中国における名誉毀損制度の構造と展開
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概要
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1. Background. Following the enforcement of the civil code in January 1987, the mass media and the judicial circles in China were challenged by a widespread"epidemic of prosecution of journalists."2. The study of compensation for mental damages. As to civil code No.120 focusing on compensation for mental damages, it has been a subject of a study. The focuses were: 1) The rationality of the principle of financial reparation under capitalist modern law; 2) The relation between human character and money; 3) The validity of traditional moral values in China. 3. Prerequisites for defamation. 1) The act of the wrongdoer is illegal. The common view has it that libel depicts facts whereas insult has nothing to do with fact. But judicial precedents show the correlation between insult and fact. Illegality is further divided into"formal illegality"and"substantial illegality."Defamation cannot be constituted out of formal illegality alone. Moreover, the notion of"low"in the concept of illegality includes moral norms. But the limitation of morality is not clear. It is said that the demonstration of the truth of the major facts is enough to constitute the"proof of truth"which refutes the illegality. However, the criteria for judgment of what is"major"has to wait for the accumulation of precedents to be spelled out clearly. 2) The wrongdoer has committed a mistake. Error is divided into direct intention, indirect intention, and misadventure. The main stream understanding in theory and justice is that only direct intention applies to criminal cases and the others to civil cases. In case of"wrong belief, "an exemption clause for"unexpectable"cases is stated clearly in the criminal code. In the last few years a theory which judges based on"the reliability of information source"is being proposed. But in the court, the attitudes toward wrong belief are polarized. 3) There is a fact of defamation. Honor is defined as"social evaluation, "but there are considerable arguments. One of which is that the"sense of honor"is an object of legal protection. Concerning the problem of how the decline in social evaluation relates to the social status of the victim, there is a divergence between the opinion that protection of people of higher status should be strengthened and the opinion which holds the American"theory of actual malice."There are lots of cases of involving the model of a novel is a plaintiff or not. In such cases, the verdict usually relies on"the reader's awareness"as conclusive factor. 4) There is a casual relationship between the act of the wrongdoer and the damage to the victim."Common knowledge"is often referred to as the reason for the refutation of casual relationship. The most typical cases are issues on reprint. However, both theory and the justice denies exemption.
- 日本マス・コミュニケーション学会の論文
- 1994-03-25