The Supreme People's court "about the provisions of the" criminal incidental civil litigation scope of a query

The Supreme People's court

"Calling into question provisions of criminal incidental civil litigation" scope

In December 4, 2000, the Supreme People's court "about the criminal incidental civil litigation scope rules" (hereinafter referred to as "Regulations") clearly stipulates: "after recovered or restitution still can not make up for the loss, the victim to the people's court civil court file a civil action, the people's court may accept." Since then, the end of our judicial practice for a long time on the cases of property crime victims losses may bring a civil action, can only be resolved through "booty" approaches. The traditional approach for years is the formation of a breakthrough, the victim rights protection is undoubtedly a great progress. But the "Regulations" is still not completely out of the shackles of traditional ideas, the scope of criminal incidental civil action is still limited to the "human rights" and "property is violated, criminal illegal possession, disposal of material losses suffered still has no right to bring criminal incidental civil action. The author thinks that the provisions of the Supreme People's court, this problem does not comply with the current laws and regulations, in practice is not conducive to the full protection of the interests of the victims. The reasons are as follows:

1, does not conform to the law

The criminal procedure law of our country stipulates clearly that the seventy-seventh: "the victim has suffered material losses as a result of the defendant's criminal act, in criminal proceedings have the right to file an incidental civil action." Visible, incidental civil action selection is a right of the victim, and applies to all "result of the defendant's criminal act has suffered material losses " criminal cases. In this regard, the law is very sure, clear, without any ambiguity. The "Regulations" as the judicial interpretation of "crime" as the restrictions, only crime and property in violation of "human rights" was "destroyed" property crime so narrow range, were deprived of other criminal cases the victim to choose incidental things right of action, a serious breach of the legislative intent of the the law.

Although our country criminal law sixty-fourth stipulation: "the illegal proceeds of the criminal shall be recovered, or compensation shall be ordered; the lawful property of the victim shall be returned promptly." But this article and criminal procedure law article seventy-seven does not conflict. Because "recovered", "compensation", "return" and "victims of incidental civil action" is the two kind of different content, different remedies. The former belongs to the judicial organ must fulfill their duties, and the latter is a kind of litigation legal rights of the victim, the two parallel and not contrary, do not influence each other.

Visible, the Supreme People's court to Article sixty-fourth of the criminal law as the reason, to restrict or deprive other property crime victims of criminal incidental civil litigation rights, is very wrong.

2, against the law

Property crimes, there is a concurrence of problems to the victim. Criminal defendants to implement, while the components of torts and criminal law in the civil law of the elements of the crime, the concurrence of criminal law and civil law. So, the legal relationship of two kinds of different nature: the criminal legal relationship and civil legal relationship. Therefore, cases of property crime victims can require the state according to law shall be investigated for criminal responsibility of the accused, but also based on civil law requires the defendant shall bear civil liability for compensation. Two kinds of responsibility at the same time, cannot replace each other. That is not "played without penalty", nor "penalty is not to fight". Because the criminal responsibility is to punish the criminals, in order to achieve the general prevention and special prevention effect, and the civil liability of the main purpose is to the victim's loss to remedy. Therefore, our country criminal law thirty-sixth stipulates: "where the victim has suffered economic losses as a result of a criminal act, the criminal received criminal punishment according to law, be sentenced to compensation for economic loss according to the situation."

Theoretically speaking, the requirements of criminal behavior person shall bear civil liability forms, there are two modes in the litigation procedure: incidental civil action and civil lawsuit alone. The victim may choose according to the actual situation of the most conducive to a mode of the exercise of their rights, of course, can also give up this right. The court should fully respect the choice, not for any reason to limit or deprive. In addition, the court cannot replace the victim "booty" means "incidental civil action". Because of the nature of speaking, "booty" is a kind of responsibility and obligation judicial implementation of relief to the victim; and incidental civil litigation is a litigation rights of the victim enjoys according to law. The victim may give up the right, but the judicial organ shall not refuse to perform its obligations. From the objective point of view, "booty" is only to be "illegal possession of the property to recover" holds the original, "compensation" is to be "illegal disposal" property value compensation; and by the love of incidental civil action in order to get the defendant compensate all losses, including "the actual losses" have suffered, including "the inevitable losses". Visible, the two is the same as relief way, but they are different, have different effects, and therefore could not substitute for each other.

"Decision" acknowledging "recovered", "compensation" is not a substitute for the "civil", "admitted that may occur after recovered or restitution still cannot make up for the loss of the victim", thus allowing "separate civil lawsuit", but on the other hand he stubbornly think "recovered", "compensation" can replace "the criminal supplementary civil action", insist on property crime (in addition to the "property by criminals destroy" the loss of outside) shall not be filed criminal incidental civil action. Obviously cannot make out a good case in the legal provisions on this, is really not very convincing and accept.

3, is not conducive to a more effective, more comprehensive protection of victims

In practice, the property was the criminal illegal possession, disposal of criminal cases, the victim cannot file an incidental civil action in the trial stage, the loss can only passively waiting for the people's court "recovered" or "the return of the defendant". This is not conducive to a comprehensive, timely, effective protection of the victim:

(1) "recovered" on the victim's loss is a kind of remedy in time. But "money" is the premise of the booty is objective existence, if the goods have been transferred, waste, loss, the defendant and his relatives do not actively cooperate with the "return" or "return" no ability, "damages" will be for naught. Moreover, "recovered", "restitution" solution "to its origin owner", "just compensation" direct loss problem, and can not solve the "indirect loss" compensation.

(2) although the Supreme Court has considered the problem, states: "after recovered or restitution still cannot make up for the loss of" victim ", can bring a civil action shall be". But be prosecuted after all is a belated effort. From the practical effect, rather than in the investigation of criminal responsibility at the same time, the civil part of the merger trial and judgment. A separate action, let the court to re trial for the same offence facts, not only a waste of litigation resources, influence the effect of handling the case, and give the victim a defendant tired.

(3) in the criminal procedure, the defendant caused to the victims of the loss recovery procedure, is an important factor to measure its harmfulness and repentance social performance, an important measure is the sentencing court. As the "Regulations" article fourth, the provisions of article fifth: "the defendant has compensation for material losses of victims, the people's court may be considered as the circumstances of sentencing"; "to be recovered, restitution, the people's court may be considered as the circumstances of sentencing." If the criminal, civil proceedings, defendants and their relatives in order to reduce the criminal punishment will give full consideration to the point. But if it be the criminal part; the victim to civil part and then be prosecuted, the defendant and his relatives have twelve psychological, victims lose the favorable factors. Moreover, even if the verdict, due to various reasons, difficult to enforce, not conducive to the effective protection of the legitimate rights and interests of victims.

In addition, the case of property a person accused of a crime shall be investigated for criminal responsibility, civil liability is not pursued, easily give people a "no punishment" illusion, a loss of legal authority and dignity, and produced many negative effects but also in the society, the criminal case "private" phenomenon more.

(4) in accordance with the provisions of the Supreme People's court "on the implementation of 'problems of criminal procedure law of the people's Republic of China' interpretation of the" 102nd article: "the people's court in civil suit collateral to criminal proceedings, no charge litigation fees." But if the victim be prosecuted to the court, must according to a certain amount of the litigation fee, virtually in the economy and increased the burden, is not conducive to the full protection of the legitimate rights and interests of the victim.

To sum up, the author thinks that "Regulations" shall strictly implement the provisions of the criminal procedure seventy-seven, allowing all cases of property crime victims have the choice the remedy of rights, not to mention the scope of criminal incidental civil action for restrictive provisions, to more fully, more effectively protect the interests of victims.

Published in the "lawyer" 2001-4 world