The problem of punitive damages in our criminal law

 

Introduction

 

    While they are the victim rights relief for various paths to explore, but also accompanied by a variety of confusion. To explore the system of compensation for the construction of punitive damages in civil field theoretical debates, criminal victim rights relief is full of criminal spiritual damage theory, are faced with the reality of the theory of special institutional obstacles. Therefore, the author thinks that whether it can be another way, from another level to search for the right relief way, so he came up with the idea in the criminal field of punitive damages.

The so-called criminal punitive damages, refers to the liability to pay compensation to victims of the crime is not only bear the compensatory and is exemplary, is higher than the loss compensation. Generally, the punitive compensation refers to the amount of compensation made by the court exceeds the actual damages. The concept of punitive damages in civil field first emphasizes on the purpose of compensation of the infringer, then the penalty purpose. But there is of special significance in the criminal field this concept, utilitarian he more prominent criminal objective, was to punitive damages as a means to achieve the purpose of crime prevention, it is about the criminal punitive damages in this sense is to punish, compensation subsidiary rights relief.

In addition, in the criminal field to establish this system does not have the theory and system obstacle too big. The first criminal liability has punitive is its inherent meaning; secondly, the current system allows for compensatory damages caused by the crime on the victim offender material loss, so that the system of punitive damages in compensatory damages is the system foundation. Therefore, the author advocates the establishment of the system of punitive damages in China's criminal criminal field, and tries to based on the history and current limitations of punitive damages system analysis to analyze the legal basis and the necessity and feasibility of establishing this system, and the system structure to explain, to further consolidate the basis of existence of punitive the compensation system of criminal.

    A historical investigation, criminal punitive damages

    The following author from "comparison method" the angle of the system of punitive damages in different destiny of China and the countries of Anglo American law system was introduced, and points out the complicated reasons of our country in recent years has failed to establish this system.

Speak Chinese ancient no criminal punitive damages system in the strict sense, the used fine, redemption, Ji Mei and other property punishment nature of criminal penalties, although it is to deprive criminals of all or part of the property,But this is different from the payment to the victim or victim criminal compensation. From a comparative law perspective of criminal compensation from compensation system of the ancient western. There is no criminal compensation system in ancient China, until after the new China established in China's criminal field until the compensation system, but this is only compensatory damages, does not have the character of punitive damages.

The Han Dynasty in China have "added responsibility into the officer" of the system, such as the "Zhouli · of Adam · Si Li note" cloud: "weapon, the killing of human thief spoils, and not into the county magistrate." The so-called added responsibility, is based on the original responsibility, plus a times. Added responsibility into the official system after the evolution, in the Tang Song era, formed the "times" for the system.

In the Tang Dynasty and the Song Dynasty in the legislation, there is "times preparation" system, namely double compensation, based on the original loss to the full compensation, plus a double compensation. Application of this system is mainly for stolen goods, theft. "Tang" and "Song punishment system" "sign on" provisions, "provisions are stolen, times, and preparation of" Shu Yi cloud: "that the thief to the greed is heavy, so make the times, that steal a ruler like syndrome, two feet." In the Song Dynasty later, found the thief double compensation, more is not reasonable, so the "recently stolen goods not sign times, times by law, V please".

In the Ming Dynasty, with the "times chasing money through" system, "Ming Hui, statutes, warehouse" "note law" states: "where to print the Bao Chao and Hong Wudazhong Tongbao, and ancient coins and exercise, the sale of all objects and tea folk salt tax, all sorts of curriculum and hear from offenders, rod one hundred. If all people will be issued to field the Treasury, Zhena all sorts course, to buy salt goods and each government escort confiscation of property, need to use the personal name back to remember, by examining. If there is no heart recognition test, receiving counterfeit, and pick out the bill through, tracing, handling people, staff one hundred, times the pay bills after cross, pseudo pick notes through burning, its folk Seki trading, also be used to make private notes. If not carefully distinguish test, error phase angel, staff one hundred, times of chase money through. Just ask to see the person, if the angel, and in accordance with the law." Here the "times chasing money through", is double punish.

Visible from the Han Dynasty "and the responsibility into the officer" of the system, and then to "Tang" and "Song punishment system" "sign on", until the Ming statutes to accept and use fake money to punitive treatment, has strong punitive color, but the double levy amount is reverted to the Treasury, is not as compensation to the injured party, this does not accord with the characteristics of criminal punitive damages. The true meaning of the system of punitive damages in the Anglo American legal system, most scholars of Anglo American law, the punitive damages initially originated in1763British judgeLord CamdenIn theHuckle v. MoneyIn the case of judgment. In America is in1784Years ofGenay v. NorrisIn the case of the earliest confirmed this system.18Century to19Century, punitive damages is mainly suitable for libel, seduction, malicious attacks, fornication, false, illegal occupation of residential, possession of private files, such as illegal detention the victim suffered loss of reputation and mental pain cases. To19By mid century, punitive damages has been generally accepted in the court.

Because the change after the law reform in the old Chinese, take the statute law, case law and not following the model of Anglo American law, the punitive damages suffered as in civil law countries, the same fate, no matter from civil or from the criminal did not be recognized. This China in the system construction more as a simple "use doctrine" role relationship. Of course, a national legislative experience from other countries and no ground for blame in the construction process, but it should be clear, any system of transplantation, is not technically simple rule following, more lies in the institutional value of its attached, we in the process of system transplantation should be based on a spirit of doubt and criticism on it identification, screening. However, due to the modern western centrism, simply to the continental legal form, classification and pattern as the standard for the legislation, since the late Qing Dynasty, the change Chinese legal system, most of which are "reform" (institutional change caused by legislative activities)--A kind of compulsory system change. And did not fully take into account the specific historical context, cultural tradition and realistic need, the legal system that are issued, or be idle or is not well adapted to the needs of the people to the right relief system, also failed to the relief of the rights established corresponding alternative measures.

So, in the design of our criminal system in Anglo American Law on the punitive compensation system to compensate for the current criminal system of rights remedy deficiencies have certain reference significance? Put forward this problem based on the normative level, it is necessary from the limitations of our current compensation system for analysis and review.

Analysis of the compensation system in China's criminal law two, the limitations of the specification

Based on the above results, because since the late Qing Dynasty in China in the process of system transplantation is taken by the statute law mode of continental law system, the punitive damages Chinese suffered as in civil law countries, the same fate, in the system was denied. Material damage directly in the field of China's current system only allows the victim for the perpetrators of criminal acts to claim damages, and can not bring the spirit and other properties of the compensation for damage, resulting in the current system can not meet the demand of the damaged rights relief. I believe that it is necessary for China's criminal law article36And the criminal procedure law article77The compensation for the interpretation, and should try to implement the system of punitive damages in our criminal law.

(a) to our country criminal law article36And the criminal procedure law article77The interpretation of the

    China's "criminal law" stipulates that the thirty-sixth : "where the victim has suffered economic losses as a result of a criminal act, the criminal received criminal punishment according to law, be sentenced to compensation for economic loss according to the situation. The criminals bear civil liability for compensation, and was sentenced to a fine, and its assets are not sufficient to pay off, or be sentenced to confiscation of property, should bear the liability for civil compensation to the victim."

China's "criminal law" the seventy-seventh stipulation: "the victim has suffered material losses as a result of the defendant's criminal act, in criminal proceedings, shall have the right to file an incidental civil action. If the state property, collective property losses, the people's Procuratorate, may file an incidental civil action. The people's court when necessary, and may seal up or distrain the property of the defendant." Here is the incidental civil action, is the public security and judicial organs in criminal proceedings, in resolving the defendant of criminal responsibility at the same time, and the compensation problems incidental caused by solving the criminal acts of the defendant's lawsuit material loss. The above two provisions provided from two aspects of entity and procedure of criminal incidental civil lawsuit scope, but also for the victims through incidental civil action for damages to provide a legal basis, but these only to allow victims suffered from criminal behavior economic or material damage claims, that only allows property loss compensation, and does not allow the property loss requirements of punitive damages, but does not allow non property loss about punitive damages. This not only can not fully realize the punishment for criminal purposes, also resulted in some non property damage can not obtain remedies can not obtain relief through the criminal way through civil way, this by China's "criminal law" thirty-six and "Criminal Procedure Law" seventy-seventh article about incidental civil litigation should have known.

In addition,2000Years12Supreme People's court "about the provisions of the" criminal incidental civil litigation scope of the second section of the first article clearly states: "for crime victims by the spirit of losses suffered an incidental civil action, the people's court shall not accept the".2002Years7Month15In law interpretation[2002]17"A number of whether the people's courts handle criminal cases victim of civil litigation issues concerning" further pointed out: " according to Article thirty-sixth of the criminal law and the criminal procedure law in our hospital in seventy-seventh and" Regulations "problem of criminal incidental civil action range of the first second paragraphs, for criminal victims because the defendant's conduct and suffer loss of the spirit of an incidental civil action, or concluded in the criminal case, the victim shall claim for compensation for mental damages in civil proceedings, the people's court shall not accept the."

Because of such restrictions, resulting in many non property damage can not obtain relief. The author thinks, should not only allow the victim to non property damage by criminal punitive damages to obtain relief, and property damage should also be allowed to obtain relief through the criminal punitive damages. Although some scholars believe that "the punitive compensation is often because of compensatory damages system can not be fully remedy the victims of circumstances", but I think that even the civil compensatory damages and can provide sufficient relief to the victim, it should not be used as exclusion applies to criminal punitive damages of reason, because of the nature and function of the civil compensatory damages and criminal penalty compensation for their different, only to allow victims of the property damage and non property damage all criminal punitive damages, in order to fully reflect the severity of criminal law, so as to achieve the purpose of crime prevention.

    The criminal substantive law and the procedural law of our criminal law and the criminal procedure law of the task including the specific contents of two aspects: one is the punishment, two protection. These two aspects closely linked, the organic unity, which means to punish crime, protect people's objective. More detailed words, implementation of criminal law and criminal procedure law task, realize the national penalty power which can both accurately and effectively safeguard the legitimate rights and interests as the ideal pursuit of the goal. At the same time, there are three main subject to judicial behavior in the criminal prosecution process interests: one is the maintenance of social security and legal order for the content of the social interests, the interests of the state; the two is the criminal suspect, the defendants in the lawsuit process legitimate interests; three is affected by crime direct violation the victim's interest. The three kinds of interests have different content and characteristics, should be the object of protection.

However, in judicial practice is to protect national interests, scholars pay attention to the maintenance of criminal suspects, defendants interests (though in a sense they have consistency). Of course, we should protect the interests of the state, should also protect the suspect, the defendant's interest, because to protect the interests of the state is the government provides that service liability for each of us, and each of us is the potential for criminal suspects, defendants, their rights can not be protected, every one of us security will be missing. However, in practical and theoretical circles, especially in the theoretical circle, the full maintenance of victim rights but not, say from a certain meaning, the victim's rights are ignored or neglected, this is our time out the rights of victims! But the victim criminal punitive damages is one of the effective measures to fully protect the legitimate rights and interests.

Maybe some people will think that, since the criminals have suffered punishment, there is no need to ask the criminal punitive damages to the victim, or the criminal requirements are too harsh, this is not fair to them, but if change an angle to think, we will find that by criminal behavior against the people, either mentally or physically have been great trauma. Especially the victim and his family was poor, to obtain the criminal compensation for them just a little more realistic, otherwise it will fall into the win lost their money cycle, it is to them a fair? Moreover, the perpetrator of the crime is harmful to the society and personal tort double harm of crime penalty, if responsibility is to maintain focus on the social order, the victim criminal punitive damages is to focus on the maintenance of its own interests (of course, this also objectively will reach to the maintenance of social order effect, but here, this effect is accompanied by), the two can not be confused. The judicial organ shall seek the balance between punishing crime and protecting the legitimate rights and interests of the victim, handling cases should strive to get the maximum social benefit, and to achieve this goal we must dare to break through the existing theory and thought the shackles.

To sum up, the lack of institutional defects and the current system has been difficult to meet the demand for relief of victims of rights system fully, the system of punitive damages in the criminal field has become an inevitable choice. The author attempts to types of criminal responsibility perspective and based on the criminal law article36Tiao Hedi37Normative analysis a closed rationality to attempt to prove that this system.

(two) to try to implement the punitive compensation in criminal law

After an analysis on the limitation of current compensation system, the author then properties on criminal punitive damages from the perspective of the type of criminal responsibility are classified, to attempt to set up this system. Criminal responsibility includes penalty and criminal punishment of non penalty methods, the author will criminal punitive damages is defined as the non penalty method category. Non criminal sanctions, collectively refers to various methods of other properties outside the people's court for criminal punishment criminal directly apply or suggest that the relevant departments for punishment. Law as a subsystem of social science, its nature itself decides that it is an open subject, law as the object of study of law, it should be an open system, but the provisions of our existing system of non penalty method is somewhat conservative.

    Our country criminal law thirty-sixth stipulation: "the victim has suffered economic losses as a result of a criminal act, the criminal received criminal punishment according to law, be sentenced to compensation for economic loss according to the situation. The criminals bear civil liability for compensation, and was sentenced to a fine, and its assets are not sufficient to pay off, or be sentenced to confiscation of property, should bear the liability for civil compensation to the victim."

    Our country criminal law thirty-seventh stipulation: "for the circumstances of the crime are minor and do not require criminal punishment, can be exempted from criminal punishment, but according to the different circumstances of the case, be reprimanded or ordered to make a statement of repentance, apology, compensation for losses, or by the competent departments shall be given an administrative punishment or administrative sanctions." (here the "criminal punishment" should be regarded as the synonym of criminal penalty) according to Article thirty-sixth of the criminal law and the thirty-seven non penalty stipulated in know my methods are mainly the following three categories: ① compensation for economic losses and shall be ordered to compensate the losses; the admonition, ordered to make a statement of repentance, offer an apology; and by the competent departments shall the administrative punishment or.

By above knowable, the non penalty method is not mentioned in the criminal punitive damages, but the author thinks that if from an open perspective rather than from the perspective of the law system of criminal responsibility of our country's words, also should include the system of punitive damages in our non penal system. Because only a penalty and non penalty method is to fully realize the victim rights relief. Moreover, perspective of criminal responsibility system in China from the world of non penalty power flow, can be found in species of non penalty measures China less and applicable limit.

Some scholars believe that although China's "criminal law" article36Article,37The provisions of compensation for economic losses, admonition, ordered to make a statement of repentance, apology, compensation for losses as a supplement or alternative measures of penalty, with a certain degree of progress and openness. But because of the limitation of the development of social economy and the measure itself, these finite non - penalty method largely unable to adapt to a variety of criminal to make quick, effective responses to the requirements of. And the non penalty punishment method is only limited in the lower "exempted from criminal punishment" of the situation can be used, which is limited in judicial application specific, which more reflects the closeness of the criminal law system, it is difficult to meet the people on the rights of the relief well system requirements.

The author thinks, no matter be criminals criminal punishment or exempted from criminal punishment, should not limit application of non criminal sanctions, and should further improve the non criminal sanctions system, only in this way can we achieve effective curb crime, the full protection of the victim to. Based on this, it is necessary to put criminal punitive damages are included in the system of criminal responsibility of our country. Break below the author to the function analysis of criminal punitive damages and the existence of the establishment of the system of barriers of the idea for legal basis starting point to explore the construction of this system.

Three, construct the legal basis of the system of punitive damages in criminal cases

    (a) the analysis of criminal punitive compensation function

On the function of punitive damages in the civil field to explore more,One yuan, two yuan, three yuan, said that four yuan and so on. But in the criminal field on the punitive compensation function is still very weak, the author first legal basis from the criminal punitive damages on two aspects of the criminal and the victim are the perspective of function of this system are discussed.

1Criminal punitive damages to the crime person's function

When it comes to compensation, the civil law has always been that, damage compensation function is to fill damage to the victim, "damage -- recovery" process is a damage restoration of rights, "the highest guiding principle of damage compensation is the compensation of the victim, in order to compensate for the results, such as damage accidents never happen however". Therefore, the punitive damages in the civil field natural no suitable space, this system is established in the countries of Anglo American law system. Recently, along with the two legal system and the theory of continuous integration in the continental law system, the debate about the punitive damages system rationality, the discussion of its function is one of the major achievements of this debate. In the criminal field, the criminal punishment is the proper meaning of the questions in the criminal law. So the author believes that the establishment of punitive damages system in the criminal law theory does not exist obstacles too big, and the author thinks that criminal punitive damages have stripped and curb the criminal (punishment) two functions:

(1Deprivation of function)

Criminal punitive compensation function is defined by the application of punitive damages to deprive criminals of property to the victims of the crime again, loss of material base and condition of the function. With the reform of the non penalization of contemporary criminal law, criminal punitive compensation function is more prominent. Non penalization as a theme of contemporary world criminal law reform, as a direct requirement of the principle of criminal law in modern criminal law basic criminal policy.

The restraining criminal law, refers to the criminal law should be used as the last line of defense against social violations, violations can be adjusted by other legal means as far as possible without the means of criminal law to adjust. The restraining principle of criminal strict statutory penalty ring contraction, widely used alternative penalty measures. In not applicable penalty, non penalty treatment by other means can also achieve the purpose of crime prevention and control, is the exclusion of applicable to non penalty treatment means of punishment. Criminal punitive damages is not only one of the effective alternative measures the penalty, but also with the penalty measure and, through to deprive of the criminal's property, can make the loss of assets and the material basis of crime again, and can achieve the purpose of compensation for victims. In America famous in the case of Simpson, although Simpson was not punished, but the case did not end, followed by white jurors jury deliberation mainly in six days, ruled that Simpson is responsible, the jury asked Simpson to pay2500Million dollars in punitive damages.

 However, the punitive compensation is different from the criminal incidental civil lawsuit of compensation. China's current system of Civil Lawsuit Collateral support only the victim's material loss direct claim, do not allow the victim to obtain additional compensation. Therefore, the criminal incidental civil lawsuit of compensation is not deprived of function, the function can only be called compensation function. But the criminal punitive compensation is different, the nature of criminal compensation determines the severity of the penalty, the criminal of property deprivation not satisfied with the compensation to the victims, and deprivation and more focus on the criminal recidivism ability and conditions. Visible, deprived of function is an important function of criminal punitive damages. Function and effect of the limit or deprive the recidivism ability and condition, is the purpose of criminal punishment doctrine thought they should be the product of criminal punishment doctrine thought.

Retribution is rooted in human ingrained "There is justice in this world." retaliation, retribution doctrine that punishment is reported, the guilty must be punished, punishment will himself, only the pursuit of justice and revenge restoration of human emotional satisfaction, not considering the penalty of utilitarian purpose especially the necessity of preventing recidivism. And to focus on the crime punishment harm degree of the penalty is always passive, negative, in vain, advocate the penalty must be reasonable objective is to achieve social defense means, implement the service behavior to harm society objective must be to prevent is harmful to the society and people, the individual situation of each offender as the standard to determine the individual the penalty. Purpose theory of punishment in the see the limitations of the traditional penalty function and actively advocated the purpose of criminal punishment idea at the same time, and actively explore the compensate the insufficiency of "alternative penalty measures", put forward the non criminal transaction limit punishment scope of crime.

The author thinks, doctrine of retributive punishment has its reasonable factor but also has its negative side, the pursuit of justice is criminal law, including all the legal nature, doctrine of retributive punishment justice restoration and human revenge emotional satisfaction, no ground for blame, but it does not take into account the prevention of recidivism, we should adhere to unity retribution and prevention, the scope should be defined in the reward according to need to deter or correction to achieve the purpose of prevention; although the purpose of criminal punishment doctrine saw limited penalty function and attention from the individualization of punishment to remedy this defect, but to a certain extent, ignored the inherent principle of criminal punishment commensurate with the crime make much of the crime shall be sentenced to multiple penalty. But, fortunately the actively explore compensate the insufficiency of "alternative penalty measures", put forward the non criminal transaction limit punishment scope of the crime, the limitation of the traditional penalty to the crime of passive, afterwards, punishment function to overcome in order to. Criminal punitive damages is to be able to skillfully to deprive criminals of property and the victim's loss compensation together, overcome the property punishment applicable income property is owned by the state, and not to take into account to compensate the victim's functional limitations of non penalty Rizos. Its natural became an integral part of the alternative penalty measures play a penalty, the irreplaceable special function of deprivation.

(2) contain (punishment) function

In economics, based on cost-benefit analysis, when the responsibility cost expected greater than the illegal income, and this responsibility cost reality very high, can effectively curb illegal behavior. Similarly, the core economic analysis of criminal law lies in the relationship between cost and output analysis, through the rule set and the system arrangement, the criminal law reasonable living, make the criminal law cost the rational allocation of resources, has the benefit of. Although we cannot completely eliminate the occurrence of crime, but we can set up a system for the cost of potential criminals, by allowing them to "buy" to obtain a crime. If the cost is too low to deter crime, but if the cost is high enough, then the desire to commit will naturally a trade-off, through the establishment of criminal punitive damages system in the criminal law, the crime of the crime as the cost is greater than the gain therefore returns, the weakness or not "buy" this right, nature can be played on the crime of criminal law function, and can play the role of special and general prevention.

Criminal punitive damages system through to the education and prevention effect of specific on the behavior of my punishment, its function is similar to the German penal code article38On "the property punishment and extended recovery" can play a role of provisions. Although it is not the criminal compensation sense of punishment, but its adopted a principle in German discussed the current criminal policy of occupation and group sex bribery should take is to consider the special purpose of prevention, to combat crime organization through confiscation necessary financial crime. Criminal punitive damages system and German penal code article38The provisions of article has different approaches but equally satisfactory results in essence, at the same time, the punishment can alert other intends to carry out unlawful act, can play the role of good general prevention.

Criminal punitive damages as a non penalty method, must play its proper containment functions, criminal law regulation and intensity of course has its defects lie. However, the criminal law regulation strength too weak with the same cost, mainly for the protection of criminal law to the society and its members inadequate or ineffective, lack of criminal punishment and correction, so that the implementation of weak criminal law become meaningless. As the ancient philosopher Xunzi said: "crime and punishment to the light to heavy, mediocre not do evil, chaos Mo Dayan." This is not only a great waste of resources has been limited to the criminal law, but also to the individual freedom to ignore.

This involves the collision problem of conflict and value of different interests, punishing crime and protecting human rights is the contradiction of the. Reality is sometimes cruel, when conflict occurs between the value of the time, in order to obtain the value of some interest or do something we had to make a choice, or certainly a value of a value or negative with opposition, we should weigh between the punishment of crime and protection of human rights, to seek the balance point between two kinds of value. When vulnerable victims suffered strong crime people especially the relatively strong financial strength of crimes against the people, we should give full play to the role of criminal punitive damages containment function, in order to balance the interests of both sides of the conflict, to achieve substantive justice.

The criminal is not only the conflict between the individual and society to victims of abuse, but also the conflict between the individual and the individual, or someone forced to others. And this kind of conflict and forced any society are inevitable, countries can only and must be punished, namely a kind of forced to stop compulsory. In order to avoid the private strength relief, maintaining social stability, the protection of personal freedom. Since the mandatory and between individual and social conflict is inevitable, we should seek to minimize the damage to a variety of ways to minimize the criminal punitive damages, with its special punishment to deter crime, has the irreplaceable special containment function.

2Criminal punitive damages to the victim's function

The victim as a direct object against the crime, the criminal punitive damages has certain effects on the. Serious violations of the victim not only suffer from a person's pain, but also suffered mental and material loss, strong desire for revenge if not meet very easily lead to private revenge, social order and stability will face challenges. Therefore, to stop the only effective way private revenge is the country through the use of criminal sanctions on the criminal right(Criminal sanctions powers, the country is required to bear the legal consequences of crime according to power. The majority of scholars called it the "punishment" but also the scholar thinks as a result of the exercise of power of consequences, although in most cases the offender is punished, but there are also other non criminal penalty, so that this power for criminal sanctions right accurately, I agree with the latter opinion)Let the criminals on the victim's loss of material compensation, to meet the requirements of justice. This makes the use of criminal punitive damages has two functions of compensation and comfort to the victim.

(1) compensation function

Compensation, refers to the crime person once the criminal prosecution, the victim suffered by crime material losses can be offset. Some scholars believe that the applied suffered by crime victims of personal injury and loss with criminal sanctions and get compensation, although the function of punitive damages compensation than the punishment or containment functions in a secondary position, which strictly speaking belong to civil sanctions, but its crime by criminal penalties for the premise, and the occurrence of in criminal proceedings, thus can be understood as the punitive compensation to the victim an incidental function. I think this view has some rationality. Strictly speaking, the nature of criminal punitive damages itself determines its compensation function, because punitive damages includes compensation, it is based on compensatory damages only reflects its punitive, though its compensation function with respect to the penalty function is attached.

(2Comfort features)

To appease the mainly refers to the application of criminal sanctions and enforcement on the offender, the victim can meet the requirements of strong desire to punish crime in a certain extent, can cause calm crime indignant mood, make the mental trauma can be soothing, liberation from the deep pain caused by the crime. In a sense, this is a product of doctrine of retributive punishment, because the victim in the hurt, will produce hatred to the crime person, eager to punish crimes (including criminals criminal compensation for its) solutions to hate.

   Countries through the crime has occurred in a timely manner to the criminal prosecution, the necessary punishment according to law can make the victims and their relatives and friends feel from the punitive compensation deterrence to the legal protection of God is not in the protection of their legitimate rights and interests of the criminal punishment, inevitably, to comfort for their own or family life safety, health or property and anxious mood, meet the instinct need for revenge, to quell the anger and hatred to avoid private revenge, enhance the sense of security, to restore its psychological balance. So they can absorb the victim discontent, maintaining social stability. It will reassure identified as one of the criminal punitive compensation function is also It stands to reason..

   (two) get rid of the absolute partition method of public law and private law idea obstacle

Absolute partition a idea obstacle is the private law and the establishment of punitive damages system in criminal law concept, think current, punish and deter the illegal,It is the state's responsibility to maintain social order and public interests, the state of the criminal punishment by the exercise of power of penalty, in order to safeguard the rights and interests of the private, private law does not have the function of punishment. The criminal compensation to financial compensation to victims, nature does not belong to the scope of criminal law at. The National Center for the current doctrine or state supreme law, long history and culture accumulation is not only our results, but also with the continental legal system of modern public law and private law accepted the absolute partition theory. The absolute division of civil law countries emphasize private law and public law, is the task of safeguarding the public interests and social order, its function is to punish and sanction violations, the task of private law is the interest dispute adjustment between private, economic compensation and relief to the victim, private law does not have the function of punishment and the punishment of illegal. This idea has become the obstacles of ideas of establishing criminal punishment compensation system.

The absolute division of public law and private law is based on the political state and civil society on the basis of the absolute division, with the differentiation of civil society and political state formed the social structure of two yuan. In this two element social structure, human nature has a dual nature, this is the citizen and citizen opposition. The state is a political organization, as citizens lived in political life, and civil society is an economic organization, as citizens enjoy the material life. The criminal law is the embodiment of national power, which belongs to the category of political state, is a public law. Therefore, the criminal law is limited to the adjustment of public relations, the relationship between individuals only relates to the society, to enter the criminal law field of vision. The civil society is a private field, adjustment does not belong to the scope of criminal law, the idea of civil society and political state division and private social structure of two yuan absolute division limits the application of criminal punitive damages in a certain extent, so that in the criminal field of criminal punishment only fine applicable space without application of punitive damages of the room, which prompted the author to doubt the rationality of law philosophy. To get rid of this idea, the author made a analysis of political state and civil society theory of absolute division of illusion and criminal punitive damages and fine nature differences.

1A theory of illusion -- absolute distinction between political state and civil society

Based on the civil society and political state of absolute division of public law and private law based on the theory of absolute division, like castles in the air, the lack of practical rational support. Absolute demarcation in the realistic society there was never a political state and civil society, also there is no absolute division of public law and private law, private law factors in public law, private law contains public components, is always the reality of law. In addition, in modern society, the privatization of public law, private law has become a general trend in a legal development, adhere to the traditional public law and private law idea of absolute Division has apparently be inopportune or inappropriate. Although China's law in the form is composed of many departments, each department plays a value judgment and the interests of different regulatory functions, but from the perspective of legal integration of China's legal system, the value consensus departments method can at least reach a minimum at the basic principles of legal approval level. In a sense the punishment is the inherent character of all legal or should have, only punishment and severity is different. Therefore, should not the function or task conflict of public and private law, parallel lines are not never intersect, sometimes there will be some fusion. One of the consequences of the absolute division of public law and private law idea of law leads to the result that the criminal punitive damages should have the function of punishment of doubt and superstitions to pecuniary punishment function. Therefore, necessary and properties of the similarities and differences between the fines are illustrated.

2Identifying the nature of punitive damages and penalties of criminal

In western countries the fine punishment originated from the ancient compensation system. With the development of compensation system, pay the money become a fine to the state, and pay to the victim or victims of criminal compensation money become. In ancient China, only the fine nature of the punishment, no criminal compensation system. Fuzzy boundaries and fine properties on the theory of barriers to apply the punitive compensation system of criminal is that people, that through the application of fine can be achieved on the criminal punishment, it is not necessary to apply the criminal punitive damages to the realization of the criminal punishment, but the practice has proved that the penalty is too broad, is not accord with the historical the development trend, in nineteenth Century seventy in the late 1990s some countries in Western Europe, appeared in the reform of criminal law in the "tendency" non crime is a good example of. At the same time, as the scholars think, the fine punishment is a good means of punishment, but it also has its inherent defects, large-scale application of fine penalty will make crime epitaxial expansion, greatly increasing the judicial organ "criminal burden", resulting in tremendous waste of judicial resources. In addition, fines and criminal punitive damages play different functions, plays an irreplaceable role in each other, specifically: (1) fines and criminal punitive damages applicable after the interest of different, the former belong to the state, the latter by the victim enjoy (2Application of fine penalty) belongs to, criminal punitive damages belong to the criminal compensation, non penalty treatment (3Fine) as a punishment, usually thought to have deprived, transformation, deterrence three functions. But the criminal punitive damages has deprived, containment, compensation, to appease the four functions. Criminal punitive damages system not only has the theoretical basis, and the establishment of the realistic foundation, the necessity and feasibility of.

Four, the necessity of criminal punitive damages system structure and feasibility analysis

 The emergence of any new things are certainly has its rationality, which is the new thing strong vitality, and that there is a reasonable, but it should be reasonable. New criminal punitive damages as China has not yet institutionalized with the existence of the following three aspects of rationality.

   (a) the establishment of punitive damages system of criminal is conducive to crime containment

Although penalty can deter crime, but any system has its shortcomings, the penalty system is no exception. The purpose of the punishment debate has lasted for centuries, the penalty purpose of retribution and prevention two antinomy that clash punishment and prevention, triggered a sentencing difficulties.

Some scholars believe that prevention is divided into general prevention and special prevention, general prevention can be divided into general prevention positive general prevention and negative sense. General prevention of the negative sense is to modify the penalty equal to the responsibility and punishment from the quantitative aspect, but everyone needs to take responsibility and accept the sentence, do not have to bear the responsibility to prevent others to commit a crime. Therefore, do not allow to its liability rather than the original punishment heavier penalty, followed by the special prevention, in order to prevent dangerous crime, the preservation society, if he sentenced to more than he should bear the responsibility heavier penalty, conflict that will and responsibility principle qualitative. So the preservation of the requirements of society should also be regarded as one of the non penalty measures of criminal punitive damages to complement and not simply by the penalty to achieve.

The criminal liability of punitive damages the author defines it as non criminal sanctions, the containment function and severity is different from ordinary civil liability, punitive damages liability criminal, is generated based on the illegal -- a serious crime. The general civil liability unattainable advantages, has the containment and special protection function. In addition, the criminal liability of punitive damages has the duality of compensation and punishment function, and the civil liability of ordinary only has the compensation function, and the civil liability of common in prosecution sequence also should not be the same, because it is based on the crime caused by, punitive damages should be in the first position of criminal investigation. When a violation of civil legal relationship to a certain extent, only by the civil compensation in general has been difficult to achieve the relief to the right, then you need the help of criminal punitive damages to the victim's relief. And the punitive compensation responsibility has obvious attributes of criminal punishment, compared with general civil liability compensation attribute with harsh punitive. Therefore, criminal punitive damages liability, relative to the file an incidental civil action against civil liability is strict punishment, it can successfully achieve the perpetrators of the containment function.

(two) the establishment of punitive damages system is conducive to the protection of victims of criminal

As we mentioned, victims and their families can bring criminal incidental civil lawsuit to win economic compensation, if these damages can pay to the victim, the victim's interest will form a certain protection. If the victim has suffered physical damage,The funeral expenses, the cost of bringing up children, medical expenses, loss of working time fee and other material loss with the penalty imposed on the offender and the corresponding compensation. But if suffered mental damage, the loss is difficult to evaluate with money, its compensation function cannot play.

And China's current criminal field does not support the claim for compensation for mental damages, therefore, only through the criminal punitive damages to implement relief to the victims' rights, can overcome technical barriers, and has some realistic basis. As Posner said, if in minor criminal cases, due to compensatory damages amount is small or difficult to prove, the prosecutor may not be positive cases, in this case, if not the system of punitive damages, the victim may adopt the method of private remedy to punish perpetrators. This will lead to anarchism and social anomie, national legal mechanism will be overhead, will make people lose of dispute settlement platform through legal channels. From the criminological perspective, if the property rights are not substantive relief, possible role conversion between the victim and the offender. The German criminologist Hans Hentig in the "interaction" of criminals and victims in an article once said: "the victim's economic status inequality, will lead to hostility and resentment against criminals and their families and society, may commit a crime,Lead is transformed from the inverter to the offender, and will cause the victim and the public to include criminal justice, law and order is not a sense of trust, and weaken the function of criminal law." Therefore, the establishment of punitive damages system can not only strengthen the criminal judicial mechanism, maintaining social stability, but also can avoid the victim to violence riot, also embarked on the road of crime, so as to achieve the protection of the victim.

   (three) the establishment of punitive damages system is conducive to the realization of substantive justice of criminal

    Rawls thinks, the substantial justice refers to the system of justice, formal justice is a kind of method. In fact, the formal justice is the general rules apply equally to all subjects and the general situation of the. While the substantive justice only emphasize the application of specific legal relations in the object, law should be specific, individual, specific and meet the specific purpose of demand.

Some scholars believe that, although the general damages is fully reflected in the form of justice, which is the most fair means damage to the victim recovery, and it reflects the product trading relations, fully embodies the fairness and making compensation for equal value principle of civil law. In general, the general damage compensation is the most fair to carry on the protection of victims and the most effective way. However, the general damage compensation can not solve the crime and justice for the victim caused various damages disputes, because of the fact that such rules to consider only the judgment of damage, but did not take into account the gap between the rich and the poor ability in compensation for the difference caused by. This makes him can not completely account of substantial justice of individual case. The author thinks that this viewpoint can be agreed, it is due to the fact that the compensation for damage is generally considered judgment of damage, can not carry out substantive level value balance, which doomed it difficult to assume the task of realizing substantial justice, and criminal punitive damages as a rule governed society is important one annulus, can undertake essence the realization of justice mission, it can be different according to the crime of the gap between rich and poor, to adopt a different standard of compensation, which can overcome the gap between the rich and the poor ability in compensation for the difference caused by the limitation, therefore, established in China's criminal law in criminal punitive damages system is the embodiment of social fairness and justice, realize the beneficial exploration of essence justice.

System structure five, criminal punitive damages

Since criminal punitive damages system has its legal foundations and the necessity of the reality, it is necessary for us to construct the system carries on a discussion. The system structure of the criminal punitive damages is the problem of skill, but from the criminal system utilitarian perspective to consider, in order from the Civil Punitive damages, the author combines the theory of criminal policy are constructed on this system from the establishment of this system and the applicable conditions of perspective.

   (a) establish criminal punitive damages system

To build a new criminal punitive damages system, need to balance and coordinate all aspects of benefits, it has exceeded the legal problem alone, and relates to the criminal policy, because through the establishment of criminal punitive damages system to prevent the crime and to compensate the victims, it is bound to reflect its punitive, the criminal to pay several times or even more the loss caused by the price, this is clearly and the principle of suiting punishment contradicts, and criminal punitive damages can break through the barriers, is based on criminal policy.

Appeared in the modern sense of the criminal policy is the direct outcome of the development of purpose theory of punishment, purely because of the retribution punishment to criminal sanctions as an end in itself, based on the severity of criminal responsibility, any "artificial regulation" room does not exist in the criminal sanctions, and the artificial regulation is the embodiment of policy. At the same time to implement the criminal policy, it needs to be specific for all the systems and measures, the general provisions and the specific provisions of criminal law in China shall be given a heavier, lighter, reduce and exempt from punishment regulations and specific discretionary activities is the embodiment of this criminal policy. The nature of criminal punitive damages itself has decided that it will be is a product of the criminal policy. Because, the specific amount and the amplitude of criminal punitive damages will be for the judge to decide and regulation, this will make the judge have a large amount of discretion, and the reality on the basis of this discretion is the criminal policy. To explore the establishment of criminal punitive damages from the angle of criminal policy, which seems to have been beyond the scope of the study ability, but the relief to the new system and the right "to" based on, I still had to specific building mode of this system and put forward the following opinions.

The character of compensation and civil compensation in general different, criminal punitive damages should be compensatory damages the amount determined as the foundation to reasonable, punitive and should highlight its criminal compensation, in the construction of criminal punitive damages system, from the following three aspects:

1Can try to a crime related amount as the basis for determining the amount of compensation according to the certain amount or proportion

     First of all to the lower limit, so that it can fully reflect the damages and punitive, curb crime effectively, protect the legal rights of the victims; at the same time, in order to avoid the judges have the discretion to large, balanced embodies the protection of the legitimate interests of the parties of both sides, can try in the general principles of criminal law set a maximum limit of criminal punitive compensation, avoid determine criminal punitive damages at random, leading to the judicial injustice.

2To consider the various factors

(1) criminals property status, ability to pay;

(2) crime whether the recidivism and profitability;

(3Means of crime, the way), the damage and its social influence.

3In determining the criminal punitive damages are caused by the damage to the crime person distinction

To distinguish the criminal the victim damage, which is the property, which is mental, when determining the amount of damages should adopt different criteria, in order to maximize the realization of criminal punitive damages to the criminal punishment, and stripping function as well as to the victim compensation, comfort features.

(two) the applicable conditions of punitive damages system in criminal cases

Based on the constitutive elements of crime as the basis, applicable conditions from the subjective and objective two aspects to define criminal punitive damages. Think it should have suitable conditions for the following three aspects:

1Have the gross negligence or intentional subjectively

 Given the severe criminal punitive damages liability, strict liability, because the behavior person's fault often determines whether or not the application of the system, and the system of punitive damages in the criminal is a criminal who causes losses to the victims held by the gross negligence or intentional mental state, therefore, only in the behavior of people in order to have a intent or gross negligence case application, general fault or no fault can not be used, the only way to balance the protection of the legitimate interests of both sides, avoid the abuse.

2Objective to conduct serious harm

Because the criminal punitive damages to punish, so they are generally not suitable for minor offenses, only for serious antisocial behavior, when using the penalty method (such as fine) it is difficult to achieve effective containment of criminals and make up the victim's psychological trauma, the non criminal punishment criminal punitive damages to the relief of the rights of victims.

3Damaging consequences

Because the criminal punitive damages to punish function itself also contains a compensation function,So, in the application of criminal punitive damages when the victim must first prove that there is a real damage, and the damage is cause of crime.

Six, the conclusion

The emergence of any new things, have or will face many obstacles, this is a process of value game. But both the theoretical obstacles or obstacles to the system, in order to look at the foot of reality, not worth mentioning, because the social demand for the system, control of the anomie of social and relief to the rights of the victim is the mission and value of the law. As USA society school founder Pound said: "although the value problem is a difficult problem,But he is the legal science can't avoid,Even the most rough, arrange the most cursory or play fast and loose relationship adjustment or behavior,Behind it there is always some criteria to evaluate conflicting and overlapping interests". The discussion above I think from the historical evolution of punitive damages with local resources on the establishment of this system in our criminal field not or cultural and traditional advantage based on. Therefore, will be faced with other established new system of equal or greater resistance and do not understand, but this should not become us to withdraw or reason to escape. As I said before both the theoretical obstacles or obstacles to the system, in order to look at the foot of reality, not worth mentioning, because the social demand for the system, which is our motivation to study this problem. We should try to make it institutionalization and to provide the theoretical support for the primary system, lay the foundation for further research on this issue in the future in order to.