The defect of criminal incidental civil action system of traffic accident cases

[Abstract]:With the rapid development of automotive and transportation, road traffic accidents increased significantly, which caused the traffic accident cases also showed a rising trend. In view of this situation, the relevant departments are introduced the corresponding rules and regulations restraint. Because of the judicial departments, the different tasks, the applicable law, the relevant provisions of the similar case can not be effective cohesion, lead to civil claims said of an aged person. This paper from the traffic accident criminal law practice conflict discovery in civil cases, talk about the author to solve the defect of theory and practical suggestions and ideas.

[Key words]:The traffic accidentIncidental civil to criminalCriminal case first Defect

In March 20, 2012, Wang's relatives Zhao and Li Mou of the accused person has the traffic accident, Zhao died on the spot, full responsibility for the accident of lee. In April 5, 2012, Li Mou is suspected of the crime of causing traffic casualties were released on bail. In April 20, 2012, the traffic police department through Wang issued property preservation before litigation notice, inform Wang after receiving notice within three days for property preservation measures, otherwise the car. In order to prevent the vehicle go, Lee has no compensation ability, unable to obtain compensation. Wang Mou to apply to the court for property preservation before litigation. Proceedings in the preservation of 15 to the court. In the case involving criminal court refused to register recommendations to the Department of transportation coordination. The transportation department said that in accordance with the relevant provisions, if we not in a closed vehicle interior, they will put the car. After consultation with the court, civil lawsuit finally. The court according to the civil trial principle to criminal, civil cases to be suspended.

The case is an ordinary traffic accident cases, through the different provisions of relevant departments, resulting in ineffective civil suit collateral to criminal proceedings system. A civil lawsuit alone by the status of civil to criminal trial principle of limit. Highlight the defect related functional departments system, need to be perfect.

Analysis of advantages and disadvantages, choose an incidental civil action and civil lawsuit alone

Incidental civil action means the victim has suffered material losses as a result of the crime the defendant's rights by criminal violations by criminals or property damaged, in criminal proceedings, the victims or their relatives, requiring the defendant lawsuit compensation from material loss.

 (a) in the traffic accident cases, legal basis of supplementary civil action in criminal proceedings

First, "Criminal Procedure Law" provisions of article seventy-seventh "the victim as a result of the defendant's criminal behavior has suffered material losses, in criminal proceedings, shall have the right to file an incidental civil action. If it is national, collective property losses, the people's Procuratorate, may file an incidental civil action. The people's court when necessary, and may seal up or distrain the property of the defendant".

Second, the Supreme People's Court on some problems in the implementation of "the people's Republic of China Criminal Procedure Law" interpretation of the eighty-fourth provisions "the people's courts handle criminal cases, can inform suffered material losses due to crime victims (citizens, legal persons and other organizations have died), a close relative of the victim, incompetence or limited capacity his legal representatives, have the right to file an incidental civil action". The provisions of article eighty-ninth "incidental civil action shall be filed in the future of criminal cases of first instance declared mentioned before. Have the right to file an incidental civil action in the first instance by the people before the announcement did not mention, not to file an incidental civil action. But it can be a civil lawsuit in criminal ruling". The provisions of article ninetieth "in the investigation, prosecution, pre-trial review stage, have the right to file an incidental civil action to the people's Procuratorate of the public security organ, claim for compensation, the people's Procuratorate, the public security organs have been documented, criminal prosecution, the people's court shall, according to the supplementary civil action case acceptance; mediation by the people's Procuratorate, the public security organs, both parties reach an agreement and has to pay, the victim to file an incidental civil action to the court, the people's court may also accept".

(two) the analysis of criminal incidental civil lawsuit and civil lawsuit alone the pros and cons

The advantage of supplementary civil action in criminal proceedings: first, is conducive to the defendant to deterrence, make it to a lighter punishment and active compensation the injured party. Second, the defendant positive claims can plot a lighter sentence as a criminal judgment. Third, in the supplementary civil action in criminal proceedings, the parties do not need to pay the legal fees, can relieve the pressure of litigation.

Disadvantage: the first, on suspicion of criminal investigation to court over a long period of time, can not take timely measures for the preservation of property, may lead to the defendant on the malicious during the transfer of property, is the injured party in lawsuit, has no property available for enforcement. Second, criminal cases have strict trial period is short, because there are more suitable to need further or identification of incidental problems involved in civil litigation, civil cases cannot be concluded within the time limit, the criminal judgment first, thus losing the criminal supplementary civil action should be.

A civil lawsuit alone advantages: 1, the defendant has no other property available for enforcement or refusing to execute the case, apply to the court for property preservation measures of sealing up the vehicle in a timely manner, to ensure effective enforcement of judgment. 2, the trial period is not a criminal case, can be specific refinement of civil trial.

Disadvantage: first, by the principles of civil justice to criminal after the limit, in the criminal verdict, the defendant and his relatives how much power active compensation. Second, the high cost of litigation larger cost of litigation.

Two, in the traffic accident cases of incidental civil action to use less of the crux of the problem

The traffic accident cases, effectively use the civil law cannot be attached to criminal lawsuit, the reason has the following problems:

The interface between the first, relevant provisions can not effectively.

The defendant's behavior is caused by physical damage and cause material damage, handled in conjunction to solve the problem of civil compensation process of criminal cases, facilitates the identification of material damage caused by the defendant of criminal behavior attitude, so as to judge whether the defendant repentance and penitence attitude, judge the defendant's personal danger, the correct implementation of the combination of punishment with leniency of criminal policy, the correct application of the law in the conviction and sentencing of the defendant pleaded guilty, having very important significance. But according to "criminal procedural law" the relevant provisions of the civil procedure, although incidental civil lawsuit filed in the investigation, prosecution, trial procedure at any stage, seizure, detention vehicle preservation is only made by the people's court, the vehicle detection, prosecution organ has no right to have no legal basis, the seizure detain the defendant. In accordance with the "Regulations of road traffic accident handling procedures", the longest period of traffic police department seized the vehicle for 40 days. In practice, police detained vehicles generally continue to traffic accident 10 days after the book, overdue not to seize people's court seizure ruling, the traffic police department will be released on the vehicle. According to the crime of causing traffic casualties involved in the proceedings, shall be referred to the court for the processing time of the earliest in the case occurred after two months, far more than the traffic police to detain the vehicle time. If it fails to put the vehicle, the inevitable law enforcement; if the due to release, the defendant only vehicle and no other effective property available for the implementation of the case, it is possible to make the civil compensation lawsuit victims or their close relatives are not implemented. In view of this the victims or their close relatives in the "10 days after the traffic accident report" issued in advance about the traffic accident, tort and puts forward the litigation preservation application, safeguard their legitimate rights and interests is not wrong. The question is: in accordance with the existing legal provisions, the traffic accident has been involved in crime, no court can sue in the investigation, review the program first intervention ruled the law before litigation or litigation preservation. Therefore the relevant provisions to the traffic regulations and "Criminal Procedure Law" defects of cohesion.

The traffic police department, according to its responsibilities have made the road traffic accident responsibility identification in traffic regulations, within the prescribed time limit if the mediation fails or if a mediation agreement is not reached, the traffic police department will be released on the vehicle.

Civil court thinks: Lee due to traffic accident crime by the public security organ for investigation, will enter the criminal trial procedure, litigant compensation of civil can wait for the trial of criminal cases is completed, then the trial.

Criminal Tribunal thinks: relatives of victims of civil lawsuit alone, is the rights of the parties, the court first accepted civil lawsuit filed with relatives of victims and not as a criminal incidental civil litigation is not wrong.

There are other defects in the criminal supplementary civil action system. The people's Court of incidental civil action shall be in time to handle criminal cases or said is the case in criminal cases, although the "Criminal Procedure Law" article seventy-seventh "people's court when necessary, provisions may seal up or distrain upon the property of the defendant", but from the trial practice at present there is no traffic accident crime the people's court in the investigation, prosecution procedures to order the seizure of the defendant property case. The people's court at this time because of the specific situation of the case is not at all clear, even if the victims or their close relatives to the court to file an incidental civil action, the people's court for the preservation, will inform the parties to the cases before the authorities initiated or are reflected, even if the parties are willing to provide a guarantee, the people's court may not in criminal cases before the acceptance or is the case in criminal cases, the criminal trial tribunal litigation preservation. "Criminal Procedure Law" although the provisions of the seventy-seventh people's court when necessary, and may seal up or distrain the property of the defendant, but there are no provisions is to make civil ruling way or otherwise seal up or distrain upon the property of the defendant, so whether it is "criminal procedural law" and the Supreme People's Court of justice explain, in the criminal defendant property preservation system in civil cases program design, legal provisions and the actual operation there are insufficient.

Second, criminal incidental civil system itself defects

The criminal supplementary civil action system itself exists many problems, specific to the traffic accident cases, the prominent existing problems following system.

(a) the aging problem: criminal cases investigation, review and prosecution to the court from the timeliness requirements.

Traffic accident cases generally involves serious consequences for victims of injury or death cases. In cases involving disability identification problem, according to internal operation process identification of current departments, general three months after discharge were identified, discharge and nerve after 6 months to identify. In such a case, criminal court considering the strict trial time limit, we make a judgment on the criminal case, any individual to handle civil cases. The separate treatment of less than criminal incidental civil action shall be a deterrent, no difference with civil lawsuit alone.

(two) the trial scope: incidental civil litigation and civil litigation are singled out for the victims and their relatives was due to damage legal remedies. The legislative purpose of incidental civil is simplified procedures, protect the interests of the relatives do. But the current judicial practice, in the spirit of the solatium does not support in civil suit collateral to criminal proceedings, the direct loss of control is very strict, resulting in two kinds of remedies, the judgment result has produced great difference. Solvency in the defendant's case, choose a civil lawsuit alone the victim directly. Supplementary civil action in the implementation process and is not as strict enforcement of criminal cases, and civil lawsuit alone caused no substantial difference. It caused many people to choose civil action, incidental civil lawsuit less.

Three, solutions

Because of the influence of "thought" the traditional ideas of the legal system, there exist some defects and unreasonable design in our country criminal incidental civil action system, conflict with the basic requirements of modern judicial ideas, lack of rationality and operability in the judicial practice, is not conducive to the protection of the legitimate rights and interests of criminal incidental civil litigation. The conflict of laws from the traffic accident case can see the need to modify the program system timely, which is scientific, reasonable and workable, fully embodies the principle of lawsuit efficiency and economical principle of litigation, criminal trial of the unification of legal effect and social effects.

According to the reality now, put forward the following humble opinion:

One, involving in traffic accidents and traffic police departments, in the investigation, prosecution, trial, the parties may file a petition for property preservation. The choice of the criminal supplementary civil action in the pre litigation can apply for a preservation to the criminal division selection. If ultimately identified as non criminal cases can advise the parties within the time limit of civil lawsuit, transfer the case to the civil court for trial.

Two, the criminal supplementary civil lawsuit and civil lawsuit alone trying scope consistency.

Three, strengthen the criminal incidental civil judgments executive force. Highlight the criminal supplementary civil action convenience and deterrence.

Notes.[1] Yao Li; the law applicable to [J] problems of supplementary civil action in criminal proceedings; Legal Research Journal of Zhongnan University of political science and law in 1998 04

[2] Xiao Jianhua; the criminal supplementary civil action system of internal conflict and coordination of [J]; study of law in 2001 06

    [3] Huang Dezhi; incidental problems in civil litigation lawyer [J]; world; 1998 10 period

Reference.

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[3] Chen Kaitian; a discussion on several problems in the incidental civil litigation cases of [J]; the people of justice; in 1988 05 period

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