Han Han Fang with controversy, I don't care, did not read the article (see the statement about the litigation), but in many onlookers see speech, found many venture to error, so, wrote this.

 

One, our reputation tort law introduction

   China's legal provisions on the tort law, there are probably many scholars introduced, mainly reflected in the "general principles of civil law", "tort liability act", "the Supreme People's Court on the implementation of" civil law of the people's Republic "views (Trial)", "Supreme People's court on the trial. The case of the right answers to some questions such as".

  "The provisions on Several Issues concerning the trial of cases of reputation right answer" the seventh Supreme People's Court: "whether constitutes the tort responsibility, should according to the victim is reputation damaged facts, behavior illegal, illegal acts and damages a causal link between, actor has fault subjectively." So the reputation infringement constitutes four elements: that infringing the right of reputation infringement behavior, the consequences, the causality between the two, the defendant has fault, the plaintiff to prove that the defendant to prove infringement, finish the four elements.

   But on the right of reputation, privacy, the right of portrait and the spirit personality right infringement, there is a problem need to be clear to you, is the plaintiff in proving the reputation infringement damage results, is no need to submit relevant evidence that does have the damage occurs because of the reputation infringement, the "non property damage" this damage is not, can directly reflect, as happened because of reputation infringement mental anguish, the fact of damage on the victim and other rights are not proof prove, therefore the law without the burden of proof, as for the fault, according to the case by the court to determine the duty of the defendant, and then decide whether the defendant is in breach of the duty of care to judge the defendant has no fault.

   The plaintiff: only need to prove that the defendant had his that violate their reputation right behavior.

 

Two, reputation infringement and Copyright Disputes

   See micro-blog some scholars: Han Han can through this procedure proved himself to be the works of authors. Sorry, this is a wrong understanding, from now on both sides of the statement, belongs to the reputation infringement disputes, rather than a copyright dispute. According to the provisions of China's "copyright law" Eleventh article fourth paragraph: "the absence of proof to the contrary, the citizens, legal persons or other organizations signed in the works for the author." If Han Han can provide formal publications, that the works Department celebrity is he, then may prove that he is the author of the work, this is a law on the "presumption", signed by the legal presumption works on people is the author, if others have objection to the objection, shall put forward evidence the undersigned, that is not the author of the work.

   But even Han Han in the defamation lawsuit based on this assumption is successful, also cannot rule out other people to other people in other evidence to question the authenticity of the works of Han Han, though the decision can be based on the assumptions and other evidence indicates that Han Han is the author, but if the third person has evidence to prove that the work is actually third people do, has nothing to do with Han Han, filed a copyright dispute lawsuit, although the Supreme Court "on the basis of civil evidence regulations" Ninth Article: "the following facts, without the burden of proof to prove that the parties: (four) have been confirmed by the people's court in a legally effective judgment of fact;" but it is the second paragraph: "as mentioned in the preceding paragraph (a), (three), (four), (five), (six), the parties have sufficient evidence to prove the case, except" the award works as Han Han, but do not mean that third people can not to new evidence put forward new questions.

 

 Application of constitution of three, our country civil trial

   In the discussion, I saw many people to say "freedom of speech", there is a misunderstanding, is in accordance with the laws and regulations of our country, the case if the court judgment, not about free speech case, but the reputation infringement case.

   The reason why there is such a difference, because in our country, constitution is not civil relief direct standard source, the parties not in court directly invoke the request of relief, the court can not in judgment, the constitution as the legal basis for the outcome of the case to make judgment. "The Supreme People's Court on how to use legal instruments to produce approved legal normative documents (method (Research) complex <1986> 31)" clearly stipulates: "the people's court in accordance with the law of civil and economic disputes the production of legal instruments, for the development of the National People's Congress and its Standing Committee law, the State Council to formulate administrative rules and regulations, can refer to." The constitution excluded from legal judgments can be invoked on the outside. In 2001, the Supreme People's court has repeatedly in the "Qi Yuling case", but the approved in 2008 revoked, back to the 1986 position.

   The reason for doing so, is based on two considerations: one is the legal regulations of China's constitution, the implementation of laws and regulations, is the implementation of the constitution, so no need to direct quotes, two is allowed if the court directly use the constitution as it, according to the constitutional law and other legal norms of differences, the court can be based on the constitutional problem with the constitutional review of laws and regulations, is in fact to judicial review, this is our constitutional system is not allowed.

Therefore, according to Chinese law, the case has nothing to do with the freedom of speech, and reputation infringement related.

 

Four, the analysis of facts and comments

   Facts and comments is a America concept of law, this time in the discussion for everybody is widely used.

   This is a America law concept, first in the "Gates" case for justice Powell creation, after repeatedly for the Federal Supreme Court cited, its theme is: speech according to its content is divided into the fact and comment, the fact is the means by which the events of the statement, the so-called commentary the personal opinion of things. Because the fact is objective, so when the defendant's error of fact, to be punished by the law; but the comment is subjective, just comment errors exist, the general protection of free speech law will give higher. For example, in Milkovich v. "Loren magazine" (1990 case), the court considered whether the plaintiff: guilty of perjury is a question of fact, can be false, but if someone is ignorance, comments, should be protected by freedom of speech.

   To distinguish between fact and comment has its significance for our country's reputation infringement, the Supreme Court "on the general principles of the civil law of our country the views of" 140th stipulates: "in writing, oral and other forms to the privacy of others, or fabricating facts publicly vilify others personality, and insult, libel damages. Methods the reputation of others, cause certain influence, should be identified as infringing citizen's reputation right behavior." Provisions of the agreement of three cases of infringement of right of reputation, the first is the invasion of privacy, category, not explored in this article; the second is the "fabricated", third is "insult, libel," infringement of right of reputation, the former refers to the fact, that shall not be fudged to fact, the latter refers to comments, not to insult, libel and other means to carry out.

   But there will still be a problem, is how to distinguish between fact and comment? In America law is disputed endlessly, in Chinese law also has the dispute. For example: directly accused each other of the article is a copy of, this is a question of fact, the accused party that the criticism based on fact corresponding; but if your writing is not good, this is a comment by comment, even if people do not fast, not accused the other of infringing.

   But there will be fuzzy, such as: "I think this article is not what you write." As the matter of fact or comments? Without doubt. This word has multiple meanings, can mean "this article is written by others, that is the question of fact", also can mean "this article style and the style of writing before you do not agree," is a comment, the defendant to prove that the plaintiff was ghostwritten obligations, while the latter only to see whether there is "an insult, libel" means, such as no, protected by freedom of speech. But in judicial point of view, if there are two explanations for words, you should start from the angle of protecting freedom of speech, helps to those words explanation, for true meaning.

 

Five, public debate

   Public figures are the most intense part of this argument, it is also a American law concept, is familiar to the Chinese people.

   Public figures formulation is presented for the first time in the first "Sullivan v. New York Times case", then become an important tool for the protection of free speech, for public figures, to protect the interests of freedom of speech and the public right to know based, such dispute, as a public figure of the plaintiff to prove that the defendant has essence of "malicious", Party win.

    But this standard also has the question: is that how to identify the public figures? Generally speaking, American Federal Supreme Court after trial, that public figures including: public officials; no office, but has been deep into public affairs; in a field and obtain excellent effect; and a voluntary investment of public affairs and influence people. These people in participating in social activities, should accept the criticism and questioning of others.

   In China, the concept of public figures have been introduced in the case, such as "Fan Zhiyi v. Oriental Sports times case (2003)," "Stanley Tong v. Chengdu Business Daily case (2004)", "Jane Zhang told Oriental Morning Post case (2007)", but it should be pointed out that the public people in China use only in the case, and in civil law system in our country is not present on the definition, in other words, reputation infringement case of "public figure" and "ordinary people" have no corresponding legal basis difference, the specification is still to be established with the legislative and the Supreme People's court shall determine.

 

The differences between the six countries, the judicial

   In fact, for the countries, different, legal history of judicial philosophy based on the freedom of speech, in case the same case often have different understanding, make different decisions, not to say who is right, who is wrong, different choice depends on the domestic judicial idea.

   The most classic case that occurred in the 2010 "Beckham prostitution case", a USA prostitutes in California claimed that Beckham "visit" to her, two people very happy, America a non mainstream magazine "In Touch" interviewed a prostitute, and made a very good story, caused a sensation in the Atlantic. On both sides, then another German media have also done the same report. Beckham in the American California and Germany to prosecute the media, is almost the same in fact, but Beckham was complete different results of action: in USA lost, three American California Losangeles Court on the grounds, two of which is the first case of the federal constitutional freedom of speech based on direct malicious public figures in Germany win, based on proof; the reason is the basic law article first stipulated in the "personality" should be protected. Here reflects the USA, Germany for the understanding of different justice value, America more concerned about freedom of speech, because of the protective effect of German World War Two pay more attention to the personality and dignity.

   However, this case has two features: one is interesting China media widely reported in the proceedings America Beckham, few reports in the German procedure; two is a call request America tax authorities prostitute the claimed the piaozi pay personal income tax, and the court of appeal.

 

Seven, freedom and responsibility

   Translation of "criticism of officials in He Fan students scale", good writings make people copy them. "No freedom to criticize, praise meaningless" is more popular on both sides of the Changjiang River, many people also cited in the argument, on one hand, it has promoted public awareness of the freedom of speech, on the other hand, I also found that: most students only the title, not to see the full text.

   In fact, this book is the reflection of journalistic writings, the last chapter is to discuss this issue, "Sullivan" indeed given the media than in the past more freedom, but also gave the media more responsibility, so the case occurred, the media a libel action is not reduced, but increased (see the book of 251st pages), the causes of this point is many, and the media as critics self perception is one of them. The expansion of freedom in fact also means responsibility expansion, for this problem the best reflection of the case is the Taiwan "Bai Xiaoyan case", the case is the three robbers hijacked the little girl Bai Xiaoyan, because was hijacked by the children is a famous Taiwan actor Bai Bingbing, cause media attention, the prohibition of newspaper in Taiwan to open a new, media for news often use unscrupulous divisive tactics, results in catching the robbers in police to take action, no matter how, the media can be got the news through the inside, to wait in the operations, camera equipment rack, tend to act rashly and alert the enemy, the police to work without power, although the final robber caught, but miss Bai Xiaoyan was killed, the tragedy caused Taiwan thinking.

   No one should not be subject to criticism, we can challenge anyone, but often means responsibility, when we call for freedom of speech, consider how to establish the moral responsibility, occupation ethics, legal responsibility system.

 

Eight, freedom of speech and social tolerance

   The boundaries of freedom of expression is not in the law, and in the social tolerance. A society has much social tolerance, we can gain much freedom of speech.

   For this kind of distinction between interested students can see America movie "Book tycoon" (The PeopleVs.Larry Flynt), the hero of the movie is the defendant in the case, there is a famous saying, "if the First Amendment protection for people like me, I believe it can protect all the people, because I was the most abject the scumbag garbage." This sentence is considered for the first amendment of the US Constitution of the classic exposition. In this case, the defendant Larry Flint published pornographic magazine "pimp", in 1983 November, Flint do all kinds of evil in the magazine, with the famous evangelical pastor Jerry Farwell published a cartoon as the prototype, suggesting that the priest and his mother was "the first with the double meaning". In the advertising end, write "Funny Ads -- not seriously by a row of small print".

   See this comic, moral cleanliness pastor quick prosecution, asked Flint for $4500, there are three reasons: first, the "pimp" without permission, the abuse of Farr Will's name and image, to achieve the "advertising and commercial purpose"; two is the slander; three is caused by malicious injury to Farr Will. The case has been appealed to the Supreme Court, the highest court in support of the villain, chief justice Rehnquist pointed out: "the society may be found words unpleasant, enough reason for this fact does not constitute the repression of...... The government must remain neutral in the ideological disputes, this is an important principle in the first amendment of the constitution".

   If we want freedom of speech, please add to our social tolerance.

 

Nine, postscript

   1, the discussion of a person I concern is what Professor of soldiers, his speech once again demonstrates my judgment of him: "crossover error," he Bing Professor against Han Han sue, the reason is "when Lu Xun called Liang Shiqiu: the funeral of capitalist henchman, never heard of Liang Shiqiu prosecution. Written polemics pen, looking for what? Han Han, you're too stupid!" At the same time quoted Mr. Lu Xun was falsely accused of plagiarism and not against the cases in the course of his argument, and said Han Han's own credibility than the court, stupid to demonstrate the.

   Sometimes I doubt whether the professor is studying law? The last one I do not evaluate, his other any reasons untenable. The first prosecution is Han Han right, anyone in that their rights have action, Han Han may be exercised, as Mr. Lu Xun why not make, we can make nothing of it, but if Mr. Lu Xun trust in court, prosecution restore its reputation, also need not matter so long (with Lu Xun Mr. tangled literature history on the matter have many records, who are interested can refer to), this example shows Han Han should sue to the court, rather than the opposite.

   Secondly, Mr. Liang Shiqiu and Mr. Lu Xun first written polemics, he did not tell, perhaps sage mood, can make nothing of it, but we can not ask everyone is a saint; secondly if Mr. Liang told, in accordance with the present law, especially in the America law he Bing Professor respected, Mr. Lu Xun speech belongs to comment, is protected the category of free speech, he lost the possibility.

   Sometimes I want to suggest he Bing professor "reading for 10 years, and then micro-blog"!

   2, the Han contention awareness of the law, I agree with the views of Professor Xie Youping, who is interested in, can read Professor Xie's micro-blog.

   3, Si Weijiang a lawyer to write "Chinese public criticism of where to draw the line? Just about the law "is very well written, but there is a need to remind, is the standard of proof in civil litigation is a" high probability "standard, but the standard is applicable both in clear responsibility of burden of proof, which is determined by the plaintiff to prove what should be, what should be made by the defendant to prove that, both sides presented evidence, but any of the parties are not absolutely convincing evidence, in accordance with the high probability of standard to determine who the evidence eventually was able to convince the court, to support one party referee.