“微博转发500次入刑”的宪法争议

The Constitutional Controversy of “Forwarding Micro-blog 500 Times into the Criminal Punishment”

"两高"出台的《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《解释》),将微博转发超过500次的行为认定为《刑法》第246条第一款规定的"情节严重",处以侮辱罪或者诽谤罪。此项解释存在较大的合法性争议。从宪法的维度进行分析,法律保留原则要求对"犯罪与刑罚"的规定由法律保留,司法解释对入罪与否的问题进行规定已经逾越了其权限。同时对"微博转发"的行为入罪处理构成了对公民言论自由权利的不当限制与侵害。

The supreme people＇s court and the supreme people＇s procuratorate have jointly issued a judicial explanation on some problems about how to apply law to criminal cases dealing with the use of information network to execute crime of defamation（ hereinafter referred to as the explanation）,which identifies the behavior that forwards micro- blog more than 500 times as ＂ a case of gross violation＂ referred to the regulation in paragraph 1,article246 of the criminal law,and will be correspondingly vindicated as the crime of insult or defamation. The explanation arises great controversy in its legitimacy. If analyzed from the constitutional dimension,the principle of legal reservation has granted the power to decide ＂ crime and punishment＂ to law,which means that the above judicial interpretation has overstepped its authority. Besides,it will be an undue restriction and an infrigement on our right of freedom of speech to define the behavior ＂ forwarding the micro- blog＂ as a crime.