|
|
|
|
|
|
|
|
|
|
|
|
|
| Four Model Cases regarding the Protection of Heroic Figures' Personality Rights and Interests Published by the Supreme People's Court | | 最高人民法院公布四起“狼牙山五壮士”等保护英雄人物人格权益典型案例 |
| (October 19, 2016) | | （2016年10月19日） |
| Contents | | 目录 |
| 1.Huang Zhong and Hong Zhenkuai v. Mei Xinyu | | 1.黄钟、洪振快诉梅新育名誉权侵权纠纷案 |
| 2.Huang Zhong and Hong Zhenkuai v. Guo Songmin | | 2.黄钟、洪振快诉郭松民名誉权侵权纠纷案 |
| 3.Ge Changsheng and Song Fubao v. Hong Zhenkuai | | 3.葛长生、宋福宝分别诉洪振快名誉权侵权纠纷系列案 |
| 4.Qiu Shaohua v. Sun Jie and JDB (China) Beverage Co., Ltd. | | 4.邱少华诉孙杰、加多宝（中国）饮料有限公司一般人格权纠纷案 |
| Huang Zhong and Hong Zhenkuai v. Mei Xinyu(Case about disputes over infringement upon right of reputation) | | 黄钟、洪振快诉梅新育名誉权侵权纠纷案 |
| 1. Basic Facts | | （一）基本案情 |
| The article, Differences in Details on “Five Heroes on Langya Mountain” (hereinafter referred to as the “Details”) written by Hong Zhenkuai and edited in charge by Huang Zhong, was published in the eleventh period of the magazine, Yanhuang Chunqiu in 2013. According to the article, when taking a deep insight into the details of the relevant descriptions on “Five Heroes on Langya Mountain,” we found that there were many contradictions in the descriptions made by the aforesaid personnel at different times and in different occasions. It was possible that the contradictory descriptions at the same time were inconsistent with facts and it was possible that such descriptions were true to one fact but were inconsistent with all facts at the same time. Therefore, the truth of “Five Heroes on Langya Mountain” required further in-depth research and discussion of historians. This article consisted of four parts, “Where did they jump off the cliff,” “How did they jump off the cliff,” “Casualties of both sides in the fight,” and “Whether ‘Five Heroes' pulled the masses' turnips.” It questioned the details on the heroic deeds of the “Five Heroes on Langya Mountain.” In particular, the part “Whether ‘Five Heroes' pulled the masses' turnips” stated that: according to Ge Zhenlin, “When we were concerned with fighting just now, we did not feel hungry and thirsty. When we had a break at the moment, we felt it very munch …. Some turnips happened to grow in the mountain land. We could not attend to think more and each pulled a turnip to eat.” | | 2013年第11期《炎黄春秋》杂志刊发洪振快撰写、黄钟任责任编辑的《“狼牙山五壮士”的细节分歧》（以下简称《细节》）一文。载明：当我们深入“狼牙山五壮士”有关叙述的细节时，就发现上述人员在不同时间、不同场合下的陈述存在诸多矛盾之处。而对于同一时间，相互矛盾的描述可能都不符合事实，也可能有一个符合事实，但不可能同时都符合事实。因此，对于“狼牙山五壮士”的真相，还有待历史学家的深入研究和探讨。该文共分“在何处跳崖”、“跳崖是怎么跳的”、“敌我双方战斗伤亡”及“‘五壮士'是否拔了群众的萝卜”等四部分，对狼牙山五壮士英雄事迹的细节问题提出质疑。其中，“‘五壮士'是否拔了群众的萝卜”部分载明：葛振林说：“刚才忙着打仗倒不觉得，这会歇下来，才觉得又饿又渴……正巧山地里有些散种的萝卜，我们顾不得了，每人拔个吃着。” |
| After the aforesaid article was published, on November 23, 2013, Mei Xinyu published a MicroBlog article on his certified Sina MicroBlog that “What kinds of hearts do the editor and author of Yanhuang Chunqiu have? Can soldiers even not pull a turnip in a battle? Isn't it too polite to say that those author and editor are sons of bitches?” This Blog article was forwarded for 360 times and commented for 32 times. | | 上述文章发表后，2013年11月23日，梅新育在经认证的新浪微博上发表博文：“《炎黄春秋》的这些编辑和作者是些什么心肠啊？打仗的时候都不能拔个萝卜吃？说这些的作者和编辑属狗娘养的是不是太客气了？”该博文被转发360次，被评论32次。 |
| In March 2014, Huang Zhong and Hong Zhenkuai filed a lawsuit with the People's Court of Fengtai District, Beijing Municipality on the ground that the aforesaid comments made by Mei Xinyu infringed upon their rights of reputation and requested the Court to order that Mei Xinyu should cease the infringement, delete the relevant infringing comments, extend a formal apology, and pay CNY5,000 as compensation for mental distress. | | 2014年3月，黄钟、洪振快以梅新育前述言论侵犯其名誉权为由诉至北京市丰台区人民法院，请求判令梅新育停止侵权、删除相关侵权言论、公开道歉，并赔偿精神损害赔偿金5000元等。 |
| 2. Adjudication | | （二）裁判结果 |
| After a trial of first instance, the People's Court of Fengtai District, Beijing Municipality held that whether the comments of Mei Xinyu on the article, Details, constituted an infringement should be judged by comprehensively evaluating the background and content of both parties' comments, whether such comments exceeded the necessary limits, the causality, and the consequences of damage. First, the article, Details, analyzed specific details on the heroic figures “Five Heroes on Langya Mountain” occurred during the Anti-Japanese War Period and their heroic deeds. The author and editor of this article should realize that the Anti-Japanese War was an important part in the leadership of the Communist Party of China in overturning the imperialist rule and winning the great victory of the new democratic revolution by the Chinese ethnic peoples. The Communist Party of China played a mainstay role in the Anti-Japanese War, which has become the consensus of the whole nation. The historic figures and historic deeds with the representatives of “Five Heroes on Langya Mountain” have become the typical examples of the Chinese ethnic peoples' spirit of being not afraid of formidable enemies and sacrifices” and their spiritual temperament has become an important part of the Chinese ethnic peoples' spiritual world and national sentiments. Any improper comment and evaluation of such heroic figures and heroic deeds would impair the public's national sentiments and trigger the public's criticism or even sentimental criticism. Although the article, Details, discussed detailed questions in form, the full text was meant to query and overturn the heroic images of “Five Heroes on Langya Mountain” and even revalue the historical status and historical effect of the Anti-Japanese National United Front of the Chinese Communist Party represented by these heroic deeds. In this sense, Huang Zhong and Hong Zhenkuai should foresee the intense criticism and negative evaluation triggered by this article and should assume a higher-degree obligation of tolerance. Second, Mei Xinyu's MicroBlog article did not directly indicate the names of “those editor and author” and the public needed to click the forwarded MicroBlog link before knowing the specific editor and author of the article. This way restricted the impacts of this MicroBlog article. In addition, the comments made by the public did not direct at Huang Zhong and Hong Zhenkuai, but mainly at the magazine Yanhuang Chunqiu. From the perspective of consequences of damage, it could not be determined that the acts of defendant degraded plaintiffs' social evaluation. Finally, the contents of the MicroBlog article were criticisms and comments with emotional colors. Although the use of uncivilized language was obviously improper, it was the direct reflection of the public's general national sentiments. For the purpose of maintaining the heroic images of “Five Heroes on Langya Mountain,” the substance and subjective motive complied with the socialist core values and should be affirmed. In conclusion, the People's Court of Fengtai District rendered a judgment that the claims of Huang Zhong and Hong Zhenkuai should be dismissed. Huang Zhong and Hong Zhenkuai refused to accept the judgment and appealed. The No. 2 Intermediate People's Court of Beijing Municipality rendered a judgment that the appeals should be dismissed and the original judgment should be affirmed. | | 北京市丰台区人民法院一审认为，评价梅新育对《细节》一文的言论是否构成侵权，应当通过综合评价双方言论的背景及其内容、言论是否超过必要限度、因果关系以及损害后果等方面综合判断。首先，《细节》一文是对抗日战争时期出现的英雄人物“狼牙山五壮士”及其英雄事迹具体细节的分析。该文的作者和编辑，应当认识到，抗日战争是中国共产党领导中国各族人民推翻帝国主义统治并取得新民主主义革命伟大胜利的重要组成部分，中国共产党在抗日战争中发挥了中流砥柱的作用，这已经成为全民族的共识。以“狼牙山五壮士”为代表的英雄人物和英雄事迹，已经成为中华民族不畏强敌、不惧牺牲精神的典型代表，他们的精神气质，已经成为中华民族精神世界和民族感情的重要内容。对这些英雄人物和英雄事迹的不当评论和评价，都将会伤害社会公众的民族感情，将会引发社会公众的批评，甚至较具情绪化的批评。《细节》一文从形式上虽然是在讨论细节问题，但全文意在质疑甚至颠覆“狼牙山五壮士”的英雄形象，甚至是对该英雄事迹所代表的中国共产党的抗日民族统一战线的历史地位和历史作用的再评价。在此意义上，黄钟、洪振快对该文引发的激烈批评及负面评价应当有所预见，也应当承担较高程度的容忍义务。其次，梅新育微博的内容并未直接指出“这样的编辑和作者”的姓名，公众需点击所转发的微博链接才能知晓该文的编辑和作者，此种方式限制了该条微博的影响。且公众作出的评论并未针对黄钟、洪振快，而是主要针对《炎黄春秋》杂志。从损害后果看，不能认定被告行为降低了原告的社会评价。最后，梅新育的微博内容是带有感情色彩的评价和评论，虽然使用不文明语言显属不当，但却是社会公众普遍民族感情的直观反映，出于维护“狼牙山五壮士”英雄形象的目的，主旨和主观动机符合社会主义核心价值观，应予肯定。综上，判决：驳回黄钟、洪振快的诉讼请求。黄钟、洪振快不服提起上诉，北京市第二中级人民法院判决：驳回上诉，维持原判。 |
| 3. Significance | | （三）典型意义 |
| This was a model case regarding infringement upon right of reputation caused by evaluation of an article of other person in the MicroBlog comments. It was a model case since the comments of defendant were evaluation and criticism on the article about the historical heroic figures of “Five Heroes on Langya Mountain” and the historical event published by plaintiffs. Such factors as whether the comments of defendant exceeded the necessary limits, the appropriateness of such comments and whether they infringed upon the personality of any other person, matters involved in the article published by plaintiffs, the degree of plaintiffs' foresight of other persons' criticism or evaluation triggered by the article published by them and the corresponding obligations of tolerance they should assume as well as the subjective state of comments made by defendant and whether such comments caused the degradation of plaintiffs' social evaluation were important considerations for whether the acts of defendant constituted infringement and were important and difficult problems in cases regarding infringement upon right of reputation. In this case, by analyzing the contents of the article published by plaintiffs, the historic figures, and the historic significance of the historic event involved, the people's court held that plaintiffs should have higher obligations of tolerance to comments triggered by this article, which accurately defined plaintiffs' duties of care for their comments; and from aspects of the subjective motive of comments published by defendant and objects criticized by such comments, the methods in which the receivers obtained information from such comments, and the social evaluation on plaintiffs made by the receivers, the people's court determined that the acts of defendant did not constitute infringement and pointed out the improperness of defendant's comments. At the same time of accurately and comprehensively applying the existing laws, the people's court implemented the tort law principles of balancing the actor's freedom of conduct and protecting others' lawful rights and interests. | | 本案是微博言论评价他人文章所引发的名誉权侵权的典型案例。本案的典型之处在于，被告的言论，系对原告所发表的关于“狼牙山五壮士”这一历史英雄人物及其历史事件的文章作出的评价和批评。被告的言论是否超出必要的限度、其妥当性以及是否侵害他人人格，涉及到原告所发表文章涉及的事项、原告对于所发表文章所引发他人批评或评价的预见程度和应当负有的相应的容忍义务，以及被告所发表言论的主观状态、其言论是否导致原告社会评价降低等因素，均为被告是否构成侵权的重要考量因素，也是名誉权侵权案件中的重点和难点问题。本案中，人民法院从原告所发表文章的内容以及其涉及的历史人物及其历史事件的重大历史意义分析，认为原告对于该文所引发的言论具有较高的容忍义务，较为准确地界定了原告对于自己言论的注意义务；从被告发表言论的主观动机以及其言论所批评的对象、受众从其言论中获得信息的方式以及受众由此对原告所作出的社会评价等方面，认定被告并未构成侵权的同时，指出其言论亦有不当之处，在准确、全面适用现行法的同时，更是贯彻了侵权法平衡行为人的行为自由与保护他人合法权益的原则。 |
Huang Zhong and Hong Zhenkuai v. Guo Songmin
(Case about disputes over infringement upon right of reputation) | | 黄钟、洪振快诉郭松民名誉权侵权纠纷案 |
| 1. Basic Facts | | （一）基本案情 |
| This case was also caused by the article, Details, written by Hong Zhenkuai and edited by Huang Zhong. After this article was published, around 13:00 on November 23, 2013, a netizen “Bodycote” published a MicroBlog article “According to Yanhuang Chunqiu, ‘Five Heroes on Langya Mountain' once pulled turnips of the masses,” in which he quoted some content of the aforesaid article written by Hong Zhenkuai and edited by Huang Zhong. Afterwards, a netizen Mei Xinyu forwarded the MicroBlog article of “Bodycote” and published a MicroBlog article “What kind of hearts do those editor and author of Yanhuang Chunqiu have? Can soldiers even not pull a turnip in a battle? Isn't it too polite to say that those author and editor are sons of bitches?” Shortly after Mei Xinyu published this MicroBlog article, Guo Songmin forwarded the MicroBlog articles of “Bodycote” and Mei Xinyu and published his own MicroBlog article that “We oppose historical nihilism and it is a joke if we do not initiate a campaign on those sons of bitches!” Huang Zhong and Hong Zhenkuai filed a lawsuit with the People's Court of Haidian District on the ground that the comments in the aforesaid MicroBlog article of Guo Songmin infringed upon their rights of reputation and requested the Court to order that defendant should cease infringement, extend a formal apology, and pay them CNY10,000 as compensation for mental distress. | | 本案亦由洪振快撰写、黄钟为责任编辑的《细节》一文所引发。该文发表后，2013年11月23日13时许，有网民“鲍迪克”发表微博“炎黄春秋：狼牙山五壮士曾拔过群众的萝卜”，对洪振快撰写、黄钟编辑的上述文章中部分内容加以转引。此后，网民梅新育在转发鲍迪克微博后，同时发表微博：“《炎黄春秋》的这些编辑和作者是些什么心肠啊？打仗的时候都不能拔个萝卜吃？说这样的作者和编辑属狗娘养的是不是太客气了？”。在梅新育微博发表后不久，郭松民将鲍迪克和梅新育的微博进行转发，同时撰写微博：“反对历史虚无主义，不动这帮狗娘养的就是笑话！”黄钟、洪振快以郭松民前述微博言论侵犯其名誉权为由起诉至北京市海淀区人民法院，请求判令被告停止侵权、赔礼道歉，并赔偿精神损害赔偿金1万元等。 |
| 2. Adjudication | | （二）裁判结果 |
| After a trial of first instance, the People's Court of Haidian District, Beijing Municipality held that whether the act of defendant constituted an infringement should be comprehensively judged from such aspects as comments of both parties and the background, whether their comments exceeded the necessary limits, objects of such comments, causality, and consequences of damage. First, the Anti-Japanese War was an important part in the leadership of the Communist Party of China in overturning the imperialist rule and winning the great victory of the new democratic revolution by the Chinese people of all nationalities. The Communist Party of China has played the mainstay role in the Anti-Japanese War. Many heroic figures and heroic deeds appeared in this process have become common historical memories of all nationalities of China and their fearless spirit of self-sacrifice and unyielding national integrity have become an important part of the Chinese ethnic peoples' national sentiments and spiritual world. “Five Heroes on Langya Mountain” were typical examples and their heroic deeds reflected the Chinese people's great spirit of being not afraid of formidable enemies and self-sacrifice and steadied the resolution of the Chinese people for courageously fighting against enemies. The Chinese public had consensus on this issue. However, although the article, Details, discussed details on a specific heroic deed in the history of China's Anti-Japanese War in form, it was in essence re-appraisal of the history of the Anti-Japanese War represented by this heroic deed and even the historical status and historical effect of the Anti-Japanese National United Front under the leadership of the Chinese Communist Party. The article, Details, attempted to question and even overturn the heroic images of “Five Heroes on Langya Mountain” by emphasizing on differences among different historical materials and even subtle differences between such details as where did “Five Heroes on Langya Mountain” jump off the cliff, how did they jump off the cliff, casualties of both sides in the fight, and whether they pulled the masses' turnips. It should be mentioned that within a certain scope and in a certain degree, this article harmed the public's ethnic and historical sentiments. In this sense, as author and editor of this article, plaintiffs should foresee the comments, response, criticism, and even the reaction of the public caused by this article and thus should assume a higher level of duty of care. Second, Guo Songmin published the MicroBlog article mainly for the purpose of criticizing the historical nihilism represented by the article, Details, and for the subjective purpose of maintaining the heroic images of “Five Heroes on Langya Mountain.” It was also an expression of the aforesaid social consensus and national sentiments, which complied with the mainstream values in the Chinese society and did not exceed the necessary limits. Second, the comments made by defendant in the MicroBlog article did not directly target at specific persons. On account of such facts as consistent comments of defendant and non-acquaintance of plaintiffs and defendant, the defense of defendant that the MicroBlog article did not target at plaintiffs was tenable. Finally, from the forwarded and commented content of the MicroBlog article involved, readers mainly made comments on the article written and edited by plaintiffs or figures involved in the article. In consideration of technical features and established practice of the social media tool and Internet media, MicroBlog, the activities of forwarding and making comments were mostly cognition, criticism, and value judgment of netizens on the article involved rather than guided or decided by the MicroBlog article involved. Therefore, it could not be determined that the content of the MicroBlog article published by defendant caused the degradation of plaintiffs' social appraisal. Therefore, the comments of defendant did not constitute an infringement. Of course, when making comments, defendant should also use civilized language and express his opinions in the manner of reasoning. In conclusion, the court of first instance rendered a judgment that all claims of Huang Zhong and Hong Zhenkuai should be dismissed. After Huang Zhong and Hong Zhenkuai appealed, the No. 1 Intermediate People's Court of Beijing Municipality rendered a judgment that the appeal should be dismissed and the original judgment should be affirmed. | | 北京市海淀区人民法院一审认为，被告的行为是否构成侵权，应分别从双方当事人的言论及其背景、各自言论是否超过必要限度、言论所针对的对象、因果关系以及损害后果等方面综合判断。首先，抗日战争是中国共产党领导中国各族人民推翻帝国主义统治并取得新民主主义革命伟大胜利的重要组成部分，中国共产党在抗日战争中发挥了中流砥柱的作用。于此过程中产生的诸多英雄人物和英雄事迹，已经构成我国各族人民的共同历史记忆，他们的大无畏牺牲精神和坚贞不屈的民族气节，已经成为中华民族感情和精神世界的重要内容。“狼牙山五壮士”即为其中的典型代表，他们的英雄事迹，体现了中华儿女不畏强敌、不惧牺牲的伟大精神，坚定了无数中华儿女奋勇抗敌的决心。在此问题上，我国社会公众的共识是一致的。然而，《细节》一文虽然在形式上是对我国抗日战争史中的一个具体英雄事迹细节的探究，但它实质上是对这起英雄事迹所代表的抗战史尤其是中国共产党领导下的抗日民族统一战线的历史地位和历史作用的再评价。《细节》一文，从“狼牙山五壮士”从何处跳崖、跳崖是怎么跳的、敌我双方战斗伤亡数量以及是否拔了群众的萝卜等细节入手，通过强调不同史料之间的差别甚至是细微差别，试图质疑甚至颠覆“狼牙山五壮士”的英雄形象。应该说，该文在一定范围和一定程度上伤害了社会公众的民族和历史情感。在此意义上，原告作为该文的作者和编辑，应当预见到该文所可能产生的评价、回应、批评乃至公众的反应，并因此对后者负有较高的容忍义务。其次，郭松民发表的微博，其主要目的是批评以《细节》一文为代表的历史虚无主义，既是出于维护“狼牙山五壮士”英雄形象的主观目的，也是对前述社会共识、民族感情的表达，符合我国社会的主流价值观且未超出必要限度。再次，被告微博言论并非直接针对具体的个人，结合被告一贯的言论及原、被告双方并不相识等事实，被告主张涉诉微博并非针对原告的抗辩成立。最后，从涉诉微博被转发、被评价的内容来看，读者主要是对原告撰写文章的评价、或者对该文章所涉人物的看法，考虑到微博这一社交工具和网络媒体的技术特征及习惯做法，这些转发与评论行为更多的是多数网民自身对涉诉文章的认知、评论和价值判断，而非由涉诉微博所引导或决定的，不能由此认定被告发表的微博内容导致了原告社会评价的降低。所以，被告的言论不构成侵权。当然，被告在发表言论时亦应使用文明语言，以说理方式表达意见。综上，一审法院判决：驳回黄钟、洪振快的全部诉讼请求。黄钟、洪振快上诉后，北京市第一中级人民法院判决：驳回上诉，维持原判。 |
| 3. Significance | | （三）典型意义 |
This was a case associated with the case about infringement upon right of reputation between Huang Zhong and Hong Zhenkuai, and Mei Xinyu caused by the same article. In this case, when analyzing whether the act of defendant constituted an infringement, the people's court emphasized that folk heroes with “Five Heroes on Langya Mountain” as representatives, their heroic deeds as well as the spirit thereof have become the common historical memory of the Chinese ethnic peoples and an important part of the Chinese national sentiments and spiritual world. The article published by plaintiffs raised doubts over the aforesaid social consensus and mainstream values, plaintiffs should foresee the criticisms triggered thereby, and they should also assume higher level of duty of care. In the meantime, a comprehensive appraisal should be made in light of any new change in the tolerance of comments brought about by web media and social media tools in the Internet era as well as the subjective purpose, causation, and consequences of damage of defendant's comments. It should be mentioned that the judgment has accurately grasped new developments of the Tort Law in the Internet era and properly divided the interrelation of opposing comments.
．．．．．． | | 本案与黄钟、洪振快诉梅新育名誉权侵权案系由同一文章所引发的关联案件。在本案中，人民法院在分析被告是否构成侵权时，强调以“狼牙山五壮士”为代表的民族英雄、英雄事迹以及其精神，已经成为中华民族共同历史记忆和中华民族感情及精神世界的重要内容。原告所发表文章对前述社会共识及主流价值观提出质疑，就应当预见到其可能引发的评价，亦应负有较高的注意义务。同时，结合网络媒体及互联网时代的社交媒体工具对言论容忍度带来的新变化，以及被告的言论在主观、因果关系以及损害后果方面等因素作出综合评价。应该说，这一判决准确把握了侵权法在互联网时代的新发展，妥当界分了对立言论之间的相互关系。
．．．．．． |
|
Dear visitor, as a premium member of this database, you will get complete access to all content.Please go premium and get more.
1. To become a premium member, please call 400-810-8266 Ext. 171.
2. Binding to the account with access to this database.
3. Apply for a trial account.
4. To get instant access to a document, you can Pay Amount 【￥1000.00】 for your single purchase. | |
您好：您现在要进入的是北大法宝英文库会员专区。
如您是我们英文用户可直接 登录，进入会员专区查询您所需要的信息；如您还不是我们 的英文用户；您可通过网上支付进行单篇购买，支付成功后即可立即查看本篇内容。
Tel: +86 (10) 82689699, +86 (10) 82668266 ext. 153
Mobile: +86 13311570713
Fax: +86 (10) 82668268
E-mail:info@chinalawinfo.com
|
| | | | | | | | |
Scan QR Code and Read on Mobile
|
|
|
|
|
|
Message: Please kindly comment on the present translation.
|
|
|
|
|
|
|
|
|
Translations are by lawinfochina.com, and we retain exclusive copyright over content
found on our website except for content we publish as authorized by respective copyright
owners or content that is publicly available from government sources.
Due to differences in language, legal systems, and culture, English translations
of Chinese law are for reference purposes only. Please use the official Chinese-language
versions as the final authority. Lawinfochina.com and its staff will not be directly
or indirectly liable for use of materials found on this website.
We welcome your comments and suggestions, which assist us in continuing to improve
the quality of our materials as we dynamically expand content.
|
|
|
|
|
|