The supreme law a reply about the compensation issues of death penalty people

The Supreme People's court office prosecuted ﹝ 2011: No. 159Issued by: Zhang Jun

                        The four session of the eleven National People's Congress 6039th suggests the answer

Sun Xiaomei representative:

You put on the revision of the Supreme People's court "interpretation (2000) No. 47" and "law interpretation (2002) No. 17" proposal received, reply as follows:

Whether the scope of incidental civil litigation compensation should include the question of compensation for spiritual damages, the judicial practice is controversial, the parties have different opinions. Incidental civil trial work for the specification, our hospital has issued four judicial interpretations. With the development of the situation, the perfection of criminal policy, the parties should pay more attention to the maintenance of civil rights. However, due to the development of economy, society and the parties around the imbalance, economic situation is different, the court of criminal incidental civil cases appeared "law enforcement of different standards, compensation, empty sentence phenomenon is serious" and other new issues. These problems seriously affect the lenient and severe criminal policy implementation, caused a lot of litigation petition issues, local people's courts at all levels and the community reacted strongly, as soon as possible to solve the. In order to regulate the incidental civil action and do work, solve the existing problems in the judicial practice, my courtyard in 2007 started the specification incidental civil compensation standard of judicial interpretation of the drafting work, but because of the differences of opinion, judicial interpretations are not issued, the questions under study.

About the scope of compensation for civil litigation incidental, our opinion is: incidental civil litigation cases according to law should only be compensation for direct losses, the actual damage caused to the victim compensation in accordance with the crime, generally does not include compensation for death and disability compensation, but after mediation, the defendant shall have the ability and willingness to pay compensation the greater the amount, the people's court shall support; if the mediation fails, the defendant does not have the ability to compensate the victims or their close relatives, and adhere to the outside of the material loss claim damages, the people's court shall not support; for they have difficulty to the victim, to give the necessary state aid.

The main reason is that:

(1) according to the seventy-seventh law of criminal procedure "the victim has suffered material losses as a result of the defendant's criminal act, in criminal proceedings, shall have the right to file an incidental civil action and the criminal law" the first paragraph of article thirty-sixth "where the victim has suffered economic losses as a result of a criminal act, the criminal received criminal punishment according to law, and shall be sentenced to economic loss" according to the situation, here the "loss" and "economic loss" refers only to the material property losses, not including the spiritual loss. At the same time, the criminal cause property loss and simple civil tort compensation, resulting in the loss should be able to compensate and jurisprudence is obviously different in. On the basis of law, the incidental civil cases and simple civil cases should not apply the same standard of compensation.

(2) in the judicial practice, the accused in criminal cases is the vast majority of farmers, the unemployed and migrant workers, the very poor, almost no what property for compensation, if beyond the law ruled high compensation, is bound to lay a legal "program". Unable to get the actual implementation, not only affect the authority of the referee, more often lead to the victim appeal, make visit problems, can not guarantee the legal and social effects.

(3) apply mechanically "on certain issues concerning the application of law in the trial of personal injury compensation case explanation", the amount of compensation standard up to several hundred thousand, covers yuan, often make the victim have unrealistic expectations of huge compensation, if the defendant cannot be full compensation, is that the absence of sincerity and repentance, lead to civil mediation at unable to carry out, and then in the penalty appeals insisting on the defendant sentenced or even the death penalty, even to appeal, make visit threat, blackmail, seriously affect the criminal policy of combining punishment with leniency and "retaining the death penalty, strict control, careful application of the death penalty" policy implementation, seriously affect the construction effectively resolve social contradictions and a harmonious society.

(4) the high compensation seems to protect the legal rights of the victims, this is some scholars and departments that incidental civil action shall be mainly considered simple and civil compensation uniform standards, but because the criminal defendant actual compensation ability is very low, not even, and the victim "asking price" too high, many defendants family practice that, with its dongjiexicou generation paid several million yuan to the victim is not satisfied, simply no longer in compensation, resulting in the victim but get no compensation. This situation is particularly prevalent in the homicide case, as a direct result of the victim's situation more miserable, is not conducive to protect the victim's rights and interests, is not conducive to the timely repair of social relations.

(5) this problem should be solved based on the actual, full consideration of the actual conditions in China, the trial strictly according to law, the actual effect and focus on the case, and promoting social harmony.

Thank you for your concern and support the work of the people's court!

Contact unit: the Supreme People's court's supervision office 010-67556254

Two, one one May 28th

Attached:

On the revision of the Supreme People's court "interpretation (2000) No. 47" and "law interpretation (2002) No. 17" proposal

Criminal cases especially the victim of sexual crime in the criminal acts of the defendant suffered mental damage can request the issue of compensation, has been a focus of public disputes, we think we should get support. According to the Supreme People's court "interpretation (2000) No. 47" and "law interpretation (2002) No. 17" will be the current interpretation of the excluded, we think the actual development needs this explanation has lagged far behind the market economy of our country, should be amended accordingly, for the following reasons:

One, current situation analysis

"General rule of the civil law" 120th article and the Supreme People's court "about the problems of defining the civil liability for infringement spirit damage interpretation" clear legal protection of our citizens personal injury compensation, initially established in our civil brought within the domain of compensation system of spiritual damage.

However, the system of compensation for spiritual damages in the field of criminal compensation in China has not been established, it was totally rejected legislation. The most serious crime against women are the most common sexual abuse -- the crime of rape as an example, since twentieth Century 70 time end, incidence rate in all kinds of crime has been in the forefront. In 2007 the national public security organs filed rape cases is 31883, 30248 in 2008, ranked fifth of all kinds of crime. [1] according to statistics, the victims of China's minors under 18 years of age accounted for the majority, the proportion is 29.5%; the highest proportion of unmarried, accounted for 76.6%; the number of victims by violent means to do the most, accounting for 61.1%, which accounted for 18%, gang rape, robbery and rape by turns 25%, rape murder (due to the victim die not from the suspect passion kill) accounted for 3%. [2]

Such a serious sexual assault crime not only caused serious negative influence to the social order, the victim suffer bodily injury to the victim, it brought great suffering and trauma mental and spiritual, a serious violation of the dignity of the human person, criminal responsibility shall be investigated for criminal victims and their families in addition to the requirements of molecules, but also very concerned about their to get the civil compensation. But the current judicial practice rarely court support mental damage compensation for victims appeal case emerged, investigate its reason, besides the limited to the provisions of China's "criminal procedural law" in article seventy-seventh, the Supreme People's court "interpretation (2000) No. 47" and "law interpretation (2002) No. 17" the two judicial interpretation is the biggest stumbling block:

(1) the Supreme People's court in December 4, 2000 issued "on the criminal incidental civil litigation scope rules" (France - [2000]47, hereinafter referred to as the "Regulations" provisions of the second paragraph of Article 1), "for crime victims by the spirit of losses suffered an incidental civil action, the people's court shall not accept the."

(2) the Supreme People's Court on July 11, 2002 issued the "people's Court on whether or not to accept the criminal victim of civil litigation issues concerning" (France - [2002]17, hereinafter referred to as the "reply") clearly stipulates: "for the criminal victim because of the defendant's criminal acts and mental losses brought the incidental civil litigation, or concluded in the criminal case, the victim shall claim for compensation for mental damages in civil proceedings, the people's court shall not accept".

The introduction of the two judicial interpretations of criminal cases, especially sexual abuse victims to request the spirit damage compensate the door has been closed, spirit damage compensate completely reduced to legal penalty. But in recent years, with the development of the society, strengthen the legal system and the improvement of citizen's right consciousness, more and more people into the "Regulations" and "reply" wave after wave of official accusation against the team, emerge in large numbers but sexual assault case has been the impact of "Regulations" and "approval", practice requirements for the modification of rising.

Two, analysis of the causes of

Establish and support criminal cases especially sex infringement spirit damage of compensation in incidental civil action, is to adapt to and protection of human rights development and maintain the objective need of social harmony and stability, but also the inevitable demand of the development of legal system of our country and international integration, is also the inevitable trend of the development of the times. China is "the elimination of all forms of discrimination against women, the Convention" and "Convention on the rights of the child" the United Nations of the parties, have the responsibility, obligation to protect women's basic human rights guarantee. And the protection of criminal victims compensation for spiritual damage is the requirement of the development of the right of privacy, is the inevitable result of the rights based legislation.

Therefore, the "Regulations" and "reply" revision is represent the general trend, the popular sentiment, is fully consistent with the needs of social development:

First of all, from the point of coordination and unification of law and judicial remedies, "general principles of civil law" and the Supreme People's court "about the problems of defining the civil liability for infringement spirit damage interpretation" to determine the victims and their close relatives have the right to compensation for spiritual damages claims, while the infringement, subjective malignant, infringement means, and general civil tort infringement consequence is more intense sexual assault, "Regulations" and "reply" but the spirit damage compensate excluded out of the protection of the law, conflict of laws is very obvious, the criminal law ultra vires rules conflict with the civil law clearly undermines the unity and coordination of justice the legal relief method.

Secondly, from the jurisdiction of judicial interpretation of the "Regulations", "replied" there are provisions and illegal and legal. Although "be avoided criminal procedure law" with the spirit of damages in civil procedure of criminal compensation, has not made the explicit stipulation to it, but the "Criminal Procedure Law" does not deny the crime victims by the defendant suffered mental damage may file an incidental civil action, also did not deny in criminal cases can be concluded a separate claim for compensation for mental damages in civil litigation. "Criminal procedural law" the mental injury suffered by crime victims compensation behavior whether and how to compensate the space, it does not deprive the victim's lawsuit right and substantive right in the aspect of mental damage compensation. The "Regulations" and "approval" is the right to justice deprives the criminal procedure law does not deprive the victim's rights and substantive rights. This is contrary to the judicial interpretation should be subject to the law of this law, has violated the "law is prohibited without the law proverb, enjoy the" judicial power beyond the legislative power. At the same time it also violates the law, the most prominent is the "reply" through the lawsuit brought against a citizen not take procedure accepts the way, deprived of the constitution, civil law, civil procedure law gives the relevant substantive rights, litigation rights of citizens.

Once again, from the analysis of legal justice perspective, "Regulations" and "reply" contrary to the original intention of legislation, judicial justice and draw further apart. In theory, there is damage there is a remedy. Due to crime victims and their close relatives and lead to mental damages is actual, damage occurred, should have judicial relief. On the tort, the victim can request compensation for moral damage, and the serious criminal offenses, the mental injury compensation request but not mention, deprived of the right to judicial remedy, the victim, was a double injustice a substance and form.

Criminal cases, especially sexual abuse cases not only to the victim serious personal injury, but also bring great spiritual damage, especially when the victim is a young girl, the damage will be with the passage of time and the growth of the age is more and more serious, it will cause a great impact on the victim to social life, the freedom of marriage and so, if the victim is unable to get rid of the pain of life. In 2009, a national of Henan Pingdingshan primary school teacher statutory rape case, 6 of the biggest 8 years old, the youngest 5 years old, many of them raped repeatedly, and therefore suffered from serious mental disorders, but eventually each receive a supplementary civil compensation only district 2000 yuan, how such a law fair and reasonable? According to foreign experts in psychology in 1981 - 1995 years for 25367 people in 37 studies, confirm the effect, they use element method for analysis of childhood sexual abuse caused by: sexual abuse can lead to fear, depression, posttraumatic stress disorder, Dutch act tendency serious personality disorder on children's psychological trauma. Monetary compensation to victims of sexual assault is an effective means to reduce or eliminate pain.

In addition, the analysis from the angle of economic benefits, when the sexual assault case, in the current law does not support the premise of compensation for mental damage, the victim and the offender -- often take private choose the "benefits" of the "reconciliation" solution, by the victim some compensation payment criminals or their family members, the victim does not report to the public security organs; what is more, the court withdraw or change the presentation, accused of helping to avoid legal accountability; the defendant to certain economic compensation as the commutation of the chip, and the victim's bargain, which left money can buy a sin for the illusion to the defendant, lead directly to crime again, hurt more innocent women. Blank and the contradiction between legislation and the traditional ideas and the social conflict of fairness and justice, is the leading cause of the "Regulations" and "reply" questioned by many.

Finally, from the perspective of international law, in most western countries, respect and protection of the rights of victims are established based on, the legitimacy of the spiritual compensation in the civil depended criminal. As the French law of criminal procedure third paragraph second, the loss of all range of supplementary civil action in criminal proceedings include as a charged object crimes caused by substances, flesh, spirit. In American, because of damage to the body and cause mental anguish and demand compensation for the injury, except the part can get compensation, but also to request compensation for moral damage.

Three, countermeasures and suggestions

Firstly, according to the "Regulations" and "approval", change, need the clear criminal case because the defendant's criminal acts and mental loss to file an incidental civil action within the framework of the law, or in the case after the criminal case, the victim separately bring spiritual damage compensation in civil proceedings, the people's court shall accept the case.

Secondly, in the existing legal framework, first proposed in the form of judicial interpretation of the modified to fill gaps in the law, when conditions are ripe, and then to the criminal law, criminal procedure law was amended, and finally to the legal form of spiritual damages in the scope of compensation. Considering the current can not be generally the case, we suggest that the Supreme People's court for a typical case of the form of judicial interpretation provisions, less material loss and spiritual damage to some particular crime, the victim may request compensation for moral damage, such as crime, infringement of citizen's right to life and health, right of reputation, the right of honour the criminal act.

Once again, on the amount of compensation problems, suggestions according to the Supreme People's court "about the problems of defining the civil liability for infringement spirit damage interpretation" provisions of article tenth, determine the integrated the following factors: criminal subjective malignant; criminal means, occasions, behavior specific circumstances; criminal consequences; profit crime; criminal liability of economic capacity and the average standard of living of court location etc.. At the same time is proposed according to the characteristics of the level of economic development between the area is not balanced, set limits on criminal cases of compensation for mental damage, and earnestly safeguard the legitimate rights and interests of the criminal victims.

Beijing Zhongze women's Legal Advisory Service Center

March 3, 2011

In the eleven session of the National People's Congress on behalf of Sun Xiaomei submitted