Whether criminal cases can solve the problem of death compensation in criminal incidental civil cases, different provinces have different approaches. (Guangxi does not support it,
the legal source is below). The opposing defense lawyer is quite proficient in the law. The following reply seems ideal, but it may not be supported by the court in reality.
a reply of the Supreme Law on the issue of compensation for death of people attached to criminal punishment
No.159 of the Law Office of the Supreme People's Court [2111]
Issued by: Zhang Jun
Reply to No.6139 of the Fourth Session of the Eleventh National People's Congress
Representative Sun Xiaomei:
Your proposal on amending the Supreme People's Court's "Interpretation of the Law". In order to standardize the trial of incidental civil action, our hospital has issued four judicial interpretations. With the development of the situation and the improvement of criminal policy, the parties pay more attention to the maintenance of civil rights. However, due to the unbalanced economic and social development in different places and the different economic conditions of the parties, new problems such as "different law enforcement standards, excessive compensation and serious empty judgment" have appeared in the court's trial of criminal incidental civil litigation cases. These problems have seriously affected the implementation of the criminal policy of combining leniency with severity, and caused many complaints and petitions. Local people's courts at all levels and all walks of life reacted strongly and demanded that they be resolved as soon as possible. In order to standardize and do a good job in incidental civil litigation and solve the problems existing in trial practice, our hospital started the drafting of judicial interpretation to standardize the compensation standard of incidental civil litigation in 2117. However, due to differences of opinions, it is difficult to introduce judicial interpretation for the time being, and relevant issues are being studied.
With regard to the scope of compensation for criminal incidental civil action, our hospital's tendentious opinion is that incidental civil action cases should only compensate for direct material losses according to law, that is, compensation for actual damage caused to the victim by criminal acts generally does not include death compensation and disability compensation, but if the defendant is able to compensate and willing to pay a larger amount after mediation, the people's court should support it; If mediation fails, the defendant does not have the ability to pay compensation, and the victim or his close relatives insist on asking for compensation in addition to compensation for material losses, the people's court will not support it; For victims who have difficulties, they should be given necessary state assistance.
The main reasons are:
(1) According to the provisions of Article 77 of the Criminal Procedure Law that "the victim has the right to file an incidental civil action during the criminal proceedings" and Article 36, paragraph 1, of the Criminal Law that "the criminal shall be given criminal punishment according to law and economic losses shall be imposed according to the circumstances", the "material losses" here. At the same time, there are obvious differences in compensation, compensation and jurisprudence between property losses caused by criminal offences and losses caused by simple civil tort. According to the law, the same compensation standard should not be applied to incidental civil cases and simple civil cases.
(2) In judicial practice, the vast majority of defendants in criminal cases are farmers, unemployed people and migrant workers, who are very poor and have little property to compensate. If they are sentenced to high compensation beyond the scope prescribed by law, they must be given a legal "white note". Because it can't be actually implemented, it not only affects the authority of the referee, but also often leads to the problem of petitioning and harassing the injured party, and the legal and social effects can't be guaranteed.
(3) Simply applying the Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, the amount of compensation is as high as 111,111 yuan and 211,111 yuan, which often makes the injured party have unrealistic expectations for huge compensation. Once the defendant fails to make full compensation, he thinks that he has no sincerity and performance in repentance, which leads to the impossibility of civil mediation, and then insists that the defendant be sentenced to heavy punishment or even death. Even threatening or threatening to pester lawsuits, making visits, seriously affecting the implementation of the criminal policy of combining leniency with severity and the policy of "retaining the death penalty, strictly controlling it and applying it cautiously", seriously affecting the effective resolution of social contradictions and the construction of a harmonious society.
(4) On the surface, high compensation seems to be beneficial to the protection of the legitimate rights and interests of victims, which is the main consideration that some scholars and departments think that incidental civil litigation should be implemented in a unified standard with simple civil compensation. However, due to the fact that the defendant's actual compensation ability in criminal cases is very low, or even absent, and the victim's "asking price" is too high, many relatives of the defendant think that they are not satisfied with the compensation of tens of thousands of yuan instead of borrowing from the east and the west, resulting in no more compensation. This kind of situation is particularly common in homicide cases, which directly leads to the victim's more miserable situation, which is not conducive to the effective maintenance of the victim's rights and interests, nor to the timely repair of social relations.
(5) To solve this problem, we should be based on reality, fully consider China's actual national conditions, try cases strictly according to law, and focus on the actual effect of case adjudication to promote social harmony.
thank you for your concern and support for the work of the people's court!
contact unit: the Supreme People's Court people's supervision office 111-67556254
May 28th, 2111.