The common crime criminal incidental civil lawsuit defendant subject

About the joint crime compensation duty main body, interpretation of the Supreme People's court "on the implementation of the criminal procedure law '' of the people's Republic of China" (Interpretation[1998]23Number, hereinafter referred to as the law interpretation[1998]23The number)86Regulation: "incidental civil action shall be liable for compensation include: (1) the criminal defendant (citizens, legal persons and other organizations) other common perpetrator and not be investigated for criminal responsibility; (2) underage criminal defendants (Guardian3) has been executed criminals inheritance (4) in a case of joint crime, the case has been concluded before the death of the inheritance (5) other crimes of the criminal defendants to units and individuals shall bear civil liability for compensation." This provision can be seen, the behavior of joint crime case of joint crime compensation duty main body includes a common criminal defendants, not to be investigated for criminal liability of joint offender, juvenile co perpetrator's guardian, the conclusion of the case of death or executed inheritance units and individual persons and other in accordance with the law shall bear civil liability. The author made a point of personal views, discuss with colleagues.

A joint crime, criminal defendants of incidental civil action of the defendant

The so-called common criminal defendant refers to the common crime, common crime of intentional and implement the joint criminal behavior, the defendant also have enough of the age of criminal responsibility and criminal responsibility. In the case of joint crime, the accused person direct the implementation of crime victim is injured; some even went to the scene of the crime is not implemented directly resulting in the victim's injured, or is the implementation of the act but the harm suffered by the victim does not the defendant's behavior; the defendant and didn't go to the scene, but to give advice and suggestions, provide the tools for committing crimes or send news secretly. According to the principle of criminal law, as long as their crimes and the crime results exist causal relationship, but also have full capacity to act, it should be a co defendant in an incidental civil action in criminal. According to Chinese law the defendant in criminal responsibility and civil responsibility in the age of the definition is not consistent, so in the supplementary civil action in criminal proceedings, whether the defendant has full capacity should limit reference civil liability ability relates to age to identify, as long as the accused person with full capacity for civil conduct, it is criminal incidental civil compensation duty main body, namely the criminal incidental civil lawsuits. Adult criminal defendant, generally shall independently bear civil liability, if no compensation ability, according to China's "criminal law" article77The relevant provisions of the general principles of the civil law "and" and "Civil Procedure Law", can be considered by the adult the relatives of the accused voluntarily to bear the civil liability for compensation, but not the adult the relatives of the accused the defendant of criminal incidental civil action, the reasons are as follows: (1) the defendant criminal incidental civil action must be the implementation of the crime person and causes material loss to commit a crime shall bear the liability for compensation of the people, and are willing to bear the civil liability of the minor defendant's relatives was not the criminal defendant, nor shall be liable for compensation. (2) make a minor defendant's close relatives shall bear civil liability for compensation, not only has no legal basis and violates the legal provisions. (3) near relatives if adult defendants to provide the corresponding compensation, property, the defendant does not deny, should not think that the property is the minor defendant close relative's property, and it should be regarded as their close relatives give the property of the defendant; if the defendant refuses the adult relatives to provide property as their compensation, while the minor defendant's relatives and willing to provide property compensation, we can treat it as a minor defendant's relatives grant to the property, which is not in violation of the provisions of the law of our country, but also conforms to China's idea of legislation and judicial practice.

Two, not to be investigated for criminal liability in the joint offender as co defendants of incidental civil action in criminal

Not to be investigated for criminal liability joint offender without capacity of criminal responsibility of joint offender and for other reasons could not be investigated for criminal responsibility of joint offender. Due to various reasons, often missed the columns from the criminal defendants in criminal cases the common perpetrator as incidental civil defendant appeared in judicial practice.

(1) without capacity of criminal responsibility of injurer including persons with no capacity, including limited capacity. The defendant in the above two cases and their guardians should co defendant as the supplementary civil action in criminal proceedings, in addition to the defendant sufficient property compensation, must be generally by the defendant's guardian shall bear civil liability for compensation. The guardian's identity is twofold, is not only the legal agent, and the defendant in criminal incidental civil lawsuit. If the guardian is a unit or group, you should not bear civil liability. If the defendant is over16Years of age and not full18Years of age, according to the Supreme People's Court on the implementation of "of civil law of the people's Republic" opinion (Trial){Method (do)[1988]6Number, hereinafter referred to as the method (do)[1988]6No.}Article2"More than sixteen years of age with18Citizens under the age of, can obtain the income to their own labour, and to maintain the local people life level, can be identified as to their own labor income as the main source of income of the person with full capacity for civil conduct ", it can be used as a supplementary civil action in criminal proceedings the accused, if the accused without property compensation, according to (do)[1988]6No.161Article2Paragraph of the spirit, by raising people advance commitment to obligations, but not named as defendants in criminal incidental civil lawsuit.

(2) no person shall be investigated for criminal responsibility, refers to the act in line with the constitutive elements of the crime, due to the provisions of laws and regulations have not been prosecuted to the people's court, crime and criminal responsibility. Including the object by the public security authorities for public security administrative punishment or the people's Procuratorate decides not to initiate prosecution. In these cases, the common harmful behavior facts are clear, evidence really fully, although the behavior is based on the law should not be held or an exemption from investigation and not be investigated for criminal responsibility, but people should still be the defendant in criminal incidental civil lawsuit. The reasons are:ACo perpetrator in the trial before the public security organs or the people's Procuratorate has been made administrative punishment and non prosecution not be investigated for criminal responsibility, but is not meant to be exempt from the civil liability for compensation.BA case of joint crime is different from the case of single crime case, can not simply use a separate crime to weigh case of common criminal incidental civil litigation.CIn a case of joint crime and some suspect has been a public security organ or the people's Procuratorate made a deal, but this kind of case victim damage is caused by the co action common perpetrator, according to the principle of civil law, common tort to the infringement behavior caused by the consequences are jointly and severally liable, the joint tortfeasors should of course have included by the public security organ or the people's Procuratorate made processing and not be held criminally responsible behavior.DBecause the criminal proof standard is strict to the civil litigation, criminal litigation proof so difficult to set up does not mean that the evidence in civil litigation is absolutely not established. Therefore, when the behavior is based on the law should not be held or an exemption from investigation and not be investigated for criminal liability, the behavior person still should be the defendant in an incidental civil action.

(3) due to other reasons could not be investigated for criminal responsibility of common injurer including suspects on the run and has death trial of criminal suspects.AIn the case of joint crime, joint crime in It is often seen. loose phenomenon, law interpretation[1998]23No. only the provisions of the criminal with the plaintiff and the defendant in civil litigation, but not how to set the joint crime of fugitives treatment, this is not the case of common crime in the root cause of criminal incidental civil defendant columns in the fugitive, joint criminal and judicial practice should be listed as a fugitive criminal incidental civil litigation defendants controversial topic. In the author's opinion, in the absence of a clear legal provisions or judicial interpretation, the common crime suspect should not be run as a defendant in criminal incidental civil lawsuit, there are three reasons: one is the judicial practice can not operate. The fugitive status cannot be determined accurately, unable to make the law clear the fugitive. Therefore, even if the fugitive as criminal incidental civil lawsuit accused of default judgment and ordered it to bear the liability for civil compensation, when the verdict comes into effect also cannot be performed, the criminal supplementary civil lawsuit accuser huopei will also be zero. Two is also no clear legal provisions, legal interpretation[1998]23No.86The scope of the provisions of article is not included in a case of joint crime in the criminal. Three is not caused by common criminals imbalance of interests. Although the harm caused by crime is the perpetrator of the common, but compared to the civil legal relations of joint tort, the consequences of damage should assume joint and several liability, the victim as the holder has the right to demand common to any others in the tort all liability, obligations of the people according to the law to the other compulsory recovery, and will not cause between the joint crime of imbalance of interests. Furthermore, when the situation without compensation, was captured in a victim, the victim shall have the right to the captured fugitive then mentions criminal supplementary civil action.BThe joint crime has died before trial suspects as with other common criminal suspects the common cause of the victim's material loss, resulting in the supplementary civil action in criminal cases and other criminal suspects or defendants crime material losses together. Because of the dead, so the legal heir is liable to civil liability for crimes, the criminal suspect causes material loss to the defendant. The death of the suspect if no statutory successor nor a property for execution, it shall terminate on the death of civil litigation of criminal suspects. If the pre trial of death are prisoners or other criminal suspects to the heir in incidental civil action shall be suspended, incidental civil lawsuit trial, to restore hearing to be determined in the civil litigation heir. If no successor nor for property for execution, the same shall terminate on the civil incidental civil action of the defendant.

The three, have been executed criminals inheritance cannot be used as a supplementary civil action in criminal proceedings.

Law interpretation[1998]23No.86Article3Provisions of the death penalty has been executed criminals inheritance stipulated incidental civil compensation duty main body bath. In accordance with the provisions of China's "criminal law", criminal litigation with incidental civil action is completed in the same procedure, a defendant is executed in the whole procedure (including the criminal supplementary civil action procedure) before implementation, since the defendant has been executed and the procedure has been completed, the criminal incidental civil litigation and from He Chengli; conversely, if the criminal supplementary civil action can also be carried out, then the defendant in the case of not executed. Therefore, for the death penalty has been executed criminals of the heir is unable and cannot file an incidental civil action, have been executed criminals inheritance from proceedings would not be incidental civil lawsuit defendant opportunity, the victim can only be filed a civil lawsuit. If the offender's successor and give up on the criminals of property inheritance rights, the criminal's successor cannot become the defendant in a civil litigation (the above mentioned heir which never give up the right to inherit heir). Law interpretation[1998]23No.89A: "incidental civil action shall be filed in the future of criminal cases of first instance declared previously mentioned. Have the right to file an incidental civil action in the first instance by the people before the announcement did not mention, not to file an incidental civil action. But the rules can be civil lawsuit "in the criminal verdict after is the best proof.

Four, on the subject of criminal incidental civil action in the unit crime

China's "criminal law" article31Article: "a crime committed by a unit, the unit is to be fined, and the persons directly in charge and other directly responsible personnel penalty. The provisions of this Law and other laws provide otherwise, in accordance with the provisions." This is a double penalty system to implement the provisions of the unit. Therefore, in the crime of unit crime, with the exception of the law has clearly stipulated, the directly responsible personnel in charge and the person directly responsible units although the defendants in criminal cases, but it cannot become the compensation duty main body of supplementary civil action in Criminal Proceedings (except the unit and the actor shall be held jointly liable.). The reason is:AIn the case of unit crime, the unit profit is not the crime unit, the persons directly in charge and the person directly responsible. The crime unit as defendants in criminal cases, of course, is also the criminal supplementary civil compensation duty subject.BIn accordance with China's "general principles of civil law" article43Tiao Hedi121Provisions of the spirit, units should duty crime person and employee responsible for the units within the bear civil liability for compensation.CThe natural person in the unit crime nature even management system problems should bear corresponding civil liability is the unit interior, category liability issues rather than the law, this is the essential difference between the tort behavior and non duty tort behavior, not to be confused.

Five, on the determination of the other defendants in criminal incidental civil lawsuits

Law interpretation[1998]23No.86Article5Provision of compensation duty main body refers to the non unit crime the defendant units and the criminal defendant's guardian, property inheritance person other than the natural person. First, as long as the law, shall bear civil liability for compensation of crime and other units and individuals to the defendant, to other units and individuals as co defendant of criminal incidental civil action. As the premise of other units and individuals and criminal defendant exists such as employment, entrusted with the membership and so on the special relationship, the law stipulated by criminal acts of criminal defendant victim material losses by other units or individual responsibility. If the individual industrial and commercial households (or other employers) violations hired personnel in performing his duties, the employer shall bear civil liability for compensation etc..

The second is not the type of civil liability of other units and individuals to participate in the position of defendant in criminal incidental civil lawsuit and should bear the mix, not mistakenly believe that as long as the supplementary civil action in criminal proceedings, shall be jointly and severally liable for civil compensation. This is because the civil compensation liability of crime types of other units and individuals for the criminal defendant is diversity of. There is a kind of vicarious liability. If the employer to the employee in the civil compensation responsibility in the process of criminal responsibilities to others caused by the loss shall be borne by the (see law interpretation[2003]20No.9The provisions of article). There is an added responsibility. If the law interpretation[2003]20No.6Article, article7Article type, namely, first by the perpetrators shall bear civil liability for compensation, only the offender's property is not sufficient to compensate the victim's economic loss, only by other units and individuals to bear the responsibility of compensation. There is a joint responsibility for compensation. Such as "Securities Law" article63Types of these regulations, by other units or individuals with criminal defendants jointly and severally liable. To sum up, in the other units and individuals should take alternative liability case, the defendant cannot be used as a co defendant in an incidental civil action in criminal; other units and individuals shall bear supplementary liability and the joint and several liability cases, other units and individuals and criminal defendants in criminal incidental civil lawsuit Co defendant.