The new "criminal procedural law" to modify the incidental civil action system mainly for the "three increase": increase the subject of civil suit collateral collateral; increase the preservation measures in the civil proceeding; increase the incidental civil lawsuit mediation system. "Interpretation of the Supreme People's Court on the application of people's Republic of China Criminal Procedure Law >" (hereinafter referred to as "interpretation") the sixth chapter made detailed explanation of the supplementary civil action procedure. The 155th section second for incidental civil litigation as compensation scope out lift provisions, but it is not clear that the compensation for disability and death compensation, plus the "legislative interpretation of section third explains the" 155th remains controversial, discussion of this and related issues in this paper are shallow.

One, the new "criminal procedural law" has been implemented for nearly half a year, but from the current judicial practice, the criminal supplementary civil action in the "two gold" appeal also failed to win the support of the court.

The new "criminal procedural law" January 1, 2013 implementation of the provisions of article ninety-ninth "the victim has suffered material losses as a result of the defendant's criminal act, in criminal proceedings, shall have the right to file an incidental civil action." Law v. 96 punishment than, not change the clause. From the expressions, the regulation belongs to the authorized norm, is not prohibitive norms. The law gives the victims suffered material losses and incidental civil lawsuit, but does not prohibit the request of compensation for spiritual damages.

"The Supreme People's Court on criminal incidental civil litigation scope rules" (method 2000) release (47) the provisions of article first, only the material loss may file an incidental civil action for the victims of crime, because the spirit of losses suffered an incidental civil action, the people's court shall not accept the. This explanation has ruled out the possibility that the victim through incidental civil lawsuit of compensation for spiritual damages.

"Official Reply of the Supreme People's Court on whether or not to accept the criminal victim of civil litigation problem" (2002) (Interpretation No. 17) further stipulates that, "the victim in the criminal case because the defendant's criminal acts and suffer loss of the spirit of an incidental civil action, or concluded in the criminal case, the victim prior claim for compensation for mental damages in civil proceedings, the people's court shall not accept." Thus, the criminal case victim, whether in criminal incidental civil action or "separately" prosecution, have lost the claim for mental compensation.

In criminal cases the victim had lost the litigation rights of compensation for mental damage, then "two gold" belongs to the spiritual damage compensation? Still belongs to material compensation? In criminal incidental civil action, "two gold" demands can be supported?

January 1, 2013 implementation of the Supreme Court "explain" 155th do out lift provisions on "material loss": "make a judgment on the incidental civil action, should be based on criminal behavior caused by loss of material, combined with the specific circumstances of the case, the defendant shall 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 listing rules and did not appear "disability compensation" and "compensation for death", but to "and" end of word. "And", has enumerated list not and end two entirely different meaning, the Supreme People's court to express clearly visible. But, as compensation for material damage "big" of the "two gold" if the Supreme Court approved, shall be listed in the front, it does not support the suspicion than stay objective interpretation of space.

In fact, as early as in May 28, 2011, the four meeting of the eleven session of the National People's Congress 6039th suggests the reply of the Supreme People's court office made "" (Law 2011) (No. 159) is still "stubborn" will be "two gold" as the spirit damage compensation. The "spirit of the document" unified judicial cognizance of "two gold" properties. The new revised "Criminal Procedure Law" is also followed this argument, not the compensation for disability and death compensation as the range of supplementary civil compensation. ^[1]

Around the judicial practice also proved this point: in January 17, 2013, titled "the implementation of the new criminal procedure law in Liaoning after the first case was" news ^[2]Point out, the murder of close relatives of victim of the death compensation did not obtain the support of the court; a national "Changchun auto theft case of infanticide" ^[3]Recently the end of the first instance judgment, "a fine of RMB 50000 yuan, the families of the victims compensation for economic loss of 17098.5 yuan", the criminal penalty than victims obtain compensation is still high, the public power and private rights are maintained to relief? The families of the victims can obtain comfort?!

Two, the new "criminal procedural law" and the Supreme People's court "explain" after the implementation, lawyers, judges, prosecutors and other industry legislation understanding of "interpretation" in the third paragraph 155th there is disagreement.

The Supreme Court "explain" the 155th provisions of the third paragraph: "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." However, "road traffic safety law" seventy-sixth article: "motor vehicle traffic accidents caused casualties, property loss, the insurance company in motor vehicle compulsory third party liability insurance liability limits the scope of compensation". The so-called "casualty" in "the Supreme People's Court on the law applicable to a number of compensation cases of road traffic accident damage explanation" article fourteenth clearly pointed out in "road traffic safety law seventy-sixth stipulation 'casualty', refers to the motor vehicle traffic accident against infringement right of life, right of health and personal rights and interests of the damage, including the tort liability law article sixteenth and the provisions of article twenty-second the." According to the "tort liability act" of sixteenth and 22, including "two gold" and the spiritual damage compensation. In addition, in the "motor vehicle traffic accident liability compulsory insurance regulations" article twenty-third also stipulates that "the limitation of liability for death and disability compensation limit", namely "death compensation" and "compensation for disability"

We can draw a conclusion: crime, traffic in the crime of endangering public safety in the incidental civil action, "disability compensation" and "compensation for death" belongs to the incidental civil compensation, should be supported. In addition, the "tort liability act twenty-second provisions' infringement of personal rights, causing serious mental damage, the victim may claim compensation for mental damage. 'but the new criminal procedure law interpretation in the second paragraph 138th stipulates the requirements of compensation for mental loss'' 'inadmissible', at the same time, cross strong insurance is not the spirit damage compensate into payment list, therefore the court civil cases with such criminal, does not support the request of the parties litigation request compensation for mental loss." ^[4]

If the conclusion is accord with the legislative intent, then confesses "two gold" does not belong to "the spirit of the loss", but "material loss" category. So, in all the involved person damages incidental civil action shall support "two gold" appeal. However, the fact is not true. Law of left unfair.

However, according to the 155th paragraph third, it seems that we can get another interpretation: 155 "in accordance with the provisions of the third paragraph of" the people's Republic of China Road Traffic Safety Law "provisions of article seventy-sixth determining liability" in "determining liability" is to determine the civil liability for tort, mainly refers to the determination of the subject of compensation, from "who will pay for" problem, does not include the scope of compensation. From the "road traffic safety law" article seventy-sixth of the content, which is solved by "who will pay for" problem. Moreover, in the 155 section second has been identified in the scope of compensation concrete, in paragraph third need not be repeated limit. Therefore, can not simply from the seventy-sixth in the "personal injury" is a word to "series of law" to expand the interpretation. However, if this argument was, in the third paragraph 155th and completely unnecessary.

Visible, whether do you understand, in the application of substantive law, legal convergence, there are contradictions.

Three, "disability compensation" and "compensation for death" from the original understanding of the spirit of "loss" was identified as "loss", at the same time, the relevant provisions of the civil tort compensation should be directly applicable to the criminal supplementary civil action.

1, "two gold" nature of the crime.

In view of China's existing laws and regulations on the "disability compensation" and "compensation for death" not to make uniform provisions, the author attempts to our laws, regulations and judicial interpretations in terms of relative appellations, analysis, "disability compensation", "death compensation" is the title of the source and nature, the list is as follows:

As can be seen from the table, "general principles of civil law" puts forward the earliest "disability living allowance;" outdated "approach to road traffic accidents" puts forward the earliest "death compensation"; "consumer protection law" puts forward the earliest "disability compensation" and "compensation for death" title; "interpretation of" the Supreme People's Court on certain issues concerning the application of law in the trial of personal injury compensation case in both the compensation for death and death compensation two way; "Regulations" industrial injury insurance is called "a one-time grants for the disabled" and "the death of a one-time grant workers" etc.. Thus, "disability compensation" and "compensation for death" in Chinese laws, regulations and judicial interpretations have made provisions, but not a title, name, connotation and extension are not the same.

As described above, the fundamental reason lies in the confusion, in theory and practice "two gold" are different: cognitive disability compensation and compensation for death is the mental damage compensation? Still belongs to material compensation?

January 1, 1994 implementation of the "consumer protection law," article forty-first and September 1, 2000 implementation of the "product quality law" article forty-fourth, are prescribed in addition to claim compensation for disability living allowance. In view of this, the theoretical and practical fields of view tend to believe that nature, disability compensation of mental injury solatium.

January 1, 1995 implementation of the "State Compensation Law" twenty-seventh of the "two gold" as a victim of income loss compensation, namely "compensation for material damage"

March 10, 2001 implementation of the "Supreme People's Court on some issues of determining civil right infringement spirit damage compensate responsibility" to explain ninth of the "two gold" compensation for mental injury, therefore, in the judicial interpretation under the guidance of the people's court for compensation, the scope of criminal incidental civil action in the victim put forward "two gold" compensation request are not belong to criminal collateral civil and rejected.

May 1, 2004 implementation of the "Supreme People's Court on certain issues concerning the application of law in the trial of personal injury compensation case explanation" seventeenth, 25, 29 shall confirm the "two gold" is the injured party for loss of income, namely "compensation for material damage". However, eighteenth but the consolation money for the mental distress is "the Supreme People's Court on the the problems of defining the civil right infringement spirit damage compensate responsibility to explain the" confirmation, but admitted that "two gold" belongs to spiritual damage compensation. However, the seventeenth and 18 logically form parallel relationship, and the provisions of article thirty-first "compensation damages the identified and determined in accordance with the provisions of the first paragraph of article eighteen of the mental damage solatium, in principle should be a one-time payment", are "two gold" and the spirit damage compensate belongs to the parallel compensation project.

July 1, 2010 implementation of the "tort liability act" sixteenth think "two gold" belongs to the category of material damage, and the provisions of article twenty-second of the spiritual loss, it can be seen that both can claim. "Notice of the Supreme People's Court on certain issues concerning the application of people's Republic of China Tort Liability Act > (" method (2010) No. 23) Fourth "people's court for the trial of civil dispute cases of tort law, if the victims have been raising people, should be based on" the supreme people's court "interpretation of several issues concerning the application of the law in the trial of personal injury compensation case the provisions of article twenty-eighth, will be dependent for living expenses included in the compensation for disability or death compensation." Visible, "two gold" as a "loss" instead of "spiritual loss" category shall be recognized, otherwise "dependent people living" will not be able to calculate and compensate.

Therefore, starting from the original intention of legislation, judicial interpretation of the law, "according to the new law is better than the old method" principle, that people on the "two gold" nature has spirit of damages from the gradual transition compensation for material damage. Although the theory of "death compensation" and "compensation for disability" there were different theory ^[5]The dispute, but the author thinks that different doctrines in the cognizance of "two gold" and there is no essential difference, are recognized as compensation for material damage, but in determining "content and method of calculation of two gold" are different.

2, from the nature of incidental civil action and the existing legal provisions, as the material loss of the "two gold", in incidental civil action shall be supported.

The criminal supplementary civil lawsuit is a special form of litigation, is the combination of criminal litigation and civil litigation. Although the incidental civil action in the runtime and the applicable law is the priority for the criminal procedure law, the "attachment" to some criminal, but in essence the incidental civil action still belongs to civil action. The value orientation of civil procedure and the legal relationship between the trial and a simple civil action no substantial difference. Moreover, the Supreme People's court "explain" stipulates that the 163rd "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." In addition, "the Supreme People's Court on criminal incidental civil litigation scope rules" (method 2000) release (47) any material losses may file an incidental civil action. Therefore, as a material loss of the "two gold" in incidental civil action shall be supported. Existence of incidental civil action does not support the "two gold" in the judicial practice, and "be" filed separate civil litigation is to support the "strange" phenomenon, these two distinct decision resulted in substantial inequality and the applicable law is not uniform, as if the material loss "two gold" in the incident in the civil litigation support, will not have this problem. In addition, from the system design level, although the establishment of the criminal supplementary civil action of the original intention was to put the two litigation activities with simplified, reduce lawsuit, but its fundamental purpose is to safeguard the legitimate rights and interests of parties.

Therefore, the Supreme Court "explain" 155th second "and" should make extensive interpretation, including disability compensation, death compensation etc.. Thus, it can eliminate the Supreme Court "interpretation" in the third paragraph 155th understanding controversy.

Four, further, from the legislative point of view, should be the range of supplementary civil compensation for the expansion of the material and spiritual loss; from the assistance perspective, should be introduced into the national relief mechanism.

1, classification of law and legal system, the criminal substantive law and procedural law and the relevant interpretation problems.

First of all, as a department law, criminal law and civil law is the basic law, at the same level of law, should coordinate with each other, not contradict each other, negative. However, in the first paragraph of "criminal law" the thirty-sixth China Criminal Compensation in incidental civil action is only limited to material loss, and civil law the relevant provisions are not uniform, the formation of mental damage compensation "civil compensation for criminal not to compensate". In nature, the criminal supplementary civil action in essence is the civil action, "the scope of compensation should be the civil substantive law two gold" whether to belong to the incidental civil action to regulate. Secondly, as a process of "Criminal Procedure Law" is to solve the problem for the program, substantive content has no right to interfere with, such as the right to limit the range of supplementary civil compensation. The Supreme Court "interpretation" is not in the 155th article of "loss" for listing rules, limiting the civil rights. All in all, are attributed to the public than private rights, criminal than the traditional concept of civil. Third, "the Supreme People's Court on criminal incidental civil litigation scope rules" (method 2000) release (47) and "the Supreme People's Court on whether or not to accept the criminal victim of civil litigation issues concerning" (2002) (Interpretation No. 17) inappropriate exclusion of compensation for spiritual damages content, have the suspicion of the power. The 2006 revised "the people's court organization law" provisions of article thirty-second "of the Supreme People's court in the trial process for how the specific application of laws, decrees, interpretation." Visible, the Supreme Court Interpretation cannot go beyond, to amend the law. According to China's "legislative law" provisions of article seventh, the legal right of revision of the National People's Congress and the Standing Committee of the npc. Therefore, from the content point of view, these two explanations to "expand the interpretation of prohibitive norms norms of criminal procedural law", excluding interest is not prohibited, ultra vires explain. Conflicts in legislation lead to judicial confusion, therefore, should be abolished the two interpretation.

The above mentioned "two gold" already belongs to the material loss category, in the framework of the legal system in the existing deserve compensation. However, from the essence of the conflict of legislation, no matter how nature "two gold", in the criminal supplementary civil action in the material loss and spiritual loss shall be included in the scope of compensation. Recommendations in the "Criminal Procedure Law" ninety-ninth increase "spiritual loss", which is modified as "the victim suffers the material and spiritual loss as a result of the defendant's criminal act, in criminal proceedings, shall have the right to file an incidental civil action." Thus, the settlement of the disputed issue of theory and practice fundamentally.

2, from the protection of victim's rights and interests and national rescue duty point of view, should speed up the legislation state aid mechanism.

From the view of judicial practice, in incidental civil action does not support the "two gold" and the spirit damage compensate mainly due to difficult to execute. The law (2011) No. 159 document clearly pointed out, if the incidental civil cases and simple civil cases to apply the same standard of compensation, the victim, the defendant is unable to pay the case, high decision is tantamount to playing the "law", when no actual implementation, extremely easy to cause the victim appeal, make visit, all unable to guarantee the legal and social effect; for the accused person, even if their subjective willingness to pay, but the actual ability to pay is very low, the same can not be the victim of the understanding, in the standardization of sentencing and criminal policy of combining punishment with leniency, still can not reduce the criminal responsibility of the accused. Therefore, in order to resolve the problem, the Supreme Court judicial interpretation of the criminal supplementary civil compensation scope made strictly limited. However, the capacity to fulfill obligations of human rights directly deprived the practice, repeated criticism.

However, incidental civil judgment enforcement, in addition to the defendant did not fulfill the ability, and the previous security measures are not perfect also closely related. The new "criminal procedural law" and the Supreme People's court "explain" on incidental protective measures in civil litigation is improved, the starting point is to protect victim's legitimate rights and interests, resolve the difficult issues. In the balance "the victim's legal rights and interests" and "enforcement difficulty" problem, some operable suggestions are worthy of reference, such as "clear for crimes of tort obligation priority", "meet the criminal incidental civil judgment execution character set long term" ^[6]

1985 years by the United Nations "to achieve justice for victims of abuse of power crime and the basic principles of the Declaration", requires countries to protect the rights and interests of victims of criminal. According to the international community practices, according to the criminal victim rights protection, China should establish a national compensation system for criminal victims. The national compensation system for criminal victims ", refers to the state of damage and failed to get full compensation for criminal victims or their relatives from the criminal or other ways by crime, through legal procedures to give appropriate assistance. In our country, as "the Wenzhou train crash", "even the high-speed Huo explosion" and other major incidents, also belong to the criminal victim state aid to victims of the relief from the essence of category. ^[7]The court has been taking the lead in China to explore the establishment of the national assistance system of criminal victims, so far as early as in 2007, although the 17 provinces have been introduced to the criminal victim assistance, but does not have a national unified legislation applicable. As Chen Weidong said: "the new teaching choose to remain to be subject to the criminal supplementary civil action procedure, in order to seek the balance between public and private rights, keep the incidental civil action between dependent and independent of the balance, the main problems to be solved is the integration of legal provisions and judicial interpretation, and establish and perfect the state compensation system for criminal victims." ^[8]