The application

  • Created:
  • / Author: Aaron Lewis
The application of criminal incidental civil action retrial
  
Applicant: Shi Zhengji, male, born in December 24, 1939, Han nationality, primary school education, was born in Yuzhong County of Gansu Province, Shihezi City, the 122 group 14 with retired workers, address: Xinjiang Shihezi City twenty-five District 27 Building No. 352. Victim Shi Yujun's father.
Applicant: Jin Xingju, female, born in April 8, 1947, Han nationality, illiteracy, born in Yuzhong County of Gansu Province, Shihezi City, the 122 group 14 with retired workers, address: Xinjiang Shihezi City twenty-five District 27 Building No. 352. Victim Shi Yujun mother.
Applicant: Wang Hua, female, born in June 16, 1972, Han nationality, college educated, born in Xinjiang of Jinghe County, eagerly Engler Xiang, Kuitun railway Le Grand Large Hotel staff, address: Kuitun City, South Loop constant paradise 28 Building No. 262, is the wife of Shi Yujun.
Applicant: Shi run, male, born in April 23, 2002, Han, the son of Shi Yujun.
If the applicant is not satisfied with the the Xinjiang Uygur Autonomous Region Higher People's Court (2008) new punishment two final No. thirty-seventh criminal judgments, the retrial application in accordance with the law.
Retrial request: request compensation for the defendant Zhang Junjie ordered the death compensation of 310280 yuan;
The facts and reasons:
The defendant Zhang Junjie criminal incidental civil litigation case, by the Urumqi Railway Transportation Intermediate Court (2007) the early penalty criminal No. eleventh incidental civil judgment and the the Xinjiang Uygur Autonomous Region Higher People's Court (2008) new punishment two final court No. thirty-seventh criminal judgments level two trial, now in force, but two times the judgment was not included in the compensation for death, thought, law court judgment error magnitude two, according to the request of the applicant for retrial, retrial request support.
  First, the Supreme People's Court on December 26, 2003 issued " Supreme People's Court on the application of law in the trial of personal injury compensation case if thousands of issues of interpretation" seventeenth paragraph third: "the death of the victim, the obligation of reparation in addition to the relevant expenses shall be according to the treatment condition for the first paragraph of this article, should also be compensation funeral expenses, was dependent for living expenses, death compensation and the relatives of the victims for the funeral expenses of transportation, accommodation and loss of working time loss and other reasonable expenses" , this shows that the release of the 'death compensation is the spirit of the solatium "" criminal incidental civil action for compensation for death compensation because the spirit of the solatium nature, shall not accept "and the" interpretation of personal injury compensation "conflict, is no longer enforceable, should be regarded as invalid.
 Second, the Supreme People's court vice president Huang Songyou published in the "personal injury to explain" speech at the press conference on second article ( five) article 4 pointed out: "the quality of the death compensation determined for revenue damages, rather than 'the amount of compensation for mental injury solatium' per capita disposable income can be objective standard in twenty years the fixed compensation is calculated, which adopted the standard compensation mode." the ponderosa pine and some the press conference speech, is the specific implementation of "interpretation of personal injury compensation" interpretation. The interpretation clearly since May 1, 2004 onwards, where the 'death' as an 'spiritual comfort properties', criminal incidental civil action for compensation, death compensation, the people's court shall not accept the case, no longer apply.
Third cases of incidental civil action, criminal, does not support the injured party claims compensation death ', contributed to the intent or negligence causing death have objectivity irresponsible, forming the white death, death is better than the dog died, died a dog or a cow, also can get compensation for hundreds of yuan to several thousand element, which is the death of one man is no more than a dog is not sentenced compensate death compensation? If not in accordance with the decision to support the death compensation, laissez faire is more to those who ignore other people's personal right and personality right infringement is not liable for the dignity of the risk. This is completely and interpretation of personal injury compensation and ponderosa pine some speech conflict. The ensemble of the death compensation, criminal incidental civil action shall claim gold, it is no longer belong to previously identified mental solatium inadmissible category, death compensation should be sentenced compensate, court for understanding of the law, judicial interpretation errors, not sentenced compensate no basis in law.
    Fourth, according to according to law, "interpretation of the Supreme People's Court on some problems in the implementation of" the people's Republic of China Criminal Procedure Law > "(France - [1998]23) the provisions of article 100th" people's court trial of incidental civil litigation , in addition to the application of criminal law, criminal procedure law, the relevant provisions of the civil law shall also be applicable in general, the civil procedure law." Provisions of the supplementary civil action in criminal shall apply the relevant provisions of the civil procedure law, the general principles of the civil law, but also makes it clear that the court in the trial of criminal and civil cases shall be in accordance with the relevant provisions of the civil law in our country. Secondly, according to "the Supreme People's Court on certain issues concerning the application of law in the trial of personal injury compensation case solution release" (France - [2003]20) of the provisions of the third paragraph of the death of the victim "seventeenth, relevant expenses shall be the obligation of reparation in addition to compensation in accordance with the rescue treatment the first paragraph of this article, should also be compensation for funeral charges, was dependent for living expenses, death compensation and the relatives of the victims for funeral expenses of transportation, accommodation and loss of working time and other reasonable costs." And eighteen of the provisions of the first paragraph "the victim or his close relatives suffered mental damage, compensation for the right to the people's court for compensation for mental damage solatium, apply" the Supreme People's Court on some issues of determining civil right infringement spirit damage compensate responsibility "to determine the interpretation." From Ming indeed death compensation and spirit conciliate gold zone, and the death compensation to loss of income, the judicial interpretation has the death compensation for material damage but not spiritual loss. According to the new method is better than the old method principle, "loss" interpretation of tenth had mental damage "interpretation" Ninth be repealed. Third, China's other relevant laws is also clear the death compensation as a loss but not spiritual damage compensation. "Consumption consumer protection law" the forty-second regulation "operators to provide goods or services, cause death of consumers or other victims, shall pay the funeral expenses, death compensation." "Product quality law"; forty-fourth : "caused the death of the victim, and shall be required to pay funeral expenses, death compensation and the dependents of living expenses. "" State Compensation Law "article twenty-seventh (three also provides for" causing death) item, it shall pay compensation for death, funeral expenses, amounted to the national annual average annual wage twenty." Therefore, other method law not death compensation for spiritual loss. According to the principles of rank, above the law should be better than the "interpretation" of compensation for spiritual damages compensation for death metal for mental solatium provisions. Death compensation shall not belong to the spirit damage compensation for damage . Fourthly, according to the new "infringement liability law" sixteenth stipulation: "the cause of death, should also be compensation for funeral expenses and death compensation." And the provisions of article twenty-second "infringement of personal rights, causing serious mental damage, the victim may claim compensation for mental damage." Visible, the death compensation is the new law recognized as loss but not spiritual loss. From the above results, the death compensation that legal basis is not material loss is obviously insufficient.   
    In conclusion, the people's court that, two were not the death compensation as compensation for the project, has rejected the applicant's claim, the law does not match, it shall be commuted.
Yours sincerely
The higher people's Court of the Xinjiang Uygur Autonomous Region
                                 
Applicant.
                                
December 24, 2012