1. Can a victim convicted of fraud file an incidental civil action or file a separate civil action?
Article 10 1 of the Criminal Procedure Law stipulates that the victim may file an incidental civil action for the material losses suffered by the defendant in the course of criminal proceedings. When necessary, the people's court may take preservation measures to seal up, detain or freeze the defendant's property.
Article 139 of the Interpretation of the Criminal Procedure Law stipulates that if the defendant illegally occupies or disposes of the victim's property, he shall be recovered or ordered to make restitution according to law. If the victim brings an incidental civil action, the people's court will not accept it.
Article 36 of the Criminal Law stipulates that 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.
Article 138 of the Interpretation of the Criminal Procedure Law stipulates that if a victim suffers material losses due to a criminal's violation of personal rights or destruction of property, he has the right to file an incidental civil action in the course of criminal proceedings.
In other words, only when personal rights are violated or property is destroyed can criminal incidental civil actions be filed. The crime of fraud is a typical crime aimed at illegally possessing other people's property, and the provisions of Article 139 of the Interpretation of the Criminal Procedure Law should be applied. Even if the victim files a criminal incidental civil action, the people's court will not accept it. At the same time, when judging the crime of fraud, in accordance with the relevant regulations, in addition to giving relevant penalties, the people's court will also order it to refund the relevant losses of the victims. Similarly, the criminal judgment also made a judgment on the victim's loss. Even if you file a civil compensation lawsuit again, the people's court will not accept it based on the principle of non bis in idem. However, if the victim still cannot make up for the loss after the people's court has made restitution or recovery, the victim may file a civil lawsuit separately.
Second, is it not necessary to pay back the money if you go to jail for fraud?
There is no need to return it. This statement is not accurate.
1. Return or recovery is based on criminal judgment. The execution of this judgment is not like the execution of our civil judgment. If the other party to a civil judgment refuses to perform it, we can apply to the people's court for compulsory execution. However, criminal judgments cannot be applied for enforcement. However, according to the provisions of the Supreme Court on the execution of the property part of the criminal judgment: it shall be executed by the people's court of first instance, that is to say, after the criminal judgment takes effect, the court of first instance shall promptly transfer the case to the filing department for examination and execution, and then transfer it to the executing organ for execution after the filing department has completed the examination. Execution here refers to restitution or restoration. It involves the property seized, detained and frozen by the public security during the investigation, and the process is quite complicated.
2. The measures taken by the Executive Board in the implementation of restitution or recovery are basically consistent with our civil implementation. What is important is that if it is found that the defendant really has no property available for execution, this execution will still be terminated according to law. If a civil lawsuit is filed again, the court's enforcement means are still the same. If it is found that the defendant really has no property, the final judgment can be executed. And you have to pay the lawyer's fee. Do you think it's a good deal?
This paper holds that there is no need to pay debts after prison. Although many people are dissatisfied with this answer or some judgments support debt repayment, from a professional point of view, it is not necessary to pay debts after being sentenced for crimes such as fraud. The analysis is as follows: Why should criminal law or criminal procedure law limit the scope of civil compensation? Ben Wukong's answer was convicted of fraud, and he had to pay back the money after he came out because the other party wanted to die. People who come out of prison have no money of their own. If you want people to pay back the money, you are forcing them to die. Won't people fight you hard?
Paying off debts is a matter of course. Sentenced to three years in prison for fraud is his criminal responsibility for his own fraud, and the debt owed is a civil responsibility and should be repaid unconditionally. There is no conflict between the two.
But if you accuse him of criminal incidental civil liability at the same time as calling the police, he will be sentenced to prison for his inability to repay. That's another matter. In this case, he can't go to collect debts any more, because he has committed a crime at the expense of losing his personal freedom for three years.
Therefore, in this case, it is impossible to continue to recover debts, and it is counterproductive to force it again. If you are in a hurry, jump over the wall, and you have to leave someone a way out.
There is no such person in the world who would rather go to prison than pay back the money, unless he is a fool, or he really wants to go to prison to experience life, but three years in prison is not worth the candle.
You can bring a lawsuit to the court and demand the return.
Although sentenced, he only bears criminal responsibility and does not affect civil liability.
He can be investigated for civil liability, which is what you call "paying off debts". Pay attention to me and get more legal knowledge.
Generally speaking, the judgment will state that you will continue to recover the illegal income, so you can apply directly to the court for execution after the judgment takes effect!
Problem analysis: I didn't want to answer this question at first, but I saw some misleading answers, so I also wanted to express my personal views and attach the legal basis for the questioner's reference only.
My answer is simple. This debt can be recovered for life. Although the prisoner has served his sentence, his status as an executed person cannot be changed. Because the execution of some criminal cases involving property punishment also has special legal basis.
First of all, it depends on the content of the judgment. Generally speaking, in the judgment involving fraud crimes, there will be words such as "ordered to make restitution" or "continued recovery by judicial organs". In this case, the court should automatically start the execution procedure in the criminal judgment.
Secondly, the law does not stipulate that the victim has the right to recover the relevant losses after the criminal is released from prison. However, because the law stipulates that the judicial organ has the right to start the execution procedure of the relevant criminal judgment, the victim has the right to apply directly to the court for execution after the judgment takes effect, without waiting for the prisoner to be released from prison.
Of course, there are strict procedures for the execution of cases involving property in criminal judgments. Generally, execution can only begin after the judicial department transfers the case to the executive department, so there is a waiting period after the judgment takes effect.
Legal basis: The full text of "Several Provisions of the Supreme People's Court on the Property Part of Criminal Judgment".
Answer: Simply put, the questioner, as a victim, has no right to directly ask the criminal for relevant losses after he is released from prison. However, if the judgment of the relevant case contains the words "ordered to make restitution" or "continued recovery by judicial organs", then the victim has the right to apply to the enforcement department of the court for compulsory execution. After receiving the transferred case, the court enforcement department shall immediately start the execution procedure, without waiting for the prisoner to be released from prison, and at the same time investigate, seal up, detain, freeze and execute the prisoner's property.
At the same time, if the prisoner has no executable property, the execution can only be suspended temporarily and will continue after the prisoner is released from prison.
In a word, the words "ordered to make restitution" or "continued recovery by judicial organs" mentioned in the judgment are not empty words, which is the basis for the implementation of property-related parts in criminal judgment.
There is such a provision in "Several Provisions of the Supreme People's Court on the Execution of Property in Criminal Trials": "If the people's court may sentence the defendant to property punishment or order him to make restitution in criminal trials, the criminal trial department shall investigate the defendant's property status according to law; If it is found that the property may be concealed or transferred, it shall be sealed up, detained and frozen in time. "
On this issue, the lawyer's professional opinion is, no, you need to bear the liability for compensation. However, if the creditor does not file a criminal incidental civil action, your creditor's right action is time-limited. According to the specific amount, those who meet the filing standards shall bear corresponding criminal responsibilities. At the same time, credit cooperatives can also demand the defendant to repay the loan through criminal incidental civil litigation. No money to enforce the property. I don't want to write for the time being because the program is too complicated. If a friend wants to know the details, you can consult me privately and then give you some relevant legal knowledge. You don't have to look at the content in the dividing line that you are not interested in.
Relevant laws and regulations: Article 36 of Criminal Law Compensation for Economic Losses and Principle of Civil Priority 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.
About the liar's family
1. In the court execution procedure, if the person subjected to execution refuses to perform or illegally transfers his property to evade execution, the court may take coercive measures such as detention and fines, which generally do not involve his family members.
2. If the court will enforce it and still refuses to pay it, it shall be in accordance with the provisions of the Measures for the Administration of the Collection of Social Support Fees: Article 8: If the party fails to pay the social support fees within the prescribed time limit, a late fee of two thousandths of the unpaid social support fees shall be added every month from the date of default; If it still fails to pay, the family planning administrative department that made the collection decision shall apply to the people's court for compulsory execution according to law. Article 9 If a party refuses to accept the expropriation decision, it may apply for administrative reconsideration or bring an administrative lawsuit according to law. During the period of administrative reconsideration or administrative litigation, the collection decision shall not be suspended; However, unless otherwise stipulated in the Administrative Reconsideration Law and the Administrative Procedure Law.
Punishment is a criminal responsibility, repayment is a civil responsibility, as long as you have the ability to repay, of course. However, if it is returned before the judgment, it can be used as a basis for discretionary lighter punishment. After the judgment, it may be used as a basis for repentance during the sentence, and combined with other circumstances, it will have an impact on whether to reduce the sentence.
According to Article 266 of the Criminal Law, the crime of fraud refers to the act of fabricating facts or concealing the truth for the purpose of illegal possession, and defrauding a large amount of public or private property. Whoever commits this crime shall be sentenced to major punishments such as public surveillance, criminal detention, fixed-term imprisonment, life imprisonment, death penalty and other supplementary punishments such as fines or confiscation of personal property according to the amount of fraud.