损害商业信誉、商品声誉罪疑难问题探究
发布时间：2019-06-14 11:53
【摘要】：损害商业信誉、商品声誉罪这一罪名近些年来频频见诸报端,而且每次的出现都会引起较大轰动。陈恩案、訾北佳案、陈永洲案这三起案例都是比较典型的案例,在这些案件判决以后学术界和实务界对判决发出了不同的声音,赞同者有之,质疑者亦有之。这些现象表明损害商业信誉、商品声誉罪在认定方面还存在着分歧,总结起来主要有以下几个问题:本罪的犯罪主体是否只应限定为与商誉权主体具有竞争关系的经营者、间接故意能否成为本罪的主观要件、本罪的客观行为应当如何认定、本罪中的“虚伪事实”应当包括哪些内容以及本罪中的“重大损失”应当如何界定。针对这些问题学术界和司法实务界存在着不同的看法,上述问题直接影响着行为人的行为是否构成犯罪的问题,对上述问题进行探讨并加以具体阐释具有较大的理论意义和实践意义。本文旨在讨论损害商业信誉、商品声誉罪认定中的疑难问题,本论文主要内容由五章构成:第一章讨论的问题是本罪的犯罪主体是否应限定为竞争性的经营者。本章首先从损害商业信誉、商品声誉罪的立法背景入手,通过对立法背景的考察,推断出本罪属于竞争领域的犯罪,进而研析出本罪的犯罪主体应当具有经营者的身份;其次,从犯罪分类的角度,将本罪界定为法定犯,进而提出本罪的主体应当与不正当竞争的行为主体保持一致的观点;最后,通过打消不以本罪惩治相关行为会导致放纵犯罪的疑虑,最终得出损害商业信誉、商品声誉罪只应由与商誉权主体具有竞争关系的经营者构成的结论。第二章讨论的问题是间接故意能否成为本罪的主观要件。本章首先以犯罪目的为切入口,通过论证本罪的行为人既不当然具有目的犯中的犯罪目的,又不当然具有直接故意中的犯罪目的,得出本罪的行为人并不当然具有犯罪目的的结论;其次从直接故意与间接故意的法定分类标准入手,通过分析行为人并未预见到危害结果必然发生,推论出行为人在认识要素上并未认识到危害结果必然发生,其在主观方面并不能排除间接故意存在的可能;最后从法益保护的角度出发,说明如果一味强调本罪只能由直接故意构成则会大大限缩本罪的适用范围,从客观方面推断行为人主观心态既无法律依据又会使得入罪标准混乱,不利于本罪发挥保护商誉权主体商誉权的作用。第三章讨论的是本罪的客观行为认定问题。本章首先从《刑法》第221条的规定入手,指出按照罪刑法定原则的要求应当排除单纯散布行为构成本罪的可能;其次针对理论界存在的如果否定单纯散布行为构成本罪可能会放纵单纯散布行为的顾虑,提出可以以共犯原理解决现实中出现的问题的观点;再次,从社会危害性与构成犯罪之间的关系角度出发,否定仅仅凭借社会危害性对行为入罪的观点;最后,通过反驳单纯捏造行为应当构成本罪的观点,从而得出构成本罪需同时具备捏造和散布两种行为的结论。第四章讨论的是本罪中的“虚伪事实”的范围如何的问题。本章首先运用文义解释的方法,提出贬低他人的不真实的事实属于本罪的“虚伪事实”的观点;其次,通过对实践中真实案例的考察,提出虚伪事实应当是与商誉权主体的商誉相关的事实而不是所有虚伪的事实的观点;最后,通过对民事侵权中的虚伪事实与本罪所要求的虚伪事实的界分,推断出引人误解的事实和不正当说法可以构成民事侵权中的虚伪事实,也可以成为本罪所要求的虚伪事实的结论。第五章讨论的问题是对本罪中的“重大损失”应当如何认定。本章首先从对“他人”的界定入手,解决与“重大损失”密切相关的“他人”的认定问题;其次,通过查找、分析现有的案例,总结出司法实践中对“重大损失”认定的现状并提出存在的问题;最后,笔者通过探讨本罪的性质,得出本罪的“重大损失”应当是具体确定的,进而得出本罪的“重大损失”只应包括“他人”的直接损失的结论。
[Abstract]:The crime of damaging the reputation of the business and the reputation of the goods has been frequently reported in recent years, and every occurrence will cause a big sensation. In the case of Chen's case, the case of the North of the Republic of China and the case of Chen Yongzhou, it is a typical case. In the case of these cases, the academic circles and the substantive circles sent different voices to the judgment. These phenomena indicate that the crime of the crime of the commercial reputation and the commodity reputation is still divided, and the main problems are as follows: whether the crime subject of this crime should be limited only to the operator with a competitive relationship with the principal of the goodwill, The objective behavior of this crime should be defined as to what content should be included in this crime and what should be defined in this crime. In view of the different views of the academic and judicial practice circles of these problems, the above-mentioned problems directly affect the question of whether the behavior of the actor constitutes a crime, and the above-mentioned problems are discussed and the concrete explanation is of great theoretical and practical significance. The purpose of this paper is to discuss the difficult problems in the determination of the business reputation and commodity reputation. The main content of this thesis is composed of five chapters: the first chapter discusses whether the subject of the crime should be defined as a competitive operator. This chapter begins with the legislative background of the crime of business reputation and commodity reputation, and through the investigation of the legislative background, it is concluded that the crime is a crime in the field of competition, and then the crime subject of the crime should have the identity of the operator; secondly, from the angle of the crime classification, This crime is defined as the legal crime, and the main body of this crime should be consistent with the behavior subject of the unfair competition; and finally, through the elimination of the misgivings that do not punish the related conduct of the crime, and finally get the damage to the business reputation, The crime of commodity reputation should only be concluded by the operator with a competitive relationship with the principal of the goodwill. The second chapter discusses whether the indirect intention can be the subjective element of the crime. This chapter first takes the purpose of the crime as the cut-in, and through the argument that the author of the crime not only has the purpose of the purpose of the crime of the purpose, but also has the purpose of direct and deliberate crime, the author of this crime does not have the conclusion that the purpose of the crime is not of course; Secondly, starting with the standard classification standard of direct and indirect intention, through the analysis of the actor, the result of the harm is not expected to happen, and it is concluded that the actor does not realize that the harm result must occur, and it can not exclude the possibility of the indirect intentional existence in the subjective aspect; At last, from the perspective of legal benefit protection, it is stated that if it is emphasized that this crime can only be constituted by the direct intention, it will greatly limit the scope of application of the crime, and it can be inferred from the objective aspect that the subjective mentality of the actor is neither a legal basis nor a crime standard, The purpose of this crime is to play a role in protecting the right of goodwill to the right of goodwill. The third chapter discusses the objective behavior identification problem of the crime. The first part of this chapter starts with the provisions of Article 221 of the Criminal Law, and points out that the requirement of the legal principle of the punishment of the crime should exclude the possibility of the mere spread of the crime; and secondly, in the case of the existence of the theoretical circle, it may be possible to indulge the concerns of the mere spreading of the crime, The author puts forward the point of view of the problem that can be solved in the reality with the principle of accomplice; once again, from the angle of the relationship between the social harmfulness and the crime, the view that only by virtue of the social harmfulness to the act of crime is denied; and finally, the author's point of view of this crime should be formed by refute the mere fabrication of the act. In order to obtain the conclusion that the crime needs to be fabricated and disseminated at the same time. The fourth chapter discusses the scope of the "hypocritical fact" in this crime. In this chapter, the author first applies the method of the interpretation of the text, and puts forward the view that the fact that the truth of others belongs to the "hypocritical fact" of this crime is put forward; secondly, through the investigation of the real case in practice, The fact that the false fact should be related to the goodwill of the subject of goodwill is not the point of view of all the false facts; and finally, through the boundary between the false facts in the civil infringement and the false fact required by the crime, It is concluded that the fact that the misleading facts and the improper statements can constitute the hypocritical fact in the tort of the civil tort can also be the result of the false fact required by the crime. The fifth chapter discusses how the "heavy losses" in this crime should be identified. This chapter starts with the definition of "others", and solves the problem of" other people "which are closely related to the heavy losses; secondly, through the search and analysis of the existing cases, the present situation of" great loss" in the judicial practice is summarized and the existing problems are put forward; and finally, By discussing the nature of this crime, the author concludes that the "heavy losses" of the crime should be specific, and then the "heavy losses" of this crime should only include the conclusion of the direct loss of the "another person".
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.3
本文编号：2499364
[Abstract]:The crime of damaging the reputation of the business and the reputation of the goods has been frequently reported in recent years, and every occurrence will cause a big sensation. In the case of Chen's case, the case of the North of the Republic of China and the case of Chen Yongzhou, it is a typical case. In the case of these cases, the academic circles and the substantive circles sent different voices to the judgment. These phenomena indicate that the crime of the crime of the commercial reputation and the commodity reputation is still divided, and the main problems are as follows: whether the crime subject of this crime should be limited only to the operator with a competitive relationship with the principal of the goodwill, The objective behavior of this crime should be defined as to what content should be included in this crime and what should be defined in this crime. In view of the different views of the academic and judicial practice circles of these problems, the above-mentioned problems directly affect the question of whether the behavior of the actor constitutes a crime, and the above-mentioned problems are discussed and the concrete explanation is of great theoretical and practical significance. The purpose of this paper is to discuss the difficult problems in the determination of the business reputation and commodity reputation. The main content of this thesis is composed of five chapters: the first chapter discusses whether the subject of the crime should be defined as a competitive operator. This chapter begins with the legislative background of the crime of business reputation and commodity reputation, and through the investigation of the legislative background, it is concluded that the crime is a crime in the field of competition, and then the crime subject of the crime should have the identity of the operator; secondly, from the angle of the crime classification, This crime is defined as the legal crime, and the main body of this crime should be consistent with the behavior subject of the unfair competition; and finally, through the elimination of the misgivings that do not punish the related conduct of the crime, and finally get the damage to the business reputation, The crime of commodity reputation should only be concluded by the operator with a competitive relationship with the principal of the goodwill. The second chapter discusses whether the indirect intention can be the subjective element of the crime. This chapter first takes the purpose of the crime as the cut-in, and through the argument that the author of the crime not only has the purpose of the purpose of the crime of the purpose, but also has the purpose of direct and deliberate crime, the author of this crime does not have the conclusion that the purpose of the crime is not of course; Secondly, starting with the standard classification standard of direct and indirect intention, through the analysis of the actor, the result of the harm is not expected to happen, and it is concluded that the actor does not realize that the harm result must occur, and it can not exclude the possibility of the indirect intentional existence in the subjective aspect; At last, from the perspective of legal benefit protection, it is stated that if it is emphasized that this crime can only be constituted by the direct intention, it will greatly limit the scope of application of the crime, and it can be inferred from the objective aspect that the subjective mentality of the actor is neither a legal basis nor a crime standard, The purpose of this crime is to play a role in protecting the right of goodwill to the right of goodwill. The third chapter discusses the objective behavior identification problem of the crime. The first part of this chapter starts with the provisions of Article 221 of the Criminal Law, and points out that the requirement of the legal principle of the punishment of the crime should exclude the possibility of the mere spread of the crime; and secondly, in the case of the existence of the theoretical circle, it may be possible to indulge the concerns of the mere spreading of the crime, The author puts forward the point of view of the problem that can be solved in the reality with the principle of accomplice; once again, from the angle of the relationship between the social harmfulness and the crime, the view that only by virtue of the social harmfulness to the act of crime is denied; and finally, the author's point of view of this crime should be formed by refute the mere fabrication of the act. In order to obtain the conclusion that the crime needs to be fabricated and disseminated at the same time. The fourth chapter discusses the scope of the "hypocritical fact" in this crime. In this chapter, the author first applies the method of the interpretation of the text, and puts forward the view that the fact that the truth of others belongs to the "hypocritical fact" of this crime is put forward; secondly, through the investigation of the real case in practice, The fact that the false fact should be related to the goodwill of the subject of goodwill is not the point of view of all the false facts; and finally, through the boundary between the false facts in the civil infringement and the false fact required by the crime, It is concluded that the fact that the misleading facts and the improper statements can constitute the hypocritical fact in the tort of the civil tort can also be the result of the false fact required by the crime. The fifth chapter discusses how the "heavy losses" in this crime should be identified. This chapter starts with the definition of "others", and solves the problem of" other people "which are closely related to the heavy losses; secondly, through the search and analysis of the existing cases, the present situation of" great loss" in the judicial practice is summarized and the existing problems are put forward; and finally, By discussing the nature of this crime, the author concludes that the "heavy losses" of the crime should be specific, and then the "heavy losses" of this crime should only include the conclusion of the direct loss of the "another person".
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.3
【参考文献】
相关期刊论文 前1条
1 李燕;;浅析网络时代的损害商业信誉、商品声誉罪[J];咸宁学院学报;2010年08期
，本文编号：2499364
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