Note: in marriage family case agent and consulting, sometimes the parties concerned or the other party bigamy. In this case, whether the victim has the disposition right of action (including the selection of the defendant) and reconciliation with bigamy, human rights, whether the court will be in strict accordance with the victim will not ignore the principle of trial, in the final analysis is the interpretation of the criminal private prosecution system in china. In this paper, on the basis of this, to respond to the above problems.

Exercise mode, our country criminal prosecution

    Our country adopts the public prosecution and private prosecution system. Because of the public prosecution and private prosecution mode, the relationship between public prosecution and private prosecution is in fact a general and special relationship, and the relationship between content mainly depends on the specific design of the system of private prosecution. Our present private prosecution system is mainly composed of "criminal law" and "Criminal Procedure Law" and relevant judicial explanation to be provided, as follows:

    According to the "criminal law" article170And six organs "," decision "the Supreme People's Court on the implementation of the people's Republic of China criminal procedure law interpretation of several issues" provisions of the private prosecution cases, including:

(a) to be handled the cases

        1Insult, libel, (Xing Fadi246The provisions, but the serious harm to the social order and national interests except);

         2Violence, interference in the freedom of marriage (Xing Fadi case257In the first paragraph);

        3(Xing Fadi, abuse case260In the first paragraph)

        4(Xing Fadi, embezzlement case270Article).

Two. The victim has evidence to prove that they are minor criminal cases

       1, The crime of intentional injury ("criminal law" article234The first paragraph)

       2, Burglary case ("criminal law" article245A)

       3, A violation of freedom of communication case ("criminal law" article252A)

       4, Bigamy case ("criminal law" article258A)

       5, Case of abandonment ("criminal law" article261A)

       6, Production, sales of fake and shoddy goods

       7, Intellectual property rights infringement case

       8, The defendant may be sentenced to3Years of fixed-term cases

     (three) the victim have evidence to prove that the defendant infringed their personal, property rights acts shall be investigated for criminal responsibility according to the law, and the public security organ or the people's Procuratorate shall not be investigated for criminal responsibility in the defendant's case.

"Interpretation of the Supreme People's Court on some problems in the implementation of the criminal procedure law of the people's Republic of China":

Article 1 Criminal cases of private prosecution under the criminal law refers to tell just processing and do not require an investigation, handled directly by the people's court to minor criminal cases.

Article second The people's court accepts the following criminal private prosecution cases:

   (a) article 134th of the criminal law is the plaintiff and the defendant in the first paragraph, obviously belong to light damage, causality is clear, no need of the investigation of injury cases;

   (two) article 145th of the criminal law in tell just processing and does not require investigation insult, libel;

   (three) the first paragraph of article 179th of the criminal law of the violence of interference in the freedom of marriage;

(four) article 180th of the criminal law of bigamy case, but the people's Procuratorate prosecution except;

(five) article 181st of the criminal law breaking serviceman marriage case;

Article 182nd of the criminal law (six) first abuse case;

(seven) article 183rd of the criminal law case of abandonment;

(eight) the law shall be handled directly by the people's Court of other criminal cases.

Two, our country private prosecution system design

     From the above provisions, it is not difficult to see that, although China is also using the public prosecution and private prosecution in the criminal prosecution system, but the scope of the criminal private prosecution cases is very broad, including the first tell just processing cases, also known as the private prosecution cases of pure or completely private prosecution cases, more fully embodies the following typical characteristics of private prosecution the case:1, by the victim or his legal agent directly sue to the people's court, not by the public prosecution.2In court, in the process, the application of mediation, the plaintiff may arrange a settlement with the defendant in court judgment, can also withdraw prosecution.3, the defendant can raise the counterclaim in the private prosecution in the case. The counterclaim, is the defendant as a victim accused the prosecution has committed criminal acts are linked with the case, the people's court for trial.4The prosecutor must, refuses to accept a judgment (either as victims or as his statutory agent), have the right to appeal to the people's court at a higher level. Not satisfied with the ruling for the entry into force of the judgment or, have the right to lodge a complaint. Therefore, this case of private prosecution more fully embodies the disposition right of free will, closer to the system design in private prosecution and civil litigation connected.

The second kind of private prosecution, the victim has evidence to prove that is the minor criminal cases, also known as a case of private prosecution can choose.

The victim has evidence to prove that they are minor criminal cases in the criminal law of our country, refers to the first paragraph of article 234Th "light injury case", 245th "illegal encroachment case", 252nd "a violation of freedom of communication, the" 258th "case of bigamy," 261st "case of abandonment" and the criminal law third the first section of chapter stipulated "producing, selling fake and inferior commodities (except for the case of serious harm to the social order and the interests of the state), chapter third verse seventh" intellectual property rights infringement case (with the exception of serious harm to the social order and the interests of the state ") and belongs to the criminal law of the fourth chapter, the fifth chapter provides for the defendant may be sentenced to in prison the following punishment cases three years. The above eight kinds of criminal cases are often minor, causality is clear, clear the prosecutor and the defendant, do not need to take the means of investigation can investigate clearly, the victim to the people's court prosecution, the people's court shall accept the case according to law. The need to take the means of investigation to ascertain the facts the evidence is insufficient, or that the defendant may be sentenced to more than three years of punishment, it shall transfer the case to the public security organ for investigation.

Therefore, this kind of case is a case of private prosecution has two premises: one is the minor crime, otherwise, the people's court found that the defendant may be sentenced to three years or more severe punishment, they shall be directly transferred to the public security organ for investigation, that is converted to a case of public prosecution; two is the victim have the evidence, is not the investigation organ for investigation to save the judicial resources, carries on the design from the angle of. Conversely, if the people's court found "insufficient evidence to take investigation to ascertain the facts", also be transferred to the public security organ for investigation, rather than simply "dismiss", that is to say the victim is not simply can't bear the responsibility of proof. Moreover, in judicial practice, the cases, victims are almost all charges to the public security organs, rarely directly to the court.

Therefore, in "the victim has evidence to prove that the minor criminal cases", and said the victim in the litigation parties (the plaintiff) position, rather than its real status should be the case "the accuser" more appropriate.

Because such cases once to initiate proceedings, after the process, such as exercise and the withdrawal right, and the right solution, counterclaim right is not the free choice, the people's court has the right to the case according to the need to convert them into a case of public prosecution, once in the public prosecution procedure, the victim's legal status is corresponding also relegated to witness position (of course, can also be used as a supplementary civil action the plaintiff).

The third category is the public prosecution to private prosecution cases, the victim has evidence to prove that the defendant violated their own personal, property rights acts shall be investigated for criminal responsibility according to the law, and the public security organ or the people's Procuratorate has been made not to pursue the written decision on the case.Not a typical case of private prosecution, but in order to solve people's heads, and transformed by the public prosecution cases of private prosecution. This kind of cases compared with the previous two kind of private prosecution, has its obvious features: (a) do not need investigation, the victim to directly with the people's court prosecution is not only the need for investigation and evidence of criminal cases. If it is needed to ascertain the facts of the investigation, the victim can only to a public security organ or procuratorial organs complaints, seek legal protection, while not directly to the people's court. (two) nature, only to the extent and civil cases of the person, property rights, can not be arbitrarily expanded. (three) the time and conditions of prosecution is limited. Victim's personal property rights are violated, can have make a written decision shall not be prosecuted in the public security organ or the people's Procuratorate to sue to the people's court, the people's court only in the condition of accepting the case. (four) the nature of such cases is a case of public prosecution, and characteristics of private prosecution case, is not necessarily the minor criminal cases. May be the offence is a minor crime cases, may also be heavy case. Even the intentional homicide, robbery and other serious criminal offenses may also be a case of private prosecution, private prosecution cases and the general concept is the concept of the minor criminal cases. (five) does not apply mediation program.

Three, the crime of bigamy belongs to a case of private prosecution can choose

1The concept of the crime of bigamy

Bigamy, refers to a spouse and marriage with others, or knowingly marries a person who has a spouse's behavior.

2, constitute bigamy

(1The subject of the crime) is divided into two kinds: one is the bigamy, that has no spouse and dissolution of marriage and marriage with others. Two are married, knowing that the other spouse and get married.

(2) the object of the crime is a legal marriage.

(3Subjective elements of crime is intentionally).

(4The objective elements of crime) is a spouse bigamy knowingly or a spouse and get married. Includes factual bigamy, a partner with others in the name of husband and wife living together, or knowingly spouse and in the name of husband and wife living.

 From the "criminal law", "Criminal Procedure Law" and the judicial interpretation of the relevant provisions can be seen, in the private prosecution system in our country, the crime of bigamy belongs to "the victim has evidence to prove that they are minor criminal cases," a case of private prosecution is optional, private prosecution is not entirely in the sense of. Against the status of the victim is more close to the case of public prosecution, not the true sense of the private prosecutor, may at any time into public prosecution case. Therefore, no right to free choice of the defendant (or phase is bigamist marriage), can not be reconciled, unable to withdraw.

Reference material.

1Chen Weidong, editor in chief: "Criminal Procedure Law", Renmin University of China press,2004 Years9 Month version

2Gu Peidong: ", social conflict and litigation mechanism", Law Press2004 Years6 Revised version

3Rational thinking, Luo Zhiyong "public prosecution and private prosecution in China relations "

4Wu Weijun, "our criminal private prosecution system of reflection and reconstruction", "Journal of Hebei University" load(Philosophy and Social Sciences Edition2004  No.4 Period

5Zhang Mingkai:, "criminal law", higher education press,2003Year second edition