网络诽谤犯罪的司法困境及其解决
发布时间：2018-09-18 07:28
【摘要】：随着信息网络技术的发展,人们在网上发表言论日益方便快捷,加上网络的匿名性以及信息传播的广泛性和快速性,在网上发表言论会迅速产生聚变效应,可以瞬间引起广泛关注,这就使得网络成为那些虚假言论得以迅速滋生并蔓延的温床。一些网民以为在网络上发表言论就可以不受到法律的追究,随意发表虚假言论损害他人名誉,与此同时,也有一些人因为在网上指责政府或官员的违法行为而遭到错误抓捕。近年来频繁发生的网络诽谤案件,在司法实践中引起的争议可谓不断,由此凸显出刑法在面对网络诽谤这种新型犯罪时所遭遇的尴尬。因此面对网络诽谤行为除了加强网络监管,提高网民的道德和法律素养外,更需要建立一套科学、合理的司法机制,从而既使网络诽谤犯罪得到有效追究,又使正当发表言论的行为不被错误追究。故本文针对我国网络诽谤犯罪行为在司法实践中遭遇的困境及其解决途径展开研究,全文共分三部分：第一部分是网络诽谤的概述,介绍了网络诽谤的概念、特征以及我国刑法对网络诽谤犯罪的规制现状。我国主要是依照刑法第246条以及《最高人民法院、最高人民检察院关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释》(以下简称《网络诽谤解释》)对其进行规制,并结合两高新颁布的《网络诽谤解释》分析了诽谤罪的构成要件,最后介绍了该解释颁布后的两起典型案例。第二部分是对网络诽谤在司法实践中的困境进行探讨。目前网络诽谤犯罪的司法困境主要表现在：第一,网民言论自由权的行使与诽谤罪界限不清,主要从批评监督国家机关的行为与诽谤罪易混淆以及揭发检举官员的行为与诽谤罪界限不清两个方面进行了分析；第二,网络服务商的责任难以认定,因为我国诽谤罪的主体不包括法人而且网络服务商与诽谤者是否构成共同犯罪也是一个存在争议的问题；第三,网络诽谤的管辖不确定,主要表现在网络诽谤行为地及结果地的不确定；第四,网络诽谤自诉人举证困难,网络诽谤的隐秘性等原因使自诉人调查取证能力不足,再加上自诉人要承担较高的证明责任责任,这就使得自诉人想要获得胜诉更加困难。第三部分是针对第二部分提出的问题给出解决对策。对于网络诽谤犯罪界限不清的问题,应该严格限制网络诽谤的入罪范围,禁止国家机关以被害人的身份提起诽谤罪之诉并对国家官员的名誉权进行限制保护；针对网络服务商的刑事责任难认定问题,指出网络服务商以自己的名义发布或转载不实信息可单独成立诽谤罪,网络服务商在接到当事人有一定证据的通知后仍不履行删除诽谤言论的义务,其与诽谤者构成片面共同犯罪。关于网络诽谤犯罪的的管辖问题,网络诽谤犯罪应仍以犯罪行为地与犯罪结果地为管辖依据,当诽谤信息的上传地不确定时,可以网络服务器所在地作为管辖依据,而网络诽谤犯罪结果地应该是被害人社会关系的重心所在地,即被害人的经常居住地。最后针对自诉人举证困难的问题,当网络诽谤案件中自诉人遇到举证困难的情况时,公安机关或法院应该协助其调查取证,并且在诉讼中诽谤者应该对其言论的真实性负举证责任,否则就可能承担刑事责任。
[Abstract]:With the development of information and network technology, people express their opinions on the Internet more conveniently and quickly. In addition, the anonymity of the Internet and the universality and rapidity of information dissemination, the opinions on the Internet will produce a fusion effect quickly, which can arouse wide attention instantly. This makes the network become one of those false opinions which can breed and spread rapidly. Hotbeds. Some netizens think that they can not be prosecuted by law when they make comments on the Internet. At the same time, some people are wrongly arrested because they accuse the government or officials of illegal acts. The controversy is unceasing, which highlights the embarrassment the criminal law encounters in the face of this new type of crime. Therefore, in addition to strengthening the supervision of the network and improving the moral and legal literacy of netizens, it is necessary to establish a scientific and reasonable judicial mechanism, so that the network defamation crime can be effectively prosecuted, and at the same time. Therefore, this paper aims to study the dilemma encountered in the judicial practice of cyber libel crime in China and its solutions. The full text is divided into three parts: The first part is an overview of cyber libel, introduces the concept of cyber libel, characteristics and China's criminal law on cyber libel crime. The present situation of regulation in China is mainly in accordance with Article 246 of the Criminal Law and the Interpretation of Several Questions Concerning the Application of Law in Criminal Cases of Using Information Network to Carry out Defamation by the Supreme People's Court and the Supreme People's Procuratorate, and in combination with the Interpretation of Online Defamation promulgated by the two high-tech institutes, the analysis of defamation is made. The second part discusses the dilemma of network libel in judicial practice. At present, the Judicial Dilemma of network libel crime is mainly manifested in: First, the exercise of the right to freedom of speech of netizens is not clear with the crime of libel, mainly from the criticism and supervision of state organs. Second, it is difficult to ascertain the liability of Internet service providers, because the subject of libel in China does not include legal persons and whether the Internet service providers and libels constitute joint crimes is also a controversial issue. Thirdly, the jurisdiction of network libel is uncertain, mainly manifested in the uncertainty of the place where the network libel acts and the result; fourthly, the difficulties of proof for the private prosecutor of network libel and the concealment of network libel make the private prosecutor insufficient in investigating and collecting evidence, coupled with the higher burden of proof for the private prosecutor, which makes the private prosecutor want to obtain. It is more difficult to win the lawsuit. The third part is to give solutions to the problems raised in the second part. It is difficult to ascertain the criminal liability of ISPs. It is pointed out that ISPs publish or reprint false information in their own name and establish libel offences independently. ISPs do not fulfill their obligation to delete libel remarks after receiving notification from the parties with certain evidence, which constitutes a one-sided joint crime with libels. The jurisdiction of the crime should be based on the place of the crime and the place of the result of the crime. When the uploading place of the libel information is uncertain, the place of the network server can be used as the jurisdiction basis. The place of the result of the network libel crime should be the center of the victim's social relations, that is, the place of the victim's habitual residence. Finally, in view of the difficulty of proof for the private prosecutor, when the private prosecutor encounters the difficulty of proof in the network libel case, the public security organ or the court should help him to investigate and collect evidence, and the libel in the lawsuit should bear the burden of proof for the authenticity of his speech, otherwise he may bear criminal responsibility.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.3
本文编号：2247218
[Abstract]:With the development of information and network technology, people express their opinions on the Internet more conveniently and quickly. In addition, the anonymity of the Internet and the universality and rapidity of information dissemination, the opinions on the Internet will produce a fusion effect quickly, which can arouse wide attention instantly. This makes the network become one of those false opinions which can breed and spread rapidly. Hotbeds. Some netizens think that they can not be prosecuted by law when they make comments on the Internet. At the same time, some people are wrongly arrested because they accuse the government or officials of illegal acts. The controversy is unceasing, which highlights the embarrassment the criminal law encounters in the face of this new type of crime. Therefore, in addition to strengthening the supervision of the network and improving the moral and legal literacy of netizens, it is necessary to establish a scientific and reasonable judicial mechanism, so that the network defamation crime can be effectively prosecuted, and at the same time. Therefore, this paper aims to study the dilemma encountered in the judicial practice of cyber libel crime in China and its solutions. The full text is divided into three parts: The first part is an overview of cyber libel, introduces the concept of cyber libel, characteristics and China's criminal law on cyber libel crime. The present situation of regulation in China is mainly in accordance with Article 246 of the Criminal Law and the Interpretation of Several Questions Concerning the Application of Law in Criminal Cases of Using Information Network to Carry out Defamation by the Supreme People's Court and the Supreme People's Procuratorate, and in combination with the Interpretation of Online Defamation promulgated by the two high-tech institutes, the analysis of defamation is made. The second part discusses the dilemma of network libel in judicial practice. At present, the Judicial Dilemma of network libel crime is mainly manifested in: First, the exercise of the right to freedom of speech of netizens is not clear with the crime of libel, mainly from the criticism and supervision of state organs. Second, it is difficult to ascertain the liability of Internet service providers, because the subject of libel in China does not include legal persons and whether the Internet service providers and libels constitute joint crimes is also a controversial issue. Thirdly, the jurisdiction of network libel is uncertain, mainly manifested in the uncertainty of the place where the network libel acts and the result; fourthly, the difficulties of proof for the private prosecutor of network libel and the concealment of network libel make the private prosecutor insufficient in investigating and collecting evidence, coupled with the higher burden of proof for the private prosecutor, which makes the private prosecutor want to obtain. It is more difficult to win the lawsuit. The third part is to give solutions to the problems raised in the second part. It is difficult to ascertain the criminal liability of ISPs. It is pointed out that ISPs publish or reprint false information in their own name and establish libel offences independently. ISPs do not fulfill their obligation to delete libel remarks after receiving notification from the parties with certain evidence, which constitutes a one-sided joint crime with libels. The jurisdiction of the crime should be based on the place of the crime and the place of the result of the crime. When the uploading place of the libel information is uncertain, the place of the network server can be used as the jurisdiction basis. The place of the result of the network libel crime should be the center of the victim's social relations, that is, the place of the victim's habitual residence. Finally, in view of the difficulty of proof for the private prosecutor, when the private prosecutor encounters the difficulty of proof in the network libel case, the public security organ or the court should help him to investigate and collect evidence, and the libel in the lawsuit should bear the burden of proof for the authenticity of his speech, otherwise he may bear criminal responsibility.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.3
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相关期刊论文 前2条
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2 王永兴;孙青青;;新媒体背景下的诽谤罪认定[J];西南政法大学学报;2010年03期
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