Defects of our criminal incidental civil lawsuit system and legislative perfection

Authors: Bao Jiayuan Class:09Level2Class Student id:090502007

Abstract: incidental civil litigation system is an important legal system in our country "law of criminal procedure", is an important part which can not be separated. However, "rules of criminal incidental civil action system of criminal procedure law" rarely, only two laws of formal, have not attracted much attention in legislation. Most of the rest will be the Supreme People's Court on the basis of practice on the judicial interpretation of criminal incidental civil action. Not only that, the criminal supplementary civil action system still exists the contradiction and the conflict theory and the judicial practice, we should study how to deal with the contradictions and conflicts and improve the criminal supplementary civil action system.

Keywords: incidental civil litigation system, judicial interpretation, the contradiction and the conflict, processing, perfect

One, the current "Criminal Procedure Law" of the statutory provisions of civil suit collateral rarely, not comprehensive

 (a) the statute law of civil suit collateral a little and not specific enough

  China is now using the "criminal procedural law" the seventh chapter is devoted to the system of civil suit collateral provisions of statute law, but this chapter of the article is only two, and did not provide enough detail. For example, the provisions of article seventy-seventh: "the victim suffers because of the defendant's criminal act material loss, in criminal proceedings, shall have the right to file an incidental civil action." This provision, not explain clearly the victim should mention to what authorities, was brought to the public security organs, people's Procuratorate or the people's court? But from the Supreme People's Court promulgated the "about some problems in the implementation of" the people's Republic of China Criminal Procedure Law > explanation "article ninetieth, the prosecution in the investigation, examination, examination, have the right to file an incidental civil action to the people's Procuratorate of the public security organ, a claim, the people's Procuratorate, the public security organs have been recorded after the prosecution, criminal cases, the people's court shall according to the supplementary civil action case acceptance; mediation by the people's Procuratorate, the public security organ, the parties to reach an agreement and has paid, and adhere to the victims filed a supplementary civil action, the people's court may also accept. From the judicial interpretation is that, if the victim in order to file an incidental civil action, which can be presented to the people's Procuratorate, the public security organs, of course, also can be in the criminal case before a trial declared directly to the people's court to file an incidental civil litigation request, or after the only verdict to separate civil compensation lawsuit request. "Criminal Procedure Law" seventy-seventh paragraph second: "if the state property, collective property losses, the people's Procuratorate, may file an incidental civil action." In this article, there are still some practical problems could not be solved effectively. For example Is it right? When state property or collective property suffer the crime violation, losses can be by the people's Procuratorate to file an incidental civil litigation request? Is only unable to give a correct answer according to the provisions. According to the relevant provisions and theoretical point of view, this kind of case is not all can be made by the people's Procuratorate to file an incidental civil litigation request. A concrete analysis of concrete problems but. As this case only suffered material losses of state-owned and collective units is indolent in exercising the right to sue, state-owned assets or collective assets suffered serious losses, can exercise right of prosecution of procuratorial organs. If suffered material losses of state-owned and collective units to exercise the right of prosecution, the prosecution will lose the incidental civil litigation. "Criminal Procedure Law" seventy-seventh paragraph third: "the people's court when necessary, and may seal up or distrain the property of the defendant." Similarly, the conditions as prescribed in paragraph still very abstract is not specific. Like what is necessary, the concept is too abstract.

 Furthermore, the chapter one of incidental civil action law, also is only stipulated the incidental civil action shall be heard together with the criminal case, only in order to prevent excessive delay criminal case trial, can in the trial of criminal cases, the same judicial organizations continue to hear the incidental civil action.

  From the above two provisions of view, the current "Criminal Procedure Law" on the incidental civil action of the provisions are too abstract, not concrete. And from the formal point of view, appears too little on incidental litigation provisions of criminal, only two, obviously the provisions of incidental civil action system is not comprehensive enough. If there is no judicial interpretation of the Supreme Court, that the incidental civil lawsuit is not practical.

(two) the incidental civil litigation stems from the judicial interpretation

  Because of our current "Criminal Procedure Law" provisions of the supplementary civil action less, not specific enough too abstract, so China's Supreme People's Court issued to some of the incidental civil action judicial interpretation. And the rules promulgated relatively many. Such as "about some problems in the implementation of" the people's Republic of China Criminal Procedure Law > interpretation "of criminal and civil provisions article eighteen. Several provisions of the far more than the "Criminal Procedure Law" provisions, and far more "Criminal Procedure Law" comprehensive. Or in the judicial practice, there are a lot of very practical very urgent problem can not be solved, will seriously interfere with the judicial procedures, the authority of law and court efficiency and effect of case handling, and even destroy the justice and substantive justice justice.

  Of course, the provisions of the judicial interpretation of the more and more specific course is a good thing, but the effectiveness and legal provisions of judicial interpretation of the same, is the same? From the China present judicial situation, can almost be said that when not encountered in the judicial interpretation and the law conflict, is not what the difference between them. Sometimes the judicial interpretation to make special provisions. According to the legislation system of China, state organs only people's Congress and its Standing Committee have the legislative power, the National People's Congress shall be vested with legislative power maximum. The administrative organ only enact administrative rules and regulations of the State Council right, enjoys the highest administrative power to formulate. National legal explanation right belongs to the Standing Committee of the National People's Congress, the Supreme People's court has right to request the legal interpretation. But our country's judicial interpretation issued by the Supreme People's court is in China, from the legislative law system, it has not formulated the legal interpretation according to the. Therefore, to improve the criminal supplementary civil action system, should give the judicial interpretation of the Supreme Court right, otherwise there is no reasonable basis, not convincing.

There is a theoretical conflict of two, our country criminal incidental civil action system

 (a) very far and equal protection and the principle of full compensation gap

  Modern judicial philosophy is the procedural justice. The democratization of litigation, the actual effect and the incidental civil action of China with the introduction of the above requirements differ very far. Especially the design of system of civil law is not complete, separates the civil law with the unity of application of law in civil proceedings in the criminal. To enter into civil procedure and criminal incidental civil procedure for application of law is different, the result be quite different. What is more, the same infringement constitutes a crime of incidental civil compensation will be much less than the civil compensation does not constitute a crime. Contrary to the rule of law, without discrimination and unity, transparency, justice principle. In essence, the criminal supplementary civil action system deviates from the value of democracy and justice in modern litigation. The reasons are the following: one is from the aspect of form, incidental civil lawsuit system in China in the design is too simple, general, lacks the scientific nature, rationality, poor operation in practice. Two is in accordance with the theory, our country about the nature of the division theory of criminal incidental civil action has many claims. There are "mixed lawsuit", "special civil lawsuit", " civil action" view. There will be a penalty, and two kinds of liability in civil suit collateral punishment, and the unified treatment of people two different kinds of responsibilities. The more impartial dispute in criminal; the liability for compensation, have a direct loss compensation principle and indirect losses (including mental damage compensation principle) debate in the supplementary civil action litigants; range, for not for the dead close relative of the victim, and whether the victim undertake funeral expenses, medical fees, nursing fees and other expenses shall have the right to file an incidental civil action argument; a bona fide purchaser is the booty can claim for compensation to the defendant, as third people involved in incidental civil action argument ; have relatives or inherited the dead victim who is incidental problem of civil plaintiff dispute; a common people is not a criminalProsecutionTo the court, it shall be investigated for criminal responsibility, but can become a adduceral civil dispute; a criminal suspects or defendants to death during the litigation, criminal victim should present supplementary civil action argument to whom; adult the relatives of the accused and to bear the liability for compensation can become a adduceral civil procedure argument; a fugitive accomplice of the incidental civil lawsuit should adopt the mode of processing different arguments and the limitation of the dispute. In short, China's current criminal incidental civil action system to achieve equal protection and the principle of full compensation is still a long way to go, there is still a long way to go.

(two) violates the principle of private law

 As a legal person should be very clear, according to the legal adjustment of different social relationships between the subjects to divide, can take the law into public law and private law. Public law to adjust the social relation between state organs and external social relations or state organs of internal management relations. And it reflects the will of the state. For example, China's "administrative law", "criminal law" "law of criminal procedure" and so on. While the civil law adjusts social relations are between private, it is said between individuals, not states of consciousness. And the country has no interference between individual consciousness of rights, of course, the prerequisite is between individual and do not damage the legitimate interests of the state and the third represents. Therefore, the public can not interfere with private rights, privacy is not affected by the law. But China's criminal incidental civil action system, in this theory, is untenable. Because the crime against public law, endanger the society, but civil tort violations of the law, two could not be confused, not the criminal law to civil infringement on. Thus our country criminal supplementary civil action system establish basic questions.

(three) in civil and criminal standard of proof is not a and confusion

 Because the criminal and civil tort are two different fields, and in time for the two different cases, the investigation and collection of evidence standard way is not the same, and in the handling of criminal incidental civil action case, two different nature of the law, evidence use should not confuse, is not no fault or responsibility evidence to prove that the defendant was acquitted or light offence evidence used in civil litigation, also cannot prove the defendant in a civil (criminal incidental civil action has no fault liability) or evidence to prove the defendant innocent or light offence defence. However, in judicial practice, many legal workers not to distinguish them clearly, but be confused together. An important reason why the defendants were acquitted and bear civil compensation which many law personnel can not understand. Therefore, our judicial workers should be evidence of criminal incidental civil action tell apart, otherwise it will seriously damage the legal principle of justice and fairness.

(four) the complaint to destroy the balance of the two sides

 One of the value of the criminal procedure is to provide space for the realization of substantive justice program. Therefore, in order to provide adequate for the original defendant, equal opportunity to speak, so that the evidence is more comprehensive, full, do not allow limitations on one side, to encourage the other party, both parties lawmakers established in the program design, the status of equal status. And, for both sides to maintain order in the, designed in a neutral judge, whose duty is to center referee. The program structure outline shows two basic characteristics: first, a balanced control debate against; two is the impartial judges.

 However, incidental civil action in civil procedure in the criminal to join, must inevitably lead to join the civil plaintiff. Because the plaintiff's participation, increase the strength, it is necessary to weaken the defence force. "Party a party down", it undermines the principle of equality.

Three, the criminal supplementary civil action in the judicial practice problems

(a) the lack of hearing the case scope

China's criminal procedure law seventy-seventh stipulation: "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." Without further clarify the material losses may file an incidental civil action in criminal cases. The Supreme People's Court Interpretation (2000) No. 47 "code of criminal procedure" pointed out: "the scope of the provisions of human rights by criminal violations suffered material damage or destruction of property 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." According to this stipulation can mention only two cases of incidental civil action in criminal cases, but not all the victims have the material loss can file an incidental civil action. Because the material loss can be a direct loss, may also be indirect losses, so theoretically speaking, the above two categories corresponding criminal charges is more. Most of the infringement of citizens' personal rights and the democratic rights of the crime, may have caused the victim's material loss; most of theEndangering public safetyCrime and a part of the destruction of social management order crime, but also may cause material losses. Therefore, causes material loss in the criminal, the victim shall have the right to file an incidental civil action. Because the criminal law and judicial interpretation method is specified for not listed in the case accepting range, therefore, whether in theory or in practice, the content and meaning are differences. In practice, influenced by the traditional knowledge and the difficulty of operation choice, its scope is very narrow, multiple murder, injury, traffic accident cases, the other is rare. This is in conflict with the legal and legislative original intention, unfavorable to the protection of victims. But if expand the scope of civil suit collateral, and there will be unrealistic, hearing the inconvenience or even shake the foundation of criminal lawsuit and civil lawsuit risk limits, fundamentally shaken the incidental civil lawsuit system. The scope of the provisions of the existing narrow, difficult to play the role of incidental civil litigation system, is not conducive to the realization of procedural justice and improve litigation efficiency, effectively protect the interests of the parties, as the abolition of criminal incidental civil action system is more appropriate for.

(two) the scope of compensation for mental loss without

According to the Supreme People's court "about the provisions of the" criminal incidental civil litigation scope second: "subject of crime victims by the material loss, refers to the actual loss due to crime has suffered and the inexorable loss." The actual loss is the direct loss, such as medical expenses, funeral expenses, transportation costs, delay costs, appraisal fees. But for the inevitable losses, in practice it is difficult to understand and grasp, whether to include maintenance, custody, alimony and disability life care, cosmetic fees, no uniform requirements, each court of understanding is not the same. In simple civil cases of compensation, which includes direct loss also includes indirect losses. But in the incidental civil action, is according to the "loss" and "compensation" two principles of trial, the scope of compensation is much smaller than the simple civil cases. Especially the incidental civil lawsuit of compensation for spiritual damages rejection, either in theory or in practice make it difficult to understand. The general tort damages can obtain more compensation that mental damage compensation, but due to crime can not be compensation for spirit damage. This is not conducive to safeguarding the rights and interests of the victim, the national legal and judicial interpretation of conflict with each other, there is inherent unity of harmful to the state of rule of law.

(three) compensation part difficult to execute

 Although in our country's criminal case, many victims are filed a request of supplementary civil action in criminal proceedings, and many of them have been supported by the people's court, but because many criminals family is very poor, so well implemented in civil and economic compensation part of the decision can not be. And often to the legal and judicial authority with a black people, influence on the credibility of the judiciary. The reason, fundamentally speaking, is the lack of a "national compensation system for criminal victims in china". If I owned the state compensation system, there will not be a judgment cannot be executed consequences. Of course, I think to set "state compensation system of criminal victims" is very necessary, its theoretical basis is: the state has the responsibility to protect the obligation of every citizen. If the breaching of the obligation should undertake responsibility. The typical case is the 2005 Yunnan University student "Ma Jiaju kill roommate". Ma Jiaju killed all the dormitory roommate (4 victims), one of the families of the victims in the incidental civil litigation lawyer said, "in fact, we know that you are no compensation ability, but in order to make you clear a person should take responsibility for their behavior concept, we should give you the incidental the civil compensation lawsuit · · · · · ·". Finally, the court sentenced Ma Jiaju to four families of the victims of civil compensation for a total of 20000 yuan. However, in order to appease the four victims families, schools to each of the families of the victims 250000 yuan compensation costs. If it is the national "state compensation system of criminal victims", in this case, there would be no civil to the victim of a fair and rational judgment and not judging results.

(four) "the punishment of the people" could not be started

 Supplementary civil action in the current criminal system, are still unable to question. Is in the crime suspect, the defendant fled or missing cases, especially criminal suspects, defendants absconded abroad, there is no way to bring criminal incidental civil action. For example, to be returned in the request of foreign judicial authority to be transferred to the foreign property, the requested State asked for judicial ruling of confiscation of property, and we can't offer. Therefore our country into an embarrassing situation. Therefore, how can we solve the problem? From the current academic circles, there are two solutions: one is the introduction of the system of criminal trial by default; the two is to allow the individual to file an incidental civil action. The former method and its advantage is that you can in a default judgment on the criminal, the civil part also give judgment by default; the disadvantage is that our country does not have the system of criminal trial by default, no legal basis, the judicial system in China only civil default; the latter method has the advantages that can be directly file an incidental civil action and its shortcomings; there is no criminal procedure as the premise, how will the criminal supplementary civil action. Therefore, the two methods have their advantages and disadvantages, Each has its own merits.

Four, "criminal collateral civil" legislation

(a) to strengthen the legislative efforts, improve the "punishment of the people" of the system

 As everyone knows, the current "Criminal Procedure Law" in China the seventh chapter is about the special provisions of criminal incidental civil action, and only two of statute law. If there is no judicial interpretation of the Supreme People's Court promulgated the judicial practice, there are many problems can not be solved. For example, the provisions of article seventy-seventh: "the victim suffers because of the defendant's criminal act material loss, in criminal proceedings, shall have the right to file an incidental civil action." This provision, not explain clearly the victim should mention to what authorities, was brought to the public security organs, people's Procuratorate or the people's court? If no judicial interpretation of the words, it is still a question mark. So after the legislative concept, should be in the design of the system considered more comprehensive and specific, have maneuverability.

(two) to solve the "theory of punishment in the system of the people"

 From the preceding discussion, now China's legal theory of "criminal collateral civil" system in the theoretical problems of controversy, a lot of questions. How to legislation, is still an unknown secret. First of all, can not solve the equal protection and the principle of full compensation gap problem. Because of China's current criminal incidental civil litigation case trial, only personal rights crime victim has suffered material losses or property damaged by criminals has suffered material losses, only to the victim by criminal behavior of material loss. In fact, many crimes are caused to the victim spirit great losses, provisions and the judicial organs of China has promulgated various, spiritual loss plugging death crime litigation request channel. Secondly, contrary to the principle of private autonomy the criminal supplementary civil action, theoretically speaking, the foundation of its existence is not in prison. And in the judicial practice, there is great evidence in criminal and civil part of the confusion, the resolution is unknown, the criminal part of the evidence in civil litigation, the civil part of the evidence used in criminal proceedings. Two mutual mix, resulting in unfair trial results. Finally, to join the civil action, destroyed the prosecution and defense equality. Because the prosecution in the prosecution organ, originally, both sides equal and mutual strength is quite (theory is both sides strength quite, in fact in most cases the defense weaker), once in incidental civil action, the plaintiff will come very naturally appear to increase the already very strong prosecution power, have power they defended very weak side also followed to become weaker, thus fundamentally broke the prosecution and the defense forces of equivalent balance. Therefore, to solve the contradiction and the conflict theory fundamentally, good practice is directly cancel the criminal supplementary civil action system, due to the crime causes material loss directly to file a civil lawsuit.

(three) the establishment of "national compensation system for criminal victims"

 Many criminal cases in our country, civil judgment enforcement is still very serious, especially relates to the high economic damages. Many defendants are willing to compensation or want to compensation, but just because there is not enough economic ability, cause not according to oneself or judgment mean to achieve, to the victims and their families a psychological comfort and economic compensation.

Therefore, the establishment of a special criminal compensation fund system is very necessary. The current theoretical study, to establish a "national compensation system for criminal victim" high voice. Its theoretical basis is: the state has the responsibility to protect the obligation of every citizen, if the breach of the obligation should undertake responsibility. The special fund originates mainly has two types: fine, the state budget. To the right is exercised by the people's court. I think that this system is feasible. The reasons are as follows: one is to guarantee the rights of victims are realized, get the economic compensation or compensation; two is the family members and friends to protect defendants not because they can not compensate the victims, the victims or their families on the implementation of revenge, to prevent a new crime; the three is the maintenance of judicial authority and the authority of law, improve the the judicial credibility. Because there is no execution of the judgment, is only a mere scrap of paper, meaningless. And sentenced to compensation, but can not get compensation, it will not affect the public on the judiciary views?