论互联网时代诽谤罪的公诉范围

On the Scope of Public Prosecution for the Crime of Defamation in the Internet Age

我国刑法对诽谤罪采取自诉为主、公诉为补充的双轨制模式。由于刑法但书“严重危害社会秩序和国家利益”的公诉依据具有模糊性,同时司法解释本身缺乏解释力和可操作性,存在同义解释、近义解释等问题,加剧了公诉诽谤罪和其他罪名之间的冲突和竞合,特别是当被害人为地方领导干部时,诽谤罪的公诉权在实务中存在被滥用风险,部分限制公诉权的要件在实务中被淡化甚至忽略。从相对狭义的角度看,“严重危害社会秩序和国家利益”只有在行为人对侵犯个体法益具备主观故意,但对侵犯社会法益或国家法益不具备主观故意(或无法证明其具备故意)的情形下,才有其独特的法律适用价值并不与刑法其他罪名相冲突。为妥善处理和平衡诽谤犯罪中惩治犯罪和保障人权的关系,适应互联网时代的内外部变化,建议通过修改我国刑法,将诽谤罪区分为情节不严重、情节严重、情节特别严重的三种形态,为充分保障宪法权利,情节不严重的不作为犯罪处罚;为充分保障自诉权,情节严重的为绝对告诉乃论;为依法惩治犯罪,对符合特定形式要件和实质要件,情节特别严重的诽谤犯罪可以依法公诉,以维护网络信息秩序。

The Criminal Law of China adopts the dual-track system for prosecuting the crime of defamation that mainly relies on private prosecution with public prosecution as a supplement.However,the vagueness of the foundation for public prosecution set forth in the proviso of the Criminal Law that"serious harm is done to public order and national interests",the lack of explanatory power and practicality of the judicial interpretation itself which is shown as interpretation by synonyms or similar words,aggravate conflicts and concurrence between the public charge of the crime of defamation and other criminal charges.Especially when the victim is a local leading official,there will be a risk of abuse of power of public prosecution of the crime of defamation in practice that some elements limiting the power of public prosecution are neglected or even ignored in practice.From a narrower point of view,only when an actor has subjective intention to infringe upon individual legal interests without subjective intention to infringe upon the legal interests of the society or the State(or without evidence to prove such intention),the provision of"serious harm done to public order and national interests"has its unique value in the legal application and won't conflict with other crimes in the Criminal Law.In order to handle and balance the relationship between punishment for criminal conducts and the protection of human rights in combating the crime of defamation,and adapt to internal and external changes in the Internet age,it is suggested to divide defamation into three modes through legislative amendment,namely the crime with no serious circumstance,the crime with serious circumstance and the crime with especially serious circumstance.To fully safeguard constitutional rights,defamation without serious circumstance won't be punished as a crime.To fully guarantee the right to private prosecution,defamation without serious circumstance shall be tried by the criminal court only upon complaint.To punish crimes according to law,public prosecution may be initiated against defamation with especially serious circumstance and conforming to specific formal and substantive elements,so as to maintain the internet and information order.