Research On Difficult Problems Of Crimes Of Violating The Honor Or Reputations Of Heroes And Martyrs

The Criminal Law Amendment(11)adds crimes against crimes of violating the honor or reputations of heroes and martyrs,which fills the gap in the criminal legal system of this act,and the case of Ziming Qiu infringing on the honor or reputations of heroes and martyrs has attracted widespread concern in society after it was released as a typical case.Subsequently,the Supreme People’s Court,the Supreme People’s Procuratorate,and the Ministry of Public Security jointly issued the Opinions on Lawfully Punishing Crimes Infringing on the Honor and Reputations of Heroes and Martyrs(hereinafter referred to as the Opinions),which provided guidance on common problems in the judiciary,but still did not quell the academic disputes over the protection of the legal interests of this crime,the connotation of "heroes and martyrs",and the application of "serious circumstances",and lacked relevant provisions on the application of special circumstances of the type of conduct.Therefore,there are still some difficult issues in this crime that need to be further clarified.This crime protects the interests of binary compounding law.The monistic social legal benefit theory,represented by social public order holds that according to the system interpretation and textual interpretation,the personal legal interests of heroes and martyrs do not fall within the scope of protection of this crime.However,this view lacks the comprehensiveness of legal protection,and is fixed to the provisions of the antecedent law,which undermines the independent value of criminal law.The dualistic compound legal benefit theory conforms to the basic characteristics of collective legal interests and can achieve comprehensive protection of legal interests.The social legal benefits of this crime include the management order of the socialist core value system and "the public’s devotion to heroes and martyrs",and the personal legal interests are the personality interests of living heroic models.The target of this crime is heroes and martyrs,but there are many controversies about the interpretation of "heroes and martyrs".First of all,on the question of whether include heroes and exemplary figures,there is a dispute over whether heroes and martyrs are juxtaposed or partial structures,and a juxtaposition structure should be adopted based on the customary use of terms and the actual degree of damage caused by the act.Second,this crime protects only wellknown heroes and martyrs.The popularity of heroes and martyrs should be clarified through comprehensive judgment of the closeness and familiarity of the masses at all levels of society with heroes and martyrs,and the degree of relevance between heroes and martyrs and the core interests of the state.Third,this crime protects historical controversial heroes who can positively promote the prosperity and strength of the country and meet the needs of the people’s happiness,and are endorsed by authoritative departments.Finally,the interpretation of "since modern times" in the opinions is consistent with historical regulations and national perception since the Opium War in 1840.The manner of this crime should be interpreted in a purposeful limitation.Forms of insults include violent and non-violent gestures of people or objects,verbal insults,verbal or pictorial insults.The object of defamation regulations is the statement of facts,and the form of defamation is limited to words or writing.When defamation is committed on an Internet platform,it should be determined by referring to Article 1 of the Interpretation of Defamation Using Information Networks."Other methods" should be specifically determined in accordance with the principle of similar interpretation and in conjunction with Articles 22,26 and 27 of the Martyrs’ Law.Finally,the manner in which this crime is conducted must be blatant,and the "blatant" of this sin should refer to the blatantness of the act that is public but not consequential,and the theory of transmission does not apply.In addition,the well-known factual commentary on ordinary heroes and martyrs should be strictly protected,and the well-known factual commentary on controversial heroes should be relatively protected;Rash speech is not protected in the defense of false faith based on truth.This crime is a "comprehensive" type of serious circumstances,and the method of limited interpretation must be fully used to achieve the unity of objective punishment conditions and subjective punishment conditions,and be determined in conjunction with the provisions in the Opinions.Objectively,as long as the behavior meets the requirements of "strong negative content of the behavior + extensive impact of the effect of the behavior" or "bad means of conduct + extensive impact of the effect of the behavior",it should be considered to be in line with "serious circumstances".Subjectively,there must be considerable subjective malignancy,which can be determined from factors such as the perpetrator’s behavioral motive,previous conviction behavior,and release time.