Abstract:China in 1996, the revised "Criminal Procedure Law" established the victim in the criminal procedure law, the victim has the corresponding provisions of the litigation rights of the parties, but in judicial practice, there are obvious deficiencies in protecting the rights and interests of the victim. Based on the analysis of the victim rights protection status, then what measures should be taken to protect the rights of victims put forward their views (the full text of a total of 7036 words).

Key word.The criminal victim  Rights and interests    Protection

The following text

One, foreword

The protection of human rights has been recognized by people, but in criminal procedure, because the suspect (or accused) of the opposite party represents the strength of the entire country's judicial organs, so people often will focus on the protection of human rights to the suspect and the accused person, and has the appeal not infliction, prohibited torture to extract confessions means to protect their rights and interests, to seek the balance of interests in criminal procedure. On the contrary, the criminal proceedings in the other party to the criminal victim interests have been ignored, can not fully guarantee.

Two, China's legal protection of the criminal victim status

Because of the imperfect of the legal rules, in reality the criminal victim through legal channels to obtain compensation ratio is very small, resulting in damage to the body, property of the victim, the adoption of economic compensation to solve the difficulties, has been in a dilemma. "According to statistics, since 2001, our criminal crime case in each year are more than 4000000, the detection rate is about 40-50%, so our country every year there are about 2000000 victims because no injures person's compensation and desperate."[1]And because the execution mechanism is not complete, even if the court of criminal defendants compensation, is difficult to be executed. "According to statistics, Xiamen City Intermediate People's court in 2005 accepted the criminal supplementary civil enforcement cases 18, the total were 7.63%, the actual execution of 2, accounting for the number of cases of this kind of case in 2006 11.1%, accepted 37 cases, accounted for 14.8%, the actual execution of 4 pieces, accounting for this kind of case the number of cases of 10.8%. Other area the actual execution of criminal cases less than 90%, become a "legal program."[II]In judicial practice, even if some compensation is also part of the compensation, the victim is in compromising situations, through the mediation of the. At the same time, China's social security system is not perfect, a lot of criminal victims in did not receive due compensation, face the grim problem of existence. On the one hand the pathways leading to them appeal, petition to solve the problem, on the other hand also led many criminal victims when life due to embark on the road of crime. The country's stability and peace, building a harmonious society has a very bad effect.

Three, strengthen the protection of the rights and interests of significance

Before twentieth Century 60 years, studies on legislation and theory of criminal procedure all over the world are one-sided emphasis on the protection of criminal suspects or defendants in criminal procedure in the interests of protecting the human rights of the accused, preach, criminal trial balance continue to tilt to the defendant, resulting in a legitimate rights and interests of the victim of neglect and damage. From the beginning of twentieth Century 60 years, many scholars and institutions put forward the protection of the rights of victims, and the status of the victim in criminal justice has increasingly gained attention. In criminal proceedings, the criminal victim is the important subject of litigation, the right to sue the adequacy is an important content of human rights. In practice, strengthen the protection of the rights and interests is of great significance to the.

(a) on the protection of the rights and interests of the victim is the inevitable trend of the development of criminal litigation, criminal justice is the value objective pursued

The victim suffers damage due to the perpetrator, including physical and mental damage, serious infringement of emotional pain, economic loss or basic rights, they deserve sympathy and concern. At the same time, we need to find a kind of interests between the victim and the defendant balance. Not only that, to protect the rights and interests of the victims but also the development of the times, the civil rights movement around the world provides the opportunity for the movement of protecting the rights of the victims, booming, countries become more attention to the protection of the rights and interests of the victim. 1985 the United Nations passed "for victims of crime and abuse of power" Declaration of principles of justice, and by way of legislation to strengthen the protection of special rights and interests of the victims.

(two) strengthening is an effective way to achieve the purpose of criminal proceedings to protect the rights and interests of the victims

Crime control and human rights protection in China is the purpose of criminal proceedings. As the two aspects of the objective of criminal procedure, the unified system of crime control and human rights protection in criminal litigation in common, runs through the entire process of criminal procedure. In practice, we are more is the realization of the criminal punishment, but ignored the protection of human rights of victims. Their personal or property rights are directly affected by the crime, the social status, economic status and self protection ability are at a disadvantage, is the vulnerable groups of society, "is more worthy of sympathy and protection than the defendant"[3], fully safeguard the legitimate rights and interests should be subject to legal. Therefore, in realizing the national right of punishment, should fully consider the interests of the criminal victims.

(three) to strengthen the protection of rights and interests of the victim is the guarantee of judicial justice

Justice into substantive justice and procedure justice two aspects. The value of the criminal procedure is based on the two aspects to realize. To ensure justice for victims in criminal proceedings, the program must be required to ensure that the litigants should enjoy various procedural rights, such as right to appeal. In addition, after the procedures to ensure fair treatment, in the final verdict should also be avoid leaning to either side. To give victims more rights, more fully, tilt to the defendant balance balance, to guarantee the judicial justice.

The causes of four, our country criminal victim rights not fully protected

(a) the lack of substantive criminal law on the protection of the rights and interests of the victim

First of all, in the scope of compensation, there is a conflict in the entity law in our country. China's "criminal law" the thirty-sixth stipulation: "the victim has suffered economic losses due to crime, the criminal received criminal punishment according to law, be sentenced to compensation for economic loss according to the situation." And "criminal procedural law" the seventy-seventh paragraph: "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." The Supreme People's court "about some problems in the implementation of the criminal procedure law interpretation" 100th stipulates: "the people's court in the incidental civil lawsuit, in addition to the application of criminal law, should also be applicable general principles of the civil law, civil procedure law" the relevant provisions, the two laws stipulate, in compensation should take the actual loss principle for compensation. In judicial practice, decisions have to consider the defendant's economic strength, actually reduced the compensation for the victim.

Secondly, compensation for spiritual damage without legal provision. In July 15, 2002, the Supreme People's court "about whether the people's courts handle criminal cases victim of civil lawsuits reply" states: "the victim in the criminal case because the defendant's criminal acts and suffer loss of the spirit of an incidental civil action after the end, or in the criminal case, the victim shall file a civil lawsuit in the spiritual harm, the people's court shall not accept the." "General principles of civil law" one hundred and twenty stipulates: "the scope of civil compensation include mental injury." Civil action in criminal proceedings is the subject of "by the criminal damage mainly includes the crime victims have suffered physical material or spiritual damage."[4]If the criminal victim's compensation does not include mental compensation, the victim's rights in civil suit collateral is not protected in criminal.

(two) the defects existed in the Criminal Procedure Law

First of all, criminal incidental civil lawsuit system limit mentions criminal supplementary civil action case. According to the December 19, 2000 implementation of the "Supreme People's Court about the provisions of the" criminal incidental civil litigation scope first, filed the case range of supplementary civil action in criminal proceedings Co., limited to the "personal rights by criminal violations suffered material losses or property damaged by criminals has suffered material losses" case, the other case even because the crime suffered huge material losses of victims, nor may file an incidental civil action. Most with damages the property interests in multiple and theft, fraud, illegal absorbing public deposits and other crime victim's loss, can only rely on the booty, ultimately, to save; for the booty, ultimately, no losses, the victim may institute civil proceedings. This provision shortcoming is very obvious. In judicial practice, the victim's loss can be offset from the booty, not much in return. Regarding the victim failed to compensate for the part, if allowed to civil lawsuit alone, one can increase the victim's burden; two is to resolve the civil case verdict in a criminal case, if the offender fails to perform the relevant obligations, it will not affect the criminal responsibility of the size, and thus will not affect the penalty sentencing, it will lose the deterrent effect crime due.

Secondly, the Supreme People's court "several regulations about the civil action evidence" the thirty-seventh stipulation: "the parties on the same fact respectively provide the evidence to the contrary, but not sufficient basis for denying the other evidence, the people's court shall, according to the circumstances of the case, judge probative force alone proof for evidence is significantly larger than the other party to provide evidence, and more evidence to prove force confirmation. Because of the strength of the evidence can not judge the facts of the dispute led to difficult to identify, the people's court shall, on the basis of the allocation of the burden of proof rules to make the judgment." Thus, in civil proceedings as long as the evidence provided in the possibility of greater than other, it can be adopted by the court. But the criminal procedure law "requirements" standard of proof is: the case facts are clear, irrefutable evidence, fully. In judicial practice, resolve to adopt more stringent requirements than the general civil litigation evidence of incidental civil action, which may result in incidental civil compensation in the more stringent requirements of evidence, not compensation or adequate compensation.

Once again, our criminal judicial practice, the prosecution of the case is divided into public prosecution and private prosecution, public prosecution case only by the public prosecution organ according to the people's court prosecution, the victim is not the identity of the parties directly prosecution. "Criminal Procedure Law" provisions of article 170th of the cases of private prosecution must comply with the conditions, the right to prosecute these conditions directly on the surface of the victim in some cases, also limits the victim rights directly against other cases. The victim directly prosecute cases generally include abuse, insult, slander, violence to interfere with another person, abandoned the freedom of marriage, bigamy and other criminal cases slight. Therefore, the author thinks, direct the prosecution case is too narrow, because the victim is directly responsible for criminal damage results, the victim's legal rights are violated should be protected effectively. In reality, if the prosecution not to initiate a prosecution, the prosecution did not conform to the "Criminal Procedure Law" provisions of the 170th conditions, in this case the victim's lawful rights are violated will be placed in a vacuum without proper protection. In the vacuum can not be protected[⑤].

(three) the defects existed in the execution of the program

First of all, "the provisions of the civil procedure law", the trial at first the punishment queen people principle. Incidental civil action and the implementation of compensation only as a factor in the measurement of penalty. But in fact the criminal verdict is already in force immediately before the civil verdict, the defendant criminal civil liability on the judgment could not produce effect, namely in the criminal responsibility of the execution of the judgment, the implementation of compensation in incidental civil action did not give the commutation and parole is associated, so criminal defendants not consciously implement the law according to the supplementary civil compensation, leading to a criminal defendant intentionally conceals property phenomenon.

Secondly, the law has not stipulated the monitoring system for the criminal defendant property. In a criminal case from the case to the trial process, the criminal defendant likely due to death, or transfer of property, waste, at the end of the implementation process, has no property available for enforcement, thus the victim compensation not implemented.

(four) the judicial personnel the idea of rule by law deficiency

In judicial practice, the judicial personnel pay more attention to the punishment of criminal suspects, but ignored the protection of the rights of victims. The majority of the judicial personnel that as long as the punishment of criminals, safeguarding the interests of the country and society, the task is completed, as the vulnerable groups of the victim has no legal knowledge, professional no professional ability and channel to safeguard their own interests, on the other hand, because the laws of victim rights provisions is not perfect, the practice the victim to obtain compensation for less and less.

(five) the parties' rights and interests protection consciousness

In judicial practice, the majority of victims in criminal action violates, tend to safeguard their own interests and all of their hopes on behalf of the state power of the judiciary, and does not take any measures to safeguard their own interests. However, due to the judicial authorities will work in reproducing in the investigation of criminal suspects or defendants criminal responsibility, protect the rights of victims become empty talk.

Five, to improve China's criminal victim right protection system

(a) to expand the direct prosecution case scope, enhance the victim's entity right of disposition.

Through the above analysis, the criminal victim existing provisions of the "Criminal Procedure Law" of our country have a direct right of prosecution case scope is too narrow, and other rigid constraints. As a crime, it is not only against the state or society's interests, but also violated the legal rights of the victim. Although the crime by on behalf of the state prosecution organs to public prosecution, is conducive to safeguarding national or social interests, but it is easy to ignore the interests of the victim loss. In judicial practice, as the victim of a criminal case has no right of disposition entity. The author thinks, which are not conducive to resolving the social contradictions, one purpose of justice is to resolve social contradictions. If the victim a substantive right of disposition, solve, more conducive to social contradictions and strengthen judicial purpose, implementation. For example, for minor criminal cases, the victim is not malicious subjective criminal cases, can be settled through consultation by the parties, not only can save judicial resources and protection of the rights of the parties.

(two) the protection of victim's participation right

The victim in the criminal litigation activities can not only protect their legitimate rights and interests, but also to ensure that the basic requirements of the judicial justice. Direct responsibility as a crime, shall be investigated for criminal responsibility in the criminal suspect or defendant's desire most strongly, also has some basic requirements for the material loss and spiritual damage compensation, to ensure the legal rights of the victim can get comprehensive maintenance, must let the victim to participate in the entire criminal activities, so that they can express their wishes and requirements to the relevant judicial organs. Furthermore, the victim directly involved in litigation activities to the judicial organs for direct and effective supervision, to curb judicial corruption, judicial justice.

(three) to further improve the victim as a litigant's lawsuit right

The author believes that, to improve the procedural rights of victims should from the legislation gives victims the right to appeal, the right to claim for compensation of mental damage, the right of sentencing suggestion.

1 give the victim the right of appeal.

The right of appeal as an inherent the victim and the necessary rights, should not be deprived and cancel. If deprived of the right of appeal, it breaks the victim rights as the integrity party. The victim and the defendant in cases of public prosecution are the "parties" status in the proceedings, their treatment results and case have a direct stake, only to give the defendant the right of appeal without victims the right to appeal, make the litigant right inequality, not conducive to effectively protect the legitimate rights and interests of victims. Although the law provides the victim may request the people's Procuratorate, but whether the procuratorial organs counterappeal does not necessarily depend on the victim's request, at the same time, the procuratorial organ is affected by all kinds of limitations, such as protest success rate, often the victims of Master Zhang is not met, this point from the prosecution of the extremely low rate of protest can be seen. Once the procuratorial organs don't protest, the claim cannot be realized. Thus, given the criminal appeal power to.

2 giving the victim compensation for mental damages

Criminal penalties and civil liability are two independent of each other, depending on the nature of legal liability, the former is the legal responsibility of states for the crime, the protection is mainly the interests of the state; the latter is the infringement of the rights of criminal victims compensation, the protection of the main is the interests of the victim. The two purpose is not exactly the same. Excessive concern for the interests of the state, completely indifferent to the interests of the victim may lead to. Apparently, not to the defendant has been punished for the reason and that of its civil liability to the victim. Of course, if the offender convicted and punished enough to soothe the trauma, the victim may take the initiative to give up their rights. But whether to give up the choice by himself, the law should not directly deny the rights of compensation for mental injury. I think we should take criminal violations of the criminal object as the standard, the scope of choice and personal rights criminal spiritual damage compensation relating to:

(1) the spirit damage compensation caused by violating the right of life. Violations of the right to life, no matter the victims themselves or their relatives suffered mental anguish is great, if not to support the request for compensation for mental damage to some, it is difficult to protect the victims or their close relatives of the legitimate rights and interests, to some extent also indulge crime, therefore, the pain should also by the offender to compensate. Such as the crime of intentional homicide, hurt the cause death.

(2) the spirit damage caused by the infringement of health damages. The concept of health law only refers to physical health. Health rights of citizens by criminal offence, the victim has the right to request compensation for the spiritual damage offender. This kind of spirit damage is likely to be violent and non violent crime, such as the crime of intentional injury, robbery, crime of abuse.

(3) compensation for mental injury violating rights caused by compensation. The crime of rape and forced prostitution of women crime, violation of women's rights, particularly in violate the right of chastity in the case, "the right of chastity violated directly after the effect of love, marriage and family life, social comprehensive evaluation index decreased, often in social intercourse, people with special respect, lost Society on the basic trust its, its education, employment and other social activities are affected"[6]. So it is necessary to violations of women's rights, especially to the compensation for spiritual damage in case of infringement of the right of chastity.

(4) the spirit damage against civil liberty compensation. As the crime of illegal detention, kidnapping, trafficking in women and children and other crimes, the infringement of citizens' personal freedom, will cause the victim himself of the fear and the family concerns, resulting in the mental damage, the damage should be compensated.

(5) the spirit damage the dignity of personality infringement civil compensation. The coercive indecency women crime, the crime of insulting a woman, child molestation, defamation and insult crime, make the victim to suffer to the dignity of a certain degree of damage, the compensation for mental damages the victim filed, the law should be supported.

(four) the establishment of national compensation system for criminal victims

The world's first on the compensation of losses of the victim law passed in 1963 in new zealand. At present, many countries have established the system of state compensation to crime victims. Such as Germany in 1971 the establishment of the compensation system. USA provisions of the state compensation system in 1984. Thus, the establishment of national compensation system for victims of crime is represent the general trend, has become the trend and direction of modern criminal justice.

No compensation, the victim suffered a great loss to the suspect cases, by specific state organs to give appropriate compensation according to the actual situation of the victim.

In the specific operation, establish the national compensation for criminal victims can be specialized departments, the Department in a people's court within, and establish the national compensation for criminal victims of the special account.[7]Enforcement agencies will court sentenced penalty by the court to change the national compensation Department special, fine and confiscation of property carried back were deposited in the designated account, used to compensate for a specific criminal victim[8]. For the compensation of the object, the author thinks that shall meet the following conditions:

1, violent crime, the death of the victims, the dependency or support has no other source of economic cases, compensation for the victim support or maintenance person.

2, violent crime, the loss of all or part of the labor ability, there is no source of income or the existing economic income cannot maintain the basic life need cases, compensation for the victim.

(five) set up the judicial aid system

Victims and their close relatives are often in the personal, property, spirit and other aspects suffered a heavy blow to the result of a criminal act. There are many victims cannot afford to hire an agent ad litem, and the victims are often subject to physical, cultural, legal knowledge and economy cannot fully exercise their rights, so we need a defendant and the legal aid system corresponding to the judicial aid system. On the judicial assistance is conducive to the maintenance of justice and efficiency, the exercise can also be effective in protecting the victim's rights as a party to the case. The author believes that, to meet the following conditions shall be given legal aid victims:

The 1 victim of family difficulties, inability to pay legal fees;

2 victims to safeguard their legitimate rights and interests need a lawyer to provide legal help, usually refers to the complexity of the case or the presence of factors may jeopardize the legitimate rights and interests of the victim in the case;

The 3 defendant lawyer or undertaking the duty of legal aid lawyer.

Six, the conclusion

The development trend of modern criminal procedure is to fully protect the suspect, the defendant litigation rights at the same time, also pay attention to strengthening the protection to victim's lawsuit right. The victim criminal victim as a criminal act, is directly responsible for the crime results, between the rights protection in the past or ignored or drowned by the national interests, social interests, can not be guaranteed, the basic spirit of the law in violation of the equal protection of rights shall be. With the in-depth study on the theory of victim protection, the author believes that, the victim's rights will be more comprehensive protection. From the present situation of judicial practice of protecting the interests of victims of this article mentions, points out the serious lack of protection of the rights and interests of the victim in the judicial practice, and earnestly safeguard the interests of victims put forward their own views on what measures. Because I limited capacity, lack of reference data, the lack of broad vision, deficiencies, urge the theoretical workers and practice workers criticism.