after the second instance of a case involving a group chat and being kicked, the Beijing Municipal Intermediate people's Court held that the dispute arising from such behavior did not fall within the scope of civil law adjustment, and the judgment rejected the appeal.

Yan mou and Zheng mou are the directors and members of a community's owner's wechat group. One night, the owner Xu suspected that the industry committee was not acting in accordance with the law, so he asked the owner's WeChat group to publicize the list of members of the industry committee. During the group chat, Xu had a dispute with a number of owners and "spoke passionately" in the group, using insulting and threatening remarks such as "stupid", "low", "no personality", "stink in the gutter" and "liquidation back" to attack others.

administrator Zheng mou believed that Xu mou's remarks violated group rules and group announcements, so he kicked Xu out of the group chat. Xu complained to Yan, the owner of the group, about the matter and asked to re-enter the group. Yan refused and pulled him black. Xu thinks that the administrator Zheng kicked him out of the group chat and the group owner Yan refused to join him again, which violated his right of identity as the owner of the community, humiliated him in front of other owners and derogated his personality. As a result, Xu sued Yan and Zheng to the court, demanding a judgment to restore their group membership. Yan and Zheng should also apologize to them and compensate them for mental damage 1 yuan and 2 yuan respectively.

the court of first instance held that according to the provisions of article 9 of the regulations on the administration of internet group information services, group administrators should stop and manage the intensification of communication disputes and the use of insulting language among group members in a timely manner, so as to maintain a harmonious and stable group order. Administrator Zheng removed Xu, who he thought was improperly speaking, from the group chat, which is the application of the autonomous rules of "who builds the group, who is responsible" and "who manages, who is responsible" in the Internet group. This behavior should belong to a kind of social communication and friendship behavior, there is no civil legal relationship, and the case does not fall within the scope of civil litigation accepted by the people's court; in addition, Yan and Zheng did not publish insults or slander against Xu in the group, and there is no evidence to prove that the remarks of other members of the group were instructed by Yan and Zheng, so it does not constitute an infringement of their right of reputation. Accordingly, the court of first instance ruled to reject Xu's prosecution. Xu refused to accept, filed an appeal.

The second instance of a Beijing Intermediate People's Court held that WeChat group is a communication platform formed by natural persons through the Internet based on certain social relations. The group owner and group administrator of WeChat group have the right to choose their own members. The behaviors of entering, leaving and moving out of the group are all autonomous behaviors among members, which belong to the category of social communication. This behavior does not create or change civil legal relations. Disputes arising from such behaviors do not belong to the category of civil legal adjustment. Accordingly, the first instance judgement was upheld. ¹

(I) Cyberspace has become social

The socialization of cyberspace is a complex and multidimensional phenomenon, which is also an indisputable fact, it is reflected in the interaction, communication, information sharing and community formation in cyberspace. With the popularization and promotion of network technology, the degree of substitution of network social and network society for traditional social and real space society is increasing.

First, cyberspace provides a new social platform. Through cyberspace, people can share their own lives, views and experiences, as well as access to information and knowledge of others, thus promoting the dissemination and sharing of information.

Secondly, the socialization of cyberspace is also reflected in the formation and development of communities. In cyberspace, people can join different communities or groups according to their interests, hobbies and needs. These communities or groups often have common values and goals, and their members promote the development of the community through communication and cooperation. This trend of community not only enhances people's sense of belonging and identity, but also realizes the exchange of information in work, life and study.

In addition, the socialization of cyberspace has the value of social governance and public service. Through the network platform, the government and public service departments can more easily obtain public opinion, understand social dynamics, and respond in a timely manner. At the same time, people can also participate in social discussions and express their views and demands through the network platform.

(II) ; personality rights are based on people's social attributes

Marx believed that human beings have both natural and social attributes, natural attribute refers to the existence and characteristics of human body, and social attribute refers to the various social relations formed by people in social practice. The essence of human beings is not determined by natural attribute, but by social attribute. It is because of human's social attributes and the needs of social interaction that the subject qualification of human beings as a member of society is established, that is, personality, and then social rules such as laws need to recognize and safeguard human rights as human beings, that is, personality rights. The definition of social personality is projected into the field of civil law, and personality is the qualification of a natural person as a civil subject, which is the qualification given by law to a natural person to enjoy civil rights or assume civil obligations in accordance with the law.

It can be seen that the protection of personality and personality rights is only when human sociality is recognized and maintained. People with only natural attributes are walking corpses in human society, and there is no problem of personality and personality rights.

(III) social isolation and isolation involve personality reduction, etc.

Human history begins with human interaction, which gives rise to communities and societies, produced the social attributes of people. Due to the needs of social interaction, people have a sense of subject, and through legal, ethical and other social rules to confirm their subjectivity and subject qualification rights. The natural attribute is the attribute shared by human and animal, and the social attribute is the fundamental characteristic that distinguishes human from animal. In this regard, man has both natural and social attributes, while personality has only social attributes, which is a proposed existence separated from the natural existence of man.

 

Roman law was the originator of civil law. In Roman law, people and personality are separated. People only exist as biological people, and personality belongs to legal people, that is, people without personality do not belong to legal people, and people without personality do not belong to people with complete legal rights. In Roman law, the complete personality consists of free existence, political participation and social interaction, while the right of personality consists of freedom, citizenship and family rights. Personality and personality rights in Roman law are fabricated and deprived by law, and the reduction and abolition of human personality can be achieved by depriving some or all of the content of personality rights in accordance with the law. The connotation of personality rights in Roman law can correspond to political rights such as freedom and voting rights in modern civil law, and social communication rights (right of name, right of portrait, right of reputation, etc.). In this regard, the issue of electoral qualification disputes, which seems to be full of political implications and public law, is dealt with by electoral qualification litigation as a civil procedure, which is quite a legacy of Roman law.

 

This paper holds that the deprivation of human subject rights by law is often implemented by weakening and depriving human social attributes, that is, social isolation and isolation; it can even be said that the essence of certain legal punishments is severe social isolation and isolation: imprisonment, exile and expulsion all completely isolate people who are considered harmful to society by law from their society, while deprivation of political rights isolates the punished person from the political sphere of society. Marxism believes that labor has created human society. In this regard, the labor reform system is a sublation of social isolation and isolation & mdash;& mdash; The ability to isolate the punished person from the society but at the same time optimize their integration and harmony in society through labor reform. It can be said that the social isolation and isolation achieved by capitalist punishment pursue self-shame, while the social isolation and isolation achieved by socialist punishment pursue self-transformation. Returning to the theme, social isolation and isolation implemented in accordance with the law is a legal reduction of legal personality, while social isolation and isolation implemented by private force may constitute a derogation of personality and thus infringe on personality rights.

 

(IV) Internet eviction has social and legal implications p>

As mentioned earlier, cyberspace has become a real virtual environment for modern people's social existence and social interaction, and human personality and identity are also revealed to a large extent through cyberspace. Community "kick people" is actually to expel people from a certain network space, which is essentially a social isolation and isolation action. The only thing that needs to be distinguished is the legal benefit harmfulness of network expulsion of different nature, degree and scope. As far as the current social reality is concerned, prohibiting or restricting the use of mobile phones, computers and social software by individuals belongs to social isolation, isolation and personality imprisonment, which is the real sense of "social death". There is no doubt that the network expulsion is against the social attribute of the expelled person.

 

The court of first instance in this case held that the defendant did not insult and slander the plaintiff, just kicking the plaintiff out of the group chat and refusing to restore the plaintiff's group chat qualification does not constitute infringement. These views are debatable and need to return to the essence of the problem. Take defamation as an example, the purpose of defamation is to degrade the reputation of others and thus maliciously lower the social evaluation of others. The consequence of defamation is that more people isolate the victim and are unwilling to associate with him. In many social networking occasions, kicking out of a group means judging that the person's personality is not inferior enough to associate with others. The result of kicking out of the group confirms the denial or even impairment of the person's personality and character. Kicking out of the group also often has the connotation of discrimination that draws a clear line between others and someone. If the factual reasons and legal basis for such evaluation and kicking out of the group are insufficient, it may involve a legal reputation attack.

 

(V) Autonomy should also be subject to legal intervention

 

There are usually three ways for law to intervene and intervene in autonomous behavior: 1. Determine whether it is a purely autonomous behavior, and whether such acts absolutely do not involve legal rights and interests; 2. whether the autonomy statute offends the legal provisions, I .e. the validity and amendment of the autonomy statute; 3. remedy for matters that violate the autonomy statute and infringe the legal interests of others. Therefore, the judiciary should not intervene and interfere only with purely autonomous acts, or issues where the relevant autonomy statute is legal and the relevant subject can already resolve through the autonomy statute.

 

Obviously, autonomous regulations and autonomous behaviors are also illegal. In recent years, the judicial trial of disputes in the village rules and regulations is also common, that is clear evidence. ²

 

(VI) WeChat group chat is not a purely autonomous behavior

WeChat group and other network spaces are only the realization and scene of people's social communication and social relations, the essential relationship between subjects is autonomous, which is still autonomous through the network scene. If the essential relationship involves legal relationship, it will involve legal relationship and judicial intervention factors. For example, in the WeChat group itself and related speech behavior, may involve civil infringement, administrative or criminal violations.

 

The Internet is not a place outside the law, nor is the formation, operation and management of WeChat groups outside the law, it needs to be done on the basis of compliance with the law. From the severity of legal intervention on human behavior, it can be divided into legal adjustment, legal regulation and legal punishment. The specific solutions are civil law regulation, administrative management, administrative and criminal punishment. With respect to the establishment and operation of WeChat groups, under the circumstances that administrative regulations such as the Regulations on the Administration of Internet Group Information Services have been administratively intervened, the regulation of WeChat groups and their related behaviors by civil law is an act of lifting weights.

 

The trial court may want to express that the chat rules of WeChat group in this case belong to autonomous rules, therefore, it is an autonomous act for the administrator to kick the defendant out of the group according to the rules of autonomy, and the court does not interfere and hear the case. In fact, whether the rule of autonomy infringes upon and deprives the freedom and rights of group members requires legal intervention. Whether the act of kicking the group is objective and fair in accordance with the rule of autonomy also concerns the dignity and equality of the kicked members. Dignity and equality are related to human reputation and should be protected by law.

 

(VII) WeChat group chats are not all pure friendship behavior

the purpose of forming wechat group and its chat content are not necessarily the purpose of friendship and emotional communication, there are also working groups dedicated to work collaboration, shareholder groups for shareholder communications, and owner groups for owner communications, which are usually mixed with friendship and communication functions, but do not negate the basic purpose and function.

 

In today's increasingly information-based and networked society, the owner group has become an important manifestation of the owner's identity, the communication of the rights and obligations of the owners and the publication of the opinions and suggestions of the owners are also usually in the form of group notification, sometimes even the only actual communication method. In such cases, kicking the owners out of the group is essentially a derogation of their owners' right to identity, a deprivation of the owners' right to make suggestions, and a risk of infringing on their actual material rights and interests. Disputes involving an apology, compensation for moral damage, and elimination of obstruction (communication and informed obstruction).

 

(VIII) handling of group rule violations, the purpose should be weighed against the consideration of the circumstances and the damage of the law.

WeChat group rules are autonomous rules and are valid for group members if they do not violate the law. However, it does not mean that the group owner or administrator can kick the violator out of the group at will, even if the group rule makes it clear that once the violation occurs, the violator can be kicked out of the group.

 

If the group is a pure friendship chat group, the act of kicking out of the group basically does not involve the economic interests of the kicked, however, it may also involve the dignity and equal rights of the kicked. The key is to see the rationality, legality and fairness of the rules.

 

If it belongs to a group such as work group, shareholder group, owner group, the handling of violations should also consider the circumstances of violations and their consequences. If disputes can be resolved through communication and persuasion, the group should not be easily kicked.

 

For serious violations that cannot be persuaded, group owners, administrators or other group members who are infringed by the violations can resort to legal means to protect their rights, administrators and group owners should also consider weighing the degree of harm, depth, and time dimension of the violation against the degree of harm suffered by the kicked person after losing group rights.

 

In short, if someone scolds you, you can sue him but not tape him, the group owner and the administrator can persuade the victim to demand an apology, etc. and resort to the law, instead of directly "social death" in the owner group, resulting in the impairment of the owner's identity right and endangering the exercise of the actual owner's rights.

 

Summary of 3. questions

 

1. It is easy to build a group but difficult to manage. Forbidden words and kicking people in WeChat groups may involve the infringement of the personality rights and identity rights of the kicked people, which should be done with caution.

 

2. Kicking out of the group should be treated differently. Whether kicking out of the group should be implemented should consider the purpose, nature and function of the group, analyze the legality and rationality of the kick rules, consider the openness, fairness and transparency of the implementation of the kick rules, and avoid infringing upon the personal dignity of the kicked.

 

3. it is not appropriate to kick out groups involved in civil rights communication, unless the group violation is sufficient to cause the offender to lose a particular identity and entitlement.

 

4. WeChat group and other network spaces are new and important existence scenes and implementation methods of social and legal relations, criminal law and administrative law have imposed regulations and penalties on misconduct in cyberspace, and civil justice should act actively. Otherwise, cyberspace will degenerate into a jungle society of human spirit and emotion, full of violence.

 

5. specifically in this case, the plaintiff's verbal disputes with administrators and other group members may be counted as friendship communication disputes, the court does not care. The administrator (defendant) kicked out the plaintiff according to the group rules is his act of exercising the management power, but whether the group rules are legal, whether the implementation of the group rules is fair, fair and reasonable, whether there is discrimination and derogation of personal dignity, and whether the kick out of the group affects the exercise of the plaintiff's owner's rights and interests, etc., should be considered and ruled by civil justice. If the owner group is a pure chat group that does not affect the exercise of the owner's rights and interests, and the group rules are legal and reasonable, and the kick rules are implemented fairly and reasonably, the court can reject the plaintiff's claim after hearing, instead of directly rejecting the lawsuit.

 

(Author's opinion only)

 

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