The criminal supplementary civil action, the past judicial practice and relevant laws, judicial interpretations are ruled out criminal incidental civil action accepted the request for compensation for moral damage, but also eliminate the victim in criminal proceedings after the end separately claim for compensation for mental damages litigation, this practice in the judicial practice has been controversial. But with the "tort liability law" promulgated, the author thinks, the spirit damage compensation for victims in criminal cases should be supported.

   "Tort liability law" twenty-second stipulates: "the other person rights violations, causing serious mental damage, the victim may claim compensation for mental damage." At the same time the law the fourth regulation "tort person for the same act shall bear administrative liability or criminal liability according to law, does not affect the tort liability." The fifth article stipulates that "the other laws have special provisions on tort liability, such provisions." The mental damage compensation can be based on "tort liability law" the provisions for support, the key is how to understand the "tort liability law" article fourth, article fifth the exact meaning and how the criminal supplementary civil action the spirit damage compensation regulations coordinated? The author briefly expounds related problems, have reached their objective.

    The question of compensation for spiritual damages, in a civil
   "Specified in the first paragraph of the general principles of the civil law" 120th: "citizen's name right, portrait right, reputation right infringement, Rong Yuquan. Have the right to demand the cessation of the infringement, rehabilitation of reputation, eliminate the effect, make an apology, and compensation for losses." This article is about the name, portrait, reputation, honor and so on four specific personality right infringement, the victim may claim compensation for the losses of the provisions, in the trial practice was widely quoted as legal basis to confirm the liability of parties of spiritual damage. [1]
   "Answer to the Supreme People's Court on Several Issues concerning the trial of the case of the right of reputation" (August 7, 1993 tenth) the provisions of the fourth paragraph: "citizens, legal persons by reputation right infringement for compensation, the infringer shall compensate the economic loss caused by the infringement; civil and puts forward the spirit damage compensate request, the people's court according to the infringer's fault degree, violations of specific circumstances, the spirit of damages caused to the victims of the consequences of such circumstances discretionary." This is the Supreme Court for judicial interpretation stipulates the question of compensation for spiritual damages of citizens, without the provisions of compensation for mental damage of legal person.
   "The Supreme People's Court on some issues of determining civil right infringement spirit damage compensate responsibility to explain" (March 8, 2001) to the "general rules of the civil law" maintains the citizen (natural person) the spirit of the legislation of personal right and dignity, to confirm the other person rights violations caused serious consequences, shall bear the liability for compensation for spiritual damage. The first rule of interpretation of the scope of accepting cases, did not rule out the supplementary civil spirit damage compensate question.

   "Interpretation of the Supreme People's Court on certain issues concerning the application of people's Republic of China Marriage Law > (a)" (December 24, 2001) the twenty-eighth stipulation: "the forty-sixth marriage law stipulates the" compensation ", including material damages and spiritual damages. Relates to mental damage compensation, apply"The relevant provisions of the Supreme People's Court on some issues of determining civil right infringement spirit damage compensate responsibility of interpretation".
   "Interpretation of the Supreme People's Court on certain issues concerning the application of law in the trial of personal injury compensation case" (December 26, 2003) the eighteenth stipulation: "the victim or his close relatives suffered mental damage, compensation for human rights to request the spirit damage solatium," the Supreme People's Court on the application problems of defining the civil right infringement spirit damage compensate responsibility "to explain determine."
   The marriage law judicial interpretation and judicial interpretation of personal injury compensation follows the spirit of "Supreme People's Court on some issues of determining civil right infringement spirit damage compensate responsibility explanation", unified application of law.
   Can be seen from the above provisions, the provisions on compensation for mental damage confined to the judicial interpretation, not clearly defined in the legal level. But with the "tort liability law" promulgated, spiritual damage compensation at the NPC Standing Committee law stipulate. Wang Shengming, deputy director of the NPC Legislative Affairs Commission said, it is "one of the highlights of the tort liability law", indicates that China in the current law first time defined the compensation for spiritual damage. [2]

    Two, criminal spiritual damage compensation in civil lawsuit
   "Criminal law" the 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 regulations do not relate to the spirit damage compensate question.
   "Criminal Procedure Law" seventy-seventh stipulates: "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". The rules can be two explanations: one is only for the crime suffered material losses, it may file an incidental civil action, but did not prohibit civil lawsuit alone. Two is the regulation are only suggestive provisions, does not prohibit the victim will claim for spiritual damage compensation.
   "The Supreme People's Court on criminal incidental civil litigation scope rules" (December 19, 2000) the provisions of the second paragraph of Article 1: "for crime victims by the spirit of losses suffered an incidental civil action, the people's court shall not accept the". The only limit to file an incidental civil action in mental damage compensation, the victim still can have spiritual damage civil lawsuit alone.
   "Official Reply of the Supreme People's Court on whether or not to accept the criminal victim of civil litigation problem" (July 11, 2002) states: "for the incidental civil action in criminal cases because the victim suffers the loss of the spirit of the defendant filed, or accepted in the criminal case, the victim shall claim for compensation for mental damages in civil proceedings, the people's court shall not accept". The spirit damage the provisions do not support the victims, relatives of victims of the request, the criminal victims completely excluded from the gate of mental damage compensation.

    Three, the criminal supplementary issues of application of law in civil litigation
"Provisions on some problems in the implementation of 'of the people's Republic of China Criminal Procedure Law" interpretation of the Supreme Court: > "100th" people's court trial of the incidental civil lawsuit, in addition to the application of criminal law, criminal procedure law, should also apply the general principles of the civil law, civil procedure law". The criminal supplementary civil action civil trial is actually a civil lawsuit, should apply the "general rules of the civil law", "tort liability act" and other relevant provisions of the civil law.

    The conflict between the four, the tort law and criminal law
   "Tort liability act" and "property law", "contract law" are both basic civil law, criminal law "to", "Criminal Procedure Law", "tort liability act" belongs to the new, lower. The criminal supplementary civil action should apply the criminal law, but also the application of civil law, the "tort liability act" in the provisions of the first law of compensation for spiritual damages, such conflicts will be inevitable in the process of application of the law. To solve the conflict between the two, the "tort liability act" dawn sunshine spiritual damage compensation have become illuminated the victim, the key is how to understand the relationship between "tort liability law" and the judicial interpretation, the relationship between how to treat the criminal supplementary civil action and independence of civil litigation.
   "Tort liability law" fifth stipulates: "other laws have special provisions on tort liability, such provisions." The method of this such provisions, is intended to solve the law and other laws and regulations conflict. This can be understood from the following two aspects:
   (a) provision of literal and the overall understanding
   Whether the 1 "law" in the "legal" including the judicial interpretation of the Supreme People's court. If the judicial interpretation of the "legal" including the Supreme People's court, then the spirit damage compensation in criminal cases, cannot refer directly to the provisions, but to invoke the relevant judicial interpretations in criminal cases, victims can not receive compensation for spiritual damage. If the judicial interpretation of the "law" does not include the Supreme People's court, the need for further investigation of "tort liability law" article fifth the understanding of clause.
   2 the provisions of article fifth are two explanations
   One is that provisions of act of tort and its liability is not about "tort liability law" and other laws, shall be handled in accordance with the other provisions;
   Two is not only includes the first meaning, also includes provisions on tort liability limit, other laws should also be excluded according to the provisions.  Obviously, if the first explanation, the victims may request compensation for moral damage, may file an incidental civil action in criminal cases, also can be concluded after the individual claim for compensation for mental damages in civil litigation; if the interpretation according to second, the "tort liability act" incapable of action in the face of mental damage compensation issues in criminal cases when the.
   (two) understanding of the legislative law
   From the provisions of the text meaning we can launch, "tort liability act" is the general law, and those of some related tort liability have special provisions law belongs to the special law. If in accordance with the "legislative law" section eighty-third "special law is superior to general law" principle, the criminal victim advocates the spirit damage returned to the "criminal law" thirty-sixth article "the crime and the victim has suffered economic loss, the criminals received criminal punishment according to law, be sentenced to compensation for economic loss according to the situation," "Criminal Procedure Law" article seventy-seventh "as a result of the defendant's crime victim has suffered material losses, in criminal proceedings, shall have the right to file an incidental civil action of the above provisions". Since solving criminal spiritual damage compensation issues back to the criminal law provisions of the original, then matched with these laws, depriving criminal spiritual damage compensation claim that the Supreme Court judicial interpretation must be effective, in this way, the criminal victim looked at the "tort liability act" is only a sigh.
   Given that the spirit of compensation for criminal victims rights, is to conscientiously implement the "people-oriented", practice, "law enforcement for the people" is the inevitable requirement of the socialist concept of the rule of law, is to "respect and ensure human rights" embodies the constitutional principles. Therefore, the author believes in treating advocates criminal spiritual damage compensation, we should according to "legislative law" the eighty-third in the "new law is better than the old method" principle, applies "tort liability law" article third, article fourth, article twelfth, allows the criminal victim's appeal, "the tort liability law" dawn to give the victims of brilliant sunshine. [3]

[1]Huang Songyou editor: "interpretation of the Supreme People's Court judicial interpretation" new edition -- civil No.146Page, the people's court press,2006Years1Vol.2Version.

[2]Xinhuanet.com:Http://news.xinhuanet.com/politics/2009-12/26/content_12707266.htm

[3]See Li Ouna Deng Qinghong Peng Lixin: Hunan court, Http://hunanfy.chinacourt.org/public/detail.php? Id=18064

Author: Zhejiang Xingxun law firm Chen Guojiang