我国亲告罪追诉模式之困境及其重构——以网络诽谤案件的证据收集问题为切入点

网络诽谤犯罪属于《刑法》规定的亲告罪类型，此类案件中被害人的证据收集能力受到较大制约，导致其面临“自诉困境”。对此问题，不论是亲告罪的选择性公诉化，还是公权力适当介入证据收集过程的处理路径均存在不足。《刑法修正案(九)》针对网络侮辱、诽谤犯罪的证据收集问题作出新规定，但是无法扩张适用于所有亲告罪类型。亲告罪的自诉困境凸显出我国对亲告罪确立的单纯自诉制追诉模式存在显著缺陷：不利于对被害人的平等保护，以及混淆告诉权和举证责任。重构亲告罪追诉模式的前提是对刑事法中的“告诉”进行重新解释，使其本质回归为诉讼条件，与证明责任“解绑”。在模式选择上，应确立混合告诉制的追诉模式，被害人提起告诉后，可以自主选择适用自诉程序还是公诉程序。

The Private Prosecution Pattern in China: Problems and Reconstruction: Take the Issue of Collecting Evidence in Network Defamation Cases as a Point

In network defamation cases, victims are in private prosecution dilemma due to their problems in evidence acquisition, which calls for studies on the issue of evidence collection. Several solutions, such as allowing selective public prosecution on crimes of private prosecution and giving permission for public authorities to take part in the process of evidence collection, were put forward to tackle this problem. However, none of them were impeccable. Although new provisions concerning this issue were made in Criminal Law Amendment (9), they cannot be applied to all crimes of private prosecution. This dilemma reflects the deficits of simple private prosecution pattern-disadvantages for the equal protection of victims and confusion of the right of complaint and the burden of proof. Instead of binding with the burden of proof, complaint should be regarded as a condition of litigation. As for the reconstruction of the prosecution pattern, mixed complaint system should be applied in order to offer choices to victims.