The high court of Beijing, several issues concerning civil claim annexed to a criminal case solution (for Trial Implementation)

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Beijing Higher People's Court on the trial of criminal incidental civil actionSome problems of litigation cases solution (for Trial Implementation)

  • By 2009-07-14 08:57:43
 
According to the relevant laws and judicial interpretations, combined with our court criminal trial practice,Now the incidental civil litigation related problems put forward the following answer opinion:
One, about the incidental civil action range
   How to determine 1, incidental civil lawsuit?
Answer: the court of the incidental civil lawsuit by the scope, should be limited to the victimPersonal rights are crimes and property crimes damaging material losses sufferedDo not include material loss, from the criminal illegal possession, disposal of the property to sufferLoss. Incidental civil compensation is limited to the crime directly cause material losses, not includingThe spirit of the loss and indirect cause material losses. The court of first instance
Follow-up treatment costs, has not actually occurred before rehabilitation fees, nursing fees, not yet assessed disability gradeAnd the requirements of the disability compensation, disability AIDS fees, the victim may apply to a court shall be separatelyCivil litigation.
2, in the crime suffered a slight injury victims can file an incidental civil action?
Answer: in the crime victim suffered slight injuries can be the material loss to file an incidental civilLitigation. Because of incidental civil lawsuit attached to the criminal litigation, if the victim has suffered minor injuriesThe fact is not accused, or cannot provide evidence of its losses from the criminal defendant's crimeAs in, in accordance with the law does not belong to the scope of civil suit collateral.
3, between husband and wife to infringement of personal rights of a criminal case, the victim can liftIncidental civil litigation?
Answer: the husband and wife happened between the violation of personal rights crime, can allow the victim toTo file an incidental civil action. The court hearing the case of civil suit collateral such, should be attachedCivil compensation of material loss, not to expand the trial of other civil litigation.
     Two, about the plaintiff of the supplementary civil action
4, how to determine the plaintiff in incidental civil litigation?
Answer: the plaintiff of the supplementary civil action mainly due to crime victims suffered material lossesPerson (the natural person, legal person or other organization), has killed the victim's close relatives, no behaviorCapacity or limit the capacity of his legal representatives, and the state property, collective propertyProduction for the crime suffered a loss and the people's procuratorates filed an incidental civil action. The legalOther units or individuals outside the body to the victim, not because of the payment of medical expenses, funeral expenses, insurance and directly file an incidental civil action.
　 5, after the death of the victim, the parents or children as the plaintiff eligibility filedIncidental civil litigation?
Answer: the parents or children can become eligible plaintiffs of the supplementary civil action of the victimPeople should look after, parents or step between children and whether the victim has in fact raised and be FuAdoptive relationship. There is in fact dependency and dependency relationship, can be used as a properThe plaintiff to file an incidental civil action; otherwise, it can't bring. Proof step parents or step childrenWhether there is in fact dependency and dependency relationship between the burden of proof and the victim, in accordance with theEstablishment of "who advocate who burden" principle.
6, the death of the victims, and have no legal relationship of maintenance, but by his real FuHave lost the ability to work and no other lifeSourceAdult relatives can alimony to file an incidental civil action?
Answer: have the right to file an incidental civil litigation dependents including the victim shall be liable in accordance with the lawObligation of juvenile or adult relatives lose labor ability and no other source of incomeGenus. And the victim does not have legal relationship of maintenance, but by the loss of his actual maintenance workAdult relatives force and no other source of income
On alimony to file an incidental civil action, and submit the maintenance certificate, it shall accept the.
Three, about the defendant
7, with how to determine the defendants?
Answer: the defendant is in criminal proceedings for criminal defendant's crimeFor the losses caused by the prosecution, shall bear civil liability for compensation. According to the relevant judicial interpretationsProvisions, mainly involves the following several kinds of main body:
(1) the defendant (natural persons, legal persons or other organizations) involved and the indictmentOther common perpetrator to, not be investigated for criminal responsibility (the natural person, legal person or otherOrganization).
Plaintiff of the supplementary civil action to prosecute for do not constitute a crime, the common damagePeople, but also to investigate the civil liability for compensation, and the joint offender shall bear joint and several liability. However, the fugitive accomplice should not be listed as the defendant, can be decided by penaltyIt accused all economic compensation for the plaintiff of the supplementary civil action loss, the fugitive accompliceAfter the decision by the justice of the accused and convicted are jointly and severally liable.
(2) guardian of juvenile defendants. The juvenile defendant personal property, should beWhen I shall bear civil liability for compensation, the insufficient part by the guardian to give compensation, but the unitExcept as guardian.
A minor defendant's relatives on behalf of compensation, not as a defendant, can be settled through mediation in practice.
(3) has been executed criminals of inheritance.
(4) in a case of joint crime, the case has been concluded before the death of inheritancePeople. Inheritance as the defendant, the inheritance is limitedBe liable for.
(5) other crimes of criminal defendant shall bear civil liability for compensation according to lawUnits and individuals. In practice the following subject shall bear corresponding civil liability for compensation:
For the staff or employees in the performance of their duties or business crime causes material loss of legal personOr other organizations.
Victims of crime in the execution of duties or business in the infringement, the victim ofOr the employer should not be used as the defendant. Victims suffer the crime violation, byIn the treatment, delays, funeral, for the subject with the unit or employer disputes, notBelongs to the incidental civil lawsuit.
The crime of origin or conflicts be liable or are directly related with the crimeUnits and individuals and the consequences of damage should bear some responsibility.
　 8, in traffic accident cases in the vehicle compulsory liability insurance, can directly to the insuranceThe company as a defendant?
Answer: because the insurance gold to pay does not belong to the scope of incidental civil action, it is not directlyThe insurance company as a defendant.
Four, about the supplementary civil action procedure
9, how to inform the parties to file an incidental civil action?
Answer: the courts handle criminal cases, should review the case can file an incidental civil action. The law can file an incidental civil litigation cases, can by telephone, letter etc.Type to inform the victim (the natural person, legal person or other organization), has killed the victim's close relatives, incompetence or limited capacity his legal representatives, have the right to file an incidentalCivil litigation, and will inform the materials attached retained. After notification, have the right to file an incidental civilProceedings of the people give up litigation rights, it shall be allowed, and record.
Have the right to file an incidental civil action in a trial before the announcement did not mention, notHave to file an incidental civil action, may bring a civil action shall be. Victims and their close relativesThe civil compensation lawsuit after the end of the trial of criminal cases, does not belong to the incidental civil action.
    10, plaintiffs of the supplementary civil action not to appear in court or withdraw from the how to deal with?
Answer: the court to notify the parties concerned to file an incidental civil action, should inform the litigation risk. The parties to file an incidental civil action after the subpoena, refused to unwarranted and did not entrustThe agent, or midway without permission by the court adjourned, should be documented, and according to civilThe relevant provisions of the criminal procedure law, by withdrawing treatment.
     11, incapacity or restricted capacity defendantThe statutory agent does not appear or withdraw from the how to deal with?
Answer: the incapacity or restricted capacity of defendant's legal agentPeople unable to appear in court, may entrust other guardians or adult relatives to participate in the proceedings.The legal agent between mutual prevarication responsibility as agents, the court may appoint one of them to action.
No capacity or limited capacity for civil legal representative with the defendant without properReason refuses to appear in court and litigation agent without authorization, or midway without permission by the court court, should be documented, and the relevant provisions of the Civil Procedure Law of comparative judgment by default.
The juvenile defendant legal agent during the trial of the first instance court appearanceDuring the trial of second instance does not appear, if the trial of second instance when the defendant has over eighteen years of age, its legal representativeManagers can not appear in court; if the trial of second instance is still under the age of eighteen, according to the preceding two paragraphsSet processing.
12, not be investigated for criminal responsibility in common perpetrator absent or withdraw from theHandle?
Answer: not be investigated for criminal responsibility in common offender, the court summons without justifiable reasons, refuses to appear in court, or midway without permission by the court adjourned, should be documented, and contrastThe relevant provisions of the civil procedure law in absentia.
Incidental civil litigation parties 13, how to deal with the criminal defendant and victim outsideA witness may also have?
Answer: the court should consult the criminal defendants and victims of incidental civil before a courtProcedure the opinions of the parties and consider litigation convenience factors determine its participation in the proceedings of the reality of the bodyCopy. If the case of appearing in court as a witness, not at the same time in case of other identityThe part of the procedure, including the audit case of trial in criminal cases, part V.After the end of the case to court, incidental civil part of the action.
14, incidental civil lawsuit is not the main grid of how to deal with?
Answer: incidental litigation defendant civil subject not proper, can convince the incidental civil actionThe plaintiff withdraw prosecution; if it does not adhere to the withdrawal shall be made separately, criminal incidental civilThe ruling rejected the prosecution.
Plaintiff of the supplementary civil action is not the main grid, according to the trial scheduleIn accordance with the law, shall not be accepted, or persuade people to file an incidental civil action withdrawing public prosecution, or the otherFor making the criminal supplementary civil ruling rejected the prosecution.
15, plaintiffs of the supplementary civil action appeal beyond the scope of how the incidental civil actionHandle?
Answer: while the main subject to prosecution, but not proof, insufficient evidence, inNo legal basis or the material loss is not a criminal defendant behavior, as well as to the criminal beYou should not assume liability to pay compensation in the incidental civil lawsuit loss lawsuit, should be in the punishmentSubsidiary civil verdict "this house believes that" part of the presentation will not support reasons, and in the mainThe part of the judgment to reject the plaintiff of the supplementary civil action related to the content of claims.
16, plaintiffs of the supplementary civil action the other people at the same time the prosecution of criminal defendants outside of the bearingBear civil liability for compensation, the court held that the court shall decide whether or not to prosecute, it should beList of criminal defendants in incidental civil action and litigant, litigation documents to them?
Answer: because the prosecution dismissed the ruling may affect the criminal defendant's rights, it shallAt the same time column criminal defendants in incidental civil action litigants, and served on the prosecution dismissed the cut to itsGiven the book.
17, the prosecution to withdraw the prosecution, with how to deal with the problem of civil litigation?
Answer: before the judgment is pronounced, the prosecution to withdraw the prosecution and the court ruling allowed, canTo inform the plaintiff of the supplementary civil action civil lawsuit otherwise; if it does not adhere to the withdrawal andCannot be settled through mediation way, to have an incidental civil action, can be ruledThe prosecution dismissed.
18, in the case of public prosecution by the court shall declare the criminal defendant's innocence,How to deal with problems of incidental civil litigation?
Tell a person without capacity of criminal responsibility of the person without criminal responsibility, also can be used in an incidental civil actionThe problem of compensation for material damage caused to the victim lawsuit procedure to resolve criminal acts of the defendant, butExcept the plaintiff of the supplementary civil action voluntarily withdraw.
The facts are not clear and the evidence is insufficient, can not determine that the criminal defendant guilty and judgment is pronouncedInnocent, should the court rejected the plaintiff of the supplementary civil action.
The death of plaintiff of the supplementary civil action in 19, the first instance verdict ago how to deal with?
Answer: the first sentence of plaintiff of the supplementary civil action of death, shall notify the dead withCivil plaintiff heir to participate in litigation; if the plaintiff of the supplementary civil action without following theThe contractor or its successor waives the right to litigate, shall terminate the incidental civil action.
20, plaintiffs of the supplementary civil action after the appeal in the second period of increased litigation request orDefendant counterclaim of how to deal with?
Answer: the trial court according to the civil part of the appeal case, the plaintiff sideIncrease independent claims and theNew hairStudents proposed to increase the amount of compensation matters or the defendant files a counterclaim, the court of second instance canThe parties on a voluntary basis on new claims and the amount of compensation or counterclaimSolution; if the mediation fails, the parties shall inform the civil lawsuit.
On the plaintiff in the first instance during the litigation request scope request to increase the amount of compensation,If the increase in compensation system had occurred, shall make a judgment on the plaintiff sideHave been proposed in the first instance litigation request, the court has not been tried or sentenced, twoThe court may conduct mediation the parties on a voluntary basis, if the mediation fails, the remand. The remand of the ruling shall not listed in additional party.
21, the criminal incidental civil appeal cases, if the civil part of the factsIs not clear, need to how to apply the law retrial?
Answer: incidental civil part is solved in the course of criminal proceedings problems, so in the backThe trial court for a retrial decision, shall refer to the provisions of the criminal procedure law, and without reference to the peopleThe relevant provisions of the civil procedure law. In the incidental civil part remanded by the court ruling, theThe incidental civil action of the appellant, ranked first in the.
    22, only the plaintiff of the supplementary civil action appeal, and the second review willFixed, incidental civil part of criminal retrial rehearing, part of the instruction, the trial court to trialScience?
Answer: the first trial announcement in criminal cases, the defendant not to criminal judgmentLitigation, procuratorate did not protest, only the plaintiff of the supplementary civil action appeal trial process caused byOrder, criminal judgment of first instance occurred in the appeal after the expiration of the legal effect. But in order to determine the correctThe civil liability, the court of second instance not only investigate the incidental civil part, also want to review the criminal part,And make the incidental civil part. If the review decisions of incidental civil part ruled hairTo review, after review that the criminal part or inappropriate, decided according to the procedure for trial supervisionInstruction of court retrial, the trial court can serve as a case, in accordance with the procedure for trial supervision weightThe new trial, and again in the judgment that case source.
For the criminal part already effective supplementary civil action case, because of the criminal defendant is requiredTo participate in the litigation as the second instance of the defendants of incidental civil lawsuit, in order to facilitate the trial, in the second instance ofBefore the civil action pending, may postpone delivery.
    Supplementary civil case 23, sentenced to death the criminal, the criminal defendantNo appeal, plaintiffs of the supplementary civil action filed an appeal, court of second instance is according to the review process, or procedure of second instance trial?
Answer: incidental civil action litigant case of incidental civil part of the decision to have appeal rightLi, but not to the criminal part of the case the right of appeal, the plaintiff of the supplementary civil action proposedThe appeal, will not cause the criminal procedure of second instance, the case still should be in accordance with the death penaltyNuclear program trial. In view of the case turns out to be a criminal supplementary civil case, according to the criminalThe relevant provisions of the criminal procedure law, criminal cases and civil cases can also be treated separately, stillThe original review of the case of the collegiate bench trial of incidental appeal civil part of the.
  Five, about the incidental civil lawsuit mediation
How to treat the mediation of supplementary civil action case 24, criminal trial?
Answer: (1) the incidental civil action to mediation, is to protect the victim's civil compensationCompensation rights, effective way to achieve the node. So, the courts at all levels should always attach great importance toAs the use of mediation means, properly handle cases of disputes, and promoting social harmony. For groupInterest or a large number of cases, strong sensitivity, a high degree of social concern of the case, the partiesThe mood is serious opposition cases and relevant laws and regulations, no provision or provisions of unknownThe case, should strengthen the mediation.
(2) the defendant sincere repentance performance is willing to compensation, can mediate wayTo reach a compensation agreement. Do the defendants and their families voluntarily or through mediation to reach a compensation agreementThe amount of compensation for the actual loss is higher than that of the victim, should be allowed to.
(3) for the defendant does not have sufficient compensation capacity, the defendant relatives or unitWho is willing to give compensation, should allow, can be regarded as the defendant to the victim compensation.
(4) the defendant has paid for the victim's loss, the court may in sentencingWhen receive consideration. For minor criminal cases, if the work, the defendant plead guilty, mayTo compensate the victim's damage, and obtain the victim understanding, so as to reach a reconciliation agreement, to beYou may be given a lighter sentence of non imprisonment punishment or exempted from criminal punishment.
    25, the criminal supplementary civil trial work presided over mediation and conciliationYou should pay attention to what matters?
Answer: (1) the mediation work should adhere to the Party of equality and voluntariness, can not be forcibly adjustableSolution.
(2) the parties to the mediation program. By the request of the parties, the court alsoCan the Mediation Program for the reference, but shall not make any commitments on the criminal judgment.
(3) where an agreement is reached through mediation, the court shall examine the contents of the mediation agreement. YesThe mediation agreement against the national interests, social public interests, the interests of the infringement of an outsider, beyondParty's right of disposition scope, contrary to the true meaning of the parties, as well as the violation of laws, administrativeRegulations and provisions, shall not be recognized.
(4) in addition to the mediation agreement, shall contain the facts confirmed by both parties as well as the shoeThe time, place, time limit for protocol, to allow both sides to reach an understanding and criminal recordDocumented. The court should be the criminal verdict, make positive evaluation, compensation behavior of the defendant,And the effect of this on the sentencing.
It has the positive compensation for mitigating circumstances without immediate implementation of the death penalty for murder, should highlight the influence of other lighter punishment on the sentencing verdict, desalination lighter compensationThe reason, in order to avoid the negative social impact.
(5) the amount of compensation mediation confirmation, should in general be parties to reach a voluntary agreement,And has the actual performance principle. If the defendant claims in knowing the numberThe amount is too high and does not perform his ability, still reach the deadline to fulfill the tune and the victimSolution protocol, the court should be the application of judgment on the identified.
(6) the parties agreed in the mediation agreement signature or seal after the lawHospital after the examination, shall be recorded in writing or the agreement attached, and by the parties, the judgeSignature clerk, clerk or stamp that have the force of law. The request of the parties, mediationThe conciliation statement shall be made to the court, the parties. Reach an agreement of mediation and the court executedThe conciliation statement, can't. The rejection of mediation, the mediation agreement is not affectedNexuiz.
(7) after the mediation agreement cannot be reached in the mediation agreement and the parties sign or sealBefore the break, the court shall be decided on the incidental civil action.
    26, the parties to reach a mediation agreement and the actual performance, the victimAlso file an incidental civil action and how to deal with?
Answer: after review, if a mediation agreement has the actual performance, and the amount of compensation andThe actual losses equivalent to or higher than the actual loss, should be recognized the validity of the agreement, decision to dismiss the victimLitigation request; if the amount of compensation to determine the mediation agreement with the actual loss in obvious gapLarge, the actual economic losses should be ruling the defendant compensate the victim, and deduction has fulfilled its partThe mediation agreement; if not confirm with the circumstances, to reach a mediation agreementOr apply judgment.
    27, in the process of mediation can first accept the defendants and their relatives to payAccept the compensation?
Answer: in the process of mediation, victim compensation in the higher requirements of the situation, the defendantObjective compensation difficulty, or disagree with unreasonable requirements of each other, but says it is willing to prePay a certain amount of compensation, the court can receive, and as the defendant sentencing discretionConsider.
    28, the active compensation in the second period, which can change aThe criminal judgment?
Answer: the defendant active compensation in the second period, reflecting the defendant to compensate for the loss, sincereRepentance attitude, if made the victim of forgiveness, a lighter punishment helps reduce social onAnti, promote social harmony. But, according to whether a criminal judgment of first instance, the compensation should be comprehensiveThe amount of compensation, the first instance does not fulfill the actual situation, the compensation of the defendant's criminal damage and penitence degreeWhether the victim forgiveness, and other factors, a comprehensive consideration, prudent judgment, to avoid improper toThe only factors used to decide whether to change the civil compensation.