Notice concerning Strictly Handling Insult and Defamation Cases According to the Law.

Posted on Updated on

3 April 2009

All provincial, autonomous region and municipal public security offices and bureaus, the Xinjiang Production-Construction Corps Public Security Bureau

Since many years, all levels’ public security organs have, according to the relevant provisions of the “Criminal Law” and the “Public Order Management Punishment Law”, inspected and prosecuted a batch of insult and defamation cases, and have contributed to the protection of the personal dignity and reputation of citizens, and safeguarding social public order. But, a small number of local public security organs have, in the process of handling insult and defamation cases, not been able to handle cases strictly and correctly according to the law, which led to the broad attention of news media and all walks of society, engendered a harmful social influence, and damaged the image and law enforcement credibility of public security organs. In order to handle insult and defamation cases strictly according to the law, standardize law enforcement activities, raise case-handling quality, and protect the lawful rights and interests of citizens, hereby, the following relevant issues are notified:

I, Realistically raising understanding of the importance of handling insult and defamation cases strictly according to the law. Some local public security organs have not been able to correctly handle insult and defamation cases, the direct reason for this is that their understanding of relevant laws is unsuitable, and their determination is inaccurate, the deeper reason is that there is a lack of understanding on contradictions among the people under new circumstances. All levels’ public security organs must soberly understand that, following the incessant push forward of the construction of a democratic legal system, the popular masses’ consciousness about the legal system and their consciousness about political participation is incessantly strengthening, some masses put forward criticism and suggestion from different angles, this is a manifestation of exercise of democratic rights. A part of the masses grumble and vent grievances about some negative phenomena in society, and even publish some extreme discourse, this is unavoidable. If the criticism, grumbling as well as some extreme discourse of the masses is considered to be insult or defamation, and criminal punishment of public order punishment methods are used to dispose of these, this is not only against the laws, but may also intensify contradictions, and this may even be used by people with ulterior motives, seizing the opportunity to attack our country’s social system and judicial system, which influences the image of the Party and the government. All levels’ public security organs must start from the bigger picture of safeguarding social harmony and stability, deeply understand the importance of strictly and accurately handling insult and defamation cases according to the law, persist in the supremacy of the undertaking of the Party, the supremacy of the people’s interest and the supremacy of the Constitution and the law throughout, realistically ensure strict, fair and civilized law enforcement, according to the requirement of “increasing harmonious factors to the largest extent, and reducing inharmonious factors to the largest extent”, strive to dissolve contradictions, and avoid that new unstable factors are triggered due to improper law enforcement.

II, Correctly grasping the scope of jurisdiction and basic prerequisites for public prosecution cases of insult and defamation. On the basis of the provisions of Article 264 of the “Criminal Law”, insult and defamation cases generally are self-initiated cases, and individual citizens shall file a suit with People’s Courts themselves, only if the insulting or defaming acts “gravely harm social order and the national interest”, can public organs file a case and investigate matters according to the public prosecution procedure. Public security organs must, when handling criminal insult and defamation cases according to public prosecution procedure, correctly grasp the constitutive elements of the crime. Public security organs may not have jurisdiction over public prosecution cases where the basic element of “gravely harming social order and the national interest” is not present. Insulting and defaming acts where one of the following circumstances is present, shall be considered as “gravely harming social order and the national interests”, be filed and investigated as criminal insult and criminal defamation cases, and handled as public prosecution cases: (1) where the insulting or defaming act leads to mass incidents and gravely influences social order; (2) where foreign diplomatic envoys, visiting foreign heads of state or heads of government and other people are insulted or defamed, bringing about evil international influence; (3) where other gravely harmful circumstances are brought about to the national interest because of the insulting or defaming act. Public security organs must, after receiving a citizen’s report, accusation or complaint concerning an insulting or defaming act, first and foremost earnestly investigate them, and ascertain whether or not they fall into the category of public security organ jurisdiction. Where cases conform to the abovementioned circumstances, but even greater harm may be created for the national interest of the national image because of public prosecution, it may be handled with through other means. Concerning insult and defamation cases that have been examined and found not to fall under the abovementioned circumstances but are still suspected to constitute a crime, public security organs shall find out the details of the situation, produce notes, and submit the case materials to the People’s Court that has jurisdiction, and at the same time explain to the parties that this case falls into the category of self-initiated cases according to the provisions of the law, does not fall under the jurisdiction of public security organs, and notify them to go to the People’s Court to file a case on their own initiative. In the examination process before the filing of the case, public security organs may not adopt coercive methods towards relevant persons and assets. Concerning cases that do not constitute a crime but violate the “Public Order Management Punishment Law”, these must undergo public order mediation, to dissolve contradictions and disputes to the greatest extent; where mediation is unsuccessful, public order management punishment should be imposed according to the law. Public security organs must, when handling insult and defamation cases, be thorough and meticulous, differentiate methods and analyse principles, strive to ensure that persons violating the law or committing crimes and the victim are completely convinced of and accept the handling result, change negative factors into positive factors, and obtain the unification of legal effect and social effect.

III, Realistically strengthening law enforcement supervision over insult and defamation cases. Concerning insult and defamation cases where public security organs establish through investigation that there are circumstances that greatly endanger social order and the national interest, and need to investigate criminal liability, they shall report this to the public security organ of one level higher, and file a case for investigation after the latter agrees; where it is necessary to adopt coercive measures after the case is filed, it shall be reported to the public security organ of one level higher for agreement before the coercive methods are adopted. Concerning public order cases of insult or defamation that may trigger a relatively large social influence, before a punishment decision of administrative detention is made, it shall be reported to the public security organ of one level higher for agreement. Where no report to a higher-level public security organs has been made according to regulations, or where the order of the higher-level public security organ is not obeyed, and a case of insult or defamation, which should be self-initiated or does not constitute a crime, is filed for investigation in violation of regulation, the corresponding responsibility of the relevant responsible personnel and controlling personnel should be prosecuted.

IV, Giving high regard to public opinion guidance in handling insult and defamation cases. Public opinion organs handling insult or defamation cases must, at the same time as correctly grasping legal boundaries, and strictly handling the case according to the law, maintain a high level of political sensitivity. Where a social hubbub may be triggered, response preparations must be made in advance. Public opinion guidance must pay attention to grasping the opportune moment well, information dissemination must ensure accuracy and authority, avoiding triggering factors of instability, and influencing the correct handling of the case.

All localities must, after receiving this Notice, earnestly implement it, immediately report it to the Party Committee and government, and strive for the understanding and support of Party Committees and government. Please timely report issues encountered in implementation to the Ministry.

公安部关于严格依法办理侮辱诽谤案件的通知
(2009年4月3日)
各省、自治区、直辖市公安厅、局,新疆生产建设兵团公安局:

多年来,各级公安机关依照《刑法》、《治安管理处罚法》的有关规定,查处了一批侮辱、诽谤案件,为保护公民的人格尊严和名誉,维护社会治安秩序作出了贡献。但是,少数地方公安机关在办理侮辱、诽谤案件过程中,不能严格、准确依法办案,引起了新闻媒体和社会各界的广泛关注,产生了不良的社会影响,损害了公安机关形象和执法公信力。为严格依法办理侮辱、诽谤案件,规范执法行为,提高办案质量,保护公民合法权益,现就有关问题通知如下:

一、切实提高对严格依法办理侮辱、诽谤案件重要意义的认识。一些地方公安机关不能正确办理侮辱、诽谤案件,直接原因是对有关法律理解不当、定性不准,深层次的原因是对新形势下人民内部矛盾缺乏清醒的认识。各级公安机关要清醒地认识到,随着国家民主法制建设的不断推进,人民群众的法制意识和政治参与意识不断增强,一些群众从不同角度提出批评、建议,是行使民主权利的表现。部分群众对一些社会消极现象发牢骚、吐怨气,甚至发表一些偏激言论,在所难免。如果将群众的批评、牢骚以及一些偏激言论视作侮辱、诽谤,使用刑罚或治安处罚的方式解决,不仅于法无据,而且可能激化矛盾,甚至被别有用心的人利用,借机攻击我国的社会制度和司法制度,影响党和政府的形象。各级公安机关要从维护社会和谐稳定的大局出发,深刻认识严格准确、依法办理好侮辱、诽谤案件的重要意义,始终坚持党的事业至上、人民利益至上、宪法法律至上,按照“最大限度地增加和谐因素,最大限度地减少不和谐因素”的要求,切实做到严格、公正、文明执法,努力化解矛盾,避免因执法不当而引发新的不安定因素。
二、准确把握侮辱、诽谤公诉案件的管辖范围及基本要件。根据《刑法》第二百四十六条的规定,侮辱、诽谤案件一般属于自诉案件,应当由公民个人自行向人民法院提起诉讼,只有在侮辱、诽谤行为“严重危害社会秩序和国家利益”时,公安机关才能按照公诉程序立案侦查。公安机关在依照公诉程序办理侮辱、诽谤刑事案件时,必须准确把握犯罪构成要件。对于不具备“严重危害社会秩序和国家利益”这一基本要件的,公安机关不得作为公诉案件管辖。对于具有下列情形之一的侮辱、诽谤行为,应当认定为“严重危害社会秩序和国家利益”,以侮辱罪、诽谤罪立案侦查,作为公诉案件办理:(一)因侮辱、诽谤行为导致群体性事件,严重影响社会秩序的;(二)因侮辱、诽谤外交使节、来访的外国国家元首、政府首脑等人员,造成恶劣国际影响的;(三)因侮辱、诽谤行为给国家利益造成严重危害的其他情形。公安机关在接到公民对侮辱、诽谤行为的报案、控告或者举报后,首先要认真审查,判明是否属于公安机关管辖。对于符合上述情形,但通过公诉可能对国家利益和国家形象造成更大损害的,可以通过其他方式予以处理。对于经过审查认为不属于上述情形但涉嫌犯罪的侮辱、诽谤案件,公安机关应当问明情况,制作笔录,并将案件材料移交有管辖权的人民法院,同时向当事人说明此类案件依照法律规定属于自诉案件,不属公安机关管辖,告知其到人民法院自行提起诉讼。公安机关在立案前的审查过程中,不得对有关人员和财产采取强制性措施。对于不构成犯罪但违反《治安管理处罚法》的,要通过治安调解,最大限度地化解矛盾和纠纷;对于调解不成的,应依法给予治安管理处罚。公安机关在办理侮辱、诽谤案件时,要深入细致,辨法析理,努力争取让违法犯罪行为人和被侵害人心悦诚服地接受处理结果,化消极因素为积极因素,取得法律效果和社会效果的统一。
三、切实加强对办理侮辱、诽谤案件的执法监督。对于侮辱、诽谤案件,公安机关经过审查,认为具有严重危害社会秩序和国家利益的情形,需要追究刑事责任的,应当报经上一级公安机关同意后立案侦查;立案后需要采取强制措施的,应当在采取强制措施前报经上一级公安机关同意。对于可能引起较大社会影响的侮辱、诽谤治安案件,在作出行政拘留处罚决定前,应当报经上一级公安机关同意。对于不按照规定报告上级公安机关,或者不服从上级公安机关命令,违反规定对应当自诉的和不构成犯罪的侮辱、诽谤案件立案侦查的,要严肃追究有关责任人员和主管人员的相应责任。
四、高度重视办理侮辱、诽谤案件的舆论引导。公安机关办理侮辱、诽谤案件,在准确把握法律界限,严格依法办案的同时,要保持高度的政治敏感性。对可能引起社会炒作的,要提前做好应对准备。舆论引导要注意把握好时机,信息发布要做到准确、权威,避免引发不安定因素,影响案件正确处理。

各地接到本通知后,要认真贯彻落实,并立即向党委、政府汇报,争取党委、政府的理解和支持。执行中遇到的问题,请及时报部。

 

One thought on “Notice concerning Strictly Handling Insult and Defamation Cases According to the Law.

    Latest Updates | China Copyright and Media said:
    May 18, 2013 at 10:06 am

    […] Notice concerning Strictly Handling Insult and Defamation Cases According to the Law (2009) […]

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