关于“网上发帖遭遇跨省追捕”的案例分析
发布时间：2018-12-06 17:55
【摘要】： 近年来,有关“网络诽谤”、“手机诽谤”的案例不断发生,相关当事人遭遇逮捕、审讯的案例使众多网民不敢在网上随意表达对政府非法行为的不满,不敢随意发帖议论时政,一时间人们谈“网”色变。而这种现象发生在民主、法治意识日益深入人心的社会,是极其不正常的。毕竟,在信息社会,网络也是政府与公民进行有效沟通的一个重要渠道,是政府了解舆情、关注民生的一个重要窗口。 网上发帖虽然是借助网络这一传播迅捷的平台,利用文字、图片等形式,拓宽了言论传播的范围,但与传统的信访渠道相比,仍然是在行使宪法赋予的基本权利,包括宪法规定的言论自由权、批评建议权和监督权。但当事人却屡屡被地方司法机关以“涉嫌诽谤”的罪名进行立案侦查,其原因在于这些权利是否能够在互联网上顺畅地行使,发帖行为能否得到官方的认可。互联网带来了有关言论自由权的表达途径问题,但在内容和形式上,同其他传播介质其实并没有实质性差别,关键在于能否对相关法律条文进行正确的解读和判断。而这个过程也是矛盾双方,即地方政府和行使言论自由权的公民的利益相互冲突与协调的过程。因此,有必要为公民利用网上发帖的形式行使宪法权利找到相关的法律依据作为支撑,才能杜绝地方政府随意动用国家机器践踏公民基本权利现象的发生。 笔者以所选案例为重点,进行了仔细的解读后,对该案所引发的法律争议展开论述,并结合我国当前的具体法律法规,参考国内外法学界的新观点,详细探讨了言论自由权、批评建议权的内涵和价值,阐述了诽谤罪的犯罪构成,对相关法律概念进行了合理界定,并归纳了该类案例产生的原因,提出一些积极的应对策略及立法建议。希望通过本文的写作,唤起法律研究者、行政权力的行使者对本类案件的再思考与再认识,唤起全社会对宪法基本权利的尊重意识,尤其是基层政权能够对该项权利的行使提供切实的保障。 本文是以该案例为重点,结合类似相关案例,展开论述,得出结论的,但对该案例及相关案例的分析与界定也只是一种学术上的探讨,其可行性有待实践的进一步验证。
[Abstract]:In recent years, cases of "internet libel" and "mobile phone libel" have continued to occur. The relevant parties have been arrested and the cases of interrogation have made many netizens afraid to express their dissatisfaction with the illegal actions of the government on the Internet at will. Dare not arbitrarily post comments on current politics, people talk about the "net" color change. But this kind of phenomenon occurs in the democracy, the rule of law consciousness day by day deeply popular society, is extremely abnormal. After all, in the information society, the network is also an important channel for the government to communicate effectively with the citizens. It is also an important window for the government to understand the public opinion and pay attention to the people's livelihood. Although posting on the Internet is a platform for rapid communication through the Internet and in the form of words, pictures, etc., it broadens the scope of speech dissemination, but compared with the traditional channels of letters and visits, it is still exercising the basic rights conferred by the Constitution. This includes the constitutional right to freedom of speech, criticism and supervision. However, the litigants are frequently investigated by the local judicial authorities on the charge of "suspected libel". The reason lies in whether these rights can be smoothly exercised on the Internet and whether the posting behavior can be officially recognized. The Internet has brought about the question of the expression way of the right to freedom of expression, but in content and form, there is no substantial difference between the Internet and other media, the key lies in whether the relevant legal provisions can be correctly interpreted and judged. This process is also a process of conflict and coordination between the conflicting parties, that is, the local government and the citizens exercising the right to freedom of speech. Therefore, it is necessary to find the relevant legal basis for citizens to use the form of online posts to exercise their constitutional rights as support, in order to prevent local governments from trampling on citizens' basic rights by using the state machinery at will. After careful interpretation of the selected cases, the author discusses the legal disputes caused by the case, and discusses the right to freedom of speech in detail, combining with the specific laws and regulations of our country and referring to the new viewpoints of the domestic and foreign legal circles. This paper discusses the connotation and value of the right to comment, expounds the criminal constitution of libel, defines the relevant legal concepts reasonably, sums up the causes of this kind of cases, and puts forward some positive countermeasures and legislative suggestions. Through the writing of this paper, I hope to arouse the legal researchers, the executive power of the exercise of this kind of cases to re-think and re-understanding, arouse the whole society to respect the basic rights of the Constitution, In particular, grassroots power can provide practical protection for the exercise of this right. This paper is focused on this case, combined with similar related cases, to start the discussion, draw a conclusion, but the case and related cases of the analysis and definition is only an academic discussion, its feasibility needs to be further verified by practice.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D920.5
本文编号：2366426
[Abstract]:In recent years, cases of "internet libel" and "mobile phone libel" have continued to occur. The relevant parties have been arrested and the cases of interrogation have made many netizens afraid to express their dissatisfaction with the illegal actions of the government on the Internet at will. Dare not arbitrarily post comments on current politics, people talk about the "net" color change. But this kind of phenomenon occurs in the democracy, the rule of law consciousness day by day deeply popular society, is extremely abnormal. After all, in the information society, the network is also an important channel for the government to communicate effectively with the citizens. It is also an important window for the government to understand the public opinion and pay attention to the people's livelihood. Although posting on the Internet is a platform for rapid communication through the Internet and in the form of words, pictures, etc., it broadens the scope of speech dissemination, but compared with the traditional channels of letters and visits, it is still exercising the basic rights conferred by the Constitution. This includes the constitutional right to freedom of speech, criticism and supervision. However, the litigants are frequently investigated by the local judicial authorities on the charge of "suspected libel". The reason lies in whether these rights can be smoothly exercised on the Internet and whether the posting behavior can be officially recognized. The Internet has brought about the question of the expression way of the right to freedom of expression, but in content and form, there is no substantial difference between the Internet and other media, the key lies in whether the relevant legal provisions can be correctly interpreted and judged. This process is also a process of conflict and coordination between the conflicting parties, that is, the local government and the citizens exercising the right to freedom of speech. Therefore, it is necessary to find the relevant legal basis for citizens to use the form of online posts to exercise their constitutional rights as support, in order to prevent local governments from trampling on citizens' basic rights by using the state machinery at will. After careful interpretation of the selected cases, the author discusses the legal disputes caused by the case, and discusses the right to freedom of speech in detail, combining with the specific laws and regulations of our country and referring to the new viewpoints of the domestic and foreign legal circles. This paper discusses the connotation and value of the right to comment, expounds the criminal constitution of libel, defines the relevant legal concepts reasonably, sums up the causes of this kind of cases, and puts forward some positive countermeasures and legislative suggestions. Through the writing of this paper, I hope to arouse the legal researchers, the executive power of the exercise of this kind of cases to re-think and re-understanding, arouse the whole society to respect the basic rights of the Constitution, In particular, grassroots power can provide practical protection for the exercise of this right. This paper is focused on this case, combined with similar related cases, to start the discussion, draw a conclusion, but the case and related cases of the analysis and definition is only an academic discussion, its feasibility needs to be further verified by practice.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D920.5
【引证文献】
相关硕士学位论文 前4条
1 朱爱萍;论公职人员名誉权的限制[D];华东政法大学;2011年
2 焦湘齐;网络诽谤的犯罪预防与司法处置[D];烟台大学;2011年
3 杨磊;网络环境下诽谤罪的认定[D];西南政法大学;2011年
4 田海仙;论网络诽谤犯罪的刑事法规制[D];河北大学;2013年
，本文编号：2366426
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