.Fourthly,refer to the balance between freedom of speech and order,multiple factors should be taken into comprehensive consideration.A relatively strict standard should be adopted in relation to the public spheres and figures,which ask for a much more falsity of the spreading content.However,it does not mean that all actors involved in this circumstances have been protected from the punishment certainly.If the actor know what he says is completely false and the only purpose of it is just to damage the reputation of the individual personality,he should not be blindly applied for the strict determination standard for the "protection of speech".In addition,considering that the criminal law is the most severe punishment,so it may be better to take other means like civil law or administrative law to regulate the act in the field of the public spheres and figures,which can reduce the fears of the public to realize their freedom of public speech and also protect the basic rights of citizens while safeguarding the society value in development of democracy. |
