复旦实名开除嫖娼学生妥当吗？应杜绝耻辱刑

Is it proper for Fudan to expel prostitute students in real name? Humiliating punishment should be eliminated

嫖娼既是违法行为，也是道德败坏的行为，无论是从法律层面，还是校风校纪、道德评价方面，对于具有嫖娼行为的学生，均应当给予相应的治安处罚和校内处分。

Whoring is not only an illegal act, but also an act of moral corruption. No matter from the legal level, school spirit, discipline and moral evaluation, students with whoring behavior should be given corresponding public security punishment and school punishment.

涉事三名学生已经接受了治安处罚和校内处分，但复旦大学却同时以实名的形式将其在校内公布，这种对嫖娼行为的“零容忍”态度，究竟是希望其他学生引以为戒？还是实打实地将涉事学生钉在“耻辱柱”上？这种行为是否妥当？更或者是否已经涉嫌违法？

The three students involved have accepted public security punishment and campus punishment, but Fudan University announced them in the form of real name at the same time. Is this "zero tolerance" attitude towards prostitution a warning for other students? Or actually nail the students involved in the "pillar of shame"? Is this behavior appropriate? Or is it suspected of breaking the law?

（一）名誉刑不是现代处罚体系的组成部分

（1） Reputation punishment is not an integral part of modern punishment system

名誉刑，也就是我们通常意义上的耻辱刑、丑辱刑，是指将违法犯罪人员的人格、罪行、丑恶暴露在公众视野，使其遭受精神上的痛苦和折磨。复旦实名公布的行为，何尝不是将涉事学生的人格、丑恶、违法行为公之于众，借助发达的信息网络，涉事学生将暴露在越来越多的人面前，也将面临越来越多的非议、指责。由此，这种实名公布的行为，何尝不是一种附加的名誉刑惩罚？

Reputation punishment, that is, the punishment of humiliation and ugliness in our usual sense, refers to exposing the personality, crime and ugliness of criminals to the public view and making them suffer mental pain and torture. The publication of Fudan's real name is not to make the personality, ugliness and illegal acts of the students involved public. With the help of developed information networks, the students involved will be exposed to more and more people, and will also face more and more criticism and accusations. Therefore, this behavior of publishing real names is not an additional punishment of reputation punishment?

纵观我国的刑罚体系，主要包括剥夺生命的死刑、限制人身自由的自由刑、判处罚金的财产刑、剥夺政治权利的附加刑，并不涉及折辱人格的名誉刑。

Throughout China's penalty system, it mainly includes the death penalty of depriving life, the freedom penalty of restricting personal freedom, the property penalty of imposing a fine, the additional penalty of depriving political rights, and does not involve the reputation penalty of degrading personality.

究其缘由，一方面因名誉刑相比其他处罚，影响更加深远，并不利于罪犯重新回归社会，反而可能带来严重的反作用，导致罪犯精神崩溃、产生厌世、报复社会的极端心理；另一方面也因名誉刑同时会波及罪犯的无辜家人，让家人也随之遭受无端的非议、造成名誉的损毁。因此，名誉刑虽然在历史上曾出现，但已经被淘汰。

On the one hand, compared with other punishments, reputation punishment has a more far-reaching impact, which is not conducive to criminals' return to society. On the contrary, it may bring serious reaction, leading to criminals' mental collapse, world weariness and extreme psychology of revenge against society; On the other hand, because reputation punishment will affect the innocent family members of criminals at the same time, the family members will also suffer unwarranted criticism and damage their reputation. Therefore, although reputation punishment has appeared in history, it has been eliminated.

（二）违法犯罪行为是否应当被公众知晓？

（2） Should criminal acts be known to the public?

公众知晓违法犯罪人员的情况，无疑有助于增强公众的警惕心。对于罪行极其严重的罪犯，将其暴露在公众视野中，既保护了公众的知情权，也有利于公众提高安全意识；但对于一些情节轻微、性质不那么恶劣的违法犯罪，将其公之于众，反而导致对罪犯的“有色”审视，也会造成越来越深的隔阂。

The public's awareness of the situation of offenders will undoubtedly help to enhance the public's vigilance. For criminals with extremely serious crimes, exposing them to the public view not only protects the public's right to know, but also helps the public to improve their safety awareness; However, for some minor violations and crimes with less bad nature, making them public will not only lead to the "colored" examination of criminals, but also cause deeper and deeper estrangement.

违法犯罪分子会留下永远无法消除的前科、案底，除未成年人犯罪记录被封存的，其他成年罪犯在就业、入伍还要主动报告前科记录。也就是说，违法犯罪将永远被一部分人知晓且铭记，因为违法犯罪分子相对其他人来说，人身危险性、再犯可能性、社会危害性相对较高，需要被重点关注，以防止再次危害社会。同时也是对社会公众的警醒，违法犯罪具有极大的代价，以此降低违法犯罪事件的发生。

Criminals will leave criminal records and criminal records that can never be eliminated. Except for those whose juvenile criminal records are sealed up, other adult criminals should take the initiative to report their criminal records when they are employed and enlisted in the army. In other words, crimes will always be known and remembered by some people, because compared with others, criminals have relatively high personal danger, possibility of recidivism and social harm, and need to be paid special attention to prevent them from endangering the society again. At the same time, it is also a wake-up call to the public. Illegal crime has a great cost, so as to reduce the occurrence of illegal and criminal events.

而知晓却不意味着公开，《治安管理处罚法》第88条明确规定了“公安机关及其人民警察在办理治安案件时，对涉及个人隐私，应当予以保密。”如果令社会公众知晓，将产生名誉刑的效果，这与刑罚处罚的初衷背道而驰。

But knowing does not mean being public. Article 88 of the law on public security administration and punishment clearly stipulates that "when handling public security cases, public security organs and their people's police should keep personal privacy confidential." if the public is made aware, it will produce the effect of reputation punishment, which is contrary to the original intention of criminal punishment.

（三）复旦大学的行为违法了吗？

（3） Is Fudan University illegal?

从泄露隐私上来说，复旦大学的操作无疑涉嫌以公开方式侵犯公民个人隐私。《民法典》第1032条明确规定，“任何组织或者个人不得以刺探、侵扰、泄露、公开等方式侵害他人的隐私权。”

In terms of privacy disclosure, the operation of Fudan University is undoubtedly suspected of violating citizens' personal privacy in an open manner. Article 1032 of the civil code clearly stipulates that "no organization or individual shall infringe upon the privacy of others by means of espionage, intrusion, disclosure, publicity, etc."

从贬损人格、败坏他人荣誉上来说，复旦大学的操作还可能涉嫌公然侮辱他人或侮辱罪，《治安管理处罚法》第42条规定，应对公然侮辱他人的行为予以治安拘留、罚款；如果导致涉事学生精神崩溃、自杀、自残等严重后果的，《刑法》第246条规定以暴力或者其他方法公然侮辱他人，情节严重的，构成侮辱罪。#复旦实名开除嫖娼学生妥当吗#

In terms of demeaning personality and tarnishing the honor of others, the operation of Fudan University may also be suspected of the crime of openly insulting others or insulting others. Article 42 of the law on public security administration and punishment stipulates that public security detention and fines shall be imposed for acts of openly insulting others; If it leads to serious consequences such as mental breakdown, suicide and self mutilation of the students involved, article 246 of the criminal law stipulates that openly insulting others by violence or other methods, if the circumstances are serious, it shall constitute the crime of insult# Is it appropriate for Fudan to expel prostitute students in real name#

综上所述，复旦大学的行为有失妥当。对于违法犯罪行为该法办则法办，该开除则开除，实名公开的形式并不利于涉事学生重新回归社会、重新开始生活，也没有法律依据、校纪校规依据。

To sum up, Fudan University's behavior is inappropriate. For illegal and criminal acts, the law will be punished and the expulsion will be expelled. The form of real name disclosure is not conducive to the students involved to return to society and start their lives again, and there is no legal basis, school discipline and school rules.