Study On The Judicial Determination Of Crime Of Defamation

The practical application of criminal law is always closely related to the current social background.In recent years,with the development of information technology and the improvement of the consciousness of national rights,balancing the citizens' freedom of expression and the protection of reputation right,crime of defamation is increasingly concerned by the theory and practice circles.Although in 2013 the Supreme People's Procuratorate and the Supreme People's Court have issued relevant judicial interpretation to provide the basis for the regulation of defamation on Internet,but the network defamation after all is just a special case.Considering the judicial determination of crime of defamation in the general sense,the author finds that there are still some controversies and difficulties in the determination of the objective aspect(mainly behavior and object),subjective aspect(intent)and the serious circumstances.This article tries to resolve these disputes and difficult issues,so that the standard for judicial determination of this crime can be made more explicit and specific,so as to provide some references for the future judicial application.First of all,in the determination of the objective behavior of this crime,the core issue is how to clear the standard of determination.By studying the content,methods and characteristics of the libel act,the standard for determination of the objective behavior can be summarized.Secondly,in the identification of the object of this crime,the question to be solved is whether the object is limited to the ordinary natural person.In connection with the special objects that often appear in practice,after discussing legal person and unincorporated body,government and otherstate organs and the deceased respectively,the different standard for identification should be adopted when those special objects are defamed.It can also be understood that the object of the crime is not limited to natural persons.Thirdly,in the determination of subjective intent of this crime,it is necessary to settle the dispute about the form of subjective intent.And it is concluded that the form of its fault should include direct intent and indirect intent.And then there is a difficult problem in practice,that is,for the subject which only spreads false facts,it is necessary to make a quick and effective determination on the existence of subjective intention.After the step-by-step research,a summary of the determination process can be made clearly.Finally,in the determination of the "serious circumstances" of this crime,it's hard to concretize the abstract stipulation in a typed way as much as possible.Through the analysis of the positioning problem of "serious circumstances" in the crime constitution system,a dualistic positioning scheme can be adopted to analyze the specific "serious circumstances" stipulations mentioned in the judicial interpretation.On the basis of this,it is easier to summarize the specific determination standard of "serious circumstances" of this crime.