论诽谤死者诽谤罪的成立

诽谤死者的行为能否成立诽谤罪，各国立法不一，我国学界亦意见纷纭，分别有肯定、否定、折衷三种学说。笔者认为，诽谤死者能成立诽谤罪。首先，自然人死后其名誉权得在一定时期内存续；从犯罪客体上讲，诽谤死者的行为侵害死者名誉权、死者亲属的利益和社会公共利益，具有较大社会危害性，应当成立诽谤罪。此外，通过法律解释方法将诽谤死者的行为纳入我国《刑法》第246条诽谤罪的范畴，亦符合罪刑法定原则。

On the Possibility of Libeling the Deceased Establishing Libel

With regard to whether or not a person who has libeled the deceased person can be charged with libel, different views are adopted by different jurisdictions; in the meanwhile, there are three theories in scholastic circles of the People＇s Republic of China （the ＂PRC＂） the positive, the negative and the compromising. From the standpoint of the author, the person libeling the deceased can be accused of libel. Firstly, when an individual deceases, his reputation can last for a certain period of time. Second!y, the act of libeling the deceased infringes on the reputation of the death as well as the interest of his kindred and the society, it shall be included in the libel. In addition, in terms of utilizing the methodology of law explanation, the act of libeling the deceased person being included in the Article 246 of Criminal Law of the PRC conforms to the principle of legality.