Study On The Puzzles Of The Crime Of Commercial Defamation

The charge of the commercial defamation appears frequently in the newspapers in recent years. The emergence of the cases causes large sensation every time. The three cases, Chen en case, Zi Beijia case, Chen Yongzhou case are relatively typical. In these cases, there are different opinions for the sentences from the academia and practice. This phenomenon shows that there are different opinions in the judges of the charge of damaging commercial reputation, product reputation crime. These problems are mainly: Whether the subject of the crimes should be limited in a competitive relationship with the right subject of operators; whether the indirect intent can constitute this crime; If the simple spreading behavior can constitute this crime or not; how to identify the false factors;the cognizance of heavy losses. For these problems there are different opinions in the academia and practice. The problems above determine directly the behaviors of the actor constitute this crime or not. Discussing the problems above and explaining particularly has theoretical and practical significance.The first chapter analyzes whether the subject of the crime includes the operators that has a competitive relationship with the right subject only. This chapter starts with the legislative background of the damaging commercial reputation, product reputation crime, through reviewing the legislative background, Inferred that 2 this crime belongs to the crime in the field of competition, then inferred that the subject of the crime includes the operators that has a competitive relationship with the right subject only. Through dispelling the doubts of the indulgence of the crime and putting forward the point that the subjects of this crime should be consistent with the subjects of unfair competition, and concluded that the subject of the crime included the operators that have a competitive relationship with the right subject only.The second chapter analyzes the subjective state of mind of the damaging commercial reputation, product reputation crime should only be made up of direct intent or not. In this chapter, the author starts with the criminal purposes, from analyzing the subjective state of mind, concluding that this crime should not eliminate the space of the exists of the indirect intent. The second, through analyzing the legal classification criteria of direct intent and indirect intent, the author insists that the actor has not foreseen the necessity of the happening of the harmful results and the actor actively pursues the harmful result. The last, from the perspective of legal interests protection, insist that the subjective state of mind of the damaging commercial reputation, product reputation crime should not only be made up of direct intent.The third chapter analyzes the constitution of the crime includes combination of fabricating and spreading behavior. this chapter starts with the provisions of Article 221 of the criminal law, pointing that In accordance with the requirements of the principle of a legally prescribed punishment should dispel the possibility of the constitution of the crime of the simple spreading behavior; then for the concerns existing in the academia, the author putting forward the point of using the accomplice principle to solve problems in reality. The last, denying the opinion of relying on the harm to the society only constituting the crime, including that the constitution of the crime includes combination of fabricating and spreading behavior.The fouth chapter analyzes this "false facts" includes not only the fake facts. The chapter starts with the opinion that the fake facts belongs to the "false facts". Then, the author proves that the "false facts" should be the facts about the right subject in one case. The last, coming to the conclusion the improper claims should belong to the "false facts".The fifth chapter analyzes the cognizance of heavy losses of damaging commercial reputation, product reputation crime. This chapter starts with the definition of “the others” in the charge, solving the problem of the definition of the others closely associated with heavy losses. Then, through searching and analyzing the cases, coming to the conclusion that the status of the cognizance of heavy losses existing in the practice. The last, putting forward the opinion that the heavy losses includes direct loss only.