Judicial Determination Of Objective Aspects Of Cyber Determination In Crime Of Determination

With the continuous development of the Internet and more and more citizens exercise their right of speech freedom by it,meanwhile,the citizens ' right of reputation are increasingly threatened by online defamation,compared with traditional online defamation,it has new characteristics today such as spreading messages almost instantly and being serious harmful consequences,which bring new challenges to our country's criminal regulation of defamation.To confront with the new situation and new challenges,China has introduced the explanation on some problems of applying law to criminal cases as libel by using information network in September 2013(hereinafter referred to as the judicial interpretation on network defamation),which is based on the article two hundred and forty-six of the criminal law and add supplementary provisions for the application problems of network libel law,so it will further crack down on the internet defamation.However,there are different views about the internet libel crime in the academic community and most of disputes are about objectiveness,the other phenomenon is the network defamation judicial interpretation has encountered many difficulties in judicial practice.In order to solve the problems in the judicial practice better and to adequately guarantee the citizens reputation right with effectiveness,in this paper,which explored the judicial efficacy about the legitimacy with judicial interpretation of slander with knowing,the judicial cognizance standards for public figures as a behavioral object and the number of transmission times as the serious circumstances,at last,appropriately drew lessons from foreign legislative and judicial practices as well as combined with the reality in our country to put forward suggestions on relevant issues.Regarding the legitimacy of judicial interpretation of slander with knowing,the disputes mainly focus on the action mode of libel is single or multiple,whether the action of spreading rumors on purpose is belong one of libel action mode,it is stipulated by the judicial interpretation on network defamation.From the perspective of violation or protection of the law benefits,this thesis makes a comparative analysis of a single and multiple behavior,and consider the action mode of spreading rumors on purpose is no violation of the principle of legality and it doesn't overstep its authority to enforce the legal fiction,and which is incorporated into the above judicial interpretation,suggest to amend them to remove the suspicion of legal fiction and to deal with the three modes of action in parallel.On the issue of the judicial identification standards about public figures as the behavior object,the main dispute lies in whether the judicial determination of incrimination standard should be different when the behavior objects execute the network defamation are not the same,especially how to deal with the behavior objects are public figures,combining with the connotation and the value about the freedom of speech,believe when they as the object is necessary for legal interests measurement,the actual malice principle from American has both significance and defects,and suggests that the real object of speech should be deeply examined in the judicial cognizance and to excluded both the untrue information from speaking straightforward for justice and the facts with a certain authenticity and improper evaluation.As the problem of the judicial efficacy about the times of transmission,the main dispute lies on whether the times of dissemination of defamation as the standard to determine the serious acts is reasonable.This paper focus on discussion about the relationships among the number of dissemination,the seriousness of the circumstances and the third people spread the information malicious,conclude that the relevant provisions of judicial interpretation on network defamation is in conformity with the relevant principles of the criminal law and value and will not result in an objective incrimination,however,using the times as the standard to confirm the condition is seriousness or not,put forward the question about its science nature needs to improve,and advice court should find out the real times by investigation and taking of evidence,when the third party is malicious intervention,the court should impose a lighter punishment to the perpetrator and endow with the substantive review power through legislative or judicial interpretation.