The gist of the referee.
The enforcement of the obligation to apologize requires both soft moral awakening and appropriate indirect enforcement measures, but each measure should be applied in stages and gradually. First of all, it should be to awaken and enlighten the conscience with soft interpretation of the law and morality, so that the person subject to enforcement can sincerely repent, take the initiative to apologize, and repair the applicant's mental damage. Second, if the interpretation of the law and reasoning are not effective, appropriate indirect enforcement measures can be taken to force the person subject to enforcement to apologize, so as to achieve an inferior "insincere apology". Finally, through alternative means of performance, publish a formal apology announcement or judgment to declare justice in an alternative way. 
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Facts
Application executor: Wang Moumou, Gao Moumou.
Person subject to execution: Gong.
Mr. and Mrs. Wang, Mr. Gao and Mr. Gong were neighbors, and the two sides had conflicts over trivial matters in the neighborhood. In June 2022, Gong posted remarks on the family life, children's education and moral conduct of Wang and his wife in the WeChat group of "Mutual Help and Mutual Aid Group" and "Neighborhood Mutual Aid Group", which have more than 100 members in the community. Wang and Gao believed that Gong's remarks had caused them mental suffering, resulting in lower social evaluation, damage to their reputation, and other consequences, and filed a lawsuit for a dispute over the right to reputation with the court, requesting that Gong be ordered to publicly apologize in the above-mentioned WeChat group and compensate for mental damages.
After trial, the Shanghai Minhang District People's Court held that Gong's posting of remarks involved in the case against Wang and Gao in a community WeChat group of more than 100 people was likely to cause other members in the WeChat group involved in the case to fall into misjudgment, causing their personality to be degraded, their reputation to be slandered, and their social evaluation to be reduced, so it was determined that the remarks made by Gong constituted an infringement of Wang and Gao's right to reputation, and ruled that Gong publicly apologized in writing in the two WeChat groups involved in the case, and compensated 1,000 yuan for mental damages.
After the judgment took effect, Gong fulfilled the obligation to compensate for moral damages, but one of the WeChat groups that the judgment determined to make a formal apology had been disbanded, and the obligation to apologize had not yet been fulfilled, so Wang and Gao applied to the Minhang District Court for enforcement.
Trial
Since a WeChat group has been disbanded, and a content of the apology cannot be fully realized in accordance with the judgment, after consultation, all parties reached an agreement: the person subject to enforcement, Gong, will write a letter of apology, and after review by the court, a written apology will be made in the existing WeChat group, each resident on the 1st to 12th floors, and the entrance of the building. Under the witness of the executive judge, Gong went door-to-door to explain the situation, and at the same time posted an apology announcement at the entrance of the building.
Commentary
Apology is a complex relationship involving law and morality, in addition to the Constitution and civil law, as well as enforcement law and evidence law. It is a comprehensive issue involving a large number of value judgments that need to take care of both tradition and modern needs, seek legal legitimacy, and take into account the operability of judicial practice. How to enforce the apology is an important issue facing the enforcement work. 1. The institutional function of apologiesThe explicit provision of apology as a form of civil liability is based on traditional concepts and considerations of current social needs. Traditional Chinese society advocates etiquette, and "entering the law with courtesy" and "entering the law with the law" constitute a basic feature of traditional Chinese social governance. Therefore, when there is a "faux pas", it is necessary to "serve", and the main way to "serve" is to apologize. The system of formal apology can be said to have existed since ancient times, and the legalization of formal apologies is a natural result of attacking traditional Chinese culture, rather than just an emergency response to a specific historical period. The system of apology is widely existing in China's legal norms, and it is a form of responsibility that is widely existing in the fields of public law and private law in China. First, apologies are widely found in private law norms. Article 120 of the General Principles of the Civil Law provides for a formal apology, and the Civil Code follows the provisions of the General Principles of the Civil Law. Article 141 of the Food Safety Law, Article 52 of the Copyright Law, and Article 50 of the Consumer Rights Protection Law all stipulate the responsibility for apology. Second, formal apologies also exist in public law. Article 35 of the State Compensation Law, Article 117 of the Public Security Administration Punishment Law, Article 110 of the Civil Servants Law, Article 65 of the Judges Law, Article 66 of the Procurators Law, Article 65 of the Supervision Officials Law and many other public laws also stipulate the responsibility for making formal apologies. In the liability system, there are property and non-property liabilities, and an apology is a non-property liability. Non-property damage should be resolved by means of non-property compensation, and the way to do so is to expand the scope of application of the interpretation of restitution, and the obligation to apologize is a non-property form of restitution. Money can't heal all the scars, and there are many Qiu Ju who are "just asking for an explanation". Formal apologies are conducive to repairing the mental and personality damage suffered by the victim, and have an irreplaceable functional role in repairing the damage to personal dignity. The essence of the dispute is a conflict of rights, which arises from the injury of one's own rights. When an unjust act causes harm to one's rights, the victim will feel resentment, which will lead to the so-called "anger". Formal apologies provide a way for victims to vent their feelings of resentment, which is conducive to resolving grievances and resolving conflicts. According to psychological research, even a disobedient and insincere apology can vent the victim's resentment, so apologies have a special effect on soothing and calming the victim's emotional trauma. 2. Conflict of rights to apologizeThere are different definitions and expressions of what the specific meaning of apologies are. It has been argued that a complete apology should consist of five elements: acknowledging that something happened, admitting that something was wrong, acknowledging that one's responsibility for the act was oneself, expressing an attitude of regret and feelings of remorse, and indicating that similar behavior will not happen in the future. There is a consensus that an apology should include admitting mistakes and apologizing. Therefore, to complete a real and complete apology, it is not only manifested in the meaning of words and words, but also in the sincere repentance in the heart. Speech is both a means of violating personality rights (active speech infringes on personality) and a means of protecting personality rights (forcing speech to restore personality). An apology contains the connotation of admitting mistakes and apologizing to the other party, which involves the inner spiritual freedom of the perpetrator and the freedom of non-expression at a purely negative level. Therefore, it has been pointed out that there is a conflict between freedom of speech and the protection of personality rights, including the conflict between freedom of expression and the protection of personality rights, and the conflict between freedom of non-expression and the protection of personality rights, both of which are conflicts of basic rights. The judgment that the perpetrator's formal apology to the victim cannot be enforced, and the indirect enforcement of the formal apology is unconstitutional. At the same time, the elimination of influence and the restoration of reputation are aimed at defamation and the statement of facts, and the apology is aimed at insult and the expression of opinions; The former can compel the person subject to enforcement to clarify the facts and restore the truth, while the latter cannot force the person subject to enforcement to sincerely repent and apologize. As far as the infringer is concerned, the reason why he will take the initiative to apologize is mainly based on his conscience, which cannot be enforced. It is precisely because of the above doubts and problems that in the process of apology system, the implementation of apologies has been in the process of development and improvement of the apology system. In fact, any form of legal liability is inevitably mandatory that the obligor is unwilling to accept. In the execution of monetary debts, the property of the responsible person is controlled and his freedom of disposal is restricted. The forcible seizure and auction of property, and the forcible deprivation of ownership of property to pay off debts, in effect, meant restricting his freedom. As Savigny puts it, the essence of debt is, on the other hand, a restriction on freedom, that is, dependence on the will of the other. Just because apologies involve freedom of speech and moral conscience, scholars are even more concerned about the difficulties of implementation. From a practical point of view, apologizing is an unattainable goal. On the one hand, a formal apology is a liability for the infringer's person, which needs to be performed by the infringer himself, and it is difficult to achieve the liability for the person through enforcement. On the other hand, enforcement needs to consider the impact on the infringer's personality rights and interests. In the concept of Chinese society, an apology is a very shameful thing, and many infringers would rather be fined than apologize. This situation occurred in the copyright dispute case of Zhuang Yu v. Guo Jingming, which has attracted widespread public attention. After the judgment took effect, Guo Jingming paid Zhuang Yu 200,000 yuan for economic losses and 10,000 yuan for mental damages. But he publicly said that he would never apologize. It wasn't until more than ten years later on December 31, 2020 that Guo Jingming took the initiative to apologize to Zhuang Yu on Weibo. 3. Enforcement rules for apologiesHow to implement the apology is covered in substantive law, but it is not directly stipulated in procedural law. (1) Substantive law normsIn substantive law, apart from an apology, there is no other system that regulates how to enforce it. As early as 1993, the Supreme People's Court's Answers to Several Questions Concerning the Trial of Cases Concerning the Right to Reputation stipulated that the people's courts could restore their reputation and eliminate their influence by means of public announcements or judgments, but the judicial interpretation did not point out that these measures were also the enforcement methods of making formal apologies. Eliminating the impact and restoring the reputation is an act of clarifying the facts, which is aimed at the misrepresentation, and the elimination of the impact and the apology are two different civil liabilities. Article 16 of the 2014 Provisions of the Supreme Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving the Use of Information Networks to Infringe on Personal Rights and Interests clarifies that a formal apology may be enforced by reasonable means such as publishing an announcement on the Internet or publishing a judgment document. Article 1,000 of the Civil Code follows this provision. (2) Enforcement laws and regulationsFrom the perspective of the Enforcement Law, apology, as an obligation to act, mainly includes the following means and methods of enforcement. First, pay a penalty for late performance. Article 260 of the Civil Procedure Law stipulates that if the person subject to enforcement fails to perform a non-monetary obligation within the period specified in the judgment, ruling or other legal documents, he shall pay a penalty for delayed performance. This is to force the debtor to perform its obligations by means of monetary penalties, which has the dual function of making up for the losses of the obligee and punishing the obligor. Second, limit high consumption. According to Article 1 of the Supreme Court's Several Provisions on Restricting High Consumption and Related Consumption by Persons Subject to Enforcement, if the person subject to enforcement fails to perform the payment obligations determined in the effective legal documents within the period specified in the enforcement notice, the people's court may take measures to restrict consumption. The obligation to pay includes both monetary and behavioral obligations. Consumption restriction measures not only have the function of property preservation, but also have the function of supervising their performance. If the person subject to enforcement refuses to make a formal apology, measures may be taken against the person subject to enforcement to restrict spending. Third, judicial sanctions. Article 114 of the Civil Procedure Law stipulates that where a person refuses to perform on a judgment or ruling of a people's court that has already taken legal effect, the people's court may impose a fine or detention on the basis of the severity of the circumstances; where a crime is constituted, criminal responsibility is pursued in accordance with law. Through sanctions, sanctions are imposed for acts that flout the authority of the judiciary, and the authority and impartiality of judicial adjudication are maintained. Deliberately failing to apologize is disrespectful to judicial authority, and sanctions such as fines and detention may be taken. Fourth, the implementation method of apologiesThe apology in the apology is to admit the mistake of the person; To apologize is to apologize. In the enforcement procedure, the ideal goal is to get the obligor to admit the mistake, apologize, and ask for forgiveness through various enforcement methods. Inferior status is considered only when the desired purpose cannot be achieved. (1) Explain the law and reason, and awaken moralityAn apology is an expression of conscience that comes from the heart of the perpetrator. In general, when people act against moral principles and legal norms, they are usually condemned by morality and conscience, resulting in feelings of guilt and shame. Inspired by a sense of guilt and shame, they admit their mistakes and apologize to the victims. Conscience is the necessary soil for social justice, and conscience is also the source of motivation for individuals to pursue a good external self-image. The rule of law is not just a matter of cold rules, judgments and punishments, but also requires the awakening of conscience, the rebuilding of morality and the establishment of faith. At the enforcement stage, efforts should be made to awaken the sense of guilt and shame of the person subject to enforcement. When the conscience and guilt of the person subject to execution awakens, the apology will naturally be fulfilled. For example, through more communication, the enforcement judge explains the legal consequences of not performing the obligations determined in the effective legal documents, so that the person subject to enforcement is aware of the harm caused to the applicant by his actions, and finally writes an apology statement. (2) Indirectly urging or forcing performanceWhen conscience is discovered, soft persuasion alone may not be effective, and in this case, the infringer should be forced by the law to repent through legal means. The human heart cannot be changed by direct measures, but can only be acted on by external forces, which requires the help of indirect implementation measures. Indirect enforcement measures compel the infringer to perform its obligations by imposing certain adverse legal consequences on it. Coercion may be psychological in nature or tangible; It may be direct or indirect. If it works, imposing indirect coercion on the person subject to enforcement, so that the person subject to enforcement is forced to apologize, is also a means to approach the best state. Even if there is a certain difference between the purpose of a forced apology and a formal apology, and it is not a complete apology, from a psychological point of view, even an apology that is not sincere can vent the victim's resentment and soothe the victim's heart. However, the means of indirect coercion should implement the principle of proportionality and achieve a balance between the ends and means of enforcement. On the basis of the current norms, the following means and methods may be used to urge the person subject to enforcement to automatically apologize: First, adopt measures to restrict consumption. Consumption restriction measures are inconvenient to the person subject to enforcement and force the debtor to perform its obligations, and consumption restriction measures are not harsh enforcement measures, but are common measures in the enforcement of monetary debts. Second, a penalty for delay in performance is imposed. On the one hand, the delay in performance has the function of compensating the victim, and also has the function of forcing the person subject to enforcement to perform its obligations. The question is, if the person subject to enforcement has been failing to perform its obligations, should the delay in performance penalty be calculated continuously? Or is it just a period of deferred payment? The author believes that it is advisable to calculate the delay in performance within a certain period of time to prevent the judgment debtor's excessive obligations from leading to new unfairness. Third, increase the cost of alternative fulfillment. Although the law stipulates alternative ways of performance, the costs are different and will also have an impact on the person subject to enforcement. If the cost of publishing the judgment is higher than the cost of publishing the apology announcement, then the obligor may choose to publish the apology announcement driven by utilitarianism. (3) Substitute performance and declaration of justiceThe elimination of influence and the restoration of reputation are aimed at defamation, which is a matter of statement of fact; Apologies are aimed at insults and are issues of expressing opinions. The former can compel the person subject to enforcement to clarify the facts and restore the truth, while the latter cannot force the person subject to enforcement to sincerely repent and apologize, and can only declare justice through judgment. It can be seen from this that the publication of announcements and judgments is not an expression of the inner intention of the person subject to enforcement, and it is quite different from an apology. However, the reason why it can be used as an alternative method is mainly to declare justice, condemn the infringer, and provide psychological comfort to the victim through other means. From a theoretical point of view, there are three alternative ways to implement an apology: the court publishes the content of the judgment, the court publishes an apology statement, and the victim issues a condemnation statement. Since the Civil Code does not specify the content of the announcement, and there is also "etc." as a fallback, some enforcement methods can be explored in enforcement practice that are more in line with the circumstances of each case and restore the victim's psychology, such as posting an announcement and issuing an apology statement in an appropriate place in this case. (4) Sanctions should be applied cautiouslyAccording to the rules of the Enforcement Law, when the person subject to enforcement fails to perform his obligations, he may be fined or detained, and if the circumstances are serious, he may also be investigated for criminal responsibility. These measures are aimed at heinous acts, deliberately flouting judicial authority, and harming judicial credibility. There are different views on whether enforcement measures such as fines and detention can be applied in formal apology cases. One view is that since the law has already prepared alternative enforcement methods such as publication and public announcement, then enforcement measures should no longer be imposed on the person subject to enforcement. Another point of view is that the publication of the newspaper and other methods are mainly an alternative remedy for the applicant for enforcement, and after the publication of the announcement, the applicant's reputation has been restored to a certain extent, but the subjective malice of the person subject to enforcement has not changed, and the applicant's psychological comfort has not been fully realized. Sometimes, the purpose of apologizing is not to restore the reputation, but mainly to soothe the applicant's psychology. The author believes that although an apology is only a matter of one sentence, what is involved behind it is the basic rights such as freedom of conscience and freedom of personality, so when the person subject to enforcement fails to perform the obligation to apologize, he may be cautiously punished with fines, detention and other punishments, but he must not arbitrarily pursue criminal responsibility. On the one hand, for the person subject to enforcement, an apology is a refusal to perform despite having the ability to perform. There is no inability to execute an apology, but the person subject to enforcement does not have the will to perform. The law should give a negative evaluation and punish such acts of not respecting judgments and failing to perform obligations in a timely manner. Fines and detention of the person subject to enforcement are punishments for the person subject to enforcement's refusal to perform their obligations, and do not conflict with the restoration of the reputation of the person applying for enforcement through alternative means. On the other hand, the punitive act is not for the act after the vicarious performance, but for the act before the vicarious performance. After the performance of the publication announcement by alternative means, the content of the debtor's debt will be changed from a debt of conduct to a debt of money, and there is no basis for further punishment. (5) Echelon application, step by stepFrom the above analysis, it can be seen that in the enforcement procedure of the obligation to apologize, the applicable enforcement methods include both soft moral arousal and certain indirect enforcement measures. The purpose of these methods is to soothe the victim's mind and repair the mental and personal damage suffered by the victim. It is worth pondering the question of what is the order in which the above-mentioned measures are applied? Can it be used together? In the author's view, the measures should be applied in a step-by-step manner. First of all, it should be to awaken and enlighten the conscience with flexible interpretation of the law and morality, which can not only make the person subject to enforcement sincerely repent, but also take the initiative to apologize and repair the applicant's mental damage. Second, if the interpretation of the law is ineffective and the person subject to enforcement has refused to apologize, then some indirect measures should be taken to force the person subject to enforcement to apologize, so as to achieve an inferior "insincere apology". Thirdly, if an apology is not made after a certain amount of indirect enforcement measures have been taken, a public announcement or judgment should be published through alternative performance to declare justice in an alternative way. Although the regulations provide for alternative performance and other methods, on closer examination, whether it is substitute enforcement or compensation enforcement, it is not an active performance of the person obligated to apologize, nor is it a kind of sincere behavior, which is far from the original legislative intent of the legislation that the formal apology is from the heart and is done by the perpetrator himself. Vicarious performance is only a catch-all measure and does not preclude the application of enforcement measures. Case number.
Implementation: (2023) Hu 0112 Zhi No. 4942.
*: People's Justice, Issue 02, 2024.