诽谤罪与言论规制“调适期”

Crime of Defamation and the "Adjustment Period" of Regulation of the Freedom of Speech

在罗马法中有公犯诽谤与私犯诽谤之分,其中公犯诽谤与言论规制关系密切。近代多个国家为应对社会和民主发展,围绕着诽谤罪制度密集调适言论规制方式与体系。在"调适"的过程中,由罗马法继承下来的各种公犯诽谤成为系统性的言论规制手段。其中,英国所使用的是文字诽谤罪,德国等大陆法系国家主要使用的是大不敬罪;英国跨越言论规制"调适期"比较顺利,大陆法系国家的改革则相对曲折。二战后,在全球范围内出现了公犯诽谤除罪化与诽谤罪抗辩规则二次强化两大趋势。诽谤罪与言论规制互动历史中带有普遍性和规律性的经验教训值得我们借鉴。这些经验教训主要包括:历史上各国利用诽谤罪维护国家利益或社会秩序的效果并不好,我国应通过完善立法防止诽谤罪及其相关罪名被滥用;吸取德国等国家的历史教训,在完善诽谤罪立法的同时进一步完善相关刑事司法制度;重视言论规制调适背后的深层次动因,从言论自由保障的基础性制度着手解决我国面临的主要问题。

In Roman law, there were two kinds of defamation, defamation in Delictum and defamation in Crimen, with the latter closely related to the regulation of the freedom of speech. In modern history, the system of free speech regulation was adjusted frequently around the crime of defamation in quite a few democracy. In this adjustment period, countries in response to the development of society and defamation in Crimen became a systematic means of reg- ulation of free speech. It took the form of libel in Great Britain and the crime of Lese-Majesty in Germany and other civil law countries; Great Britain got through the adjustment period smooth- ly, while in most of civil law countries it was full of ups and downs. After the World War II, there emerged two global trends： the de-criminalization of defamation in Crimen and the second reinforcement of defense rules in defamation law. The historical experiences and lessons of these countries in the history of the interaction between defamation in Crimen and regulation of free- dom of speech are worthy learning by China. These experiences and lessons include： the effect of defending national interests and social order through the crime of defamation was not satisfac- tory; China should improve legislations on the crime of defamation and other related crimes to prevent them from being abused while, at the same time, further improve related criminal jus- tice system; and it should pay more attention to the deep-rooted causes behind the adjustment of free speech regulation and try to solve the problem by improving the basic system of guarantee of freedom of speech.