Research On The Implementation Behavior About The Crime Of Damaging The Credit Standings And Commodity Reputation

With the increasing attention about the credit standings and. commodity reputation as intangible assets of an enterprise, the number of cases on damaging the credit standings and commodity reputation has also increased a lot during the process of judicial practices. In this circumstance, the key solution to making a precise research on the Crime of Damaging the Credit Standings and Commodity Reputation is to clarify the implementation behavior of this crime. All in all, the law provisions of the implementation behavior about this crime have been stipulated in a relatively simple way, that is:fabricate and spread other persons’ forged facts.In addition to the introduction and conclusion part, this thesis will be divided into 3 parts:In the first part, the relation between fabrication and spread existing in the implementation behavior about the Crime of Damaging the Credit Standings and Commodity Reputation will be analyzed in details. The viewpoint in this thesis is stated that the spread of forged facts should be considered in priority to fix the implementation behavior of this crime. Obviously, the crime must be convicted by satisfying both of the two preconditions about fabricating and spreading the forged facts. Nevertheless, the single behavior of spreading the forged facts should also be convicted as the establishment of this crime. There are 3 reasons supporting the viewpoint we mentioned above:First of all, to analyze at the angle of the infringement of legal rights and interests. It does harm for the credit standings and commodity reputation to spread the forged facts alone. Secondly, to analyze at the angle of the crime punishment. The purpose of punishing crimes can not be realized if the spreader’s responsibility are not able to be taken. Finally, to analyze at the angle of constituting elements about crimes. The single "spread" implementation behavior can not lead to the expansion of the punishing sphere. With reference to the legislative stipulations both from home and abroad, the processing results in judicial cases and all kinds of academic disputes as well as the angle of legislative perfection, the single spread behavior should be identified as the implementation behavior of this crime.In the second part, the comprehension about the definition of "other persons" existing in the implementation behavior of the Crime of Damaging the Credit Standings and Commodity Reputation will be analyzed in details. In this thesis, we assume that the understanding of "other persons" who/which exists in the Crime of Damaging Credit Standings and Commodity Reputation can not be too rigid and limited to certain groups. This "other persons" can not only be considered as a specific person or entity, including an enterprise’s competitors, other producers and operators, but also as the specific same market entity. First of all, to analyze on the basis of Natural Interpretation Theory. As the infringement of the credit standings and commodity reputation of a market entity can be convicted to a crime, in this case, the infringement of the credit standings and commodity reputation of market entity in one kind can also be convicted to a crime by nature. Secondly, to analyze at the angle of the infringement of legal rights and interests. As the perpetrator fabricates and spreads the forged facts, although the infringed subject is not clearly pointed out, however, the damage of the credit standings and commodity reputation for "specific other persons" can absolutely assumed by inferring on the basis of the contents which belong to the forged facts that are fabricated and spread while these "facts" are countered against one or some producers or operators.In the third part, the attribute of some behaviors(i.e. the behaviors of consumers’ rights protection, the disclosure and exposure behaviors made by news media entities, the posting behaviors of some internet users and the behaviors of supervising the network platforms made by ISP, etc.) which are possible to damage the credit standings and commodity reputation for some market entities will be also analyzed in details. Some of the above-mentioned behaviors are legitimate and should be protected by law, on the other hand, the attribute of some behaviors which may violate the law of this crime are necessary to be defined. In addition, the behavior of damaging the commodity reputation for the unfair competition is quite similar as the implementation behavior of the Crime of Damaging Credit Standings and Commodity Reputation. That is to say, it is necessary to define this two kinds of behaviors both at the angle of Civil Law and Criminal Law, which is the key point of our research in the last part of this thesis. In this part, we mainly focus on combining the theory and practice together in order to provide guides and suggestions for the judicial practices and analyze the attribute of the implementation behavior by listing judicial cases.