The crime of insult refers to the act of publicly degrading personality and damaging the reputation of others by violence or other means, and the circumstances are serious.
The crime of insult objectively uses violence or other methods to publicly slander others; Subjectively, it can only be intentional, that is, the actor knows that his insulting behavior will cause damage to the reputation of others, and hopes or allows this result to happen. In addition, according to the criminal law, only serious insults constitute this crime.
Second, the composition of this crime
Object element
The object of this crime is the personal dignity and reputation of others. The rights of personal dignity and reputation are the basic personal rights of citizens. Article 38 of the Constitution stipulates: "The personal dignity of the people and citizens of China is inviolable. It is forbidden to insult, slander and falsely accuse citizens in any way. " The so-called personal dignity refers to citizens' understanding and respect for their own or others' personal and social values based on their social environment, status, prestige, working environment, family relations and other objective conditions. The so-called reputation refers to the fame and reputation gained by citizens in social life, and it is the social evaluation of a citizen's morality, talent and credibility in social life. The so-called reputation right refers to the personality right with the maintenance and safety of reputation as its content.
The object of this crime can only be a natural person, not a unit. Insulting legal persons and other groups and organizations does not constitute an insult. Whoever burns, damages, scribbles, defiles or tramples on the national flag and national emblem in public places and insults the national flag and national emblem of China shall be investigated for criminal responsibility in accordance with the provisions of the National Flag Law of People's Republic of China (PRC) and Article 299 of the Criminal Law.
Objective elements
Objectively, this crime is characterized by publicly degrading personality and damaging the reputation of others by violence or other means, and the circumstances are serious.
(1) The act of insulting others. The main means of behavior are:
1. Violence insults people. The violence mentioned here only refers to insulting means. For example, throwing feces at people, smearing people with ink, forcing people to cut their hair, forcing others to do degrading actions and so on. Instead of violence that harms their health. If the perpetrator has the intention and behavior to harm the health of others, he should be punished as the crime of injury.
2. Verbal insult, that is, taunting and insulting the victim with vicious and mean language, making him make a fool of himself in public, which is unbearable, such as verbally spreading the privacy and physical defects of the victim.
3. Insulting words refer to the act of using big-character posters, small-character posters, pictures, cartoons, letters, books and other public words to reveal the privacy of others, slander their personality and damage their reputation.
(2) Insult must be carried out in public. The so-called "public" insult refers to insulting others in front of a third party or even everyone, or in a way that can make unspecified people or most people hear and see. Publicity does not necessarily require the presence of the victim. If it is only insulting the victim, it is impossible for the third person to know without the presence of the third person, which does not constitute an insult. Because only the existence of a third party can damage the external reputation of the victim.
(3) The object of insult must be a specific person. A specific person can be one person or several people, but it must be specific and identifiable. Abuse without a specific object in public does not constitute insult. The deceased can't be the object of insult in this crime, but if the actor insulted the deceased on the surface, but actually insulted the family of the deceased, it should be regarded as an insult.
(4) The act of publicly insulting others must reach a serious degree to constitute this crime. Although there is a blatant insult to others, it is not serious, just a general civil tort. The so-called serious circumstances mainly refer to bad means and serious consequences, such as forcing the victim to climb over his own steps in public; Tear up the victim's clothes in public; Shame on the victim's face, hang a whore, and wear a green hat to drag the street to show the public; Coercing the victim to swallow in public or spraying feces and other dirt on him; Coercing the victim to kiss, masturbating with the body and other obscene acts; Publicly insulting others, causing others to be insane or commit suicide; Insulting others for many times, causing great damage to their personality and reputation; Abuse officials, women and even foreign guests, causing bad influence and so on.
Theme element
The subject of this crime is the general subject, and any natural person who has reached the age of criminal responsibility and has the ability of criminal responsibility can constitute this crime. State organs, enterprises, institutions and social organizations do not constitute the subject of this crime. For those who publish articles insulting or slandering others in periodicals and magazines, according to Articles 5 and 36 of the Interim Provisions on the Administration of Periodicals issued by the Press and Publication Administration1October 24, any periodical that violates these provisions and publishes articles insulting or slandering others will be given a warning, fined and illegally confiscated by the administrative department of press and publication.
subjective factor
Subjectively, this crime is direct and intentional, with the purpose of degrading personality and destroying the reputation of others. Indirect intention and negligence do not constitute this crime.
Third, the criteria for filing the crime of insult.
According to Article 246 of the Criminal Law, anyone who is suspected of publicly insulting others by violence or other means, if the circumstances are serious, shall be placed on file.
Insult is a plot crime, and the behavior of the perpetrator who publicly insults others must reach the level of "serious circumstances" before it constitutes a crime and is investigated.
At the same time, the criminal law stipulates that the crime of insult should be dealt with only after being informed, except those that seriously endanger social order and national interests. According to Article 98 of the Criminal Law, it means that the victim is dealt with only after being informed. If the victim is unable to inform because of coercion or intimidation, the people's procuratorate and the close relatives of the victim may also inform him. The reason why the crime of insult in criminal law should be dealt with after being informed is that most insults occur among family members, neighbors and colleagues or in daily life, which belongs to contradictions among the people and is not very harmful to society. In most cases, it can be solved through mediation and other mitigation measures. In addition, the victim may not want more people to know the fact that he was insulted. If he brings a lawsuit against the victim's will and adopts criminal sanctions to solve it, the effect will be counterproductive. It should be pointed out that "handling after informing" does not mean that it does not constitute a crime without informing, but that it will not prosecute such a crime without informing.
Serious harm to social order refers to the situation that the insult has caused the victim to be insane or even commit suicide, and the victim is unable to identify or lose his ability to identify. "Endangering national interests" refers to insulting national leaders, foreign heads of state, diplomatic envoys and other specific objects, which not only damages the victim's personal reputation, but also harms national interests.
Four. Relevant laws and regulations
criminal law
Article 246? Whoever publicly insults others by violence or other means or fabricates facts to slander others, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights.
The crimes mentioned in the preceding paragraph shall be dealt with only if they are told, except those that seriously endanger social order and national interests.
If the victim informs the people's court of the acts specified in the first paragraph through the information network, but it is really difficult to provide evidence, the people's court may request the public security organ to provide assistance.
Article 98? The term "post-notification treatment" as mentioned in this Law refers to the treatment after the victim is informed. If the victim is unable to inform because of coercion or intimidation, the people's procuratorate and the close relatives of the victim may also inform him.