(the Supreme People's Court on December 4, 2000 the 1148th meeting of the judicial committee release (2000) No. 47)

According to theThe criminal lawArticleThirty-sixArticle, articleThirty-sevenArticle, articleSixty-fourAndCriminal Procedure LawArticleSeventy-sevenThe scope of the provisions of relevant provisions, problems of incidental civil action:

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

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

From the second crime victims by the material loss, refers to the actual loss due to crime has suffered and the inexorable loss.

Article third the people's Court of the incidental civil lawsuit, in accordance with the law after the verdict, the defendant has no property available for enforcement, shall order the suspension or termination of execution.

Article fourth the defendant has compensation for material losses of victims, the people's court may be considered as the circumstances of sentencing.

The fifth criminals, illegal possession, disposal of the property and the 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.

Reprint:

Property crime victim wordless selection

  After the new China was established, a principle of criminal incidental civil action system is always taken booty gains to solve the victim has suffered material losses as a result of the defendant's criminal acts, and does not allow the victim to file an incidental civil action. After eighty years, with the deepening of reform and opening-up, the development of commodity economy, many local people's court received the property crime victims because of insufficient or return booty cannot bring an action in tort of collateral civil proceedings, this problem is becoming more and more serious, more and more urgently referred to the people's court trial schedule. In order to adapt to the development of the objective situation, a practical solution is required to be solved, the Supreme People's court has developed several relevant judicial interpretations of the reply and provisions, in particular by the Supreme People's court, the Supreme People's Court on December 4, 2000 the 1148th meeting of the judicial committee, since December 19, 2000 will come into effect the "Supreme People's Court on the the criminal supplementary civil litigation scope rules" (hereinafter referred to as "Regulations"), to guide the judicial practice of criminal incidental civil action in judicial practice is of great significance, but it is not particularly encouraging.
   "Regulations" to confirm the property crime in civil litigation, the guiding ideology of applicable law, there has been a significant breakthrough. Here, the Supreme People's court has issued five judicial interpretations on provisions for explanation.
   A, 1989, ultimately, to adhere to the booty
   The Gansu Provincial Higher People's court, the earliest to the Supreme People's Court on the "civil" on property crime victims could have been the judicial organ for handling people brought damages to request, the Supreme People's Court on July 18, 1989 letter "on the property crime victims can be a civil action for damages, the situation is more complex. Still need to be in the trial practice experience of academy, as your request report to Ma Zhankui, Wang Linggui fraud property case, should try to keep the booty, unfavorable use civil lawsuit way." The Supreme People's court although stressed the need to study, but do not take the civil lawsuit of this approach that is very firm attitude. Subsequently, the Supreme People's Court on October 5, 1989 on the minor theft by the education through labor, the civil lawsuit, the guardian shall assume the liability for compensation, the court should accept your problem, "in view of the situation is more complex, the current law has no clear provisions on such issues, how to apply the law in the trial practice, need to accumulate experience of. Therefore, it should not be a civil lawsuit solution". The reply to two problems, one is involved in the booty property crime, victim cannot file an incidental civil action, also cannot be a civil lawsuit, does not constitute a crime, administrative sanctions and no right of appeal, the Supreme People's court to adopt this attitude, is obviously not right. Two is the minor children to cause harm to others, parents as legal guardians have the obligation to the victims compensation for the economic losses, according to "marriage law of the people's Republic of China" in seventeenth and "general rule of the civil law" 133rd stipulation to the guardian of a civil lawsuit, according to law, how can it be said that the current law does not clear provisions on such problems? Two reply can be seen from the above, the Supreme People's court in 1999 on property crime victims compensation of civil lawsuits, adhere to the booty, ultimately, attitude, is not allowed as a civil case acceptance.
   A breakthrough two, July 19, 1990
   Advance in Guangdong Province cheated County Industry Corporation to the higher people's Court of Hunan province in July 19, 1990, in the criminal procedure victim through incidental civil action to recover the tens of thousands of yuan of money, there are nearly two hundred thousand yuan no settlement. On the "Guangdong Province about the county industry and Trade General Corp. v. Huaihua City Industrial and Commercial Bank of China tort case report" the Supreme People's Court Reply "Guangdong Province County of industry and trade company advance in fraud deceived, Yang is subject to criminal punishment and recovered part of the stolen money, the company of direct responsibility for payment cheated in Huaihua city the Agricultural Bank of Hunan province elm credit cooperatives and Huaihua industrial and Commercial Bank of China, has the right to bring a civil action, and require them to bear the corresponding civil liabilities". The reply to confirm the property crime in the civil litigation. Confirmation of tort liability tort person. The letter had made a breakthrough in the guiding ideology of the specific application of law. In the following three aspects:
   1 conditions from sticking to the booty, spoils attitude to individual civil tort litigation, property crime victims to solve problems by the prosecution tort compensation, plays a crucial role in.
   The 2 County of Guangdong Province industry and Trade Corporation prepayment cheated money case, the defendant is returned, the incidental civil action to resolve. Incidental civil lawsuit cannot make loss to the property of the victim get full compensation to the victim, civil lawsuit, this is a progress.
   The other 3 defendants jointly and severally liable to the property crime outside the civil lawsuit, breaking the October 5, 1980 not stolen property losses bring a civil lawsuit to the guardians of minors provisions, thus an infringement compensation lawsuit of property crime victims problem has made breakthrough progress.
   In October 13, 1990 three, the reply back to adhere to the return of attitude
   In October 13, 1999 the Supreme People's court "fraud on the prosecution request compensation" loan "assurance process of fraud should be how to deal with the problem of the reply" pointed out: "Feng Shuyuan from Hu is the borrowing behavior which has been identified as fraud, Hu strong recourse Feng Shu source borrowed forty thousand yuan, it is the problem of criminal cases booty in the. Therefore, the Hu by von cheat loan guarantor compensation dispute, the people's court should not be disposed of as a civil case. The court of first instance court rejected the prosecution is correct, the reply damages on fraud victims still insist that the booty opinion is very clear. We can realize from the reply, the force of habit of traditional influence still haunts the property crime solving an infringement suit for damages.
   A major breakthrough in the four, act release No. [2000]47
   The Supreme People's court "about the provisions of the" criminal incidental civil litigation scope of the provisions of article fifth "criminal illegal possession, disposal of property and the victim 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 recovering, still cannot make up for the loss of compensation, the victim to the people's court civil court shall file a civil lawsuit, the people's court may accept". A major breakthrough in the provisions embodied in: 1 the first time through the judicial interpretation of criminal incidental civil litigation and criminal incidental civil action for victims of the unified regulation.
   Reply of the judicial interpretation of the 2 previously issued to regulate the related cases, the actual impact on the basis of the certainty of law principles.
   3 1990 two contradictory reply conflict.
   4 established the property crime the civil litigation, the premise after recovered or restitution still can not save the material loss, may file a civil lawsuit in accordance with law principle, avoid joint tortfeasors property other than criminals escape civil liability. Joint tortfeasors act does not constitute a crime, but the joint tortfeasors shall bear joint and several liability, they will be as common tort liability for tort suit, so they can undertake should assume, by the civil law sanctions should be. However, the "Regulations" incidental civil action on property crime victims, the civil lawsuit prior to solve, still unsatisfactory. The reasons are as follows:
   (1) the original intention of legislation in our country gives the incidental civil action of the right of prosecution.
   "Regulations" seventy-seventh criminal procedure law of the people's Republic of China: "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." The civil action has been attached to the victim criminal solution provides an alternative method. With the establishment of the system of civil suit collateral, to ensure national, collective and private property shall not be violated, conducive to correctly handle criminal cases, has a significant effect on the accuracy of conviction and sentencing; at the same time, but also conducive to the participants in the proceedings in the action, improve the efficiency of the proceedings, and fast speed of handling cases. Based on property crime behavior has the nature of the crime, property and tort, produced two different legal relations, one is the criminal legal relationship; another is the civil legal relationship, the victim in the two legal relations, and the country in accordance with the law to punish crime, punishing illegal acts the basic purpose, is to protect the legitimate rights and interests of victims.
   (2) "applicable" PRC Criminal Law "sixty-fourth article" the illegal proceeds of the criminal judicial practice, the provisions shall be recovered or ordered to return ", the regulation is the embodiment of the concrete application in judicial practice, the judicial practice of such operations, not only is the application of the law is not correct, but also deprived of" Criminal Procedure Law "of the people's Republic of China have the right to sue the incidental civil action. Performance in:
   Since A. "Criminal Procedure Law" article seventy-seventh gives due to crime victims suffered material losses of incidental civil action of the right of prosecution, the people's court can only protect the rights according to law, shall not for any reason, such as booty, restrict or deprive the right of action. "Regulations" is expressly limits the victim property crimes by loss of property, shall be recovered or ordered to later compensate way to get relief, not to file an incidental civil action, only after recovered or restitution still can not make up for the loss of the premise, the victim can be directly file a civil action.
   The B. rule is still the booty restitution method as the only way to meet the victim property crime infringement compensation claim. The booty gains way for satisfy the property damage compensation request provides the possibility, but only for the return of stolen booty, in May after retreat. The spoils not in no spoils back later. The victim compensation claim there is a serious threat to meet, to protect the victim property rights is not enough.
   C. is not conducive to the defendant for the property crime is the necessary sanctions and education, behavior of property crime one common characteristic is the greedy for the subjective purpose of illegal possession, the pursuit of the goal for non all his property. Because the criminal sanctions and civil sanction methods for sanctions and education behavior of people each are not identical, only applicable penalty sanctions against property crime, apparently did not reach the purpose of civil sanctions, only to allow the victim to the behavior person to file an incidental civil action, in order to reach the property crime to property method comprehensive sanctions and all-round education objective.
   D. only allows the victim shall file a civil lawsuit, increased the victim's litigation cost and the lawsuit, the victim of the defendant's criminal acts, the property rights and interests has been great damage, and bear the risk of litigation fees in advance, it is one disaster after another.
   E. "Regulations" as a judicial interpretation, which narrowed the scope of legislative intent. Its validity is questionable.
   "Legislative law" of the people's Republic of China on the legislative explanation only made provisions, no provisions of the judicial interpretation of the law applicable to the interpretation of etc.. According to the 1955 June NPC Standing Committee adopted the "resolution on interpretation of law" and in 1981 June the NPC Standing Committee passed the "resolution on enhancing the legal interpretation work", has been on China's legal interpretation system was provided, according to the two resolution, legal interpretation is divided into legislative interpretation, judicial interpretation, application of legal interpretation. The Supreme People's court to the people's court in the trial process, the application of law in the range of judicial interpretation of the scope should be with the jurisdiction of the same, due to historical reasons, in the judicial practice had existed before the law has not stipulated, legislation inconsistent, legislation is not matching, the substantive law and procedural law and legislation is inconsistent lag problem, given by the Supreme People's court in the case of judicial explanation to make up for the lack of legislation, which plays an important role in judicial work smoothly. But the judicial interpretation on the concrete application of law interpretation reduced "Criminal Procedure Law of the people's Republic of China" seventy-seventh supplementary civil action, the contraction for "personal rights by criminal violations suffered material damage or destruction of property by criminals has suffered material losses, may file an incidental civil action." But the criminal illegal possession, dispose of the property has suffered material losses, the people's court shall be recovered or ordered to return, the "Criminal Procedure Law" of the people's Republic of China in seventy-seventh by the crime suffered material losses, loss is divided into personal and property rights suffered from the crime and formed their own losses, the former to file an incidental civil action, which violates the property of robbery, theft, robbery, fraud, corruption, as the representative of the property crime, does not mention the collateral civil proceedings. The provision was made for more than narrow interpretation of "Criminal Procedure Law of the people's Republic of China" meaning, thereby causing damage to the property claims stools, abandon the convenient procedure.
   F, property crime victims to file an incidental civil proceedings does not prevent the criminal trial process. "Criminal Procedure Law of the people's Republic of China" the Seventy-eighth stipulation: "the incidental civil action shall be heard together with the criminal case, only in order to prevent the excessive delay in the trial of criminal cases, can in the trial of criminal cases, the same judicial organization to continue the incidental civil action, this article is to speed up the handling speed, improve the efficiency of litigation as a useful supplement.
   To sum up, the property crime victims request compensation should be through strict judicial interpretation standard the request path (1) the booty restitution is one of the methods to achieve the property crime infringement compensation request. (2) according to the comprehensive support and guarantee to the property of criminal incidental civil lawsuit right of prosecution, as a main method and means of relief.
   (3) to support and protect the property crime victim compensation request cannot be satisfied or can't meet all the damage case, filed a civil rights lawsuit of tort compensation directly, which according to the civil procedure to resolve criminal defendant and victim or criminal accused person and other common tort and the tort dispute.
   By the above way to protect citizens, legal rights by citizens, legal persons, choose the best way, in order to maximize the protection of the victim's legitimate rights and interests, so as to realize the legislative intent, promote the process of legal system.

Source: Legal Education Network