The plaintiff can bring a civil lawsuit shall be dismissed the criminal supplementary civil action after

Jiang Xianzheng

(2012Years10Month22Day)

[Some questions]In the criminal supplementary civil action, the judgment does not constitute the crime of embezzlement, and then dismissed the plaintiff's prosecution collateral civil proceedings. In the ruling, the plaintiff is unjust enrichment or infringement further prosecution claim?

[References]In criminal proceedings, crime victims by suffering loss situation has two kinds: one kind is the victim's personal rights by criminal violations or property by the criminal damage to property losses; another is a violation of property crime victims because of their property by criminals, punish illegal possession and property losses. Because of the crime of embezzlement suffered loss of property belonging to the second kinds of situations. In the first case relief to victims of the loss of property, in accordance with the "The provisions on criminal incidental civil litigation range"The first paragraph"Personal rights are the crime of infringing has suffered material losses or property damaged by criminals has suffered material losses, may file an incidental civil action."Regulations, the victim can bring criminal incidental civil action to seek legal relief. In the second case relief to victims of the loss of property, in accordance with the "The provisions on criminal incidental civil litigation range"Article fifth"The criminal illegal possession, disposal of the victim's property and make it suffered material losses, the people's court shall be recovered or ordered to return. To be back, restitution, the people's court may be considered as the circumstances of sentencing. After recovered or restitution still can not make up for the loss, the victim to the people's court civil court shall file a civil lawsuit, the people's court may accept." The provisions of the applicable, firstRecovery and ordered to return, then, have been recovered and ordered to return still can not make up for the loss of the case, the victim may file a civil lawsuit otherwise talents.

In judicial practice, the victim under the second circumstances shall be filed a lawsuit seeking property loss relief, in the premise or grasp on the dispute, is mainly to the"After recovered or restitution still can not make up for the loss"Understanding there are two kinds of Views: the first view, criminal judgment comes into force, it can be assumed that the case has been recovered, or compensation shall be ordered processing program, at this time, if the property loss has not been made up, the victim can file a civil lawsuit. The second view, criminal judgment by the court after the entry into force, the actual recovery or ordered to return, is still insufficient to compensate for the victim's property losses suffered by the victim, personnel may bring a civil action shall be. I am inclined to the second view. Retrieves or ordered to return is the court in accordance with the "criminal law" article sixty-fourth"The illegal proceeds of the criminal shall be recovered, or compensation shall be ordered; the lawful property of the victim shall be returned without delay; contraband, and used for a crime I property, shall be confiscated. The confiscated property and fines shall be turned over to the state treasury, and self treatment, not to misappropriate."Regulations, enforcement measures to take possession of a property or property crime in criminal judgment after the entry into force of the. The victim to"After recovered or restitution still can not make up for the loss"To be a civil lawsuit, should understand, only in the court to the defendant constitutes a crime the actual take money or ordered to return such property enforcement procedure, the defendant can perform real estate and other convenient implementation of the property has been completed, the victim's property loss still failed to make up part of the the victim may institute civil proceedings, shall be.

In the supplementary civil action in criminal proceedings, the defendant's conduct does not constitute a crime, lawsuits against the plaintiff, in accordance with the "on the implementation of< of the people's Republic of China Criminal Procedure Law>Interpretation of several issues "Article 101st "the court finds that the defendant's conduct did not constitute a crime, to have an incidental civil action, reach an agreement after mediation can not, shall make criminal incidental civil judgment." The provisions of the parties, court mediation, the mediation fails, the court rejected the only criminal incidental civil action. The reason is that, the condition of supplementary civil action in criminal proceedings is the actual suffered property losses, and must be the causal relationship between criminal and defendant. In short, the defendant's criminal act based on also constitute a tort, it cause the criminal supplementary civil action. Visible, the criminal supplementary civil action in criminal procedure existence as precondition, in the trial procedure attached to criminal procedure. When the defendant's behavior by the court does not constitute a crime, the victim's property loss caused by the criminal behavior can be decided not by the prosecution of the v., does not conform to the criminal incidental civil lawsuit, not incidental civil action in criminal together, only to inform the victim filed a lawsuit separately.

In our problem, the defendant alleged embezzlement crime prosecution, plaintiffs also mentions criminal supplementary civil action,In accordance with the "The provisions on criminal incidental civil litigation range"The provisions of article fifth, the court should not be accepted, has accepted the case, in accordance with the"On the implementation of< of the people's Republic of China Criminal Procedure Law>Interpretation of several issues "Article 100th "people's court trial of the incidental civil lawsuit, in addition to the application of criminal law, criminal procedure law, should also apply the general principles of the civil law, civil procedure law." And "Civil Procedure Law" article139Article"The prosecution does not meet the requirements for acceptance, the people's court shall rule to reject. After the case found that the prosecution does not meet the requirements for acceptance, the court rejected the prosecution." Provisions, the court should reject. As for the relief of victims suffered because of does not constitute a crime of embezzlement in tort or unjust enrichment behavior property damage, as the accused of embezzlement suffered damage to property,In accordance with the "The provisions on criminal incidental civil litigation range"The provisions of article fifth, the court recovered or ordered to return, is notTo make up for the loss, which can be a civil lawsuit remedy, and the defendant does not constitute a crime in tort or unjust enrichment behavior caused by the loss of property, the victim but not by money or compensation program to compensate for the losses, the light weight, the more can be a civil lawsuit to seek relief.