In recent years, with the increase of intentional injuries and traffic accidents in Yichun area, personal injury compensation has become the target of public criticism. How to compensate and how to compensate has become the focus and hot issue for victims, defendants and society. If it is not handled well, it will lead to disputes, intensify contradictions and have an adverse impact on building a harmonious society. Through years of trial experience and research, the author summarizes how to do a good job in the trial of criminal incidental civil litigation cases.
First, raise awareness and do a good job in case review.
First of all, we should raise the awareness of mediation. To do a good job in the trial of criminal incidental civil cases, we must fully understand the function of mediation, realize that mediation is the need to realize the concept of law enforcement for the people, fairness and justice, protect the legitimate rights and interests of victims and defendants from infringement, and resolve the contradictions between the parties and build a harmonious society. Therefore, judges should have a correct attitude, firmly establish the idea of serving the people, serve the people wholeheartedly, think about what the parties think and be anxious about what the parties are anxious about. In trying every case, we should take facts as the basis and the law as the criterion, so as to handle the case impartially, be honest and upright. Let the parties fully claim their rights, safeguard their own interests and adjudicate impartially.
Second, we must do a good job in case review. The filing and examination of criminal cases is an extremely important link in the trial of cases, which is directly related to the quality and result of the whole case. Before a criminal case is put on file, according to the provisions of the Criminal Procedure Law of People's Republic of China (PRC), the case that is tried by summary procedure shall be within three days; For cases that are tried by ordinary procedures, the procedures and entities of the case shall be strictly examined within seven days. In the review, we should strictly control the four customs: first, strictly control the evidence and check whether the evidence is sufficient and the source is legal; The second is to strictly control the facts and check whether the facts are clear and whether there are contradictions; The third is to strictly control the procedures and check whether the judicial organs handle cases according to the procedures; Fourth, strictly control the application of compulsory measures and check whether the types and procedures of compulsory measures applied by the defendant are complete; Whether it is in compliance with the law. In the process of review, if it is found that cases with unclear facts, insufficient evidence, illegal procedures and non-compliance with legal provisions cannot be filed, it shall promptly notify the procuratorial organs to withdraw the prosecution. If the procuratorial organ does not withdraw the lawsuit, it shall adopt the principle of presumption of innocence and no doubt, and try the case according to law. For cases that meet the filing criteria after strict examination, the date of receipt of the case shall be taken as the filing time within three days, and the review time shall be included in the trial limit. For cases that are tried by ordinary procedures, the date of receipt of the case shall be taken as the filing time within seven days, and the review time shall be counted within the trial limit. During the review period, the case withdrawn by the procuratorial organ shall not be put on file, and the review time shall not be counted in the trial limit. Through strict examination, ensure the quality of cases and put an end to misjudged cases.
Second, be familiar with the case and master the basic situation.
Familiarity with the case is the basis for a good trial of criminal incidental civil litigation cases. Before the mediation of criminal incidental civil part, we should do four things: First, the review is in place. After a criminal case is put on file, the presiding judge should examine the paper, and only after fully understanding and mastering the case can the case be handed over to the presiding judge for trial; Second, the analysis is in place. The presiding judge should read the examination papers repeatedly, carefully make the transcripts of the examination papers and the outline of the trial, comprehensively analyze the case, fully grasp the facts, evidence and procedures of the case, and have a thorough understanding of the case. The third is to inform in place. After the case is put on file, when the defendant is served with a copy of the indictment, he shall be informed of his right to defend himself, entrust others to defend himself, refuse to defend himself and apply for bail pending trial. When a copy of the indictment is served on the victim or his legal representative, the victim shall be informed of his right to file an incidental civil action and entrust an agent. During the hearing, the parties concerned shall be informed of their right to apply for withdrawal. With the permission of the presiding judge, the plaintiff, defender and agent ad litem in an incidental civil action have the right to ask questions to the defendant, witness and expert witness. The parties have the right to apply for notifying new witnesses to appear in court, obtaining new material evidence, applying for re-appraisal or inspection, expressing opinions on evidence and cases, and arguing with each other. The defendant has the right to make a final statement, and the parties have the right to read, supplement and correct the court record. After the case is pronounced, the defendant shall be informed that he refuses to accept the judgment or ruling of the first instance and has the right to appeal to a higher court by appeal or oral means, and his defenders and close relatives have the right to appeal with the consent of the defendant. The parties to an incidental civil action and their legal representatives have the right to appeal if they refuse to accept the part of the incidental civil action in the judgment or ruling of the court of first instance. If the victim or his legal representative refuses to accept the judgment of the court of first instance, he has the right to request the procuratorate to lodge a protest within five days after receiving the judgment. At the same time, the parties concerned, their legal representatives and close relatives shall be informed that they have the right to appeal to the people's court or the people's procuratorate against the legally effective judgment or ruling. Fourth, the audit is in place. First of all, it is necessary to examine whether the public prosecutor sent by the public prosecution agency to support the public prosecution has the right to handle cases and whether the court personnel are consistent with the indictment; Secondly, it is necessary to examine whether the defendant has entrusted a defender and an incidental civil litigation agent. For example, how many customers are entrusted? What is the basic profile; Thirdly, whether there are plaintiffs in criminal incidental civil action, and which plaintiffs are there? Whether to file an incidental civil action, whether to entrust an incidental civil action agent and other basic information; Fourth, we should examine whether there are witnesses and experts. Testify in court, if there is a basic overview. In the audit process, the detailed addresses, work units and contact information of the parties and participants in the proceedings should be clearly written and recorded. At the same time, it is also necessary to guide the plaintiff in incidental civil action to write a complaint, explain to him the specific scope of the right to file an incidental civil action, and inform him to submit the complaint and relevant evidence to the court in time in accordance with the regulations and serve it on the defendant, his defender or entrusted agent. At the same time, it is also necessary to know whether the defendant has fulfilled all or part of the obligation to compensate the victim before the procuratorial organ initiates a public prosecution, and if so, what is the compensation situation; If there is no compensation, what are the reasons, whether the defendant has the ability to pay compensation, if so, how to pay compensation, if not, whether his close relatives have the ability to pay compensation for him and whether they are willing to pay compensation for him. At the same time, if necessary, close relatives of the defendant, defendants' defenders and agents ad litem, victims of incidental civil litigation and their entrusted agents, legal representatives of the victims and close relatives shall be invited to participate in mediation of incidental civil litigation. Only by being fully familiar with the case and putting the trial work in place can we lay a solid foundation for the smooth progress of mediation.
The third is pre-trial mediation to explain relevant laws.
First, pre-trial mediation. Pre-trial mediation is to mediate the civil compensation of the original defendant before the trial of criminal incidental civil cases, and pre-trial mediation is the most important link to solve the contradictions between the original defendants. In some incidental civil cases, the defendant has the ability to compensate the economic losses caused to the victim. Generally, in such cases, when the defendant serves a copy of the indictment, he can clearly express his willingness to pay compensation and ask his relatives to reach a compensation agreement with the victim before the court to fulfill his compensation obligations. However, some defendants in criminal incidental civil cases are unwilling or unable to compensate the victims for their economic losses.
Second, explain the law. For the mediation of criminal incidental civil litigation cases, the presiding judge should make four explanations before the court: First, explain the legal provisions to the defendant. It is necessary to explain the Criminal Law, General Principles of Civil Law, Explanations on Several Issues of Personal Injury Compensation and the relevant judicial interpretations of the Supreme People's Court and Provincial High Courts to the defendant, so that the defendant can understand that he should not only bear criminal responsibility for the damage caused to the victim by his actions, but also bear civil responsibility for the economic losses caused to the victim. Even if there is no agreement on compensation, the court should also judge the part of the victim's claim for compensation in the incidental civil action that meets the legal requirements together with the criminal part. During the trial of the case, the victim may apply to the court for sealing up or distraining the defendant's property when necessary. If the defendant does not voluntarily perform the obligation of compensation after the judgment takes effect, the victim may also apply to the court for compulsory execution; The second is to explain the importance of mediation to the defendant. If the defendant can reach a compensation agreement with the victim and actively compensate the economic losses caused to the victim, it can be seen that he has a good attitude of pleading guilty and shows remorse, which is not only a statutory discretionary mitigating circumstance, but also can obtain the understanding of the victim and resolve the contradiction between them; The third is to explain the role of compensation to the close relatives of the defendant. During pre-trial mediation, the presiding judge should also invite the defendant's parents, brothers, sisters, wives, friends and other relatives to participate in the trial together with the defendant, defender or entrusted agent, and participate in the mediation work, so that they can fully understand and master the whole process of pre-trial mediation, fully realize the significance of compensation and the role played by the defendant in conviction and sentencing after compensation, and let them know that as a defendant, the defendant's behavior has caused physical and mental harm to the victim and his family. Fourthly, it is necessary to While doing a good job of the defendant, we should not blindly emphasize the defendant's compensation obligation, but also explain to the victim that its incidental civil litigation request should be realistic and have legal basis. To claim one's rights within the scope prescribed by law, one should not ask for exorbitant prices, all requests should be clear, and one should have the right to claim and give up the amount and items of one's litigation request; If there is no dispute about the amount and items of compensation for economic losses, a mediation agreement can be reached with the defendant; If the defendant is unable to pay the compensation, but his relatives and friends are willing to pay the compensation in advance, they may reach a mediation agreement with their entrusted litigation agents, and the amount of compensation has the right to increase or decrease. The increase or decrease depends on the defendant's affordability, so as to achieve the purpose of compensation. In this way, the victim will not suffer or suffer less economic losses. By explaining their respective litigation status and the importance of mediation to the victims and their legal representatives, plaintiffs in incidental civil litigation, defendants and their litigation agents, they can actively accept the mediation opinions of the other parties and achieve the purpose of mediation. Practice has proved that more than 90% of criminal incidental civil litigation cases in our hospital are reached through pre-trial mediation.
Fourth, look for opportunities and intensify mediation.
First, use legal deterrence. In some criminal incidental civil cases, due to the great differences between the original defendant and the amount of compensation, despite repeated mediation by the court, no mediation agreement has been reached. For such cases, we should seize the favorable opportunity of the criminal part of the trial to mediate. Through the prosecution's accusation of the defendant's criminal facts, the defendant's statement of his criminal facts, court investigation, cross-examination and authentication of evidence, and the court debate between the original defendant and the defendant, the court's solemnity and legal power are used to shock the defendant and educate his family. Let the defendant truly realize the seriousness of its criminal nature from the heart. At the same time, the presiding judge should also explain clearly in court with the defendant and his defenders, entrusted agents and their close relatives, as well as the victims of entrusted agents and their close relatives, explaining which are aggravating circumstances, which are statutory aggravating circumstances, which are discretionary mitigating circumstances, and which are discretionary mitigating circumstances according to law, explaining what the defendants have. Division of prison terms for crimes committed. Make the conviction and sentencing public, so that the defendant can fully understand and master the approximate sentencing of the crime he committed, dispel the concerns of the defendant and his relatives that the compensation is not light, thus prompting the defendant to ask for compensation on his own initiative and finally reach a mediation agreement with the plaintiff.
Second, use true feelings to influence. Although the civil part of some incidental civil cases has been mediated many times before the court, the original defendant and the defendant still have not reached a mediation agreement. In this kind of case, we should use sincerity to influence the defendant and don't give up easily. The presiding judge should seize the last chance before sentencing, carry out policy attack and ideological education on the defendants, their agents ad litem and close relatives, and influence them with true feelings. Through the careful and patient ideological education of the presiding judge, the defendant will often fully realize the seriousness of the crime and the legal consequences of compensation, take the initiative to contact his family to change his compensation opinion and ask for mediation with the plaintiff. This will also allow the plaintiff to make some concessions, so that the original defendant and the defendant can understand each other, and finally reach a mediation agreement and fulfill their civil compensation obligations.
Third, do a good job of post-judgment interpretation. Case closed, not closed. Some criminal incidental civil litigation cases are justified and can be concluded by judgment according to law. However, the social effect of the case is not so good, and mediation is different. On the one hand, it can make the original defendant and the defendant reach the purpose of understanding, on the other hand, it can also promote social stability to a certain extent. Therefore, we must do a good job in post-judgment interpretation, mainly in four aspects: first, we must clearly explain the legal provisions on which the defendant's criminal judgment is based to the defendant and his defenders, agents ad litem and close relatives of the defendant, so that they can know that the court has finalized the case according to law and the sentence is appropriate, fair and legal; Second, it is necessary to explain clearly to the defendant, the plaintiff in incidental civil action, their legal representatives and close relatives the legal basis, reasons and calculation standards for the court judgment in incidental civil part to support or not support the amount requested by the plaintiff, so as to let them know that the reasons for the court judgment are sufficient, fair and legal; Third, it is necessary to explain clearly to the original defendant the root cause and the focus of contradiction of the failure of the two parties to reach a mediation agreement in the incidental civil action of the case, so that they can truly understand that mediation is not in court, but there are many differences and differences between them; Fourth, we should explain the legal provisions on enforcement to the victims, their legal representatives and litigation agents, so that the plaintiff can know that although the defendant has not reached a mediation agreement on the incidental civil part and the defendant has not taken the initiative to compensate, after the judgment takes effect, he can apply to the court for enforcement, and he can still protect his rights and recover his economic losses through law.
As long as every judge can strictly enforce the law, fulfill his duties, be loyal to the law, be honest and clean, give full play to the mediation function, have profound legal knowledge and rich social practical experience, and have a strong sense of professionalism and responsibility, then the contradictions between the parties, between the parties, between the judges and the court will be reduced, and the cases will be truly solved, avoiding the occurrence of letters and visits and promoting social harmony and stability.