On The Press Infringement And The Special Demurring Reasons Against Such Infringement

The role that law plays is not only to prescribe rights but also to allocate properly various rights. The liberty of speech, consensus supervision, the function of press law and regulation is to make appropriate choice among defending the right of personality, defending the right to know, protecting the liberty of speech and protecting consensus supervision. With the development of legal system construction, the protection of the right of personality is attached more importance and the relevant laws are improved gradually. However, the legal protections of the right to know, liberty of speech and consensus supervision are relatively not satisfying. In recent years, there have been several lawsuit climaxes of press infringement. Besides, it is high frequent that government servants bring in lawsuit to interfere press consensus supervision, in the excuse of press infringement. All these make people realize that we must offer special protection on press as it assumes social liability, which concerns the demurring in press infringement. One scholar presents that in a broad sense, it comprises three situations. First, to claim free of liability by proving that necessary conditions to constitute infringement act do not exist or are not sufficient. Second, to claim free of liability or mitigating liability through raising demurring reasons (i.e. demurring in a narrow sense).Third, to claim free of liability or mitigating liability through raising other facts or prescriptions of law, i.e. to claim demurring due to exceeding prescription of lawsuit or violating some proceedings. In my opinion, raising infringement reasons can better reflect legal protection on certain type of right than neglecting the composing conditions of infringement act, because to prove the composing conditions of infringement act do not exist or are not complete equals to neglecting fundamentally the existence of infringement liability, which embodies the principle:"No infringement, no liability". Raising demurring reasons means law affirms the constitution of infringement, and exempts the relevant party from assuming the liability of infringement or mitigates his liability. In the common demurring in civil responsibility of press infringement, the following three situations all deny the constitution of infringement act: the authenticity, correction and argument in the demurring of the right of reputation and the unrecognizability in the demurring of the right to privacy and the right of portrait, which can not be grouped into demurring reasons. Actually, the demurring reasons in press infringement include privilege and fair comment in the demurring of the right of reputation, the public interest in the demurring of the right of reputation and the right of privacy, and the approval of victim in the demurring of the right of reputation, the right of privacy and the right of portrait. Although usually, the demurring reasons of privilege and fair comment can only be applied to the demurring of the right of reputation infringement, and public in interest to the demurring of the right of reputation and the right of privacy infringement, I think all these demurring reasons can invariably be applied to all the demurring of the right of reputation, the right of privacy, the right of portrait infringement and other human dignity infringement. For example, the report on official document by privilege may infringe not only someone's right of reputation, but his right of privacy. The approval of victim is the common demurring reasons of Infringement Law, while privilege, fair comment and public interest are the special demurring reasons of press infringement. The special demurring reasons in press infringement cannot be regarded as a privilege without any restriction. When press or individual publish his works by mass media, he should try not to make his works part of the constitution of press infringement act. It is only when the social benefit is involved that press infringement can not be avoided, then the special demurring reasons can be adopted as the final basis for responsibility exemption.In our country, law deals little with special demurring reasons of press infringement. At present, the legal bases for solving issues of press infringement are the two judicial interpretations issued by supreme people's court, i.e."Answers to Some Questions in Hearing the Case of the right of reputation"in 1993, and"Some Interpretations about Hearing the Case of the right of reputation"in 1998. The two above-mentioned judicial interpretations mainly prescribe the demurring by denying the constitution of press infringement act. Although they deal with the special demurring reasons in press infringement, they only prescribe a small part of fair comment and privilege, they do not mention other authoritative sources in privilege, and government officials and figures in impartial comment and public interest. After learning relevant prescriptions of other countries, the author of this paper hereby put forward his suggestions on law to improve the special demurring reasons in press infringement of this country.This thesis consists of three chaptersChapter I Press Infringement and the Special Demurring Reasons in Press InfringementThis chapter gives the definition of press infringement, interpreting its subject and object. Then, it analyzes the demurring in press infringement and find that the special demurring reasons consist of privilege, fair comment and public interest. Furthermore, following certain standards, it divides these special demurring reasons into two groups, one includes privilege, the other consists of impartial comment and public interest. In addition, this chapter deals with the features and value orientation of the special demurring reasons in press infringement.Chapter II Introduction for The Prescriptions on Special Demurring Reasons of Press Infringement in Other countriesThis chapter introduces the relevant prescriptions of law in other countries, mainly on constitution, privilege, and fair comment and public interest. At present, only in America, Britain, Japan, and Australia i.e few countries definite prescriptions have been made in this aspect. Although the prescriptions are not exhausted, they have had active effect and far-reaching influence on reality. Thus something useful can also be learned from these countries.Chapter III The Present Legislation Situation and the Trend of Future Development in ChinaThis chapter analyzes the present situation of law prescriptions on press, and concludes that the law prescriptions on press are not satisfying:They are too strict with press; they deal too little with the special demurring reasons in press infringement. It is mainly because the improvement to law cannot meet the demand of institution reform and the publicity on the value of the special demurring reasons in press infringement is limited. According to the present situation of our country, this chapter then puts forward suggestions on law in order to improve the special demurring reasons in press infringement, which includes improving construction of legal system on privilege, improving legal system of the special demurring reasons in press infringement, and giving judges certain rights of discretion.