The criminal compensation in incidental civil action as why?

The criminal compensation in incidental civil action as why?

-- on the "Supreme People's Court on the application<The criminal procedure law of the people's Republic of China>Explanation "article155In the third paragraph comprehension and Application

Feng Yuting

"The Supreme People's Court on the application<The criminal procedure law of the people's Republic of China>Explanation "article155Strips of incidental civil action in "material loss"The scope was defined, and its concrete content is: criminal behavior caused by victims of personal injury, shall pay the medical fees, nursing fees, transportation fees and other reasonable expenses for treatment and rehabilitation of payment, as well as the lost wages. If the victim is disabled, should also be compensation for disability AIDS fees; causing death to the victim, should also be compensation for funeral expenses. The definition in judicial practice has caused some understanding erroneous zone. Some court held that the Supreme People's court does not support that the criminal supplementary civil action proposed"Compensation for death"And"Maintenance fee"And then, according to the judicial interpretation of article164Shall exercise the elucidation right: inform the parties filed a lawsuit separately, and in which support"Compensation for death"And"Maintenance fee"Litigation request; in the criminal supplementary civil action is not supported"Compensation for death"And"Maintenance fee"Litigation request.

A recent case agent encountered a similar situation, the court's interpretation of the law I was puzzled. After the basic conclusion of related laws that are as follows:"Death compensation" and "the cost of living dependency" belongs to the "criminal" scope of compensation in incidental civil action has the explicit legal basis. Supplementary civil action in criminal proceedings applicable "Regulations of the people's Republic of criminal law" about the criminal supplementary civil action range -- shall claim for compensation for mental damages, rather than criminal incidental civil action shall not apply to "all the rules and regulations of the people's Republic of China Tort Liability Act". Interpretation of "cost of supplementary civil action in criminal proceedings in the scope of" shall apply the relevant provisions of the civil law "applicable". "Death compensation", "maintenance fee" legal attribute should be "material loss".

(a) the accurate interpretation of "the people's Republic of China tort liability law" article fifth shall be: criminal incidental civil action for "Regulations of the people's Republic of criminal law" about the criminal supplementary civil action range -- shall claim for compensation for mental damages, rather than criminal incidental civil action shall not apply to "all regulations of the people's Republic of China Tort Liability Act". That the whole of the "the people's Republic of China Tort Liability Act" does not apply to the criminal supplementary civil action procedure is a misreading of the "the people's Republic of China tort liability law" article fifth.

2010Years7Month1The date of promulgation of the "people's Republic of China Tort Liability Act" of second, four or five stipulates the scope of. "The people's Republic of China tort liability law" the second stipulation: the infringement of civil rights, he shall assume the tort liability in accordance with this law. "Civil rights and interests of this law, including the right to life, the right to health, the right of name, right of reputation, the right of honor, the right of portrait, privacy, marital autonomy, guardianship, ownership, usufruct right, guarantee right, copyright, patent, trademark, right of discovery, equity, inheritance rights and other body, property rights. Rule fourth: the infringer for the same act shall bear administrative liability or criminal liability according to law, does not affect the tort liability. Rule fifth: other laws have special provisions on tort liability, such provisions.

The scope of "law of the people's Republic of China Tort Liability Act" provisions, the general plus exception that: "the people's Republic of China tort liability law" applies to all civil rights act -- whether social harmfulness lighter tort, crime or serious harm to society -- are suitable for "the people's Republic of China Tort Liability Act", "other laws on the special provisions of tort liability otherwise". At the same time,Legislation was strictly limited to exclude the application of "the people's Republic of China Tort Liability Act":

1Other, must be "legal" exceptional provisions applicable only rejection "of the people's Republic of China Tort Liability Act". Here the "law" should be based on the "legislative law" refers only to the people's Republic of China "shall be formulated by the Standing Committee of the National People's Congress" and the National People's Congress of normative legal documents,It doesn't refer to what we say normally "formulated or recognized by the state, by the force of the state to ensure the implementation of the norms of behavior, social norms" universally binding to stipulated the litigant rights and obligations, for administrative regulations, local regulations, autonomous regulations, rules, regulations, single row to the Supreme People's court and the Supreme People's Procuratorate issued a judicial interpretation, the national policy has no right to reject "the people's Republic of China Tort Liability Act".

2, rejection is only "of the people's Republic of China Tort Liability Act" relevant "Regulations", but not in the tort liability law, which is not only applicable terms. That is to say, those "other legal liability for tort" not "special provisions of the" provisions shall apply.

On the criminal supplementary civil action in criminal procedure law, "" the people's Republic of China only in Article99Strip - Chapter102To make the relevant provisions. The relevant provisions are as follows:

Article ninety-ninth the victim suffers because of the defendant's criminal actMaterial lossAnd, in the process of criminal proceedings, shall have the right to file an incidental civil action. The victim's death or incapacity, his legal representatives, near relatives shall have the right to file an incidental civil action.

If the state property, collective property losses, the people's Procuratorate, may file an incidental civil action.

The 100th people's court when necessary, can take preservation measures, seizure, seizure or freezing the property of the defendant. Plaintiff of the supplementary civil action or the people's Procuratorate may apply to the people's courts to take preventive measures. The people's courts to take preventive measures, the relevant provisions of the civil procedure law applicable.

Article 101st the people's Court of the incidental civil lawsuit, mediation may be conducted, or according to theMaterial lossMake a judgment, ruling.

Article 102nd incidental civil action shall be heard together with the criminal case, only in order to prevent the excessive delay in the trial of criminal cases, can in the trial of criminal cases, the same judicial organizations continue to hear the incidental civil action.

The accident and people involved in the case of personal injury compensation, "the relevant provisions of the people's Republic of China Tort Liability Act":

Article second the infringement of civil rights, he shall assume the tort liability in accordance with this law.

"Civil rights and interests of this law, including the right to life, the right to health, the right of name, right of reputation, the right of honor, the right of portrait, privacy, marital autonomy, guardianship, ownership, usufruct right, guarantee right, copyright, patent, trademark, right of discovery, equity, inheritance rights and other body, property rights.

Article fourth the infringer for the same act shall bear administrative liability or criminal liability according to law, does not affect the tort liability.

Fifth other laws have special provisions on tort liability, such provisions.

Article sixteenth of tort resulting in personal injury, the reasonable expenses shall pay the medical fees, nursing fees, transportation fees and expenses for treatment and rehabilitation, as well as the lost wages. The cause of disability, should also be compensation for disability living allowance and disability compensation. Cause of death, should also be compensation for funeral expenses and death compensation.

Twenty-second of the infringement of personal rights, causing serious mental damage, the victim may claim compensation for mental damage.

Comparison of the relevant law can be found, the traffic accident caused by human behavior in the case of death, is in line with the "people's Republic of China Tort Liability Act" the invasion "personal right" the elements of tort, constitutive elements of the crime of causing traffic casualties and conform to "the provisions of article 133rd of criminal law of the people's Republic of" the.In the criminal supplementary civil action in Criminal Procedure Law ", because" the people's Republic of China ninety-ninth made with the "people's Republic of China tort liability law" article twenty-second of the compensation for spiritual damages different regulations, according to "the people's Republic of China tort liability law" article fifth, at this time should be excluded "apply to the people's Republic of China tort responsibility law" in article twenty-second, which is the "people's Republic of China Criminal Procedure Law" provisions of article ninety-ninth, namely the incidental civil lawsuit can not put forward the spirit of damages in criminal. This does not mean that the "other clauses of the people's Republic of China Tort Liability Act" in criminal incidental civil action shall apply. That the whole of the "the people's Republic of China Tort Liability Act" does not apply to the criminal supplementary civil action procedure is a misreading of the "the people's Republic of China tort liability law" article fifth.

(two) the cost of interpretation of "the criminal supplementary civil action in the scope of" shall apply the relevant provisions of the civil law "applicable".

Our law of civil suit collateral to criminal proceedings relevant provisions are as follows:

1, "the people's Republic of China Law of criminal procedure" (adopted by the National People's congress;2013.1.1Take effect.

Article 101st the people's Court of the incidental civil lawsuit, mediation may be conducted, or according to theMaterial lossMake a judgment, ruling.

2, "the Supreme People's Court on the issue of the scope of criminal incidental civil action rules ("2000Years12Month4Date)

Article 1 personal rights by criminal violations suffered material losses or property damaged by criminals has suffered material losses, may file an incidental civil action.

For crime victims by the spirit of losses suffered an incidental civil action, the people's court shall not accept the.

Second of the victims suffered from criminal behaviorThe material loss, refers to the actual loss due to crime has suffered and the inexorable loss.

3, "the Supreme People's Court on the application<The criminal procedure law of the people's Republic of China>Interpretation "2013.1.1Take effect.

Article 138th The victim's personal rights by criminal violations or property destruction suffered by criminalsMaterial lossOf, have the right to file an incidental civil action in criminal proceedings; the victim's death or incapacity, his legal representative, close relatives shall have the right to file an incidental civil action.

Because of the crime of infringing, file an incidental civil action or take a mental compensation requirements of civil proceedings, the people's court shall not accept.

Article 155th Make a judgment on the incidental civil action shall be caused, according to the criminal behaviorMaterial lossCombined with the specific circumstances of the case, the defendant should be, to determine the amount of compensation.

Crime victims caused personal injury, shall pay the medical fees, nursing fees, transportation fees and other reasonable expenses for treatment and rehabilitation of payment, as well as the lost wages. If the victim is disabled, should also be compensation for disability AIDS fees; causing death to the victim, should also be compensation for funeral expenses.

The casualties caused by driving a motor vehicle or cause heavy losses to public or private property, which constitutes a crime, to determine the compensation responsibility in accordance with the "Regulations of the people's Republic of China Road Traffic Safety Law" article seventy-sixth.

Incidental civil litigation parties to reach a mediation, reconciliation agreement on civil compensation, scope of compensation, the amount is not subject to the provisions of the second paragraph, third paragraph limit.

Article 163rd The people's Court of the incidental civil lawsuit, in addition to the criminal law, criminal procedure law and the judicial interpretation of criminal law has prescribed, apply the relevant provisions of civil law.

Article 164th The victim or his legal representative, close relatives in criminal proceedings did not file an incidental civil lawsuit, civil lawsuit shall be separately, the people's court may conduct mediation, or according to theMaterial lossMake a decision.

Comparison of the relevant law, we find that, the judicial interpretation of the Supreme Court on the "material loss" are defined through the following process:

"The Supreme People's Court on the provisions of criminal incidental civil litigation" range adopted the definition of "material loss" concept, while the "Supreme People's Court on the application<The criminal procedure law of the people's Republic of China>Interpretation of "take the list extension mode.The concrete for:1, material loss, refers to the actual loss due to crime has suffered and the inexorable loss.2The reasonable expenses paid for, treatment and rehabilitation (medical fees, nursing fees, transportation fees, etc.) as well as the lost wages; disability AIDS fees; funeral expenses. The "cost" of extension, how to understand, there is a dispute. There are two main views:1The new judicial interpretation, the scope of compensation shall not include compensation for death or disability compensation, the court in criminal incidental civil action should not support.The reasons are as follows: (1The scope of compensation) death or disability compensation does not belong to the legal list "material loss". "The Supreme People's Court on the application<The criminal procedure law of the people's Republic of China>Explanation "article155The article138Hereof "Loss" to further clarify the list, not explicitly listed "compensation for death or disability compensation". If the court support "compensation for death or disability compensation", so, it should be Leming; moreover, the death compensation amount is higher, often hundreds of thousands yuan, should belong to the categories of compensation, the Supreme Court why will ten thousand or twenty thousand yuan of funeral expenses of Leming, and of death compensation is not listed? So, the scope of compensation is not included in the death compensation. (2) compensation for death or disability compensation does not belong to the "cost" loss. "The Supreme People's Court on the application<The criminal procedure law of the people's Republic of China>Explanation "article155"Causing death to the victim shall, should also be compensation for funeral expenses", range of the compensation scope in the "cost". "Cost" as the name suggests is to spend actual expenditure. Death compensation does not belong to the actual cost. So it is not within the scope of civil suit collateral.2, "the Supreme People's Court on the application<The criminal procedure law of the people's Republic of China>Interpretation of "does not explicitly denied compensation for death or disability compensation, claim compensation for death or disability compensation legal basis.

Think"The new judicial interpretation provisions of compensation scope does not include compensation for death or disability compensation" point of view is a misreading of the legal sense, is a partial understanding of relevant laws and judicial interpretations of. The reasons are as follows:

1Usually, in the "death compensation amount is high" phenomenon, to prove the necessity of "death compensation" specifically enumerated in the legislation, and then speculated that "death compensation" is not in the "Supreme People's Court on the application<The criminal procedure law of the people's Republic of China>Explanation "article155The specified because lawmakers did not support the claims made Overgeneralization legislative intent and most probably it did not actually happen error.

(1) "death compensation" is not present in all personal tort cases. If the deceased as "anonymous", "Five Guarantees" case.

(2China's "general principles of civil law") also has provisions "costs". "General rule of the civil law" 119th article: a citizen's person causing physical injury, shall compensate for the medical expenses, lost income, reduce disability living allowanceCosts; cause of death, and shall pay the funeral expenses, the dependents of the necessary living expensesCosts. The provisions of China's "general principles of civil law" in did not specify "costs" include the compensation for spiritual damages, but this does not mean that the legislators do not support the spiritual damage compensation, on the contrary, "the Supreme People's Court on some issues of determining civil right infringement spirit damage compensate responsibility to explain" the first "the right to life, health right, right of body" allows the parties to claim for compensation for mental damages in the judicial interpretation. "The Supreme People's Court on some issues of determining civil right infringement spirit damage compensate responsibility to explain" the provisions of Article 1:

Article 1 Natural person with the personality rights are infringed, to the people's court request for compensation for mental damages, the people's court shall accept according to law:

(a) the right to life, the right to health, the right of body;

(two) name right, portrait right, reputation right, reputation right;

(three) the right to human dignity, personal freedom.

Similarly, "general principles of civil law" the provisions did not list the "death compensation", "disability compensation", this does not prevent the "Supreme People's Court on the trial of personal injury compensation case applicable legal interpretation" in seventeenth to establish "the death compensation", "disability compensation", "Nursing fee", "transportation", "accommodation", "Yuan Gang of Sibu help fee", "the necessary nutritional costs", "the follow-up treatment costs". "On the relevant issues concerning the application of law in the trial of personal injury compensation cases the interpretation of" the seventeenth Supreme People's Court:

Article seventeenth the victim suffers from a personal injury, medical treatment due to the cost of expenditure and revenue due to loss of working time, including medical expenses, lost income, nursing fees, transportation fees, accommodation fees, hospitalization fee food subsidies, necessary, the obligation of reparation should be compensated.
Disability, the expenses necessary for increasing the life needs spending and result in loss of working capacity loss of income, including disability compensation, disability AIDS charges, was dependent for living expenses, as well as rehabilitation care, continued treatment of the actual cost of necessary rehabilitation, nursing fees, follow-up treatment costs, the obligation of reparation should also be compensated.
The death of the victim, the 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 expenses, 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.

(3"The literal meaning) to cost" to negate the "death compensation" belongs to the incidental civil lawsuit, is a kind of lazy performance. "General rule of the civil law" article119In the literal meaning of "cost" and "the Supreme People's Court on the application<The criminal procedure law of the people's Republic of China>Explanation "article155The literal meaning of a "cost" the same ", the Supreme People's Court on the trial of personal injury compensation case applicable legal interpretation of several issues" in seventeenth but from the explanation in addition to "death compensation", "disability compensation" is the best refutation.

2, "costs" should be combined with the "interpretation of the Supreme People's Court on the application<The criminal procedure law of the people's Republic of China>Explanation "article163The provisions of article.

"The Supreme People's Court on the application<The criminal procedure law of the people's Republic of China>Interpretation of "163rd stipulation: the people's court the incidental civil lawsuit, in addition to criminal law and criminal procedure law, and criminal judicial interpretation has been specified, the relevant provisions of civil law.According to the above provisions, the "costs" should be explained as follows:

(1) for "costs" should be interpreted to first find the "criminal law, criminal procedure law and criminal judicial interpretation has been specified".

(2) for "costs", China's "criminal law, criminal procedure law and the judicial interpretation of criminal law has provisions" did not make provisions.

(3"Expenses") for the interpretation of the extension should identify relevant provisions of the civil law "".

The relevant provisions of the civil law of our country is as follows: "general rule of the civil law" 119th article: a citizen's person causing physical injury, shall compensate for the medical expenses, lost income, reduce disability allowance for daily life; cause of death, and shall pay the funeral expenses, the dependents of the necessary living expenses. "The Supreme People's Court on certain issues concerning the application of law in the trial of personal injury compensation case solution" seventeenth victim suffers from a personal injury, medical treatment due to the cost of expenditure and revenue due to loss of working time, including medical expenses, lost income, nursing fees, transportation fees, accommodation fees, hospital food subsidies, the necessary nutrition fees the obligation of reparation, compensation shall be made. Disability, the expenses necessary for increasing the life needs spending and result in loss of working capacity loss of income, includingDisability compensation, disability AIDS charges,The cost of living dependencyAs a result, rehabilitation nursing, continued treatment of the actual cost of necessary rehabilitation, nursing fees, follow-up treatment costs, the obligation of reparation should also be compensated. The death of the victim, the 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 expenses,To be dependent for living expenses, death compensationAnd the relatives of the victims for funeral expenses of transportation, accommodation and loss of working time and other reasonable costs. "The people's Republic of China Tort Liability Act" provisions of article sixteenth: harm caused personal injury, the reasonable expenses shall pay the medical fees, nursing fees, transportation fees and expenses for treatment and rehabilitation, as well as the lost wages. The cause of disability, should also be compensation for disability living allowance andDisability compensation. Cause of death, should also be compensation for funeral expenses andCompensation for death.

(4) according to the law and the judicial interpretation, "expenses" includes "death compensation" and "living expenses for dependents".

(5) the legal and judicial interpretation can be used and the criminal supplementary civil action procedure has been discussed in reason, this does not repeat.

(three) "death compensation", "maintenance fee" legal attribute should be "material loss".

China's laws on "death compensation", "maintenance fee" of the relevant provisions are as follows:

1, the general principles of the civil law of the people's Republic of China (the National People's Congress enacted,1987Years1Month1The date of promulgation)

Article 119th A citizen's person causing physical injury, shall compensate for the medical expenses, lost income, reduce disability allowance for daily life; cause of death, and shall pay the funeral expenses,The dependents of the necessary living expenses.

2, "Supreme People's Court on the civil right infringement spirit damage compensate responsibility interpretation of several issues" (2001Years2Month26Date)

Eighth because of the tort to mental damage, but did not cause serious consequences, the request for compensation for mental damages, generally did not support, the people's court may order the infringer to stop infringement according to circumstances, restore reputation, eliminate the effect, make an apology.

Because of mental injury caused by tort, resulting in serious consequences, people's court shall order the infringing party bear the cessation of infringement, rehabilitation of reputation, eliminate the influence, such as an apology to civil liability, can according to request any victim one party of the compensation for spiritual damages corresponding solatium.

Article ninthMental damage solatium includes the following methods:

(a) causing disability, disability compensation gold;

(two) of death, for death compensation;

(three) spirit conciliate gold other damage case.

Article twelfth before the promulgation of this interpretation has been effective as judicial interpretation, its contents are inconsistent with this interpretation, this interpretation shall prevail.

3, "the Supreme People's Court on the trial of personal injury compensation case applicable legal solutions ("2004Years5Month1The date of promulgation)

Disability, the expenses necessary for increasing the life needs spending and result in loss of working capacity loss of income, including disability compensation, disability AIDS charges, was dependent for living expenses, as well as rehabilitation care, continued treatment of the actual cost of necessary rehabilitation, nursing fees, follow-up treatment fee, the obligation of reparation should also be compensated.

The death of the victim, the 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 expenses,To be dependent for living expenses, death compensationAnd the relatives of the victims for funeral expenses of transportation, accommodation and loss of working time and other reasonable costs.

Twenty-eighth were dependent for living expensesAccording to the dependency degree of loss of working ability, according to by the seat of the court last year, per capita consumption expenditure of urban residents and rural residents consumption expenditure per capita standard of living. Dependents were known to be minors, to eighteen years of age; dependents no working ability and no other source of income, the calculation of twenty years. 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.

Dependency is defined as being the victim should bear the support obligation in accordance with the law of minors or disabled and no other adult living near relatives. Be dependent of other dependents, the compensation obligor shall bear the expenses for compensation according to law. Only part of the. Several people were dependent, the total amount of annual compensation does not exceed the previous year of urban residents per capita consumption expenditures or rural residents per capita living consumption expenditure.

Article twenty-ninth the death compensationIn accordance with the seat of the court on appeal by the year of urban residents per capita disposable income per capita income or rural residents, according to twenty years. 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.

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.

Article thirty-sixth the interpretation shall be implemented as of May 1, 2004. In 2004 May 1 cases of compensation for the new admissibility of the trial of personal injury, this interpretation shall apply. Has made the judgment of personal injury compensation case for retrial in accordance with the law, shall not apply to this interpretation.

The purposes of judicial interpretation before the promulgation and enforcement of the present interpretation is already in effect, which are inconsistent with this interpretation, this interpretation shall prevail.

4, "the people's Republic of China Tort Liability Act" (a member of the Standing Committee of the National People's Congress enacted,2010Years7Month1The date of promulgation)

Twenty-second of the infringement of personal rights, causing serious mental damage, the infringee may requestCompensation for mental damage.

The related law, we found that:

1The general principles of the civil law "," no regulation "compensation for mental damage", which appeared as a property loss about "the dependents of the necessary living expenses".

2, "Supreme People's Court on the civil right infringement spirit damage compensate responsibility interpretation of several issues" is the "death compensation" as "mental damage solatium" a form to be determined.

3, "the Supreme People's Court on the trial of personal injury compensation case applicable legal solution", "compensation for death (death compensation)", "has been dependent for living expenses" as "property damage" to be found in the.

4, "tort liability act" in sixteenth, twenty-second respectively on "death compensation" and "compensation for mental damage" to make the rules, we can see that the "death penalty" is not the "spiritual damage compensation".

So we can draw a conclusion as follows:

1, "the cost of living dependency" in "general principles of civil law", "Supreme People's Court on the trial of personal injury compensation case applicable legal solution", "tort liability act" were identified as "property loss". Provisions of relevant legislation in China is One principle runs through it all..

2, "death compensation" in the "Supreme People's Court on the civil right infringement spirit damage compensate responsibility interpretation of several issues" was identified as "mental damage solatium", and "the Supreme People's Court on certain issues concerning the application of law in the trial of personal injury compensation case solution" was identified as "property loss".According to the "post method is better than the former method principle" and "the Supreme People's Court on certain issues concerning the application of law in the trial of personal injury compensation case solution" the provisions of article thirty-sixth, can be identified, death compensation in the "Supreme People's Court on the trial of personal injury compensation case applicable legal solution to the problem of" after the promulgation of the "property" property loss. "The people's Republic of China Tort Liability Act" in sixteenth, twenty-second respectively on "death compensation" and "compensation for mental damage" to make provisions, also told the legislative attitude we "death compensation" is not the "compensation for mental damage". Therefore, legal attribute of "death compensation" should be "property damage" rather than "mental damage compensation".

(four) "civil lawsuit" otherwise resolved judicial suggestions path is a flagrant violation of the principle of procedural justice

Due process has double value, namely to ensure justice judgments and to the entity judgment to the justification. The case also, take different relief path leads to different judgments, which itself is the program's own rationality of self denial. In fact, the "Supreme People's Court on the application based on<The criminal procedure law of the people's Republic of China>Explanation "article155The correct understanding of the third paragraph, take the criminal supplementary civil action or civil proceedings filed separate results is the same. The wrong"Suggestions"The article is based on155The third paragraph of the wrong understanding on.