名誉权与言论自由:宣科案中的是非与轻重

本文围绕不久前审结的一场名誉权诉讼展开讨论。文章首先分析了该案涉及的事实和法律问题;然后揭示并讨论了该案中被遮蔽和忽略的具有重要意义的宪法问题;最后则对法院审理名誉权诉讼时应当遵循的原则作了进一步的讨论。本文的基本观点是名誉权诉讼包含了公民人格尊严和言论自由两种基本权利之间的紧张关系。处理名誉权诉讼的正确办法不是先验地确定何种权利当然地具有优先性,而是在民主宪政的一般原则之下,根据每一案件的具体情况,判断什么是最值得保护的价值,并在此基础上平衡各种不同利益。

This paper develops a discussion around a defamation lawsuit finished recently. It analyses the fact matters and legal issues of the ease, and then exposes and discusses some constitutional issues embodied in the case, which is significant but covered and overlooked. Finally, it goes further to inquire into the principles that should be followed by the court in dealing with this kind of lawsuit. The main conclusion is that the defamation lawsuit implies a tension between two fundamental fights of human dignity and freedom of speech, so the fight way to deal with the lawsuit is not to predetermine which fight is naturally superior to the other, but instead, to consider and judge case by case, under general principles of democracy and constitutionalism and according to concrete conditions in particular case, what values are most worthy protecting and how keep the balance of different interests.