The Shaanxi Provincial Higher People's court

On hearing the guidance on the supplementary civil action in criminal cases (for Trial Implementation)

The method [2009] No. 117

   (discussed by May 26, 2009 fourth trial committee)

  In order to further regulate the court of criminal incidental civil lawsuit trial work, to solve the common problems in judicial practice, improve the quality of handling cases, the realization of judicial justice and social harmony, according to the relevant laws, judicial interpretations, in combination with the judicial practice of our province, the enactment of this opinion.  ．

  Article 1The victim's personal rights by criminal violations suffered material losses or property damaged by criminals has suffered material losses, may file an incidental civil action.  ．

  Crime victims by the spirit of losses suffered an incidental civil action, the people's court shall not accept the.

  Second of the "PRC Criminal Law" the third chapter of the crime of undermining the order of socialist market economy, the fifth chapter of crime of property violation of article 275th and article 276th crime of intentional destruction of property destruction of production and operation of the crime, criminal illegal possession, disposal of property and the victim suffered material losses, the people's court shall be recovered or ordered to return. The victim to their property losses on the grounds to file an incidental civil action, the people's court shall not accept.

  Article thirdThe personnel of state organs exercise their functions and powers in the process of crime in violation of personal rights, property rights, belonging to the "State Compensation Law" causes of compensation, according to the "State Compensation Law", the victim to file an incidental civil action, the people's court shall not accept the.

Article fourthThe victim (citizens, legal persons and other organizations), dead close relative of the victim, incompetence or limited capacity his legal representatives, may file an incidental civil action.

  State property, collective property suffer a loss, loss of entity fails to file an incidental civil action, the people's Procuratorate may file an incidental civil action in the prosecution.

  Article fifthThe victim has died, his near relatives shall refer to the "statutory succession law of succession" provisions of the people's Republic of China order, determine the plaintiff of the supplementary civil action. A previous order heir, after a succession of people to file an incidental civil action, the people's court shall not accept the. No previous order heir, after a succession of person may file an incidental civil action.

  Article SixthNon victim and victim has died before life living together and by the victim's actual custody of close relatives, may file an incidental civil action.

  Article seventhThe criminal cases of infringement of family members, the victim or victim died legal succession person may file an incidental civil action.

  Article eighthUnits and individuals accused of criminal defendants, mental patients not to be investigated for criminal liability joint offender, juvenile criminal defendant's guardian, criminal responsibility is part of the guardian, the case has been concluded before the death of inheritance and the other for the criminal defendant's crime shall bear civil liability for compensation according to law., can become the defendant in an incidental civil action.

  Not be held criminally responsible common Harmer, refers to the defendant and the joint implementation of the infringement, but the act does not constitute a crime can not be investigated for criminal responsibility according to law and the people.

  Article ninthThe employees engaged in employment activities willfully or through gross negligence crime causes damage to others, the employee and the employer shall bear joint and several liability, in incidental civil action for the defendant.

  The employees engaged in employment activities, for the crime person suffers from a personal injury, to claim for compensation from the employer, do not belong to the scope of civil suit collateral.

  Article tenthFor minors to have education, management, protection of the obligations of schools, kindergartens and other educational institutions, the relevant obligations not within the scope of duties, resulting in minor subject to criminal violations and suffers from a personal injury, or a minor personal injury caused by his crime, should bear the liability according to his fault, as with people the civil litigation.  

  Article eleventhIn the accommodation, catering, entertainment and other business activities or other social activities of the natural person, legal person, other organization shall, within a reasonable scope of the security obligations, resulting in the person subject to criminal violations and suffers from a personal injury, he shall assume the corresponding supplementary liability in its ability to prevent or stop damage, can as the defendant.

   Article twelfthThe criminal suspect at large, criminal responsibility is not determined, should not be listed as defendants in incidental civil action, also cannot determine the incidental civil compensation liability judgment.

Article thirteenthThe range of supplementary civil compensation is that the defendant because of the crime to the victim's material loss. Material damage including the actual loss due to crime has suffered and the inexorable loss. Death compensation does not belong to the scope of criminal compensation in incidental civil action, but the defendant based on sincere repentance is willing to compensation, the parties to the mediation to reach a compensation agreement, the people's court shall permit.

  Article fourteenthStandard of compensation in incidental civil action for personal injuries, the Supreme People's court "by reference to the provisions on the trial of personal injury compensation case concrete application law interpretation of several issues" execution. The defendant was not the actual compensation or compensation ability is limited, can according to the specific circumstances of the case, as appropriate, to.

  Article fifteenthIncidental civil compensation, should be based on people's court first trial of criminal cases published statistics departments of local (provincial and municipal) last year data as the standard. A case of joint crime, the defendant has on the judgment, the defendant escaped custody, the supplementary civil compensation is still on the defendant's compensation standard calculation.

  Article sixteenthHearing of civil suit collateral to criminal proceedings, criminal law, criminal procedure law and related judicial interpretations have the relevant provisions of the supplementary civil action, should be directly applicable. The absence of such provisions, shall be applicable to civil law and its interpretation. The two red cry, should special provisions of criminal law applicable to priority.

  Article seventeenthThe trial of civil suit collateral to criminal proceedings, it shall give priority to mediation, actively contributed to the supplementary civil compensation part to reach a mediation agreement, ensure that the civil rights are protected effectively, fully.

Article eighteenthThe active compensation for material losses of victims, the people's court may on its discretionary lighter punishment. The defendant may be sentenced to death, active compensation for the victim's loss of material, made the victims or their relatives understanding, in general not sentenced to death immediately. But for the most serious crimes, should be the immediate implementation of the death penalty, not because of their compensation for the victim's loss of material, but not sentenced to death immediately

Article nineteenthA case of joint crime and civil compensation, should be the defendant in the common crime in the position, role and the victim's fault as the basis, to determine the specific amount of compensation for the defendant. At the same time, according to the "general rule of the civil law" article 113rd "more than two joint tort causes damage to others, he shall bear joint and several liability" provisions, should first determine the amount of compensation, to determine the specific amount of compensation of the defendant, and the defendant bear joint responsibility for each other.

  Article twentiethA case of joint crime, because some suspects at large, resulting in the defendant's position, role can not be completely determined, can first verdict on the defendant bear the liability of compensation in cases of total compensation. The fugitive suspects arrested after judgment, then the original judgment of civil compensation part shall assume joint and several liability.

The fugitive suspects arrested after, if the original judgment incidental civil part has been completed, can increase the compensation for mediation, the mediation fails, it shall dismiss the plaintiff's claim. The suspect at large to sentencing, the civil compensation case can be considered as discretionary circumstances. 

  If the suspect at large criminal facts are clear, clear responsibility, can according to the specific situation of the case to calculate the suspect at large share of compensation, but not specified in the judgment, as defendants jointly and severally liable to the case of total compensation.

  Twenty-first juvenile defendants have personal property, shall bear civil liability for compensation by himself, in part by inadequate compensation for the guardian. But the guardian is a unit except.

  Twenty-second defendant no compensation ability or only part of the compensation capacity, the defendant or the units to friends and relatives for compensation, the people's court shall permit, and can be regarded as the defendant to the victim compensation.

  Twenty-third incidental civil litigation close relatives for many people, can choose the litigation representative to participate in the proceedings. Have the right to file an incidental civil action, waiver of substantive rights, shall issue written opinions or by the people's court record.

  Article twenty-fourthThe people's courts at all levels should be combined with local conditions, and actively explore, to establish the national compensation system for criminal victims, in order to make up for the limitations and shortcomings of the supplementary civil action in criminal proceedings in the protection of the legitimate rights and interests of the victim.

  Article twenty-fifth the opinions shall be implemented as of the date of issuance. The relevant judicial interpretations of the Supreme People's Court issued after, the opinions to void.