Study On "Private Prosecution To Public Prosecution" Of Network Defamation Crime

Under the people-oriented ideology guidance in our country,the Civil Code listed personality right separately as a series,embodies the importance that the government attaches to personality right.However,compared with the real life space,people’s speech in cyberspace is freer,strangers are closer to each other,and communication is more convenient.Because it is more difficult to protect rights in cyberspace,it leads to more and more infringements in cyberspace and greater impacts.The network libel crime derived from the libel behavior is exactly the violation of the right of personality.The breeding of this behavior in the network space makes more victims appear,which makes the network space become the colony of vulgar and false information.Therefore,it is the inescapable duty of the judicial organs to crack down on the crime of online defamation and maintain the safety and health of the cyberspace environment.The "Hangzhou Online defamation case" is one of the top 10 legal supervision cases in China in 2020 and also one of the 34 th batch of guiding cases of the Supreme People’s Procuratorate.This case has aroused the public’s attention to the crime of network defamation.This crime will not only seriously affect the victim’s normal social life,but also cause the public’s insecurity and affect the normal order of the society due to the random nature of the victim.Once the degree of serious harm to the social order is reached,the procuratorial organ has the right to prosecute.For the same act of the same doer,the victim has the right of private prosecution,and the public security organ and the procuratorial organ have the right of prosecution,so there will be a situation of contestation of the right of prosecution.If the public security organ and the procuratorial organ should start the public prosecution procedure when the victim has already filed a private prosecution,then whether the private prosecution procedure can be converted into the public prosecution procedure and how to connect the private prosecution with the public prosecution procedure is controversial.Based on the analysis of the general theory of the private prosecution of network defamation crime,this thesis interprets the private prosecution of network defamation crime as the victim has already filed a private prosecution for the online defamation crime of others.But because of the difference in understanding of the public prosecution case of network defamation crime or the impact of the case in the process of litigation to further expand to harm the public interests of society,the state and other cases should be prosecuted and tried by the public prosecution procedure.By analyzing the necessity and legitimacy of the application of private prosecution to public prosecution from three aspects of theory,procedure and entity,it is necessary to strictly explain the conditions for the conversion from private prosecution to public prosecution and adhere to the principle of "public prosecution priority".If the private prosecutor voluntarily withholds the prosecution,the trial will be conducted according to the public prosecution procedure;if the private prosecutor is unwilling to withdraw the prosecution,It tries the case with the mode of "quadrupole litigation structure" to safeguard the litigation rights of the victim,so as to straighten out the connection,transformation and application of the network libel crime private prosecution procedure and public prosecution procedure.If the settlement of the case serves as a warning to a kind of social phenomenon and provides more reasonable guidance for the application of procedures to the trial of this kind of case,then the case has more important significance,such as the Hangzhou Lang and He libel case.The author believes that the procedure of transferring from private prosecution to public prosecution can be applied to online defamation cases to alleviate the problems in the current litigation of online defamation crimes,to warn the public to speak in cyberspace,and to create a civilized and harmonious cyberspace environment.However,the conditions of applying the procedure should be strictly understood to balance the rights of all parties involved in the litigation,so as to realize judicial fairness and justice.