Second, from the perspective of enforcement, "ordering restitution" has certainty and execution. "Ordering restitution" is a judgment made by the people's court to order the defendant to return compensation after confirming the fact that the victim suffered losses due to illegal possession and disposal of his property according to the ascertained facts and the principles determined by the criminal substantive law in the trial of criminal cases. It is the final substantive disposal of criminals in the absence of illegally obtained related property. This includes the confirmation of the property losses suffered by the victim and the responsibility borne by the defendant, which should be used as evidence for the people's court to make a judgment on specific facts and the victim to further exercise his rights. As the property part related to the crime in the text of the judgment, the content of the penalty part also has the coercive power of the state, not just the confession of the principle of the state to deal with the property related to the crime. It is difficult to imagine a court judgment without the coercive power of the state. And the national coercive force determines its execution. Therefore, if the defendant fails to perform the judgment, the victim should be able to apply to the court for enforcement. Moreover, Article 201 of China's Civil Procedure Law clearly stipulates that "the property part of legally effective civil judgments and rulings and criminal judgments and rulings shall be executed by the people's court of first instance". Criminal judgment, whose content is "ordering restitution", is naturally among them. The Provisions of the Supreme People's Court on Several Issues Concerning the Execution of People's Courts (Trial) does not clearly list who in criminal judgment has the content of "ordering restitution", which obviously does not conform to the relevant provisions of the Civil Procedure Law.
Three, starting from the principle of litigation economy, separate prosecution is suspected of "one thing and two reasons". It is the duty of the judiciary to prevent criminals from obtaining benefits through illegal crimes. For any criminal act involving money and stolen goods, if only the personal freedom or life of the criminal is punished, but the money and stolen goods related to the crime are not recovered, ordered to make restitution, returned or confiscated according to law, then the material losses caused by the criminal act to society will be irreparable, and such a criminal judgment is incomplete and unfair. Therefore, if the property illegally obtained by criminals belongs to the victim, it should be returned to the victim after recovery. If the victim's rights are realized after restoration or restitution, there is naturally no need to file an incidental civil action or a separate civil action. If the loss cannot be made up after recovery or restitution, the possibility of realizing rights through civil litigation is very small. Because it is still difficult to implement after confirmation by civil procedures, it has no practical significance. What's more, even if the victim files a civil lawsuit within the limitation of action, there are many problems in the development of civil litigation because criminals have often served their sentences in different places or even been executed. If it is necessary to file a civil lawsuit to remedy the loss suffered by the victim, it is a waste of money and is not good for the victim. Moreover, the defendant's illegal income belongs to the factual part of the criminal case, which is related to the defendant's conviction and sentencing, and has been investigated after the trial of the criminal case ... >>
Question 2: The income from violation of discipline should be confiscated or ordered to make restitution. The disciplinary gains (economic benefits) shall be confiscated or ordered to make restitution.
Question 3: The income from violation of discipline should be confiscated or ordered to make restitution and be severely punished.
Regulations of China Municipality on Disciplinary Actions (20 16)
Twentieth intentional violation of discipline should be punished by party discipline, should be severely punished.
After being disciplined by the Party, party member found that his disciplinary actions before being disciplined should be disciplined by the Party and severely punished.
Question 4: The income from violation of discipline shall be confiscated or ordered to make restitution.
Question 5: How to deal with the enforcement cases of ordering restitution in criminal cases According to the interpretation of the new Criminal Procedure Law of the Supreme Court, if the defendant illegally occupies or disposes of property, he should recover the economic losses of the victim by recovering the stolen money or ordering restitution, and no incidental civil action is allowed, and no separate civil action may be filed after the criminal proceedings are over. According to this provision, the defendant should be ordered to make restitution in the criminal judgment of property infringement cases. The judgment ordering restitution shall also be used as the basis for execution. Otherwise, it is tantamount to depriving the victim of the right to appeal.
Article 64 of the Criminal Law: Stolen goods and fines shall be recovered or ordered to make restitution. The lawful property of the victim shall be returned in time; Contraband and personal articles used in crimes shall be confiscated. Confiscated property and fines shall be turned over to the state treasury and shall not be misappropriated or disposed of by themselves.
Interpretation of the Criminal Procedure Law of the Supreme Court Article 139 If the defendant illegally occupies or disposes of the victim's property, he shall recover it according to law or order him to make restitution. If the victim brings an incidental civil action, the people's court will not accept it. The circumstances of recovery and restitution can be considered as sentencing circumstances.
Question 6: The income from violation of discipline shall be confiscated or ordered to make restitution. This is about the handling of criminal articles. Article 64 of the Criminal Law of People's Republic of China (PRC) stipulates that the property illegally obtained by criminals shall be recovered or ordered to make restitution. The lawful property of the victim shall be returned in time; Contraband and personal articles used in crimes shall be confiscated. Confiscated property and fines shall be turned over to the state treasury and shall not be misappropriated or disposed of by themselves.
Question 7: The illegal income shall be recovered and returned to the victim, and the insufficient part shall be ordered to make restitution. How to understand it depends on the loss actually suffered by the victim and the amount of compensation actually obtained. The right to damages can be claimed and realized through civil litigation. However, if an incidental civil action has been filed in the trial of a criminal case and an incidental civil part has been decided in the judgment, no civil action may be filed.
Question 8: How to write 1 in the written decision of restitution in * * * accomplice crime? According to the provisions of Article 77 of the Criminal Law, if a criminal who has been declared on probation commits a new crime or finds that there are other crimes for which no judgment has been given, his probation shall be revoked, and a judgment shall be made on the newly committed crime or newly discovered crime, and the former crime and the latter crime shall be punished in accordance with the provisions of Article 69 of this Law.
2. Example of expression: Wenzhou Intermediate People's Court of Zhejiang Province-Judgment on Criminal Matters -(20 15) Shirley Criminal Final Zi No.563.
The original public prosecution agency was the People's Procuratorate of Cangnan County, Zhejiang Province.
Appellant (defendant in the original trial) is in Chang 'an. Now detained in Cangnan County Detention Center.
Appellant (defendant in the original trial) Xiao is currently detained in Cangnan County Detention Center.
The People's Court of Cangnan County, Zhejiang Province tried the case that the People's Procuratorate of Cangnan County accused the defendants Yu Chang 'an and Xiao Mou of committing fraud in the original trial, and made a criminal judgment (20 14)No. 1422 on March 20/5/6. The defendants in the original trial, Yu Chang 'an and Xiao Mou, refused to accept the appeal. Our college has formed a collegial panel according to law. After reading the documents and questioning the appellant, it decided not to hold a trial because the facts were clear. The trial is now over.
The original judgment found that:
1.20 13 04 18, the defendant Xiao mou and "adong" (handled separately) conspired to rent a vehicle for mortgage loan, and Xiao mou rented a Zhejiang CC ×××××× car (value) from Hong Xin car rental office in Chen Mou B, No.348 Yongning Road, Oubei Town, Yongjia County. The car involved has now been taken back by the victim.
2.2065438+On May 29th, 2003, the defendant Yu Changan conspired with Jin Shunliang (handled separately) and Ding Mingjun (unknown) to lease a vehicle mortgage loan, pretending to be Chen as the actual lessee in Chang 'an, and rented the victim Liu's Zhejiang from Wenzhou Zhongxin Car Rental Co., Ltd., No.49, Yongzhong Luodong North Street, Longwan District, Wenzhou City, where the victims Liu and Cai were located. After Jin Shun Liang forged motor vehicle driving license, ID card and other materials, he borrowed 36,000 yuan from the victim Chen Mou Jia in Chang 'an in the name of the owner Liu. The car involved has now been taken back by the victim.
3.2065438+June, 2003 14, Yu Chang 'an and Ding Mingjun went to Zhongxin Car Rental Co., Ltd., No.49, Yongzhong Luodong North Street, Longwan District, Wenzhou City. Yu Chang 'an pretended to be Chen as the actual lessee, and Ding Mingjun signed a lease contract to defraud the victim Cai's Zhejiang C ××. Later, Yu Changan mortgaged his car to Chen Mou Jia and borrowed 36,000 yuan for gambling. The car involved has now been taken back by the victim.
The evidences to prove the above facts are: the statements of the victims B, Liu, Cai and Chen Jia, the second-hand car sales contract, the personal loan contract, the vehicle handover statement, the driver's license, the price appraisal opinion, criminal judgment, the administrative punishment decision, the release certificate, the process of being brought to justice, demographic data, and the confessions of the defendants Xiao and Yu Changan.
The court of first instance found the defendant Yu Changan guilty of fraud, sentenced him to five years and six months in prison and fined him 50,000 yuan. Defendant Xiao was convicted of fraud, sentenced to three years and six months in prison and fined RMB 30,000. Revoke the suspended sentence of the defendant Xiao by the People's Court of ouhai district, Wenzhou City, Zhejiang Province (20 13) Wen Ou Xing Zi No.542; He was sentenced to six months in prison and fined 20 thousand yuan for the crime of credit card fraud. Decided to execute a fixed-term imprisonment of three years and nine months and impose a fine of 50,000 yuan; The defendant Yu Changan * * * was ordered to pay back the illegal income of RMB72,000, and the defendant Xiao Mou * * * paid back the illegal income of RMB46,500, all of which were returned to the victim Chen Mou Jia.
Yu Chang 'an, the defendant in the original trial, appealed that (1) in the second paragraph, he did not rent a car from Zhongxin Car Rental Company, but only provided a guarantee for Jin Shunliang's loan. (2) In the third section, he instructed Ding Mingjun to rent a car, because he didn't have a driver's license and renting a car was convenient for gambling, so he didn't use the car as a mortgage. And when borrowing money, he informed the victim that Chen Mou Jia's vehicle was leased and had paid the interest for three months continuously 1.2 million; In addition, identify ... >>
Question 9: Will the court seal up the property if the criminal case is ordered to make restitution? Lawyer's answer: Article 5 of the Provisions of the Supreme People's Court on the Scope of Accepting Cases in Criminal Incidental Civil Proceedings stipulates that if a criminal illegally occupies or disposes of the victim's property and causes material losses to him, the people's court shall recover it according to law or order him to make restitution. The people's court may consider the situation of recovery or restitution as a sentencing circumstance. At the same time, the Supreme People's Court's "Guiding Opinions on Sentencing (Trial)" (Fa Fa Fa Fa [2065438+00] No.36) stipulates that the return of stolen goods and compensation can be reduced by less than 30% on the basis of the basic punishment by comprehensively considering the nature of the crime, the extent to which the return of stolen goods and compensation can make up for the damage, the amount and initiative of the return of stolen goods and compensation.
Question 10: The defendant has not returned the compensation to the victim. Is it necessary to make a judgment in criminal judgment to order the victim to return the compensation to the victim who cannot be attached to the civil action? Otherwise, the victim has no other remedy.