The Protected Legal Interests Of The Crime Of Infringing On The Reputation And Honor Of Heroes And Martyrs And Its Development

The crime of infringing on the reputation and honor of heroes and martyrs is a newly added crime in the Amendment to the Criminal Law of the People’s Republic of China(11).The judicial application of this crime should be based on a correct understanding of the content of protecting legal interests.The judgment of criminal law scholars on the protection of legal interests in crimes is based on the monism of legal interests and the dualism of legal interests,resulting in a simple theory of individual legal interest protection,a simple theory of collective legal interest protection,and a dual theory of legal interest protection that combines individual and collective legal interests.By substituting different views on the understanding of legal interests into the research on the protection of legal interests of the crime of infringing the reputation and honor of heroes and martyrs,we can draw the view that the protection of legal interests of the crime is the legal interests of social order in the collective legal interests from different perspectives.Specifically,if the protection legal interest of the crime of infringing on the reputation and honor of heroes and martyrs is judged as personal legal interest,from the perspective of the theoretical system of criminal law,the establishment of the crime is contrary to the purpose of protecting the reputation and honor of heroes and martyrs by the pre-civil and administrative legal norms that must be connected;From the point of view of the subjective purpose of the legislator when establishing the crime,the personal legal interests cannot be logically connected with the legal provisions of the crime of infringing on the reputation and honor of heroes and martyrs and the construction of the criminal law system;From the special perspective of criminal legal norms,taking the protection of legal interests of this crime as a simple personal legal interest will lead to the fact that this crime cannot meet the modest requirements of criminal legal norms for the determination of crime,may not be able to solve the problem of insulting and defaming the collective case of heroes and martyrs,and fall into the dilemma of preventing the illegality of the acts of infringing on the reputation and honor of heroes and martyrs due to the personal commitment of heroes and martyrs;If individual legal interests and collective legal interests are all regarded as the protective legal interests of this crime,it will lead to the inconsistency between the protective legal interests of this crime and the elements that constitute the result of this crime,at the same time,it will also affect the connection between this crime and the preceding legal norms,and interfere with the judicial organ’s judgment of imposing criminal,civil or administrative sanctions on illegal acts;If the protective legal interest of this crime is judged as collective legal interest,from the perspective of the subjective purpose of the legislator when establishing this crime,the collective legal interest can be consistent with the description of the crime of infringing on the reputation and honor of heroes and martyrs and the construction of the criminal law sub rule system.From the perspective of criminal law theory,the history of the crime,and the spiritual origin of heroes and martyrs,the collective legal interest can be connected with the preceding legal norms of this crime,It can fully reflect the purpose of the establishment of this crime,conform to the value orientation of the protection of the reputation and honor of heroes and martyrs,and can analyze the impact of the deeds and spirit of heroes and martyrs on the social public,and combine the scope of the protection of collective legal interests,draw the protection legal interests of the crime of infringing on the reputation and honor of heroes and martyrs as follows: follow the socialist core values and form a social order based on the patriotism and historical memory of the social public.The definition of the legal interests of criminal protection provides a research basis for the determination of the object of criminal conduct and the perpetrating act.The controversial issues and guiding significance of the thirty-fourth batch of guiding cases of the Supreme People’s Procuratorate in the case No.136 "The crime of Qiu against the reputation and honor of heroes and martyrs" provide reference materials for the protection of legal interests of this crime in the development of the object of criminal acts and the implementation of acts,and combine the content of the guiding case with the protection of legal interests of the crime of infringing on the reputation and honor of heroes and martyrs,within the scope of the study of the object of this crime,It can be concluded that only the dead heroes and martyrs can be the object of this crime.While clarifying the reasons why the reputation,honor and other personal interests of heroes and martyrs are included in the scope of protection by criminal legal norms,the scope of "heroes and martyrs" should be subject to the admittance evaluation of the living among the collective heroes and martyrs whose reputation and honor have been infringed,and the heroes who have not been evaluated as martyrs but have the same social value as heroes and martyrs.Within the scope of the study of the act of execution of this crime,the determination of the protection of legal interests provides a reference for the judgment criteria of the act of execution,and can be used to judge and distinguish the criminal illegality of the act of infringing on the reputation of heroes and martyrs,the act of similar honor and the act related to the reputation and honor of heroes and martyrs.