The word


Respected judge, judge, clerk:
　

Sichuan Yingji law firm accepting criminalIncidental civil litigation appealPeopleXXXThe Commission, appointed as our second agent, weAfter carefully reading the verdict and comprehensive understanding of the basic facts of the case,Combining the related facts verified through the trial today, that the plaintiff in the first instance of the death compensation, the trial court does not support is wrong, but should get the support of the court. The specific agent are as follows:
    A,In this case, the key to solve the problem of death compensation is the compensation of mental damage compensation or material damage





　　1,2001Years3Month10The Supreme People's Court on some issues of determining "implementation of the civil right infringement spirit damage compensate responsibility," explained(referred to as the spirit damage interpretation)Rule ninth: "mental damage solatium include the following: (1) causing disability, disability compensation gold (2) causes a person's death, for death compensation (3) spirit conciliate gold other damage case." The judicial interpretations promulgated, local people's courts generally think, death compensation does not belong to the scope of criminal incidental civil action. But since the2004Years5Month1The date of promulgation of the "Supreme People's court interpretation of several issues concerning the application of law in the trial of personal injury compensation case" (referred to as personal injury to explain) the twenty-ninth stipulation: "the compensation for death shall be the seat of the court last year per capita disposable income of urban residents and rural residents per capita net income standards, according to twenty years calculation. But more than sixty years of age, the age reduction for each additional one year old years; more than seventy-five years of age, according to five years." Specified in the first paragraph of article thirty-first: "the people's court shall, in accordance with the general principles of the civil law 131st and the interpretation of the provisions of article second, determine the actual amount of compensation for nineteenth to twenty-ninth of all property loss." The second paragraph: "the compensation damages the identified and determined in accordance with the provisions of the first paragraph of article eighteenth of the mental damage solatium, in principle should be a one-time payment." In order to confirm the death compensation property belongs to property damage compensation, rather than "mental damage solatium". Thirty-sixth the provisions of the second paragraph of "before the promulgation of effective interpretation has the purposes of judicial interpretation, which are inconsistent with this interpretation, this interpretation shall prevail." According to the legal principle method is better than the first method, the indirect declaration before implementation of "mental damage to explain" Ninth has actually been abolished.





　　2 From the national legislation, shall be classified as the scope of compensation for death compensation. Death compensation to be judicial interpretation is defined as the material loss to reduce future income, is caused to a victim inevitability of property loss, it belongs to property damage compensation, not to the spiritual damage compensation. The mental damage compensation is to residents living standards are calculated, the death compensation standard of compensation is to be the seat of the court last year of urban residents per capita disposable income of rural residents, or as the standard, to the general20Years, the two different. So, death compensation of course belongs to the scope of compensation for criminal incidental civil action.   





　　3"The Supreme People's Court on certain issues concerning the application of law in the trial of personal injury compensation cases the interpretation of" one of the drafters, Dr. Chen Xianjie, the Supreme People's court people a court judge wrote "<Several issues concerning the application of law in the trial of personal injury compensation case interpretation>The understanding and application of "(contained in the" people's justice "2004No.2The specified period): "Disability compensation, death compensation is for the loss of future earnings", "explain" "in concept, in accordance with laws consistent, the income loss compensation called death compensation, and compensation for mental damage is the mental damage solatium, in order to accurately, the terminology standard." 





　　　4, "Supreme People's Court on the implementation of 'of the people's Republic of China Criminal Procedure Law' interpretation of several issues" 100th stipulates: "the people's courts in the incidental civil lawsuit, in addition to the application of" criminal law "," Criminal Procedure Law "," general principles of civil law shall apply "," Civil Procedure Law "of the relevant provisions."The current "criminal law" in China is not suitable any legal clauses exclude "general rule of the civil law" the provisions of the above. So,XXThe center of the death compensation shall not be supported as there is no legal basis, which is on the appellant legitimate rights of exploitation and abuse.

     Therefore, in the trial of criminal incidental to determine the nature of death compensation in civil procedure, should according to "explain" the provisions of the personal injury, the legal status of the death compensation as a material loss compensation, so as to maximize the protection of the legitimate rights and interests of the families of the victims, but also reflects the decision to pay reasonable compensation for death the.

     Two,In the judicial practice,We collected in the people's court to all over the country criminal collateral civil judgment, most people's court is take to support for the death compensation. These decisions are:

     The Zhejiang Provincial Higher People's Court (2007Two sentences with the word no.) in Zhejiang Province35Number of criminal incidental civil judgments, Guangzhou City Intermediate People's Court (2006A French sentence) spike at the beginning of the word no.69Number of criminal incidental civil judgment, Hubei Province, Yichang City Intermediate People's Court (2006Appropriate punishment) at the beginning of the word no.17Number of criminal incidental civil judgments, Shizuishan City Intermediate People's Court (the Ningxia Hui Autonomous Region2006Stone Xingchu) No.24Number of criminal incidental civil judgments, Chongqing City Intermediate People's Court (second2007II) Yu punishment at the beginning of the word no.18Peng Hu intentional injury case criminal incidental civil judgment, the Chongqing first intermediate people's Court (2007A French sentence) Yu Chu Zi No.89Number of criminal incidental civil judgment etc..

    The verdict is clear support attached to criminal lawsuit proposed civil plaintiff compensation for death or disability compensation, full of humanistic care and legal justice. Otherwise, legal principles and legal protection of basic human rights conflicts.From the current judicial practice, the death compensation for personal injury cases in the scope of compensation, has become a common practice of the National People's court.







     Three, the case is a vicious criminal cases, the families of the victims should receive appropriate compensation





　　The case of intentional homicide, affrayXXXDieThe civil compensation disputes caused very serious criminal cases were malignant cases and four other people, whether it is from the legal level or social harm level, three fresh life in the violent incident, and from the Yin and yang two separate, who will not feel sad! But the appellee just on criminal liability assume corresponding responsibility and almost without any penalty in economic terms, the appellee's punishment is not enough, if you do not support the appellant's death compensation, will encourage such intentionally causes the death of another crime. In this case, the death compensation is the main project of compensation, if not in accordance with the decision to support the death compensation, the families of the deceased can get what compensation? And is nothing more than a million yuan of funeral expenses only, not the dead die in vain. This will lose the fairness and justice of the law, is not good enough to soothe the appellant grief of heart, not to God of the dead, at the same time, the side effects will produce is to make people lose confidence in the law, which will take the original social revenge in the same way to seek the heart of the fair, will inevitably lead to vicious criminal cases more.

     To sum up, hopeXXProvisions of the Provincial Higher People's court the ability to balance the legal, full reference to other provinces decision logic, the full protection of the law within the scope of the rights of victims, equitable social rights and order, protect the support given by the appellant's death compensation requirements. Therefore, to adjust the interest of death compensation to a certain extent imbalance, the death of the victim's close relatives to obtain a relatively impartial judicial relief.

     The above is the agent views of lawyers, please a collegial panel shall be adopted!
                
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　　　　　　　　　　　　　　　　　　　　　　Lawyer: Zeng Bing   Mou Qianzhong

                                                

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