Three legal problem to be solved in the trial of criminal and civil cases of cross

Jiang Xianzheng

February 25, 2010.

Case: in 2003 February, the town government of Sanjiang plans to develop Sanjiang Jian River Bridge on the west side of the 8 acres of land in the town planning of land, because land failed, the town government of Sanjiang has decided in 2004 December to cancel the real estate development plan. But as the town of land resource management and the real estate development group, pearl, knowing that the project has been cancelled, still in March 26, 2006 to help Wei Sheng buy houses homestead of defrauding 30000 yuan wei. In August 16, 2007, the county court found Wei Zhu fraud (including the 10 people such as Wei Sheng fraud), sentenced to eleven years in prison, but no decision booty, disgorge ill gotten gains (the decision has taken effect). In April 6, 2009, Wei to stamp the town of Sanjiang land and resources management official, means human Wei bead receipts as evidence, the prosecution requested Sanjiang town land resource management and land and resources administration returned to collect purchase, 30000 yuan and 8000 yuan default.

There are three main legal issues in this case need to discuss:

A, criminal without booty affect civil cases accepted and heard.

First of all, the criminal without accepting of booty of civil and commercial cases, the Supreme People's court two people judge Xiao Ming song and judge Zhang Xuemei summed up the controversy has two kinds: 1, because of the cross of civil and criminal cases, civil cases and criminal cases in litigation, litigation principles, elements of liability, imputation principle and other aspects have differences, so in addition to the victim criminal incidental civil lawsuit and the civil rights of the litigant fully in the criminal supplementary civil action in addition to realization of civil and criminal cases, should be filed. Therefore, although the criminal without the booty, but because the parties caused by criminal acts loss can be solved by the civil procedure, the civil and commercial cases should be accepted. 2, according to the Supreme People's court release [2000]47 "code of criminal civil procedural provisions of the scope of article fifth of the Supreme People's court" and "Regulations" on issues involving suspected economic crimes in the trial of cases of economic disputes in eighth (hereinafter referred to as "relates to several provisions" crime) regulations, booty system of criminal procedure in the legal procedure, only after the booty, the loss of the victim cannot fully compensate for the case, victimization personnel may bring a civil action, the court should accept (Xiao Ming song, Zhang Xuemei: "the civil and commercial trial problems - the people crossed case", "people's Court Daily" August 23, 2006 cut).

Secondly, a civil case without the booty, because without the booty and shall suspend the hearing problem, song president and judge in this paper also concludes there are two kinds of Views: 1, in the cross of civil and criminal cases, the basic principle of civil cases and criminal cases are based on acceptance, trial, the civil cases for the defendant loss as well as civil liability, should be based on the provisions of civil substantive law and the procedural law, and is not affected by whether the stolen goods. Specifically: the victim the act to establish civil legal relationship, the legal relationship of relative someone accused suffered total loss of the civil lawsuit, behavior person shall be investigated for criminal responsibility have been returned to the victims of the stolen money, such as civil cases are still pending, deducted the civil liability can be determined from the part of judgment civil refund commitment should be paid the amount of. Criminal cases have not yet made a final decision, does not affect the determination of the amount of compensation for civil cases, and can solve the problem in the implementation phase of the amount deducted. The victim in the crime and the fault caused by the loss of the parties to a civil lawsuit, behavior person shall bear civil liability for the loss is at fault, the parties shall, according to its fault shall bear the corresponding liability for compensation. Not the end of the trial of criminal cases will not affect the determination of the amount of compensation of civil judgment, the people's court may the decision fault in a certain range, the behavior of people can not bear part or unable to recover part of the liability, and solve the problems in the implementation phase amount. If the civil liability shall have full compensation for the victim's loss, recovered the money shall be directly returned after the civil responsibility. 2, according to the Supreme People's court "about the provisions of criminal incidental civil litigation scope" fifth and "certain provisions" involves criminal provisions of article eighth, without the booty, in the civil lawsuit cases, the victim's loss amount cannot be determined, the amount of compensation for civil liability subject must wait after a criminal the booty results can be identified, so in accordance with the "Civil Procedure Law" article 136th (five) the provisions of item, because of civil and commercial cases for criminal booty recovery results, so before the criminal booty, civil cases should suspend the trial.

The author thinks, civil and commercial disputes and criminal cross involving civil rights judicial protection approach to this problem is by the civil litigation, the protection of civil rights, or through the criminal supplementary civil action or through criminal booty recovery way of protecting civil rights issues. Criminal procedure is the state to be convicted and punished for criminal suspects by judicial procedures, belonging to the public areas, the solution is the country in the pursue balance between the crime and the safeguard human rights. While the civil action is the country through the judicial authority to resolve disputes between equal entities program, belongs to the category of private law, the parties may freely dispose of their civil rights, unless the disciplinary actions damage the interests of others or the public interests of the society. About recovering Booties can replace the right to request the civil problem, actually is to pursue the balance between crime and the protection of civil rights. In accordance with the provisions of the Supreme People's court "about some problems in the implementation of" the people's Republic of China Criminal Procedure Law > interpretation "in article 294th, the court seizure, freezing the stolen money and interests, the court ruling, the court in accordance with the effective legal documents processing. In addition to returned to the victims according to law, shall be confiscated, turned over to the state treasury. Except as otherwise stipulated by law. Accordingly, for legitimate and the loss of the victims, the booty after shall return, that is to say, the victims should get the right organs recovered the stolen money right. Part of the loss to retrieve stolen money still cannot make up for, in accordance with the provisions of the Supreme People's court "about" criminal incidental civil lawsuit scope of the provisions of article fifth, the victim has the right to file a civil lawsuit. Accordingly, the criminal booty and cannot be replaced by the parties in accordance with the law and civil rights, cannot replace civil litigation.

According to the analysis, part of the loss to retrieve the stolen money still cannot make up for, the victim has the right to bring a civil action shall be even, criminal judgment and the effect did not make the booty gains decision, should allow the victim Wei Sheng filed a civil lawsuit. Otherwise, it is difficult to get judicial remedy of civil rights.

Two, the person in charge of the unit by unit official seal to engage in civil activities and even criminal activities, whether the unit should bear civil liability.

In accordance with the "Regulations" crime crime fifth section second "Sike seal behavior or unauthorized use of the seal of the unit, a business letter of introduction, stamped with the seal of the blank contract method to signing an economic contract, the unit has obvious fault, causal relationship between the fault behavior and the victim's economic loss the unit, due to the crime of economic losses, it shall bear the liability for compensation according to law." The provisions of the crime, for the person in charge of the unit or the legal representative of the unauthorized use of the official seal to the economic contract is signed, the existence of loopholes in the management of the unit, the unit is at fault, it shall bear corresponding civil liability, which in fact is a kind of tort liability.

In this case, Wei beads as director of town land resource management and the real estate development team members, their duties and authority to represent the, and the use of the official implementation of the foreign civil behavior. Wei Zhu Wei is director of fraud to name their positions and associated. Wei Sheng to the payment receipt stamped with the town of land and resources management official, the foot can be identified collection behavior in the name of. Director Wei Zhu although subject to criminal sanctions, and has been identified as the individual crime, but not to exempt from civil liability of the institute. Criminal sanctions to protect civil relationship, but not eliminate civil relationship. Civil relationship exists, should according to the norms of civil law, civil law need to solve civil disputes. Such as the composition of apparent agency, legal person shall bear the civil liability of the apparent agency. If the civil liability exemption of the legal person, the premise is the legal representative of the behavior does not have legal attribute, namely, independent of their positions permissions. Town land resource management is a representative office of county land and Resources Management Bureau, its responsibilities include but not limited to: propaganda, carry out, implement national and provincial land and resources management laws and regulations, guidelines and policies, the land and resources management decisions and measures to make the county and city, according to the national laws and regulations based on the land use; the overall planning, to participate in the preparation and implementation of the administrative region of the overall land use planning, the overall planning of mineral resources, geological environment protection planning and other special planning, assist in planning the work; responsible for rural residential land and rural public facilities, public welfare undertakings by the examination and approval of construction and approved after the implementation and supervision and management; to assist the superior in the land and resources management departments to carry out the conversion of agricultural land, collective land expropriation (Requisition), the specific construction projects for the work. Internal relations in the Wei Zhu and the town of land and resources management, county land and Resources Management Bureau, county land and Resources Management Bureau of town land resources management is the process of performing their duties using the seal shall make specification, as in this case, the provisions of the town land and resources management charge the purchase behavior, students, must be submitted approved by the county land and resources management board for approval before. It should be recognized, students with the town of land and resources management official, issue receipts, purchase, receive students of the act, County Land Resources Bureau fault exist. Wei Sheng as ordinary people, not that the division of the internal departments of land and resources management responsibilities (unless the county land and Resources Management Bureau and the town of land and resources management provide the evidence to prove that it has information on the land policy, and public responsibilities within the provisions), only believe stamped in the payment receipt of government department official, can not think of the unauthorized use of the town land and resources management official to Wei Wei pearl behavior is knows or should know, that belongs to the malicious and negligent act. Proof of county land and Resources Management Bureau there is no fault in the official seal of the management, and then proves the loss of, there is no fault or causation, the burden of proof should be the County Land Resources Bureau and the town of land and resources management burden.

Three, the criminal constitute fraud, civil activities of people engaged in or a commercial agreement is valid or not.

For this problem, Song Xiaoming, Zhang Xuemei in the above article concludes there are three kinds of Views: 1, criminal constitute fraud, the behavior harm the interests of the state, and belongs to the legal form to conceal illegal purpose, therefore, in accordance with the "contract law" article fifty-second, should recognize the invalid contract. 2, the criminal constitute fraud, in the civil action, should be identified in the contract, the subjective constitute fraud. Damage to the fraud is opposite party or the third person's interests, so in accordance with the provisions of the contract law "article fifty-fourth", should be identified as revocable contract. The injured party for financial enterprises, and signed a guarantee contract, whether to give the injured party the right to revoke the contract, that the Lord is effective or not, is of great significance to guarantee the rights of creditors. In particular, that the main contract, unless the contract itself is flawed, the guarantee contract can be identified effectively, the guarantor shall bear guarantee liability. But is invalid in the main contract situation, from the contract shall be invalid, the guarantor will not guarantee. The guarantor has fault, the only bear the liability of culpa in contrahendo, range and its responsibility not to exceed the debtor is unable to repay part of the 1/3. Therefore, that the contract is revocable contract, will determine the validity of the rights conferred by the injured party, more conducive to the protection of the rights of the rights and interests of the people, but also embodies the basic principle of private law autonomy. 3, the difference should be recognized the effectiveness of civil and commercial contract. According to the criteria to distinguish between the different views, which is divided into two types: one is relative to the contract or its staff involved in crime or not were divided into standard. The other party to the contract or its staff involved in the crime constitutes a crime, the invalid on the contract signed between the unit and the contract relative person should be identified; the other party to the contract or its staff not involved in the crime, in between the unit and the contract relative person signed contract is not because the behavior of people constitute a criminal offense and invalid. The two is to the right people is the first report to the public security organs as the standard division. Human rights first report to the public security organs, maintain that opposite party suspected of fraud, the criminal booty sufficient to compensate for the loss after further litigation, can not be identified and signed based on Civil and commercial contract fraud. If the right holder fails to report, but to bring a civil action directly, if not to revoke the right, can be identified and signed the contract based on fraud.

The author believes that, in this case, Wei students to purchase 30000 yuan to the Wei Zhu, Wei Zhu issued the town land and resources management official receipts, forming a transfer contract relation between land use right between Wei and town land and resources management. Not because the two sides did not sign a written contract or real estate development plan was cancelled because of reasons such as land acquisition failed already and affect the establishment and effectiveness of contract. Because, "contract law" does not limit the contract only with the written form. Wei Sheng to the town of land and resources management for Wei students purchase time, real estate development plan to cancel the fact is not public, otherwise, students may not pay. As for Wei students later learned that the real estate development plan has already been canceled, only that the objective to fulfill the transfer contract can not be between the two sides of the land use right, does not affect the validity of the contract. Step back, Wei bead concealing the real estate development plan for land acquisition failed because of canceling the truth, a civil fraud, in accordance with the "contract law" article fifty-fourth of the contract, shall be deemed to revoke the contract. Identification between the two sides of the land use right transfer contract or revoke the contract, is more conducive to the protection of goodwill without negligence of the legitimate rights and interests of the relative person Wei students.

In the civil case identification of land use right transfer contract and in criminal cognizance Wei Zhu committed the crime of swindling is the problem, the author thinks that they are not in conflict. The nature of civil and commercial cases and criminal cases, the principle of imputation, constitution are different, as judge Zhang Xuemei said: "the so-called different legal fact, refers to the same actions or events in the civil and commercial legal relationship and the criminal legal relationship, legal relationship of the different legal fact different. In the civil and commercial disputes and criminal cases are tried, involves to the Criminal Verdict (ruling) whether the facts shall be adopted in the civil and commercial trial procedure problems. We believe that, the criminal judgement (ruling) that the crime is a crime, based on the condition of criminal proof, combined with the standard, the criminal liability theory, and civil and commercial judgments (order) on the qualitative behavior of the civil legal act, is based on the condition, combined with the civil proof standard and the civil liability theory, there is an essential difference. The criminal legal relationship and civil legal relationship is the two kinds of legal relationship is completely different, civil liability and criminal liability is two kinds of different legal liability, they can not replace each other, civil case facts should be based on the civil rules of evidence and standard of proof." (Zhang Xuemei: "legal representative constitute a crime, the unit can be exercised in accordance with the law of civil action -- Xinjiang International Landmark Real Estate Development Co. v. Hongyuan securities Limited by Share Ltd in Urumqi city Beijing Road Sales Department, Hong Yuan Securities Limited by Share Ltd commissioned supervision contract dispute case", Xi Xiaoming editor, the Supreme People's court civil trial second court series: "civil and commercial the trial guidance" in 2005 second, the people's court press, 2006 edition, page 232nd). Constitutive requirements of civil fraud and criminal fraud (elements of criminal fraud are: fraud; the victim in the wrong; the victim to the disposal of property; the defendant to benefit victims damaged. The civil constitution of fraud: there must be a fraud fraud; fraud must be deliberate fraud; should people make relative fraud into error; to show each other because of falling into the wrong is I, namely error and mean causality), imputation principle, legal liability are different. Criminal fraud belongs to the regulation of the criminal law, civil law and civil fraud belongs to the category of. But the legal consequences of criminal fraud, fraud human behavior itself, is in line with the characteristics and elements of civil fraud, but also violated the criminal law, so the fraud to assume criminal liability and civil liability of dual responsibility, not because of fraud, criminal liability and exemption from its civil liabilities, and vice versa. The dual responsibility according to different legal judgment, both run parallel, not replace.

Conclusion: more legal problems encountered in the trial of criminal and civil cases of the Supreme People's court, the existing normative documents or the judicial interpretation is clearly not enough to solve. In view of the above three legal problems for the Supreme Court, the timely introduction of new judicial interpretation, to unify the judicial standards, not just stay in the research the conclusion.

(the author unit: Nanning City Intermediate People's court)