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