On The Defense Of Fair Comment In The Case Of Reputation Infringement

There are more and more defamation cases in China's judicial practice.As an important personality rights, right of reputation is clearly defined in our Constitution and civil law.The legal basis for the protection of the reputation right more often related to the application of judicial interpretation and the Civil Code.These provisions are relatively simple. But the infringement defenses in the defamation cases and defenses in tort law are the same,and not established its unique system defenses.As one of the important pillars of the subject of fair comment, defamation defenses are no clearly specified in our country.It provides a well coordinated approach,When we need to deal with the conflicts between freedom of expression and defamation.By comparing the Common law of fair comment on the theory,combined with Chinese Taiwan this system is suitable to analyze the legal basis and the practical value of fair comment system.This paper use of five parts to describes the theme.The first part is based on the cases of judicial practice,I summarized and analyzed in the processing of the application of the infringement in defense of reputation. From the the "Civil Law" to "The Tort Law",Trying to seek fair comment defense applicable in the plight of defamation.Through these,find the encountered difficulties in the defense of fair comment in the legislative, judicial, theorists:Firstly, the legislation did not directly provide a clear legal basis, even the judicial interpretation did not explain the real meaning of fair comment defense,too;secondly,the Judicial Practice did not fully distinguish between fact and comment, and did not form uniform standard when comment on criteria of impartiality; thirdly,there are more and more judicial practice concerning defamation tort cases,the defenses in some cases is very close to the real thrust of the defense of fair comment, but in practice, these rely entirely on the discretion to resolve.The second part analysis the problem carried out in first part. The defense of fair comment has three essential elements.In this part,Since the theory of second and legislative level were not on scientific facts and comments partitioning problem. Analysis of scholars at home and abroad,In comparison methods,Summarized carding many domestic and foreign doctrine about the facts and distinguish comments,,and proposes the author's view and evaluation.The third part focuses on the elements of the fair comment defense of public interest, since this part of our scholars have conducted a more detailed discussion, the author discussed in this section is simple. Mainly list the various theories about the public interest of domestic and foreign scholars and propose a generally more accepted view.The fourth part disuss the element of fairness and analyze what is justice. The author also analyzed by comparison and see domestic theorists about the fairness criteria doctrine,it aims to sort out and compare these theories,seeking relevant scientific impartiality can participate detailed criteria.The fifth part is based on the discussion of the first three parts,The author reviews the text that explored the issues,making recommendations on the issues how to apply the defense in defamation cases.We expect to seek the legal basis of fair comment defense from the current legislation;based on the second, third and fourth part,I will suggest how accurately apply fairness and feature elements in defamation cases;through a clear fundamental principles of fair comment and expand the scope of the system to achieve the value of fair comment defense. This article try to divide a scientific boundaries between reputation and freedom of expression, create a relaxed, good environment for public opinion,at the same time,highlighting the reputation as an important value of the rights of personality rights.