Criminal victim in a case of public prosecution, criminal acts refers to by the people's Procuratorate prosecution in criminal cases by directly against the people. Before the amendment of criminal procedure law, the criminal victim in a case of public prosecution, in a non party state for a long term, only as a witness or plaintiffs of the supplementary civil action in litigation. Therefore, the current criminal procedure law entrusts with the criminal victim in a case of public prosecution to the party's lawsuit status, have adequate protection for criminal homicide victims rights, in favor of the lawsuit value balance. However, security mechanism of our country criminal homicide victims rights, there are many problems and shortcomings, and even has a serious impact on the criminal justice of this basic proposition. Attention, to explore these deficiencies and problems, not only is the theory of criminal procedure requirements, but also the practice of criminal justice are needed --

One, giving the criminal victim in the litigation status of the parties and the dispute

Investigation of criminal prosecution status all over the world, it is not difficult to find, although the international community has gradually perfecting and strengthening of the criminal victim in a case of public prosecution rights, but also generally did not confirm the victim party identity in public prosecution cases. Investigate its reason, is mainly to avoid damages lawsuit rationality not properly reinforce the victim rights may cause. Judicial practice in the UK and in USA, are considered as the witness of the victim, the victim enjoy rights and obligations is consistent with the witnesses, it is difficult to actively participate in the criminal procedure. In the legislative pay more attention to protect the rights of victims of the country, mainly in France and Germany, the two countries is the implementation of the civil plaintiff system, recognition and to ensure the victim as a litigant in the criminal lawsuit. Although countries according to their national conditions to the litigation rights and obligations of different, but pay more attention to protecting the rights of victims, has become a trend of the world criminal proceedings.

China does not follow the international criminal proceedings generally his victim and excluded from the parties of this concept, in the revised criminal procedure law, take the criminal victim in a case of public prosecution written into the party ranks. Provisions of article second of criminal law: eighty-second parties refers to the plaintiff victim, private prosecutor, criminal suspects, defendants, and defendants in incidental civil actions. This provision, the formal establishment of the victim as a litigant's lawsuit status. The reason for the provisions, the author thinks that it is mainly based on the following two points: 1, the victim is the direct victims of crime, a better understanding of the whole process of the crime, can accurately provide the perpetrators of the crime of time and location, and the damage caused by the details, to expose the truth and plays an important role in confirming the crime behavior, is conducive to the public prosecution and judicial identification of criminal facts, evidence in order to accurately verify criminal conviction and sentencing. 2, the victim in the criminal procedure, from different points of view plays against crime and to support the prosecution organ litigation role, make up for the inadequate public opinion, so as to find out the facts of the crime and the specific process, can effectively investigate and punish crimes.

But giving the criminal victim in a case of public prosecution to the party's lawsuit status, also led to the theory of criminal litigation dispute. Mainly include:

1The unbalance of structure, may lead to litigation proceedings and disorder.The key of the criminal procedure, is how to handle the relation between control, debate, the three party. Three kinds of function separation, judge neutrality, equality between prosecution and advocacy, litigation structure is called "isosceles triangle" is considered to be the best combination of modes of criminal procedure three party relationship, but also the basic pattern of criminal procedure now. If the victim is established as a criminal case the parties, then the play the role of prosecutors, and the exercise of criminal prosecution right on behalf of the state prosecution on the side. If the victim agree with the public prosecutor's opinion, it is also easy to handle, the judge as long as the audit control, defense of both evidence and opinions; but if the victim is not entirely agree with and even against the prosecutor's opinion, then the trial will form a "two to one" (the public prosecutor, the defendant jointly v.), "the first three" (the judge tried at the same time control, debate and victim three party dispute) pattern, and sometimes "one to two" (i.e. the victim due to special reasons stood in the side against the public prosecutor) litigation situation, resulting in the "isosceles triangle" litigation structure impact and damage. Especially in our country's prosecution power, the defendant is relatively weak conditions, the lawsuit structure this is difficult to maintain the stability and balance, if the victim as "second prosecutors" to participate in litigation, criminal litigation structure will make our country had no further action against the imbalance of balance, by two yuan for change for three yuan, the judge should face the appeal for the public prosecutor proposed, also had to consider the demands of non normative victims from their own point of view put forward. As is, ordered that litigation will be disrupted.

The author thinks that:"Two to one", "the first three" or, "one to two", "the first two" or, whether it is two yuan or three yuan for making pattern of the proceedings, to not only crack down on crime, and to protect the interests of the parties, to maximize the embodiment of justice. Not because the victims in criminal litigation is likely to break the traditional pattern of the proceedings, he ignored even deprived of victim's right of action, especially in the victims do not entirely agree with and even against the public prosecutor opinion, legislation should give victims the right to enjoy independent litigation request, make the victims become be worthy of the name "second prosecutors", so do not damage or weaken the prosecution on behalf of the state criminal role.

2The parties, may cause conflicts, participants in the proceedings, witnesses three roles, justice destructive action.Because the provisions according to the law of criminal procedure, the victim is the party is the lawsuit participates in a person, actually witness (the statement is testimonial evidence), in the same suit, one man played three roles. On the one hand, he (she) has direct conflicts of interest and the defendant, belonging to the accused party, standing on the opposite position with the defendant, and therefore impossible or very difficult to achieve its stated objective and fair; on the other hand, he (she) as participants in the proceedings, shall have the right to know the case (including marking) and participating in the hearing, whether in the trial before or trial, the defendant and the psychological conflict is inevitable. If the participants in the proceedings to provide oral evidence, then due to the fact that the psychological conflict and prior knowledge of the case, may lead to the testimony is not objectively true, thus misleading the judge justice, justice destructive action.

The author thinks that:First, although the victims also belong to know the circumstances of the case, and witnesses as a truthful statement of obligations, but there are essential differences between the victim and witness, victim's participation in the proceedings because of its legitimate rights and interests have been infringed, to their own interests; and witness just because of its understanding of a certain case, performance is the citizen obligations, not for themselves but for others; secondly, the criminal procedure law article42A clear statement of the victim and witness testimony as evidence of criminal procedure seven, has to explain the victim statement and the testimony of witnesses, although all belong to the verbal evidence, but the content of the statement, statement of the victim is determined by the characteristics of the victim's own. Therefore, the victim in the criminal procedure is actually a role (be crime directly infringes people), two titles (not to participate in the litigation that parties involved in litigation or the victim, called the lawsuit participates in a person or the victim), the worry about different appellation may result in litigation chaos, is entirely superfluous.

Deficiency and improvement of two, criminal victim right protection mechanism

According to the provisions of the criminal procedure law, the victim in the criminal proceedings, which enjoys the following rights: 1, since the prosecution case transferred for examination before prosecution date, have the right to entrust agents ad litem; 2, the people's Procuratorate to examine the case, have the right to state their views; 3, refuses to accept the people's Procuratorate decided not to prosecute the decision not to initiate a prosecution, can be received within seven days after the upper level people's Procuratorate appeal, request to initiate a public prosecution; the people's Procuratorate at a higher level to maintain the decision not to initiate a prosecution, can sue to people court, or without appeal directly to the people's court; 4, have the right to participate in the trial, and make statements on the indictment accused of the crime, with the permission of the presiding judge, put questions to the accused; 5, have the right to cross examination on the relevant evidence, published evidence; 6, have the right in the trial application notice new witnesses, obtain new material evidence, to apply for re identification or inspection; 7, with the permission of the presiding judge, can the circumstances of the case comment and debate with each other; 8, the verdict of the first trial, may appeal within five days after receiving the written judgment request the people's procuratorate.

From the above rights, criminal procedure law, giving the victim in public prosecution case, only the "relevant" litigation rights, rather than as all legal rights of parties should enjoy, thus causing the victim is a party they cannot enjoy the parties should all litigation rights of the embarrassing situation. The lack of some litigation rights, it is difficult to be effectively protected, so it is necessary to pass legislation or judicial interpretation to perfection. Is mainly reflected in the:

1The investigation stage, not a lawyer.In the case of public prosecution, victim and suspect in the opposite, equal status, but the suspect in the first interrogation by the investigatory organ or the compulsory measures adopted by date, can hire lawyers to provide legal advice, the appeal and accusation, was arrested, also can hire lawyers to apply for bail. That is to say, although the rights of criminal suspects in the investigation stage has also been limited, but it can also be adverse consequences through lawyers understand the case and may bear in law, the. While directly by crime victims of abuse, but have to wait until the end of the case is transferred for examination before prosecution, have the right to hire lawyers, litigation agent. In the stage of investigation, the victim can only own (he died only family) to understand the case nature, the litigation process, conviction evidence, whether to take compulsory measures and compulsory measures taken. When he (she) or to the families of the investigation organ about the time, there's no law that says the investigation organ have truthfully inform obligation, not even rule should be how and when to inform, so in the judicial practice often is nobody told me, want to understand the case of prohibitively difficult. Even find the person undertaking the investigation organ, if its not bad, also can be in the case involving state secrets shall be rejected, the right to know the deprived and be put in a quandary, which inevitably biased. Therefore,It is necessary to legislative amendment and giving the victim has the right to know, the investigative organs accept the report, complaint, report or surrender, whether registered or not, shall advise the opinions of preliminary processing within a certain period of time, the criminal detention, arrest or prosecution not among decision for the suspect, the investigation organ in the notice the criminal suspect or the unit or their families at the same time, also be the victim informed at the same time, and guarantee the victim enjoy such as applying for reconsideration and judicial relief right. The victim in the investigation stage, if you do not enjoy the full right to know, do not understand the case, it will not be able to effectively participate in criminal proceedings.

2Nominal, public prosecution to private prosecution.According to the provisions of the criminal procedure law, not to initiate a prosecution of a people's Procuratorate decides cases, the victim is not the receipt of the decision not to initiate a prosecution within seven days after the upper level people's Procuratorate appeal, request to initiate a public prosecution, if the people's Procuratorate at a higher level after review, maintain the decision not to initiate a prosecution, the victim may bring a lawsuit to a people's court, also can be not by appeal directly to the people's court, right safeguard mechanism which is in criminal public prosecution to private prosecution. And do not say to the people's Procuratorate at a higher level to receive the complaints material, should be in what period of time how to inform the victim without law provisions, if a long time without review or review will maintain the decision not to initiate a prosecution opinions orally inform the victim, the victim can not exercise the right of prosecution. Because the people's Procuratorate nonprosecution or maintain a decision not to prosecute, is a prerequisite for public prosecution to private prosecution case, without the written decision, the people's court shall not accept the often. Ten thousand steps back, even if the victim with the people's Procuratorate nonprosecution or maintain the decision not to prosecute, the people's court may also make a favorable to the defendants criminal judgment not on file or file after hearing. Because: the people's Procuratorate nonprosecution cases, except for a handful of judicial corruption crime of shield, the vast majority are unable to ascertain the facts of the crime objective reasons, conviction evidence did not caused by inadequate. In such cases, as by crime victims of abuse, itself is vulnerable groups, its action is limited, can't again collect even public security investigation organs and people's procuratorates use powerful state machines are not collected evidence, not on the criminal suspect to take compulsory measures to limit or deprive them of their freedom. Therefore, such public prosecution to private prosecution right safeguard mechanism exists in name only, with the exception of a few because of the judicial corruption deliberately not to prosecute the case may obtain the people's court support, the vast majority of cases are due to unclear facts of insufficient evidence not on file or file for trial to make favorable to the defendant and hurt bad judgment to the victims, the victim will "second secondary victimization". Therefore, to avoid this situation,We should further improve the public prosecution to private prosecution system to protect the rights of victims such as legislation, expand the investigation and litigation rights, when necessary, to a certain extent applicable principle of "burden of proof", where the victim is the evidence but the evidence is not sufficient, the burden of proof rules established by the defendant to prove there is no criminal facts, both to protect their rights, and strengthen the duty, the defendant and the victim to the public prosecution to private prosecution cases, are all equal.

3There is no right of appeal, the trial.According to the law of criminal procedure, the defendant shall refuse to accept the criminal trial, may appeal within the statutory time limit, the procedure of second instance, and the cases of public prosecution and the defendant in an equal status of the victim, the criminal judgement of the appeal does not appeal, request the people's Procuratorate only mention counterappeal. And don't say the protest not protest by the victim but not by the people's Procuratorate said to calculate, even protest, the protest and protest the request not to transfer to the will of the victim, the victim's desire and purpose to punish crimes, may not be able to realize through the procedure of protest. Therefore,Legislation should correction and shall give the victim the right of appeal. First, give the victim the right of appeal, is the inevitable requirement of the litigants as. For all the parties should be full participation, full participation and the main security, is the program participants can be obtained in the same case review procedures have the opportunity to participate through an appeal or complaint. Full participation here, not only refers to a trial of second instance is that, if the victim has the opportunity in the first instance the full participation and no chance of starting procedure of second instance, the status and action in the first instance does not match that of the. Second, the criminal private prosecution of private prosecution case, the judgement of the appeal may appeal, as the victim in a case of public prosecution, the legitimate rights and interests of infringement should be heavier than the case of private prosecution, or not by the people's Procuratorate representative countries use public power to bring a lawsuit. Not only that, suffered relatively light private prosecutor may appeal, but suffer from heavier victim cannot appeal according to law, which is obviously not suitable, is not conducive to fully mobilize the enthusiasm of the victim and the perpetrator to fight. Third, give the victim the right of appeal, but also special requirements in china. But from look on the whole, the people's Procuratorate also represents the interests of the victim, but due to various reasons, in some cases, the people's Procuratorate and can not fully reflect the victim's legitimate interests and reasonable demands. Victims the right to appeal, the people's Procuratorate work can make up for the shortcomings, but also conducive to the trial work to the next level people's Court of the people's court at a higher level supervision and guidance, to ensure that the correct and appropriate trial.Some people worry that: if the victims the right to appeal, will affect the "appeal not infliction" the implementation of the principle. The author thinks: "appeal not infliction" principle applies only when the defendant appeal, the appeal of the defendant, whether rational or not, the court of second instance shall not for any reason, aggravate the punishment. But the protest as the people's Procuratorate may increase the defendant punishment, if the victim appeals for legitimate reasons, they shall support and increase the criminal punishment on the defendant. That gives victims the right to appeal this principle of "appeal not infliction" carry out of fear, is a distortion of the principle of "appeal not infliction". Victims the right to appeal and the second trial is not affected by the "appeal not infliction" principle limit, can make up for the first time and again not to protest the formation of. Not only ensure the "appeal not infliction" principle is not destroyed, but also avoid the influence of "appeal not infliction" principle to the "Mistakes must be corrected whenever discovered" principle, integrity and also helps to guarantee the litigious right of the victims.

4No, is entitled to claim for mental compensation.The Supreme People's court "about the provisions of criminal incidental civil litigation" range of first clearly stipulates: for crime victims by suffering from mental damage and an incidental civil action, the people's court shall not accept the. The Supreme People's court "about whether the people's courts handle criminal cases the victim filed a civil action for damages the spirit of the reply", again on this issue clear. The main reason is because the defendant should bear criminal responsibility, it already contains the spiritual comfort. In fact, this is a criticism of the ultra vires (the power of judicial interpretation of the Supreme People's court shall transcend). On the tort (such as infringement of portrait right, reputation right etc.) induced injury, the rights of them may request compensation for moral damage, and the damage caused to the crime behavior in nature, the consequences are much more serious, the right people cannot request the spirit damage compensation, this is not fair and in logic is untenable. Because the criminal liability and civil liability is the two kind of responsibility, criminal responsibility is the defendant in the criminal conduct by the state compulsory legal responsibility to bear, which focuses on the protection of the interests of the community; and the civil liability is the legal responsibility of the defendant to the victim damage after fruit should undertake, its function focuses on the victim's loss compensation. The sentence is not compensation for the victims, in addition, a sigh of relief, did not receive any compensation (compensation) compensation, judicial did not fully reveal its impartiality. Therefore,Proceeding from the fundamental principles of criminal procedure law, according to the constitution principle and the criminal, civil legislation purpose, according to the situation of our country should establish a national compensation system, or in a case of public prosecution of the victims filed requests compensation, according to the law should be properly protected, so, in order to fully demonstrate the fairness and justice of law.

5It is difficult to obtain legal aid.According to the law of criminal procedure, the defendant to financial difficulties or other reasons not entrust a defender, the people's court may designate a lawyer who provides legal aid to defend; if the defendant is blind, deaf, mute or a minor and the defendant may be sentenced to death and not entrust a defender, the people's court shall designate a legal assistance a defender for him. And in an equal status with the defendant's victims in criminal procedure law, but can not find a legal basis can seek legal assistance. Although in 2003 the State Council promulgated the "Regulations on legal aid" Eleventh of the second paragraph of the "public prosecution of the victim and his legal representatives or near relatives, since the case to the examination date, due to financial difficulties did not entrust agents ad litem, may apply to legal aid institutions for legal aid." But this application may not accept or accept the aid is not, after accepting assistance, only "financial difficulties" to the victim, and the victim had died, minor, deaf, dumb, and blind are excluded from the scope of legal aid, which is obviously unfavorable Yu Weihu victim's legitimate rights and interests. Therefore,In criminal lawsuit, should implement the equivalence and the defendant's legal aid system. The victim due to financial difficulties or other reasons not to entrust agents ad litem, the people's court may assign an agent ad litem; the victim is deaf, dumb, and blind or minors or dead, the people's court shall assign an agent ad litem, and to simplify the review procedures, the need to ensure that legal aid in every case of public prosecution the victim, can obtain relief and protection of the law.

The essence of fairness and justice, balance and balance contains the interests of both the defendant and the victim in the criminal prosecution procedure. Justice is not only belongs to the defendant, the victim also claim justice rights, judicial system can't be biased. Therefore, since the establishment of the status of the parties in public prosecution cases, it should be given its extensive litigation rights, should establish and improve the corresponding rights protection mechanism, so, in order to maximize the positive charges to the crime and to assist the judicial timely prosecution of crime, so as to effectively curb various criminal activities, better maintenance of harmonious social order and security.