过错与抗辩：以名誉权侵权为重点

不法性不应作为一般侵权行为的构成要件,而应由过错要件吸收。过错本质上为主观范畴,但其衡量标准可以客观化。言论自由与名誉权同属宪法规定的基本权,法律应慎重处理二者冲突的情形。名誉权侵权中应区分不同的行为人主体和被报道对象而作具体分析。其中,过错具有独特含义:就故意而言,应指言论发表人对该言论的虚假性明知或对其真假完全的漠不关心;就过失而言,应指言论发表人未尽一般理性人的注意义务。行为人享有除真实性抗辩外的多种无过错抗辩。

Fault and Defenses: with the Emphasis On Defamation

Unlawfulness shouldn't be one of the requirements of the common civil tort, or rather it should be absorbed by the requirement of fault. Fault is a subjective concept in essence, but it can be measured by objective norm. Speech freedom and right of reputation are both stipulated by the constitute, and the conflict between them should be settled properly by law. Defamation should be analyzed specifically according to the identities of speakers and persons in the news under different circumstances. Default in defamation tort has distinct meaning, and malice means that reporter reports with either knowledge of its falsity or with reckless disregard for the truth or falsity of the statement, while negligence means that reporter has not performed the duty of care a rational man should has. Besides the defence of truth about the statement, reporter has many otherwise defenses to establish that he has no default on the statement.