On The Crime Of Impairing Reputation During The Period Of Nanjing National Government

The provisions of the crime of defamation in criminal law began in the late Qing Dynasty and the early Republic of China,and developed and improved in the period of Nanjing National Government.The crime of insult was first stipulated in the draft criminal law in 1907.The criminal law of the Republic of China in 1928,following the legislative style of western civil law countries,divided the crime of defamation into two categories:the crime of insult and the crime of defamation,which were continuously improved and adopted.Its statutory punishment has the following characteristics: first,for basic criminals,fixed-term imprisonment of less than one year,short-term freedom punishment such as criminal detention and property punishment of fine are mostly used.Secondly,clearly distinguish the aggravating circumstances other than the basic crime,and stipulate the corresponding statutory punishment.Thirdly,it clearly distinguishes between insult and defamation,and stipulates the legal punishment with different punishment,which has witnessed the transformation of modern Chinese law.The archives of Jiangxi Provincial Archives recorded the application of the crime of impairing reputation in Jiangxi Province during the period of Nanjing National Government.In practice,the crime of defamation is divided into the crime of insult and the crime of defamation.The crime of insult includes the crime of general insult and the crime of rape insult,which is embodied in abstract abuse and fact statement;Libel includes general libel and aggravated libel,which are embodied in the expression of opinions and the fabrication of facts.There are two main problems in the identification of defamation cases: one is the objective elements of the crime of defamation.First of all,the crime of impairing the reputation of the deceased and ordinary people,including the crime of impairing the reputation of the dead and ordinary people;Excluding non natural persons and state officials.Secondly,the crime of insult should reach the degree of publicity,that is,it is seen and heard by an unspecified majority,including the publicity of the place and the number of people.Thirdly,the act of "blaming and reporting facts" in the crime of defamation includes not only fabricated false facts,but also real facts related to private morality and irrelevant to the public interest.Finally,the "crowd" scattered among the public in the crime of defamation does not mean the number of simple quantitative relations,but also includes the element of unspecified person;The second is the subjective consideration of the crime of impairing reputation.Firstly,the crime of impairing reputation should have the purpose of damaging reputation.Secondly,the subjective intention element of the crime of impairing reputation is direct intention.The criminal punishment of the crime of impairing reputation includes three parts:first,two kinds of impunity of the crime of impairing reputation.The first category is the situation of impunity for bona fide speech.Bona fide speech includes speech for the protection of legitimate interests,speech for appropriate public evaluation,civil servants’ reporting behavior due to their duties,and proper description of meetings or notes.The second category is the exemption of authenticity proof,including the exemption of the alleged facts that do not involve private morality but related to the public interest,and the exemption that can prove that the facts are true.Second,there are three main factors affecting the sentencing of the crime of defamation.First,the discretion of the judge;Secondly,the subjective malignant factors of the actor;Third,in practice,there are also cases where commutation methods are applied to reduce punishment or amnesty is applied to exempt crime and punishment.Third,the crime of impairing reputation can choose to apply freedom penalty or fine penalty.The execution of penalty mainly includes three ways: First,short-term freedom penalty is easy to be fined;Secondly,The penalty of fine is easy to perform labor service;Thirdly,Fine penalty and freedom penalty can be suspended.The legal application of defamation cases in Jiangxi Province during the period of Nanjing National Government has the following characteristics: first,the appeal rate of defamation cases is high.Second,the application rate of fine penalty in reputation impairment cases is high,and the discretion of fine penalty is standardized.Third,cases of defamation reflect the characteristics of Combining Leniency with severity in conviction and sentencing.In addition,the crime of defamation has some limitations in the application of law,including the imperfect standard of conviction of the crime of defamation,the unclear definition of insult and defamation in practice,and the lack of relevant provisions on exceptional public prosecution.These problems should be avoided as far as possible in the legal application of contemporary insult crime and defamation crime,so as to realize the better allocation of reputation protection.