According to the general principles of China's civil law, the right of reputation is lost with the death of a natural person, that is, the deceased no longer enjoys the right of reputation. However, the author believes that although the reputation right of the deceased's personality right is lost, its social evaluation will not disappear with the death of the deceased. On the contrary, the social evaluation of the deceased will persist and be evaluated by the public for a period of time, which will have a certain impact on their relatives, work units and even the country, so it is necessary to protect them. This paper will discuss whether it is necessary to protect the reputation of the deceased in criminal law, and discuss the expanded explanation of the protection of the deceased in the crime of insult and slander.
First, the criminal law protects the reputation and the reputation of the deceased.
Generally speaking, reputation in our country refers to the sum total of social or other people's comments on the conduct, talent, reputation, goodwill, achievements, qualifications and identity of specific natural persons and legal persons. ①
The right of reputation corresponds to the right of reputation. Article 10 1 of the General Principles of Civil Law stipulates: "Citizens and legal persons enjoy the right of reputation, and their personal dignity is protected by law. It is forbidden to insult or slander citizens and legal persons and damage their reputation. The right of reputation is a kind of personality right in civil law, but it is generally said in our country that the deceased does not enjoy the right of reputation. Of course, some scholars believe that the deceased should enjoy the right of reputation. Of course, there is also a compromise view, that is, some scholars suggest that the reputation right of the deceased does not exist, but the law protects other rights or legal interests.
Under these three thinking frames, many theories about the protection of the reputation right of the deceased have gradually developed, such as the theory of close relatives' interests, which holds that the so-called protection of the reputation right of the deceased is essentially the protection of the reputation right of the survivors of the deceased; Family interest theory (3) means that the damage to the reputation of the deceased is essentially the damage to the reputation of a family as a whole, so family members have the right to claim legal protection; The theory of legal interests (4) holds that the damage to the reputation of the deceased essentially damages the social order, and in the final analysis, it harms the interests of the public; The theory of extended interest protection (5) refers to the protection of the rights and interests of the deceased before and after death; The theory of inheritance of personal rights and interests ⑥ means that the heirs inherit the personal rights of the deceased, so it is worth protecting, and so on. In a word, the academic circles have different opinions on this issue, but most of them are confined to the field of civil law, and only the theory of legal interests has the theoretical support of criminal law regulation.
Looking at the above viewpoints, the author thinks that the reputation right of the living natural person should undoubtedly be protected, but for the dead natural person, there is no personality right. On the contrary, we protect the reputation of the deceased.
First of all, from the legal point of view, the reputation of the deceased, that is, the public's evaluation of all aspects of society, will not disappear because of the death of a natural person. On the contrary, it will exist for a long time after the death of a natural person, ranging from a few months to thousands of years. Therefore, although reputation is an abstract thing, it exists objectively, which is of great significance because it affects the psychological feelings of the survivors of the deceased, the stability and unity of the society or the country, and even the dignity and security of the country. Secondly, judging from the cultural accumulation of our country for thousands of years, we attach great importance to "honor after death", so some people are immortal, others are immortal, and there is also a tradition of "letting future generations evaluate". Therefore, we should adjust measures to local conditions and learn from the protection of the reputation of the deceased in the criminal law of continental law system, so it is necessary to incorporate the issue of protecting the reputation of the deceased into the criminal law system.
In addition, the author also believes that the primary purpose of civil law is to protect private rights and interests, and the above theories are mostly based on rights and interests, while the main purpose of criminal law is to safeguard national interests, social order and good customs. Therefore, criminal law should not protect the reputation right of the deceased from the beginning, but protect national interests, social order and good customs. The protection of reputation right should be a secondary issue, so it no longer conflicts with the general statement of domestic civil law.
Moreover, if the damage to the reputation of the deceased does affect social order or national security in reality, the regulatory coercive power of civil law or administrative law is obviously insufficient. If it is defined as a crime of endangering national security or a crime of endangering social management order in the criminal law, there may be suspicion that a legally prescribed punishment for a crime is incompatible; If the act of damaging the reputation of the deceased has caused serious consequences to the survivors, should the criminal law also consider intervening? At the same time, if the harm of infringing on the reputation right of the deceased does not reach the level of criminal law, then solving disputes through civil law or administrative law can better reflect the distinction of the degree of legal compulsion, which is more conducive to the implementation of the principle of a legally prescribed punishment for a specified crime and the principle of suiting punishment to crime. The criminal law itself will also have a psychological coercive effect on others' insulting or slandering the deceased, which will play a deterrent role.
To sum up, the author thinks it is necessary for criminal law to protect the reputation of the deceased, so let's talk about how to do it.
Second, a new understanding of Article 246th of the Criminal Law
Article 246 of China's Criminal Law "publicly insulting others by violence or other means or fabricating facts to slander others, if the circumstances are serious" constitutes a crime. Whoever commits the crime mentioned in the preceding paragraph, except those that seriously endanger social order and national interests, can only be dealt with by telling. In view of the above laws, we should have a new understanding of the protection of the reputation right of the deceased from the following aspects.
First of all, we should make clear the object of the crime of insult and slander, that is, the personality of others, including personal dignity and social honor. Here, for the deceased, their personality rights have been lost, so they can only infringe on their social honor (reputation). According to the last article, the public's evaluation of the deceased does not stop because of the death of a natural person, then the object of criminal acts is declared established. However, there is a problem that needs to be clarified here, that is, the degree of infringement of the object, because compared with the living, the insult or slander to the deceased has no effect on the deceased itself, because after the death of a natural person, it is no longer called a person, whether it is a corpse or ashes, and it is called "thing" in the theory of legal circles and the concept of ordinary natural persons, which is just special.
Therefore, for the degree of infringement of the object, we must first respect the feelings of the survivors of the deceased, and then evaluate it with the public and our cultural traditions. In the case of no survivors, we think we can directly evaluate the latter.
Secondly, the word "others" here is interpreted as a dead natural person, but does it also apply to the ancients who died for hundreds or even thousands of years? The author thinks it can be applied, but there are restrictions, that is, the premise is that the principle of this kind of case is private prosecution, and the prosecutor must be the direct blood relatives of the deceased, otherwise it is not conducive to judicial efficiency and fairness and justice.
Third, the objective understanding of crime. Regarding the objective aspects of libel and insulting the deceased in a non-violent way, we can refer to the legal and judicial interpretations to grasp the views of existing natural persons, and we will not discuss them here. As for insults, there is no violence caused by the death of a natural person, but for objects that symbolize the meaning of the deceased, such as tombstones or spirits, intentional insults, such as splashing dirt on tombstones and deliberately smearing them, can of course be understood as insults. However, it should be noted here that insulting behavior is not necessarily a crime, because the proviso in Article 13 of China's criminal law stipulates that "if the circumstances are obvious and slightly harmless, it is not considered a crime". Therefore, it is necessary to define the seriousness of the plot, which can refer to judicial interpretation.
Fourth, the discussion of private prosecution and public prosecution. Insult and slander are crimes of private prosecution, except those that seriously endanger social order and national interests. The legislators here first consider the feelings or privacy of the victims and their families, and leave the litigation rights to the victims. However, on the issue of protecting the reputation of the deceased, due to the death of a natural person, the direct victim does not exist, but his survivors or the public may be victims. For example, the violation of the reputation of the deceased may directly affect the feelings or reputation of its survivors. It may also affect the reputation of the deceased's work unit. For example, foreigners' insults to national heroes will greatly hurt our national feelings or the relations between countries. Moreover, for the deceased who have no survivors, their work units and friends, including procuratorial organs, can exercise the right of appeal when necessary. Here, the state reserves the right of appeal.
To sum up, any case that may constitute a crime should first be prosecuted by a person or unit that has a close relationship or reputation with the deceased. However, in order to safeguard public interests, public order and good customs, national honor or interests, procuratorial organs have the obligation and responsibility to criticize the subject of the crime for infringing acts that damage the reputation of the deceased and seriously hurt the national feelings of the public or the interests of all aspects of the country.
Three. abstract
Slander or insult the deceased, if the circumstances are serious, can also be included in Article 246th of the Criminal Law. For insulting the deceased, there have been legislative and judicial practices abroad. Considering thousands of years of cultural traditions, national feelings and even national dignity and interests in China, it is necessary to combine the punishment of insulting and slandering the deceased with overseas practices. In my opinion, it is not necessary to refer to other crimes abroad to protect the reputation of the deceased, which is not conducive to the realization of judicial interests. It is only necessary to increase the protection of the reputation of the deceased in Article 246. (Author: Shenyang Normal University)
To annotate ...
Peng, Civil Law, China University of Political Science and Law Press, 2002: 165.
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