At present, the law does not clearly stipulate which comes first, criminal compensation or civil compensation, but criminal compensation generally needs to be paid to the victim first. The concept of criminal compensation: Criminal compensation refers to the compensation given by public security organs, state security organs, procuratorial organs, judicial organs, prison management organs and their staff for violating the personal rights and property rights of the parties. Procedure: The so-called first treatment means that before the criminal damage compensation dispute is finally resolved, the compensation claimant must go through the treatment of the organ liable for compensation. The principle of "handling first" has obvious advantages: first, the organ liable for compensation handles first, which shows respect for the organ liable for compensation and provides it with an opportunity to correct its mistakes; Secondly, the organ liable for compensation is a special judicial organ, which is familiar with the business and understands the case. The first processing procedure is simple and fast, which can provide convenient and economic relief to the claimant. Finally, the customary handling procedure can eliminate most compensation disputes and reduce the work pressure of specialized agencies.
1. Filing a case According to the provisions of Article 20 of China's State Compensation Law, if a claimant requests compensation, he shall first submit it to the organ liable for compensation. In China, the organs that bear the liability for compensation mainly include public security organs, security organs, military security departments, people's procuratorates, people's courts and prison management organs. To claim compensation, an application shall be made to the organ liable for compensation, with the purpose of clarifying the relationship between the claimant and the organ liable for compensation. The application should be made in writing. If it is really difficult for the applicant to write the application due to reasons such as education level and health status, he may entrust others to write the book on his behalf, but it must be signed by the applicant and the book representative. The legal premise of bringing criminal damages is that the judicial organs confirm the legal facts of wrong imprisonment, wrong judgment or illegal exercise of functions and powers according to law. However, the confirmation of the legal facts of the above-mentioned wrong detention and wrong judgment is carried out by the judicial organs in accordance with legal procedures. Until the wrong criminal investigation is confirmed and corrected by the judicial organs, no one can think that he is an innocent victim and ask the state to compensate for the losses. 2. After receiving the applicant's application for compensation, the organ liable for compensation shall examine it and decide whether to accept it. The contents of the review include:
(a) whether the applicant has the right to claim; (2) Whether the facts and reasons for claiming compensation are true and sufficient; (3) Whether the organ liable for compensation submitted is correct; (4) Whether to apply within the statutory limitation period. The claimant for compensation shall apply to the organ liable for compensation within two years from the date when he knows or should know that his lawful rights and interests have been infringed. After examination, the organ liable for compensation shall make different treatments according to different situations. After receiving the application, notify the applicant who has no claim in writing that it will not be accepted and explain the reasons; For claims that do not meet the compensation conditions and do not belong to the scope of compensation, inform in writing that no compensation will be granted and explain the reasons; If the organ accepting the application is not the organ liable for compensation, it shall be informed to apply to the correct organ liable for compensation; If the application matters do not meet the statutory requirements or are omitted, it shall be informed to make corrections within a time limit; If the compensation conditions are met, the acceptance decision shall be served on the applicant.
3. After accepting the victim's claim for compensation, the organ liable for compensation shall make a decision within two months from the date of receiving the application and pay compensation in accordance with the provisions of Chapter IV of the State Compensation Law. The State Compensation Law does not stipulate the compensation method. There are roughly two ways in the world: first, the organ liable for compensation and the claimant reach a compensation agreement through consultation; The first is the way in which the organ liable for compensation unilaterally makes a ruling on compensation and non-compensation, the occurrence and amount of compensation. Among them, the agreement method has its advantages and conforms to the consistent legislative spirit of our country.
Legal objectivity:
Article 36 of the Criminal Law of People's Republic of China (PRC) * * * If the victim suffers economic losses due to criminal acts, he shall be given criminal punishment according to law and compensation for economic losses shall be given according to the circumstances. If a criminal who is liable for civil compensation is sentenced to a fine at the same time, and his property is not enough to pay in full, or if he is sentenced to confiscation of property, he shall first bear civil liability for compensation to the victim.