November 17, 2012 - 18 days, Dacheng Law firm held the 20 anniversary celebration. In the "sub forum criminal and civil legal services integration", Zhang Zhiyong keynote address.

 

The defense criminal civil mixed in

 

Dear colleagues:

     Good morning everyone!

     Is honored very much in the big established20Anniversary of the Qing sub forum, to share the feeling and experience I practice with you. The title of my speech is "defense in civil and criminal cross". There are a lot of people cross of punishment, in reality; penal and civil cases, of which there are many miscarriages of justice, criminal legal risk. A lot of people was civil, but encountered a criminal prosecution, the wrong decision to constitute a crime, is put in prison. I was driving on the road this morning, listening to the radio said that the Zhejiang Wenling kindergarten teacher Shi Yanhong, because the child abuse is to stir up trouble crime criminal detention. But the procuratorial organs of the public security organ shall not be arrested, eventually that she does not constitute a crime, administrative detention for fifteen days, to be released. At that time, the case attracted national media attention, but seek truth from facts that, Shi Yanhong behavior is wrong, but do not constitute a crime, the criminal and civil cases is typical. Take our lawyers, criminal and civil cross, by wrong prosecution case also often appear. A few years ago, Guangzhou lawyer Ma Kedong because lawyers fees, this is the lack of civil problem, by Liaoning judicial organs to fraud, sentenced to eleven years in prison. Recently, Guangdong lawyer Xu Wenyong because of the proxy land acquisition demolition case, by the judicial organ to blackmail and impose exactions on criminal prosecution, is currently the court process, the result is not optimistic. Coincidentally, Shandong lawyer Shu Xiangxin, for the same agency land acquisition demolition case, by the public security organs to blackmail and impose exactions on criminal detention. For the overlapping criminal and civil cases of miscarriages of justice, should adhere to the plea of not guilty. I mainly from the following five aspects to discuss this topic.

A concept, penal and civil

The so-called punishment people cross, also known as interlocked penal and civil, refers to the different behavior of the criminal legal relationship and civil legal relationship are violated, but have implicated relationship between certain behaviors, and the same behavior also violated the criminal legal relationship and civil legal relationship, or on a behavior exactly by the criminal law and civil law it is difficult to determine the phenomenon. The overlapping criminal and civil cases, is the difficult problem in judicial practice and legal theory.

Form two, penal and civil

Ten kinds of crime stipulated in criminal law, there are many chapters provisions of the crime, criminal civil mixed problem. In the third chapter the crime of undermining the order of socialist market economy, the fourth chapter encroaches upon the citizen personal rights, democratic rights of crime, the fifth chapter, the sixth chapter crimes of obstructing the administration of public order crime, even in the eighth chapter, the crime of corruption and bribery in criminal and civil cross problem. As taking bribes of reciprocity, gifts or bribes. Common criminal and civil cross, has the following form:

1,    The crime of contract fraud and contract dispute;

2,    Fraud and economic disputes;

3,    The crime of embezzlement and creditor's rights;

4,    The civil protection of trade secrets and commercial secrets;

5,    In the process of financing of the crime of fraud and crime of illegal absorbing public deposits;

6,    The crime of illegal business operation or illegal business;

7,    Adultery, marital rape and rape;

8,    Blackmail and impose exactions on crime and legitimate rights;

9,    Commissions, kickbacks and bribery. Wait.

There are many overlapping criminal and civil cases, this is not discussed.

Causes of miscarriages of justice, criminal and civil cross in three

Many miscarriages of justice is the emergence of penal and civil cases, because:

(a)Concept, emphasis on private public neglect

China since ancient times is the prison light people, legal history of ancient Chinese, actually

A history of the criminal law. Before is "beyond Rites Ceremony in relation to the evolution of" for "beyond the law he was into the criminal law", emphasis on the protection of the public power, despise or even ignore the protection of private rights in criminal law, abuse of rights, interference. In that sense, penal and civil emergence of miscarriages of justice can hardly be avoided.

Two.The legislation, the criminal law, first the punishment queen people

The criminal legislation of our country, there is extensive criminal phenomenon of private law, civil association

To interfere too much, and too, legislative oversight, pocket crime too much, too much miscellaneous provisions. If the illegal business crime, crime, the crime of contract fraud, crime of fraud, crime of illegal absorbing public deposits, etc.. But, in the criminal supplementary civil action, wrong tendency in the first the punishment queen people, resulting in many litigation right abuse, criminal law, civil behavior intervention. Interlocked penal and civil miscarriages of justice, with congenital.

Three.The administration of justice, criminal punishment from the main people, interventional people

In judicial practice, thought idea and emphasis on Criminal Law means management of social policy,

The main people from lead to punishment, punishment involved people conspicuous. Also, there is the judicial organ abuse of public power, the convenience of duty, for the protection of local interests, departmental interests, interfere with economic disputes. Or in the interests of drivers, the existence of bribery, favoritism, corruption, and adding fuel to the flames for criminal and civil cross of miscarriages of justice.

The principle of cross cases, pleaded not guilty to four criminal and civil

Our agents in the penal and civil criminal cases, if it belongs to the miscarriages of justice, we should resolutely defended. Innocence, should adhere to the following principles:

(a) in the event of a conflict between criminal law and civil law case, shall the two evaluation principles of criminal law, the civil law.

In modern society, the laws of the state is composed of legal norms in many aspects, multi-level, and jointly safeguard the social order, but in the entire legal system, is a ladder, the criminal law is to protect the other legal norms are the last barrier implementation, not to use. Therefore, the existence of non criminal law prior to the criminal law evaluation attribute in the criminal law. If the civil law to evaluate a certain behavior, and according to the civil law system, legal behavior, does not constitute a crime. That is to say, priority should be given to the application of civil law, not criminal law.

For example. Man in the1998Years of fiction he mother's age, its insurance. Four years later, his mother died, the insurance company for a so27Million yuan compensation. Soon, the public security organ to the crime of insurance fraud arrest her, think a hide a mother more than70Old truth, defrauds insurance money, a huge amount, constitute the crime of insurance fraud. Personally think that the act does not constitute a crime. Because the insurance law article54Article, the insured for the age of the insured is not real, and the true age does not conform to the age limit agreed in the contract, the insurer may terminate the contract, and after deducting fees, refund the premium to the insured. It can be applied to process a refund of the insurance law, the insurance company for compensation, insurance companies to refund a premium. The case is the insurance contract disputes, does not constitute a crime.

(two) in the criminal and civil relations intertwined and judging the civil relationship affects cognizance of criminal relation, should adhere to the pre analysis and qualitative civil relations as the basis to judge the criminal legal relationship.

We should overcome the long existing stereotyped thinking, namely in criminal cases do not pay attention to the analysis of civil relationship, even think that civil relations that pure thoughts of criminal law does not exist in criminal cases. In fact, in many cases, especially in cases of property crime, criminal and civil relations intertwined, identification and treatment of the nature of the case cannot do without analysis and judgment of civil relationship. In this case, the general should be in front of a civil relationship as the basis to judge the relationship, namely should first make clear the cases of civil relations, as a basis to determine the nature of criminal cases.

If a tourist resort attracts a lot of tourists, the temple monks whim, on the outside of the public area to dig a pond, a base, which offer a bodhisattva. Visitors or faith, or for fun, tour inter continue to throw money to throw coins buddha. Money is of course Many a little make a mickle. many littles make a mickle., so the monks every few days the water line. Because this is a public area too lax, so B also follow into the pool, the first step to make money. Results after fishing, and doubt: the money go? Then the vigil, B is the monks caught. This when how to deal with? Many people think that B acts constitute the crime of theft or embezzlement.

Personally think that B does not constitute a crime. Because from the civil law sense analysis, visitors to the money of course is thrown to Bodhisattva, tourists thus given up ownership. But whether the Bodhisattva then gained ownership, so as to realize the control of the money? Bodhisattva from materialism point of view does not exist, but not money, not the money of buddha. This means that one party has to put the money out, lost control, to give up ownership, and other one party refuses to share, not ownership, such coins in unclaimed state. In addition, the monks are pool and placement of built in public areas of the Buddha, the nature of this set the merit box and the monks in the temple to put money in different. The money, not necessarily considered to belong to a monk all. The tourists and the monks have no such principal-agent relationship in. At this point in the public area of the money belongs to the unclaimed items, according to the civil law who first possession who first principle, B share the ownerless, simply do not constitute a criminal law of theft or embezzlement.

Outside the Box jade, the last century sixty's Italy Roma Square also had a similar case, the police caught the thief in court, the court subpoena witnesses, ask: are you throw money? Answer: I throw money. Q: give who? Answer: throw it to God. After listening to the testimony, a female judge presided over the trial court knocked lower hammer, said the case was already settled, acquitted. The reason is this money since tourists threw to God, please God to preside over the trial, which means that the case in the world is not guilty. Although this is a kind of humor in the trial, a humorous, but the conclusion and we discussed above results have different approaches but equally satisfactory results in essence, criminal and civil cases of this kind does not need to criminal law evaluation can be resolved. (see Yang Xingpei: "criminal and civil cases Legal Analysis of logic", "China Criminal Law Journal"2012No.9Period, the20Page)

(three) cross fuzzy regions in the limits of the criminal law and civil law, criminal law should be modest adhere to strict interpretation of the criminal law, civil law, liberal interpretation.

The law is not natural science that either this or that, but often be quite distinct from each other, each other, fuzzy grey area in transition, define the legal ambiguity or uncertainty and the law is as the shadow follows the form of twin brothers, this phenomenon in the relationship between criminal law and civil law is more evident. This is, we uphold the principles of criminal law, strict interpretation of the criminal law, civil law, civil law explained, try to adjust the behavior.

As previously discussed "marital rape" case. A third has not ruled by his wife divorce litigation before, in the wife unwilling circumstance, relationship with his wife, his wife was reported, the public security organ that C against women will, forced to have relations with women, rape crime Xingju the C. Personally think that, during the marriage, both husband and wife have sexual rights and obligations. The couple had a sexual relationship, simply can not be called "rape", C and his wife forced relationship, at best, is unethical behavior, does not constitute a crime. The criminal law to interfere in the family ethics, it should not. At this time, to deal with rape crime criminal law strict interpretation, interpretation of the liberal civil partnership, C behavior, does not constitute the crime of rape. See Zhang Jian, Xiao Wanxiang: "analysis and deal with the relationship between the principle of" penal and civil cases in the rule of law. ","2009Years3Vol.24No.2Period, the122-124Page)

(four) social harm and criminal illegality combination principle, adhere to the principle of legality, adhere to the significant harm is slightly plot does not constitute a crime principle.

Personally think that the first principle of civil law and criminal law, determine the boundaries, is"Social crisis

Harm"Size. Secondly, there are"Criminal illegality". In the field of criminal law, and"Criminal punishment"Problems, criminal penalty, is to"Criminal illegality"As the premise. So, civil and criminal boundaries are the two principles.

    First of all, from the"Social harmfulness"See, in general, all illegal, have social harmfulness. However, in violation of civil law compared with the violation of the criminal law, social harm small violations of civil law, in violation of the criminal law of the great social harm. The difference between the damage size, difference, difference include the objective aspect of the content; subjective aspect, the difference between malignant size."Social harmfulness"The first principle of civil law and criminal law is to determine the boundaries of the.

Secondly, from the"Criminal illegality"The civil law and criminal law. On all kinds of illegal acts harmful to society for screening, for the behavior, the more dangerous the society through legislation, determined to have"Criminal illegality". No screening to act in the criminal law, which belongs to the civil law behavior. Criminal illegality, it is"(punishment) no crime without law"(statutory). The criminal law, civil law and criminal law to limit further clear distinction.

    Once again, thanks"Criminal illegality"Requirements of legality, then, with the development of society, the constant emergence of new social harm case, some examples in a certain period, possible although great social harm, but the criminal law"A fish escaped through the Seine", according to the principle of legality, since the criminal law makes no provision for the object, should belong to the civil law standard. According to the basic principles of justice and law, for"Without a law"Thing, can also handle. This time in the criminal law"Net"Phenomenon, is an other, sometimes may occasionally, temporarily indulge crime, but not the destruction of the legal principle of crime and punishment.

Again, from the plot"Obviously minor","Criminal punishment"The criminal theory of civil law and criminal law"Social harmfulness"The boundaries of the transitional. Generally speaking, from the criminal point of view, plot"Obviously minor"The, was not deemed a crime. As the criminal law thirteenth stipulation: "but circumstances are obviously minor and the harm is not great, not deemed a crime".

As the criminal law 347th stipulation"Smuggling, trafficking, transporting, manufactures narcotic drugs, regardless of the quantity, shall be investigated for criminal responsibility, criminal penalties."So, if a Ding father cancer died, the last surviving with pethidine (a painkiller, and addiction is drug), did not run out, leaving a pethidine, Ding Yi10Element to another village cancer patients (the actual price1Yuan Ding), the behavior is"Drug trafficking"? Personal opinion, Ding behavior is"The plot remarkable slight", harmless, don't think is a crime.

The specific application of cross cases, five civil and criminal to plead not guilty

This topic is very grand, limited to time, this question before, will not elaborate.

Thank you!

 

(spokesman: Zhang Zhiyong, doctor of law of punishment, Dacheng Law Firm criminal business professional committee of deputy secretary, Beijing Dacheng Law firm partner)