Maintenance, the formation and development of human cultural order, moral order, is the purpose of punishment.[1]

                                                  [] - day Zhongshan research

   [Abstract]This paper attempts to apply the statistical analysis of internal micro - macro study anatomy reformation path model, with major criminal incidental civil lawsuit compensation mediation as the breakthrough point, a comprehensive discussion on the positive side of criminal reconciliation system in major criminal cases and the negative, to reason about the criminal reconciliation system. The basic point is: the major criminal incidental civil lawsuit compensation mediation issues concerning criminal justice image, should carefully review the legal effect and social effect; the inner mechanism of mediation is the compensation of sentencing, is the core of stability -- justice; judicial status uplift in the economic and social activities, decided to from the macro relationship between judicial and social on thinking about important judicial problems.

    Keyword.Significant mediation for sentencing

 

   The criminal supplementary civil action system is for the purpose of program convenient victim lawsuit, the victim can use the power of the state to protect their own interests, to avoid excessive litigation burden, improve efficiency, and to make up the losses suffered in the criminal offense. Influence of theory of criminal reconciliation by the twentieth Century 70's Zhaoxing from the west, and improve the status of the victim in the criminal procedure in China, has been the theoretical circles and judicial practice circles damages of supplementary civil action in criminal proceedings. The scholar thinks, the criminal reconciliation procedure is not only limited to those "caused by civil disputes and minor criminal cases", the judicial mode can have a greater role in a variety of victims in criminal cases.[2]But the author thinks, the scope of application of the criminal reconciliation system is not simply "from light to heavy give extended application", should be careful consideration. Any system has boundary.

The so-called major criminal cases, legislation and theory has no clearly defined. The theory of criminal law is generally believed, the statutory minimum sentence of 3 years or more in prison crime called a felony, misdemeanor criminal called. In view of the criminal procedure law, the courts at the grassroots level and the intermediate people's Court of first instance criminal cases accepted different practices, the author from the angle of criminal procedure to determine the major criminal cases.

 

Analysis for major criminal cases, the criminal reconciliation system sample

The author collected2002Years to2009YearsAData related to city hospital in criminal cases of first instance. In particular to:

ACity Intermediate People's Court of first instance criminal cases of incidental civil compensation table (Figure 1)

The annual	The number of cases	The number of people	Understanding the number	The number of partial compensation	The amount of non compensation
2002	57	14	0	3	11
2003	43	16	1	7	8
2004	39	17	1	3	13
2005	43	13	1	5	7
2006	38	20	2	7	11
2007	29	13	1	6	6
2008	35	14	1	4	9
2009	42	20	8	11	1

     From this table can be seen, although the criminal reconciliation system in recent years in China before the rise, but in practice, and can match the practice has long been. In judicial practice, mediation has been run through the criminal supplementary civil action case always. Mediation is the success, also have failure. The author thinks, part of the compensation, also should be included in the scope of mediation success, because part of the compensation can partly meet the criminal value goal of the incidental civil lawsuit mediation--The victim compensation, also accord with the basic model of influence sentencing compensation operation of the mediation mechanism. Therefore, the understanding and partial compensation is classified as a class, without any compensation is classified as a class, continue to study.

Table percentage change (Figure two)

The annual	A number of cases	Relates to the proportion of incidental civil	After mediation compensation ratio	Not the proportion of compensation
2002	57	24.6%	21.4%	78.6%
2003	43	37.2%	50%	50%
2004	39	43.6%	23.6%	76.4%
2005	43	30.2%	46.1%	53.9%
2006	38	52.6%	45%	55%
2007	29	44.8%	53.9%	46.1%
2008	35	40%	35.7%	64.3%
2009	42	47.6%	95%	5%

    Figure two is a graph derived from. Have the following characteristics:AThe total number of criminal cases, showed a high low high change, and relates to the incidental civil litigation cases showed the ratio changes in overall low high, the change law of incidental civil litigation cases involving the whole change, and criminal cases of first instance is not directly proportional relationship;BA number of cases, involved in incidental civil action is basically constant, but the individual year increased slightly, the proportion accounted for the total cases in the long term40%Above, from the "quantity" of the component mediation of supplementary civil action in criminal proceedings in criminal cases;CGo through mediation, compensation ratio is low, high, reflecting the strengthening in recent years mediation efforts bring the effectiveness of the work, on the other hand, the mediation effects of elevated proportion must expand the mediation mechanism in the society, the evaluation of the mechanism must be in the contemporary social background. ComprehensiveB,CTwo characteristics, the author thinks, can make the following conclusion, assessment of public incidental civil lawsuit mediation mechanism of criminal compensation directly, will strongly influence the evaluation of the criminal justice system.

The criminal supplementary civil lawsuit petitions, wrapped around the table (Figure three) v.

The annual	Reach an understanding in cases, cases of appeal around v.	Part of the compensation in the petition, the number of cases around v.	No compensation case, number of cases around petition v.	Total
2002	0	0	2	2
2003	0	0	1	1
2004	0	0	2	2
2005	0	0	1	1
2006	0	0	3	3
2007	0	0	1	1
2008	0	0	2	2
2009	0	0	1	1

Figure three shows the compensation mediation cases petition, wrap v. is zero, this is incidental civil lawsuit mediation function most obviously, but also the most courts and judges the use value of the function.

 

The microscopic anatomy of two, criminal reconciliation system is applicable to the

1The host, mediation. Criminal reconciliation, mediation work by a collegial panel of judges presided over mediation, key matters, such as determining the amount of compensation, at the discretion of sentencing range after the understanding, generally by the collegiate bench trial in long participated, even by the court president, met great impact, high degree of social concern the case sometimes by chief participation. The relationship between compensation and sentencing in criminal with civil lawsuits mediation in the key points, very few contradictions seriously antagonistic case this relationship balance needs to grasp the president or the judicial committee. Here not only refers to the two sides meet host and mediate, also refers to the key issues in the process of mediation decision and promote.

2Participate in staff. Criminal reconciliation, mediation, the defendant in custody, and the victim or dead, or physical, mental damage, both sides are generally by relatives to participate in mediation. China "home" in the traditional culture of family and family two aspects, mediation, to talk about the people may be close relatives, also may be the relationship between more distant relatives, of course, the final decision in the near relatives. The defendant party to raise compensation, much to their friends for help, who are not directly involved in the mediation, but contributed to the mediation. Therefore, the mediation participants including the party, close relatives, distant relatives, friends etc.. Understanding of participation of personnel is very important, considering the larger social impact of criminal cases, criminal reconciliation of the mediation process shows the characteristics of openness, in the mediation of information has a strong tendency to spread, this and the civil case mediation relative closeness to have the remarkable difference. 

3To compensate, start work. In major criminal incidental civil lawsuits, the host will actively carry out by the defendant to compensate the work, is mainly based on the economic interests of the fill and the psychological trauma of comfort. The current criminal justice policy, allowing the host directly about the compensation in favor of the defendant sentencing. The defendant shall be considered in the amount of compensation, their economic capacity and sentencing requirements three. The mediation process is repeated, and finally in three cases:AThe defendants claim, the court or bright or dark agreed in his sentencing, compensation into the court account;BThe defendant, the lack of economic capacity, not full compensation, only to come up with some compensation into account in order to court, court sentencing discretion;CThe defendant, or due to the economic capacity of reason, or because the requirements are not satisfied, no current compensation. Sentencing is not for a fixed term, usually a range, or the maximum statutory penalty following a consideration.

4The victim's request, locking. The party on the basis of law claim for compensation, the mediation process, the host will further for the victim party determine the amount of compensation mediation. The host will introduce the defendant side of the economic conditions, so that the comprehensive consideration to their own interests and their economic capacity, the mediation compensation condition. At the same time, the requirements of the defendant and the victim party priorities. The victim's economic condition is an important factor in mediation can be reached. The party better economic conditions, an economic compensation and reduce the defendant sentencing will be low. The economic condition is not good, revenge will strongly, the possibility of mediation is very low.

To compensate and no order clear between work and locking the request, basically is at the same time, cross. In the mediation process, the defendant and the victim may also own contact, negotiation, especially both sides are acquaintances, friends or relatives. Self negotiation once reached, both sides can accept the punishment is often low, sometimes may challenge the minimum statutory penalty, at this time, the court sentencing the defendant and the victim may face on both sides of the side pressure, more passive.

5, mediation stage. Mediation in the criminal supplementary civil action case is divided into three stages,A, before the court mediation, task is to find out the defendant and the victim's compensation for the bottom line, the defendant's compensation ability, grasp the civil compensation related evidence;BCourt mediation, court, through investigation, a clear responsibility size, is conducive to the objective understanding of the case in families;CAfter the hearing, mediation, concentrate on find the problems, to play the leading role of the judge, pay attention to the use of kinship, friendship affinity, urging both sides to reach a mediation.

6, signed memorandum of understanding. After a series of mediation process, the amount of compensation and punishment may reduce the magnitude of the agreement. The court will require the defendant shall negotiate the amount of compensation for the victims into the court account, make the book understanding. At this time, the criminal supplementary civil lawsuit mediation is not the ultimate end. The court next to the last issue, criminal conviction and sentencing, the sentencing process is beyond the scope of this article, we want to point out is, once the final sentencing sentencing conditions than mediation formation, previously agreed to mediation faces overthrow may. The host will again according to the case of the defendant's work, to persuade them to accept the end of the sentence, such as the accused party does not accept the verdict, the court after the defendant's compensation returned. Of course, the consultation mediation before participated with the judge, judge, presiding judge, even the vice president, the possibility of occurrence is very low.

     As can be seen, the criminal supplementary civil lawsuit mediation has the following characteristics:A, and criminal proceedings are inseparable, sentencing is the key factor of success of mediation;BThe parties, mediation is a majority party collective, often in the mediation, the decision has no fixed identity;C, the mediation process is bundled, measurement of penalty and compensation intertwined, the host must have a sentencing judge;DThe amount of compensation must be current, payment, first enter the court account.

 

Study three, the criminal reconciliation system effect

The punishment is the outstanding embodiment of national power, power of punishment of criminal incidental civil lawsuit mediation and court private citizens in the mixed together, so the investigation of major criminal incidental civil lawsuit can not only solve disputes mediation effect from the law angle, should be placed in the macro social background.

1On the substantive law, the legal effect. Incidental civil litigation cases in major criminal mediation, the parties to focus between compensation and sentencing, conviction is never can be incorporated into the mediation framework, so the compensation and punishment decided the legal effect of mediation. The scope of compensation problem belongs to the private right of action, consensus or lossy law inconsistent effects are not. In our country criminal law, sentencing greatly, judges have the discretion to a certain. As long as the sentence in the range, can be said that the law will be realized. Intermediate people's Court of first instance criminal cases, significant effect, a high degree of social concern, no legal penalty sentencing in the outside environment. However, the effect of penalty, compensation mediation on sentencing will detract from the certainty of punishment. But in the death penalty, the certainty of punishment is more effective than severity[2]. In addition to the grass-roots court, whether in order to settle a dispute, to think of a way to (such as crime, the defendant sentencing plot) to meet the requirement of the outside the law? From the traditional "private" culture, it is not difficult to imagine, the victim in the external environment conditions, identity, this situation is likely to occur, so the legal effect called a discount.

2On the procedure law, legal effect. The criminal supplementary civil action case compensation mediation, the mediation factor also permeated in criminal proceedings. Compare the simple criminal procedure and the supplementary civil action in criminal litigation, we can find that, the simple criminal procedure, ascertaining the facts, conviction and sentencing, the whole process is at forward and closed, and the incidental civil action in criminal proceedings, as a result of compensation factor into the sentencing, on one hand, mediation requires host pre sentence, the pre sentence more produce and exchange in the rules of procedure of the case in criminal cases, the collegiate more is a process, not a final result, on the other hand, mediation open were brought into the criminal procedure, the defendant and the victim have the influence the final the verdict of a platform to go through various channels. Is a negative factor, process stability and openness of criminal procedure strictly speaking.

3The social effect, stability. The current prominent contradictions, disputes, maintaining social stability is an important content of justice. Mediation of supplementary civil action case major criminal built a platform for the exchange, both sides say, help to victims of the aggrieved party psychological dredge and comfort, to education and condemn the defendant. From the investigation of the case, the criminal supplementary civil lawsuit mediation is successful, there is no bound v., petition situation. There is no doubt, incidental civil lawsuit mediation compensation for criminal is sure to promote the work of maintaining stability, which is the fundamental driving force for the court, the judge to do the mediation work. Stable from two levels: victim and defendant's ease and victims of economic interests timely compensation to prevent the life predicament. In the petition and litigation, group make visit more serious situation today, the primary goal in holding stability and practice value has been localized to the political and legal work. Stability is a basic condition for the rule of law, China's economic and social development is the premise of the health. To prevent more damage criminal case evolved into social stability is judicial duties. But if we stand at the system level, we should see our pursuit of long-term, stable and orderly development should be stable, not a spur of the moment, a solitary dispute resolution. Mediation of the incidental civil lawsuit compensation to solve a major criminal, one thing, and whether it is conducive to the overall social development, it is obviously questionable.

4Justice, social effect. Judicial fairness is the lifeline of the. Our present criminal law theory advocated retribution mainly in the penalty area, complemented by general prevention and special prevention consider considering [3]Mediation of supplementary civil action case major criminal punishment, cause the same crime for compensation different sentencing; general prevention, if the perpetrator can be expected to reduce the sentence by compensation, may increase the crime intention; special prevention, incidental civil compensation is completed by family members, not the the defendant. So in the theoretical framework of retributive justice, incidental civil lawsuit mediation major criminal, sentencing lighter detract from the effect of fair.

Mediation theory framework of supplementary civil action in criminal cases for the criminal reconciliation system, the theoretical basis for the theory of restorative justice. Retributive justice to investigate crime, the criminal sentenced for the purpose, the restoration of justice is to repair the damaged by criminal social relations as the goal, pay more attention to the victim, the defendant and the national balance of interests.[4]The author thinks, mediation of supplementary civil action case major criminal, punishment of crime and taking into account the interests of the victim, the relationship between the defendant and the victim party tends to relax, really can achieve the restoration of justice to some extent. However, comprehensive retributive justice and restorative justice, justice is overall impairment. This is because:A, the more serious crime, the more severe punishment or penalty should be reflected, the value will be questioned;BTraditional culture, "small things with style, big talk about the principles of the mind", the public for different degrees of crime in the retributive justice and restorative justice's attitude is different;C, it should be noted that, the victim was seriously damaged in the interests, compensation, to ease relations, sentencing lighter results to accept their own unbearable circumstances, are essentially passive, the majority is "what it is to feel helpless.".

5Equality, social effect. In the wealth more evenly distributed in the society, for major criminal incidental civil lawsuit mediation, can achieve the sentencing of equality. In reality, a major criminal incidental civil lawsuit in the amount of compensation is generally higher, often hundreds of thousands, hundreds of thousands, of different families are not the same for the amount of capacity, the rich man to bear force is stronger, more poor people bear more weakly, so the sentence will evolve into more rich, people when sentencing a possibility bigger, more poor people when the smaller possibility of sentencing lighter. A penalty substantially on the inequality of this generation. Consensus is formed based on the mutual compromise on most occasions, and fair compromise mainly by the parties have equal status as the premise.[5]In general, the criminal supplementary civil action case, because of the amount of compensation is not big, can bear for most families, the inequality relative to less prominent.

6Social psychology, social effect. Western saying goes: the safety of the people is the supreme law. When it comes to social effect, we rarely take into account the social psychological level, because the so-called public opinion has been a variety of media instead of, as long as the media including network without negative reports, communication, social influence it even. The legal system should pay attention to the populace positive guidance and psychological hint, and not to cause the public to the fair question. At present, the widening gap between rich and poor, on one hand, money worship thought cause a temporary clamour, on the other hand, the "rich" "Chou Guan" psychological highlight. In this kind of power, wealth deepening citizens' sense of grievance, major criminal incidental civil lawsuit mediation after sentencing lighter, will further strengthen the mood, "expressed in criminal money" is the most intuitive. Gap between the rich and the poor need all kinds of justice to fill, otherwise, will evolve into the opposition between the poor and the rich, society tends to differentiation. Money effect regardless of whether reasonable, must be excluded in some system, society must have a piece of pure land in the bottom line of justice, major criminal cases should shoulder the responsibility.

So, the author thinks that the major criminal cases, the criminal reconciliation system is a has both positive effect and negative effect of the system, should be weighed carefully. With certain seer, limited to the case of a smooth, without making any reflection is a dangerous tendency.

 

Route four, feasible

Major criminal incidental civil lawsuit mediation mechanism for compensation-The sentencing, the core problem is dimensional stability-Justice. The author thinks, the system must first be fair, case stability can treat specific issues. Therefore, mediation of supplementary civil action in criminal cases should be reformed, we should distinguish the general criminal cases and criminal cases, of course, the "major" does not necessarily take the standard. Mediation of supplementary civil action case major criminal, can consider the three possible route.

1The performance, compensation for commutation of sentence plot.

Concretely speaking, a great criminal incidental civil lawsuits do not compensate mediation work, only to determine the amount of compensation, the compensation plot does not consider, in criminal judgment becomes effective, if the accused party active compensation for the victim's party, can be in prison as the commutation plot, commutation range shall be prescribed by law. This has several benefits:AEffect of criminal procedure, conviction and sentencing of exclusion of compensation "money", the criminal judgment justice feeling stronger;BExcluding the influence of compensation, "money" in the use of the death penalty and the penalty on, the immediate execution of death penalty, sentence is not possible, capital punishment on purely finally justice line;CBecause of the law, cannot be reduced to less than half the commutation of sentence, which makes the compensation effect on the sentence has a limit, but is unable to compensate people through careful renovation may also achieve the same range of commutation, the commutation of the sentence to avoid the essential inequality.

2Absolute abandon, related compensation and sentence practice.

In major criminal cases, regardless of sentencing or commutation of the sentence, not to consider the supplementary civil compensation. The compensation is a duty, task completion was given sentence on interests, hardly pass. The court should intensify efforts to implement the incidental civil lawsuit, so that criminals feel the dignity of the law. At the same time, the State shall establish special fund for victim assistance, party. Now aid amount but a few thousand dollars, too little. Consider a country assistance, on the other hand the country on behalf of compensation, the court execution after the money directly into the fiscal accounts. Country and year invested heavily in maintaining stability of the harsh environment, not to spend some money to create a crime. So, the victim Fang Xinan, the defendant chilling, the judicial authority to strengthen.

3, limit the scope of mediation, the applicable conditions of strict understanding. In the present system, to reduce the major criminal incidental civil lawsuit mediation negative effect, can be from two aspects: or will some of the most serious criminal cases out of the mediation, for example, may be sentenced to death cases, social influence is extremely bad cases, involving public safety case and so on; or shall pay mediation as one of the elements of the other provisions of understanding, some conditions, such as the defendant's criminal intent severity, the premeditated, brutal acts of crime is not suitable the understanding, for instance the defendant pleaded guilty attitude, the defendant first pleaded not guilty of not understanding etc..

These three kinds of path, the previous two belongs to the reconstruction of the system, the last one belongs to the practice of criminal justice. The author thinks, mediation of supplementary civil action case major criminal punishment, has touched the justice, equality, the need for legislation on the declaration to clear the legal attitude. In the criminal reconciliation system of the atmosphere, the reform of the judicial field, the need for specific cases of stable, the court or judge attitude is softening or even false, has solidified thinking is hard to change, so, reconstruction of the system is the fundamental.

 

Conclusion

Major criminal compensation in incidental civil lawsuit mediation-The model name, is to further implement the criminal reconciliation system, is essentially to solve the victim's material interests and make a defendant concessions. Although the victim's interests damaged life distress will evolve into a social problem, but now the country has been a financial resources to carry out the full relief, countries should jump out the compensation-The model, using the power of the state security punishment for severe crimes, penalty justice, equality, to promote social fairness and justice.

 

   (the writer Wang Changhe Chen JinghuaIn this paper, by the2011Provincial law thesis prize three; load"Zhoushan social science"2012No.2Period<A total of 106thPeriod ')

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