In March 14, 2012, the five meeting of the eleventh session of the National People's Congress vote on the revision of the criminal procedure law, and the formal implementation of new criminal law in January 1st this year. Criminal activities related to people's life, freedom and property rights, the Amendment because involve an area wide, new contents, reform efforts, has aroused widespread concern in the community. Supplementary civil action procedure to effectively resolve social conflicts and disputes, the victim get compensation in time, plays an important role, the masses is a widely concerned problems. For the convenience of the masses and judicial practitioners better understand the new criminal procedure law in incidental civil action related changes, Suizhou City Intermediate People's court standing vice president Shang Wencheng today on the new criminal procedural law issues related to civil litigation attached to answer the "Suizhou daily" reporter's question.
Note: one, what is the criminal supplementary civil action?
Salesman: incidental civil lawsuit is refers to the judicial organ in criminal proceedings, in resolving the defendant of criminal responsibility at the same time, to solve the problem of litigation activities incidental damages caused by the criminal acts of the defendant material loss of.
Incidental civil litigation is the problem, is the problem of compensation for the loss of substance, and civil action in damages, which belongs to the civil dispute, but it and general civil litigation is different, have their own special place. This is embodied in two aspects: from the entity, the damages are caused by the crime; from the procedure, it is mentioned in the course of criminal proceedings, usually by a trial of the criminal case judicial organization be trial. The establishment and solution are closely related to the criminal procedure, which is a kind of special litigation procedure. Because of this, with the complex characteristics of the problem solving incidental civil lawsuit law: substantive law, cognizance of facts of damage, not only to follow provisions of criminal law on the crime of specific cases, and the civil legal regulation; procedural law, with the exception of the criminal procedure law has special provisions the provisions, shall apply to the civil procedure law.
Reporter: what is the background of the legislation of two, incidental civil lawsuit procedure?
Business: in the amendment of criminal procedural law in the process, compared with the defense, evidence and compulsory measures such changes, the news media in the supplementary civil action procedure reported fewer. But prosecutors, judges and lawyers and other professionals, the part of incidental civil lawsuit from two extended to four change and influence is formidable, the contents of the new increase not only the full protection of the victim's rights and substantive rights, effective response to the problems in the judicial practice, and the structural adjustment of the existing civil procedure, the provisions of change has the following main features:
First of all, incidental civil lawsuit procedure changes are substantial. Undeniably, China incidental civil procedure appeared a series of problems in practice, which has both substantive issues, such as the judges shall how to determine the range of supplementary civil compensation, how to judge whether the effectiveness of mediation and the mediation agreement; there are procedural aspects, such as the people's whether the court for custody of property, plaintiffs of the supplementary civil action can apply to take preservation measures etc.. Some of these problems by the relevant judicial interpretation should be clear, but some problems still need to be in suspense, the law further defined, this modification is mainly response to the above problems.
Secondly, incidental civil lawsuit procedure is modified in order to protect the rights of victims oriented. The biggest bright spot to modify the criminal procedure law is to "respect and protect human rights" into the criminal procedure law, embodies the respect for human rights and crime punishment balance. When the crime suspect, accused person right protection becomes more and more perfect, can not ignore the victim in criminal proceedings in the incidental civil issues. In the modify part of incidental civil lawsuit, the legislature in order to protect the legitimate rights and interests as the starting point, in the specific provisions of design taking into account both the need to improve the efficiency of the proceedings, effectively resolving social disputes, also pay special attention to how to facilitate the victim and his statutory agent, close relatives to obtain compensation in time and procedure.
Note: modify what changes, the three supplementary civil action?
Business: the revised criminal procedure law seventh chapter of part of incidental civil lawsuit provisions, by two to expand the original 4, mainly in the "three increase". Namely: the victim's death or incapacity, his legal representatives, near relatives shall have the right to file an incidental civil lawsuit; plaintiff in incidental civil action or the people's Procuratorate may apply to the people's courts to take preventive measures; the people's Court of the incidental civil lawsuit, mediation may be conducted according to the material loss, or judgment, ruling.
Reporter: what are the four, the scope of compensation in incidental civil action?
Business: the new criminal procedure law stipulates that the ninety-ninth victims of the criminal acts of the defendant has suffered material losses, in criminal proceedings, shall have the right to file an incidental civil action. This actually maintain the existing judicial interpretation of the provisions, but there are still some key problems need to be clarified:
First of all, the "material loss" does not include the criminal illegal possession, disposal of the property and the physical damage to the. According to the 2000 the Supreme People's court "about the criminal supplementary civil action range" (hereinafter referred to as "Regulations" provisions), "loss" refers to the personal rights are the crime of infringing material losses suffered by criminals or property damage and physical damage to the. Suffer from crime victims by the material loss, refers to the actual loss due to crime has suffered and the inexorable loss. While in the theft, fraud and other crimes against property for the purpose of illegal possession of the victim, criminal illegal possession, dispose of the property material losses suffered only according to Article sixty-fourth of the criminal law shall be confiscated or ordered to return, and the incidental civil action can not be directly compensated by the.
Secondly, the "material loss" does not include the compensation for spiritual damage. According to the "Regulations" for crime victims by the spirit of losses suffered an incidental civil action, the people's court shall not accept the. The new criminal procedure law article ninety-ninth is the "the victim has suffered material losses" due to the defendants' criminal behavior way of expression, not the compensation for spiritual damage included.
Finally, the "material loss" does not include compensation for death or death compensation. Death compensation, death compensation has its particularity, as early as in 1991 the State Council promulgated the "approach to road traffic accidents" thirty-sixth on the provision of damages include death compensation. But according to the "Regulations" and in 2001 the Supreme People's court "about the problems of defining the civil right infringement spirit damage compensate responsibility explanation", compensation for death metal for mental injury solatium, not included in the scope of criminal compensation in incidental civil action.
Reporter: what are the preservation measures five, incidental civil lawsuit?
Salesman: compared with the general civil procedure, criminal proceedings in the case, after long time before the trial, criminal suspects, defendants in practice before the verdict transfers the property to escape the incidental civil compensation case is possible. In order to ensure the future execution of the verdict, sentenced to prevent empty, some representative suggested to further improve the incidental protective measures in civil litigation, gives the plaintiff of the supplementary civil action or procuratorial organs to the people's court for the preservation of the proceedings of the rights in criminal cases, the parties can apply for the preservation of property, the public prosecutor, the three organs according to law application can take corresponding measures for the preservation of property. The law has absorbed the above views, increase the provisions of the measures for the preservation of civil suit collateral. The new criminal procedure law 100th establishing two types of preservation measures: the first kind is in accordance with the preservation measures authority, the people's court when necessary, can take preservation measures, seizure, seizure or freezing the property of the defendant; the second category is in accordance with the measures for the preservation of application, namely the plaintiff of the supplementary civil action or the people's procuratorates can apply to a people's court for the preservation measures.
Note: six, incidental civil action, whether through mediation?
Business: in incidental civil action, the people's court verdict, ruling in addition, whether through mediation, judicial interpretation has been given a clear answer. "The Supreme People's Court on some problems in the implementation of" the people's Republic of China Criminal Procedure Law > explanation "provisions of article ninety-sixth of the incidental civil lawsuit, in addition to the people's Procuratorate filed, can mediate. Mediation shall be based on the voluntary and legally, if an agreement is reached through mediation, the judges shall timely mediation, the mediation by the parties signed the law. The new law of criminal procedure 101st absorption of the judicial interpretation of the basic spirit, regulations of the people's Court of the incidental civil lawsuit, mediation may be conducted according to the material loss, or judgment, ruling. This article defines the mediation can be used as one of the people's court case of criminal incidental civil lawsuit, and the mediation agreement has the legal effect, should be observed as the parties. According to the criminal supplementary civil compensation part of the mediation, the biggest advantage is easy to obtain the approval. Because get the victim's forgiveness is a discretionary circumstances defendants get a lighter sentence, defendants and their families will have more power to compensation for material damage to the victims, it is more beneficial results on both sides, can better resolve social contradictions, implement the criminal policy of combining punishment with leniency, maintaining the unity of legal authority and the judicial.