网络诽谤案中自诉人取证之公权力救济

诽谤罪作为亲告罪,采取“告诉才处理”的追诉原则,取证和起诉均由自诉人独自承担,公权力一般不得介入.但是,随着网络的迅猛发展,网络诽谤愈演愈烈,而自诉人囿于举证能力之局限,使得其在此类案件中取证陷入困境,权利无法得到有效保障.“告诉乃论”并非排斥国家追诉,公权力的介入并不会损害自诉制度之价值,在自诉人取证能力不足的境遇下,公安机关应承担起自诉权救济的责任.

Public Power Relief of Private Prosecutor Forensics in the Network Libel Cases

Libel, as a trial-only-with-complaint, takes ＂complain and handle＂ as the principle of prosecution, in which the private prosecutor shall bear both the forensics and prosecution all by himself while the public power generally shall not be involved. However, with the rapid development of network, the network defamation has intensified, and the private prosecutor doesn＇t have enough ability to provide evidence and proof, which makes the forensics of such cases very hard and the prosecutor＇ s rights cannot be guaranteed. ＂Complain and han- dle＂ does not exclude state prosecution, and the involvement of the public power will not damage the value of a private prosecution system. When the private prosecutor doesn＇ t have the ability for forensics, the public se- curity organ shall take the responsibility of the private prosecutor right.