The new criminal procedure law about mental solatium provisions

Influence of the new criminal procedure law on compensation for traffic accident crime
Author: NetworkTime: 2013-02-16

Authors: Peng Dejiang Wang Lingxin in January 1, 2013, the new criminal procedure law and the judicial interpretation has come into effect, will the traffic accident civil compensation for crimes involving the tremendous impact. As a professional lawyer engaged in motor vehicle traffic accident liability disputes solution, we now only the new criminal procedure law and the judicial interpretation of the great influence of Crime Compensation outline views on traffic, as to ask for expert.
One of the victims and their relatives, the influence of
(a) mental solatium no legal relief path
The new "criminal procedural law" stipulates that the 101st "people's court the incidental civil lawsuit, mediation may be conducted according to the material loss, or judgment, ruling," the Supreme People's court "on the application of" the people's Republic of China Criminal Procedure Law "interpretation" (hereinafter referred to as "the new criminal law judicial interpretation") 138th "the personal rights stipulated by criminal violations or property damaged by criminals has suffered material losses,...... Because of the crime of infringing, file an incidental civil action or take a mental compensation requirements of civil proceedings, the people's court shall not accept". The regulations, means that the victims and their relatives not incidental civil action is based on mental solatium for support, even through the prior litigation will be unable to gain support. In the judicial practice in the past, because of the incidental civil action does not support the victims and their relatives for mental solatium claim protection consideration, the parties usually take civil lawsuit otherwise obtain relief. The specific operation, in civil litigation, citing "general principles of civil law", "on the implementation of" general principles of civil law "certain opinions", "tort liability act", "on the trial of personal injury case applicable legal interpretation of several issues", "on the motor vehicle traffic accident liability compulsory insurance liability limit of material damages and compensation for moral damage order reply" ([2008] the people He Zi No. twenty-fifth) and the Supreme Court "on hearing the law applicable to a number of road traffic accident damage compensation case explanation" and other normative documents, can obtain judicial relief. The provisions of the new "criminal procedural law" only "according to the material losses" as the judgment, ruling consideration, there is no provision for direct and indirect losses, how to distinguish the processing problems, but also to limit the scope of the parties may bring a civil lawsuit to obtain separate legal relief (the loss of the spirit of the excluded). More difficult to understand, "the new criminal law judicial interpretation" do enlargement explain, it not only "explain" the criminal procedure, and even cross department put the questions of civil substantive law is an "explanation". The new Supreme Court judicial interpretation and the Supreme Court "almost at the same time effect on the trial of the law applicable to a number of Road Traffic Accident Damage Compensation Cases Interpretation of" fourteenth "road traffic safety law seventy-sixth stipulation" casualty ", refers to the motor vehicle traffic accident against infringement right of life, right of health the personal rights and interests of the damage, including the tort liability law article sixteenth and the provisions of article twenty-second. Road traffic safety law seventy-sixth stipulation "property damage", is the result of motor vehicle traffic accident against infringement of property rights caused by the loss of." "Tort liability law" sixteenth, twenty-second " is full support for mental solatium and disability compensation and compensation for death. The author thinks that in the same order as the judicial interpretation, the two conflicting requirements, which leads to disunity to rule the country by law, but also practical to bring chaos to practice at all levels of court trial.
(two), disability, death compensation scope of compensation in traffic accident crime of rejection
In the traffic accident crime victim died on the spot of the occasion, there is no medical fees, nursing fees, rehabilitation expenses, disability AIDS charges, loss of the problem, according to the "new criminal law judicial interpretation of" Regulations "article 155th of the civil judgement, should according to the criminal behavior caused by loss of material, combined with the specific circumstances the case, the defendant shall determine the amount of compensation. Crime victims caused personal injury, shall pay the medical fees, nursing fees, transportation fees and other reasonable expenses for treatment and rehabilitation of payment, as well as the lost wages. If the victim is disabled, should also be compensation for disability AIDS fees; causing death to the victim, should also be compensation for funeral expenses. The casualties caused by driving a motor vehicle or cause heavy losses to public or private property, which constitutes a crime, to determine the compensation responsibility in accordance with the "Regulations of the people's Republic of China Road Traffic Safety Law" article seventy-sixth. Incidental civil litigation parties to reach a mediation, reconciliation agreement on civil compensation, scope of compensation, the amount is not subject to the provisions of the second paragraph, third paragraph limit ", that is to say, the families of the victims can only obtain the funeral expenses, because" death compensation "due to the" spiritual solatium "category were excluded from the incidental civil compensation and separate civil range.
Two, the crime of traffic accident compensation scope is narrow, greatly reduces the cost of crime
In the victim's death or disability of the occasion, part or all of the loss of ability to work caused by reduced income can not receive compensation, liability will greatly reduce the traffic accidents. Article 133rd of the criminal law on the crime of causing traffic casualties of the penalty provisions, general term is less than 3 years imprisonment or criminal detention, there must be a crime to lower the cost of. Hundreds of thousands of yuan of disability, death compensation are not required to pay, 3 year sentence was too light. If the past is 3 years in jail and a huge compensation over the head, can the motor vehicle drivers play a deterrent effect. Compared with the past, the new "criminal procedural law" and the judicial interpretation, quasi in encouraging the crime of causing traffic casualties. Because once the crime, mental solatium, disability and death compensation are exempt.
Three, motor vehicle compulsory liability insurance and third party liability insurance business seems to have no need to exist
In recent years, the motor vehicle compulsory liability insurance and third party liability insurance business in resolving the traffic contradiction, played a significant role in constructing a harmonious society. The new criminal law and judicial explanation, will overthrow the compulsory motor vehicle liability insurance and third party liability insurance business on the stabilization of the society. Although the "new criminal law judicial interpretation" in the one hundred and fifty-five paragraph third, sub clause Fourth "driving motor vehicles causing casualties or cause heavy losses to public or private property, which constitutes a crime, to determine the compensation responsibility in accordance with the" Regulations of the people's Republic of China Road Traffic Safety Law "article seventy-sixth. Incidental civil litigation parties to reach a mediation, reconciliation agreement on civil compensation, scope of compensation, the amount is not subject to the provisions of the second paragraph, third paragraph limit ", but because the spirit of the solatium, disability and death compensation has been excluded from the scope of compensation, will undoubtedly have a motor vehicle insurance people, they will get the huge commercial interests. On one hand, according to the current laws and regulations to the motor vehicle a hefty premium, can on the one hand because of the new criminal law and judicial interpretations of the implementation of the exemption from liability of their own, the insurance company is not the gospel! But if we stand in the macroscopic angle to examine the new criminal law and judicial interpretations of the legal consequences in the actual implementation, it is not difficult to see the future in traffic accidents, if the victim and their relatives in the vehicle with the motor vehicle compulsory liability insurance and third party liability commercial insurance situation is unable to obtain disability, death compensation, on victims and their relatives is obviously unfair. The author thinks that the "new criminal law judicial interpretation" there are places worth discussing. Since death, disability compensation does not need compensation, necessity of the motor vehicle compulsory liability insurance and third party liability insurance business is worth legislation and judicial interpretation to consider seriously.
Four, the traffic police department will be caught in a dilemma in the traffic accident responsibility
The traffic police accident report although there is only one kind of evidence, but it is the traffic police according to site survey and expert opinions are made based on the identification of qualification, usually in the cases of traffic accident will be as important as the court. The new criminal law and judicial interpretation will collapse after the implementation of the traffic police department in a dilemma in making accident book. According to the actual case, the perpetrators should bear the major accidents or full responsibility, and shall be investigated for criminal responsibility in accordance with the law, traffic accidents. If just treatment, then the victim cannot obtain mental solatium, disability and death compensation (especially in many occasions). On one hand, it must hold the perpetrators of criminal culpability in accordance with the law, or allegedly refused to transfer the case to the judicial crime; a victim will face the legal consequences for not, slightly careless, will lead to serious influence the group incidents of social stability, all levels of government is clearly not allowed.
Five, the crux of the problem and its solution
The new criminal procedure law and the judicial interpretation cause great negative impact on the traffic accident crime is the spirit of the solatium connotation and denotation, the Supreme People's court is not a unified interpretation, interpretation of criminal criminal, civil civil interpretation, is this is not unified, will cause the judicial practice of China chaos. Therefore, the author put forward the following suggestions for reference.
(a) to give the parties to choose the form of action right
On the occasion of the traffic accident crime, whether the victim to file an incidental civil action and civil lawsuit alone, victims and their relatives shall have the right to choose freely. If the choice of the criminal supplementary civil action, it means that the victims and their relatives to voluntarily give up the spirit of the solatium claim; if they want for mental solatium, should allow the civil lawsuit alone.
(two) by the Supreme People's court re for mental solatium made uniform judicial interpretation
The new criminal law and its judicial interpretation causes great impact on traffic accident compensation in the Supreme People's court is not a unified explanation of "spirit conciliate gold". The Supreme People's court "about the problems of defining the civil right infringement spirit damage compensate responsibility interpretation"
(method 2001) release (7) the provisions of article ninth "mental damage solatium include the following: (a) causing disability, disability compensation gold; (two) to death, for death compensation; (three) spirit conciliate gold other damage case." According to this interpretation, disability, death compensation should belong to the spiritual comfort Jin Fan domain. "Tort liability act" sixteenth provisions " infringement caused personal injury, the reasonable expenses shall pay the medical fees, nursing fees, transportation fees and expenses for treatment and rehabilitation, as well as the lost wages. The cause of disability, should also be compensation for disability living allowance and disability compensation. Cause of death, should also be compensation for funeral expenses and death compensation ", twenty-second also stipulates that" infringement of personal rights, causing serious mental damage, the victim may request compensation for mental damage ", which shows the tort liability law of the disability, death compensation and spiritual solatium is distinguish, the two are not the same. Then the disability, death compensation in the Supreme People's court "about the trial of personal injury case law applicable to a number of issues of interpretation" is the property loss treatment, all these, be too numerous to enumerate. As a result of legislative and judicial interpretation of the confusion, objectively led to the law of our country in the actual judicature is not unified, this will seriously affect the seriousness of the law. If the disability, death compensation and spiritual solatium cut off, then the problem can be relatively resolve.
Author: Peng Dejiang Wang Lingxin