Quanzhou Nanan criminal defense lawyer Huang 13599725433

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Author: Tianjin Municipal Senior People's court vice president Fan ChunmingRelease date: 2006-04-19 08:07:16

 According to the criminal procedure law and the judicial interpretation of the Supreme Court of the spirit, personal damage and destruction of property crime victims can file an incidental civil action. China's general principles of civil law in 130th and eighty-seventh respectively, the provisions of the "two or more joint tort causes damage to others, he shall bear joint and several liability", "each joint creditors shall have the right to demand that the debtor, the debtor shall bear the joint obligation; obligation, have to pay off all the debt obligations". So, in incidental civil action, common the crime against the accomplice shall bear joint and several liability. But the crime and civil tort in law application and execution has the difference after all, especially the civil liability of joint crime and how to deal with, whether in theory or have large differences in practice, so it is necessary to discuss.
 A, when the defendant shall bear joint and several liability of joint crime, whether the division of share

 In civil litigation, the court did not need to joint tort defendant according to a division of responsibilities, but the judgment shall bear joint and several liability can be, to be the actual liability by the bear joint and several liability of the defendant and other common tort compensation. In the common criminal incidental civil action, some people advocate also sentenced the defendants jointly and severally liable for incidental civil to, because the joint and several liability belongs to the scope of civil liability. The author thinks, the criminal supplementary civil action has its own characteristics, not equal to civil litigation. In the premise assume joint responsibility, it is necessary to the incidental civil compensation share the defendant also to make a decision, namely in the common crime in the position, role and the situation according to the accomplice to determine its damage results because of the size of the force, to determine the amount of compensation should assume its civil according to the effect size; some without the ability to bear its share of, shall be borne by the defendant other incidental civil. That is to say, the incidental civil compensation liability of the defendant civil according to responsibility as the basis, to bear joint guarantee. Have the following main reasons processed by this method:

 First of all, the criminal liability and civil liability should be consistent. The victim's damage is a common criminal defendants jointly behavior results, but the defendant on damage effect often has the very big difference, if the knife killing, some cheer, criminal responsibility is the reflection of the role. The essence of criminal law and civil law principle of fairness is reflected on, having evil function, therefore, the defendant of criminal responsibility and civil liability is consistent, namely the penalty weight and the civil liability is relatively large, the penalty of the civil liability is relatively small. Because the criminal supplementary civil action in criminal liability has been determined, it is necessary to distinguish between the size of the civil liability, so as to demonstrate the consistency of legal justice and legal logic.

 Secondly, the consequences of criminal incidental civil action is solved at the same time, the people square two kinds of responsibility. After the verdict, the defendant was sentenced to confinement punishment should be put in prison execution, the death sentence to be executed. In this case, the implementation of civil liability if the civil lawsuit pattern, namely a criminal bear all the civil responsibility, then to seek recourse against other criminals, is almost impossible. Because criminals in prison, not easy to conduct litigation, entrust a lawyer to handle and high agency fees; at the same time, the defendant did not bear civil liability is usually no compensation ability, during its serving no income also can not perform. In practice, no one will invest a large amount of the cost of litigation to seek not to achieve the interests of. Therefore, to distinguish between the various incidental civil defendant's civil liability size in the sentence has been determined, is conducive to the protection of the plaintiff and the defendant's legitimate rights and interests, but also conducive to reduce the burden of the parties and the court.

 Third, the criminal defendant for custody, and the civil liability in most cases by their relatives to deal with, to tie in with the defendant relatives. Therefore, the amount of compensation for each specific accomplice in favor of the defendant family's understanding and support, is conducive to the implementation, which is conducive to the protection of the rights and interests of the victim.

 Fourth, the establishment of the joint and several liability in order to fully protect the interests of creditors, every debtor both to the creditors to pay off all the debt obligations. The incidental civil first defendant to assume responsibility, when the accused person cannot bear its share of the other defendants, has the ability to undertake the obligation to bear, in order to ensure the realization of the creditor's rights.

 Two, the crime only part of the defendants to justice, how to determine the civil liability

 Common criminal crime often run around, and sometimes very difficult to capture, therefore, in the capture part of the defendants found out the basic facts, on their first trial. If a supplementary civil action, whether it should not captured suspect set aside share of compensation? There are different views, one view, should not arrested suspects leave share of compensation. For example, harm the common three people, among them two people arrested, according to the position and role in a joint crime, the two defendants should each bear 40% of the amount of compensation. The first decision they each take 40%, balance for third accomplices arrested after the verdict, but they deal with the amount of compensation shall be jointly and severally liable defendant, after certain proportion of backward recovery. The benefits of doing so is the accomplice between civil responsibility clearly. According to another view, should not be given to non accomplice reserved share of compensation. In the above case, should be two party civil liability judgment after each take 50%, to be arrested third accomplices, found on the amount of compensation shall bear joint and several liability. The benefits of doing so is to avoid not arrested suspects without trial set too. Third kinds of opinions on the accomplice is not brought to justice cases, treatment with reference to the civil litigation is uncertain, the defendant's compensation share, only sentenced them to bear joint and several liability can be dealt with, other accomplices arrested, convicted of it with the other defendants jointly and severally liable. The benefits of doing so is deficiency can avoid two opinions.

 I agree with the second opinion, the reason is: one, can be avoided without trial set too; second, the civil liability of registered accomplice is clear, is conducive to the implementation, fully protect the civil rights of victim. The relatives of the accused is easily accepted by a manner of compensation, if only one of them assume full liability, on the surface seems to be conducive to the protection of the interests of victims, but not with the relatives, it is very difficult to make the victim compensation. If the accomplice in only one person to justice, not to deal with according to share, the total damage liability.

 Three, accomplice liability limit behavior

 To limit the behavior of accomplice is the index of defendants in the process of implementation of common crime, the individual and the implementation of the infringement behavior outside the joint criminal intention. The limit behavior of accomplice, implementation to undertake the civil liability and criminal liability since there is no problem, but if the other accomplice to limit the behavior to bear civil liability have different opinions. A kind of opinion thinks, the defendant the limit behavior of the associated with the common crime, the defendant was not implemented to limit the behavior under certain conditions to limit the behavior should bear certain civil liability. For example, a to B to rape, gang rape of a woman after two, B to kill suddenly victim killed. Cause the homicide of B, B share the civil liability of Ying Youjia. There are different views, criminal, civil liability caused b commits murder behavior should be borne by B independently, because of intention and behavior no murder.

 I am inclined to the second view. Civil liability originates from infringement, tort cases only the implementation of joint act of tort occurs only when the joint and several liability compensation. In the above case, a and B, joint implementation of the rape crime, held jointly and severally liable for the civil liability caused by the crime of rape should be two people, but the act of killing B implementation caused by B independently assume liability. In the trial practice, the accused the limit behavior of no ability to pay, in order to fully protect the interests of victims, the limiting behavior as to common crime, through the mediation of the not implemented to limit the behavior of accomplice bear part of the liabilities for compensation, it is desirable.

Part four, the defendant in a case of joint crime is declared civil liability

 Defendants in a case of joint crime, because some plot remarkable slight, do not constitute a crime; criminal responsibility because some under the age of 16 but not for 8 felony behavior; others because of insufficient evidence acquitted. In 1998 the "Supreme People's Court on the implementation of the people's Republic of China '' criminal procedure law interpretation of several issues" 101st and the provisions of article 205th, the act does not constitute a crime, have to file an incidental civil action, should be made criminal incidental civil judgment. The declaration part the innocence of the defendant's case, the explanation is not clear, the author thinks that the reference to the interpretation of the spirit of the civil liability of the defendant, to be dealt with. The main reasons are as follows:

 First, the establishment of criminal incidental civil procedure purposes, is to solve the problem of civil liability in the settlement of the criminal responsibility of the accused at the same time. Because of the defendant's criminal caused the dual legal consequences, its legal liability is twofold. Therefore, at the same time, the defendant's criminal responsibility and civil liability is the inevitable requirement of incidental civil action and the end.

 Secondly, at the same time to solve the civil liability is declared part of the defendants not guilty of according with the principle of litigation economy. If the civil lawsuit otherwise, not only increase the burden of work for the court, but also to the relevant participants in proceedings brought unnecessary litigation burden, because the parties and witnesses, expert witnesses involved in a lawsuit activity in incidental civil action, in the civil lawsuit to try again. In solving the civil liability of a person being declared the innocence of the accused, to reduce the cost of litigation, is conducive to the protection of the legitimate rights and interests of victims, reduce the judicial lawsuit burden, saving judicial resources.

 Third, there are two kinds of understanding of "crime", one is criminal substantial law, the criminal judgment that crime the defendant; two is the crime litigation sense, refers to a defendant is charged with a crime, but whether the implementation of the crime, to go through judgment can be determined. On the premise of "crime" -- an incidental civil action, should be understood as meaning of the concept of litigation. Incidental civil litigation, the defendant in the criminal procedure, and the incidental civil action in criminal proceedings as soon as the track, they should be confirmed by the court and the criminal part of the defendant's criminal liability and civil liability. Some of the defendants were acquitted from the substantive law to solve the problem of criminal responsibility, the defendant at the same time, the civil liability should be resolved on the substantive law.

 That part of the innocence of the defendant of the incidental civil lawsuit has two ways: one is because of a lack of evidence can not prove the criminal, or evidence to exclude the defendant acquitted of the crime; two is because the crime plot remarkable slight, not deemed a crime. Two cases of different, processing way is different: for the first case, should also make the defendant shall not bear civil liability judgment, because the premise lost the defendant behavior caused by civil liability. The court should be clear in the judgment in announced at the same time the innocence of the defendant, the defendant is a crime because of insufficient evidence or crime is not the defendant, the defendant cannot confirm the implementation of infringement, should not bear civil liability. Cases of appeal or protest to the second, if the instance that acquitted defendant criminal facts are clear, the evidence is sufficient, can overrule the defendant acts constitute a crime, and sentenced him to bear civil liability. In second cases, with incidental civil to make judgment, because its behavior is illegal, in a tort facts of the case, civil liability for acts not acquitted and exemption. The court shall explain the defendant's conduct was slight in the judgment, according to the provisions of article thirteenth of the criminal law, is not considered a crime, but constitute a tort, shall bear civil liability for compensation. The amount of compensation for the bear, should be based on the determined in the common cause damage or destruction of property acts in the role, under normal circumstances should bear the least share.

 Five, not be prosecuted if common infringement should bear civil commitment

 142nd of the criminal procedural law stipulates: "for minor crimes, in accordance with the criminal law does not require punishment or be exempted from punishment, the people's Procuratorate may decide not to initiate a prosecution." Therefore, some common crime, procuratorial organs will be part of the common people made a deal with the non prosecution, prosecution of crimes against the relatively serious common person to the court. Then, without being charged co infringer is still liable for compensation? The author thinks, the "relative not to prosecute the defendant", but not be investigated for criminal responsibility, does not mean that the exemption from civil liability. Civil liability only in the law of the case, the court can absolve. The defendant not to prosecute the implementation of the common infringement behavior, produced the civil compensation obligation. Therefore, without being charged in the joint tort person should also be the defendant shall bear civil liability for incidental civil.

 Then, according to what program without being charged the common infringement civil liability? Provisions of the criminal procedure law of 119th civil: "must be a joint action if the parties do not participate in the proceedings, the people's court shall notify them to take part in the proceedings." Accordingly, the court may take the initiative to additional parties to participate in the litigation, the plaintiff may also notify the incidental civil action against the people sorry jointly file an incidental civil action.

 The legal consequences of six, plaintiffs of the supplementary civil action to prosecute only part accomplice

 According to the general principles of the civil law, because of the nature of tort liability of debt has. Requirements of common tort compensation is the right to request the law entrusts with the litigant debt, human rights in civil exercise can also give up, this is the decision of the parties to the civil rights. Plaintiff of the supplementary civil action may request the joint infringement of the defendant compensation, can also give up the right to request some criminals civil liability, but to give up on the claim right part accomplice debt, not aggravate other incidental civil responsibility of the defendant, which can not give up part of the civil responsibility to the other accomplice accomplice.

 Give up on civil liability claim part accomplice, means giving up the accomplice should be liable for the share of responsibilities, leading to its repayment interest reduction. Give up on the part of the civil claimant the accomplice of criminal incidental civil court, legal consequences should the interpretation of their behavior, to reconsider, and interpretation of record.