财新传媒
位置:博客 > 金勇军 > 废弃赔礼道歉之求!
十一
30
2017

废弃赔礼道歉之求!

如若名誉权侵权存在,1986年民法通则[1]第120条第1款规定,当事人有权请求,赔礼道歉。1993年最高人民法院关于审理名誉权案件若干问题的解答[2]第10条进一步明确,赔礼道歉,可以是书面的,也可以是口头的;不管哪一种方式的,相应内容,须经人民法院事先审查。此乃,往期近日频频高调出镜要求赔礼道歉的法律依据。问题是:

 

第一,名誉权侵权人,或者以书面,或者以口头,说出来的并经人民法院事先审查的文字,是名誉权侵权人的赔礼道歉?如若是,为何不直接以法院裁判代替?如若可以代替,不是强奸名誉权侵权人意志,是什么?

第二,名誉权侵权人,或者以书面,或者以口头,说出来的并经当事人有权请求的文字,是名誉权侵权人的赔礼道歉?哪怕当事人请求,名誉权侵权人可以拒绝,不生上述赔礼道歉;名誉权侵权人可以听从,虽生上述赔礼道歉,不过是他要人给;名誉权侵权人可以屈从,也生上述赔礼道歉,不过是他索人从;有如此之请求,得到的可是赔礼道歉?特别是,名誉权侵权人口是心非呢?

第三,名誉权侵权人,或者以书面,或者以口头,出于自愿甚至发自内心说出来的文字,是名誉权侵权人的赔礼道歉?此乃,实实在在的赔礼道歉。

 

一言以蔽之,赔礼道歉,乃出于自愿;如若为法院所压,此属法院强奸他人意志;如若他人请求,则属他人行事贪婪;如若有此立法,实乃立法者不食人间烟火!

 

 

附录:

 

American Crew Heads Home (abridged)

——China Accepts Letter of Regret

 

The U.S. expressions of sorrow, in an English-language letter that Ambassador Joseph W. Prueher handed to Foreign Minister Tang Jiaxuan today in Beijing, pointedly omitted use of the word apology -- despite China's demand for an apology -- and did not address China's contention that the U.S. aircraft was responsible for the collision.

"There is nothing to apologize for," Secretary of State Colin L. Powell told reporters accompanying him on a European trip. "To apologize would have suggested that we have done something wrong or accepted responsibility for having done something wrong. And we did not do anything wrong. Therefore it's not possible to apologize."

 

The plane will stay on Hainan after the crew goes home, and its fate will become the subject of negotiations scheduled to begin April 18 in San Francisco under the U.S.-Chinese Military Maritime Consultative Agreement, which was reached in 1998 to avoid incidents such as the collision. Prueher's letter said the meeting also will include "discussion of the causes of the incident," giving China a chance to press its insistence that the U.S. plane was at fault and that the United States should not make intelligence-gathering flights close to Chinese shores.

 

Throughout the past week, U.S. and Chinese diplomats had been locked in strenuous negotiations over the wording of the U.S. statement. The letter that Prueher delivered at 6 p.m. Wednesday Beijing time (6 a.m. EDT) was an exercise in linguistic gymnastics.

"Both President Bush and Secretary of State Powell have expressed their sincere regret over your missing pilot and aircraft. Please convey to the Chinese people and to the family of pilot Wang Wei that we are very sorry for their loss," the letter said.

"Although the full picture of what transpired is still unclear, according to our information, our severely crippled aircraft made an emergency landing after following international emergency procedures. We are very sorry the entering of China's airspace and the landing did not have verbal clearance, but very pleased the crew landed safely."

Despite U.S. characterizations that the letter was not an apology, Foreign Ministry spokesman Sun Yuxi called it a "letter of apology."

"The firm struggle by the Chinese government and people against U.S. hegemony has forced the U.S. government to change from its initial rude and unreasonable attitude to saying 'very sorry' to the Chinese government," said an editorial in the People's Daily, the Communist Party organ, that was read on state television tonight.

The two sides also offered different translations of the letter in Chinese.

In a statement broadcast to the nation, the Foreign Ministry translated the English "very sorry" into "shenbiao qianyi," an expression of sincere apology or regret that Chinese linguists say involves an acknowledgement of error and an acceptance of responsibility.

But a copy of the letter in Chinese released by the U.S. Embassy did not use that term, saying instead that the United States expressed "feichang wanxi," or extreme sympathy, to the Chinese people and the family of the missing pilot. It also said the United States was "feichang baoqian," or extremely sorry, that the Navy plane landed without permission.

 

Shortly after it was announced on television, a group of about 75 people gathered outside the military guesthouse here where the crew is believed to be held. Some held up homemade signboards condemning the United States, but police kept the crowd under control and quickly confiscated the signs.

"Our pilot is still missing, so how they can do this? How can they release them when we haven't finished investigating the collision?" asked Liu Xiaoping, 32, a laborer from Shanxi province standing across the street from the guesthouse. "The United States should formally apologize. That letter wasn't enough. It's clear the American attitude hasn't changed."

Mao Yanzao, 32, another migrant laborer outside the guesthouse, brought up the favorite son of his home province of Hunan. "If Mao Zedong were alive today, we would have gone to war!" he cried, as the crowd gathered around him nodded in agreement. "They came up to our doorstep and killed one of our pilots. We shouldn't just let them go."

Zhang Lei, 22, a computer science major at a nearby Internet cafe, said the government did the best it could. "We let the crew go, but we're keeping the plane. We can't let the incident hurt relations between our countries," he said. "I don't think we lost face. The government made China's position clear, and many countries supported us. And we made the Americans say sorry."

 

Source: Philip P. Pan and John Pomfret, The Washington Post,April 12, 2001,at A01

 

 



[1] 1986年4月12日国家主席令第37号。

[2] 1993年8月7日最高人民法院法发[1993]15号。

推荐 1

总访问量:博主简介

金勇军 金勇军

金华市人。汉族。硕士。民盟盟员。1986年毕业于金华一中。1990年毕业于华东师范大学哲学系。1996年毕业于北京大学法律学系民商法专业。1996年在清华大学经管学院任教。现任战略系商法副教授。
目前授课:中国制度环境与商法(MBA)、批判性思维和道德推理(CTMR,本科)

个人分类

文章归档

最新评论