First, the concept and characteristics of criminal victim compensation system
Criminal victim compensation refers to the way that the state gives certain material compensation to the victims and their families who have been damaged by criminal tort in a certain range and cannot obtain damages through criminal incidental civil litigation. The sum of a series of legal provisions on the object, scope, principles, institutions and compensation procedures of compensation for crime victims is called the compensation system for crime victims.
In essence, compensation for criminal victims is a kind of social relief. Social relief refers to a social security system in which people have the right to ask the state and society to provide them with financial or property assistance to meet their minimum living needs according to relevant laws and regulations when they can't maintain the minimum living standard. Therefore, the compensation for criminal victims has the following characteristics: the specificity of the compensation object; Materiality of compensation, that is, compensation is limited to material losses caused by crime, excluding mental losses; On the premise of the existence of criminal proceedings; Compensation for criminal victims should first exhaust criminal compensation means such as incidental civil action; Criminal victims must go through specific compensation procedures to get compensation; Limit of compensation.
Second, the theoretical basis of establishing the compensation system for criminal victims
The compensation system for criminal victims is a legal system in which the state gives damages to criminal victims. Although this legal system came into being in 1960s, its ideological basis has a long history. With the progress of society and the development of economy, the idea that the state should give appropriate compensation to the victims of crimes has gradually spread in many countries in the world, so many countries have enacted laws on victim protection and compensation. However, the theoretical basis of the victim compensation system is controversial in academic circles, including (1) the theory of state responsibility; (2) Fate theory; (3) Social insurance theory; (4) Four social welfare theories.
First, the theory of state responsibility. In other words, the state has the responsibility to prevent crimes from happening to citizens. Rousseau, a bourgeois enlightenment thinker, believes that there is a social contract relationship between the state and citizens, in which "all rights of each partner and himself are transferred to the whole collective", and the fundamental problem to be solved by social contract is to "seek a combination form so that it can fully safeguard and protect the person and wealth of each partner; And because of this combination, every individual who is unified with the whole is only subordinate to his own individual and remains as free as ever. " According to this "social contract" signed between the state and citizens, when the state fails to fulfill its obligations, the criminal victim has the right to ask the state to be responsible for the losses caused by its crimes. Locke explained, "the great and main purpose of people uniting to become a country and being under government rule is to protect their property;" In this respect, the natural state has many defects. "Because the state monopolizes the power to suppress and punish crimes by violence, citizens are generally not allowed to carry weapons every day to guard against criminal attacks. Therefore, the state has the responsibility to protect citizens' personal and property. If the state is incompetent, negligent or unable to prevent crimes at all, and the state is not allowed to use lynching, then when the victim cannot get compensation from the offender, the state should naturally compensate his losses.
Second, the theory of fate. It believes that crime is an inevitable social phenomenon in any society. The victim is an unfortunate person who suffered a criminal act because of a certain opportunity, and there is no reason for the victim to bear this misfortune alone. In other words, as long as there is a crime, there will always be people who become its victims, and the victims are unfortunate people who are killed only when they meet certain opportunities and social conditions in normal life. It was their murder that saved other members of society from being killed and brought peace to other members of society. Therefore, the lucky ones who have not been killed in society should share the losses of some unlucky people, that is, they should give some compensation to the victims.
Third, social insurance theory. According to this theory, the state compensation for criminal victims is an additional social insurance. The purpose of various social insurances is to enable people to cope with unexpected events that threaten their life stability and safety. The problem of criminal infringement of citizens should also be regarded as one of the accidents of social insurance help. All the expenses of social insurance are paid from the tax revenue of the state. As taxpayers, citizens should be compensated by the state if they can't get compensation from other channels after being infringed.
Fourth, social welfare theory. It believes that society should be responsible for every member, that is, society should improve and care for the life of every member of society through good social policies and provide them with a good living environment and conditions. Therefore, if some members of society are disabled or die because of criminal acts, and bring material losses and mental damage, when they live in poverty or have no one to support them, the society should give them relief and assistance.
No matter what the above viewpoints are, what they have in common is that the state, society and citizens should care for and care for the victims and compensate them for their damages. However, from the comparison of the above viewpoints, the author thinks that it is more appropriate to take the social welfare theory as the theoretical basis of the national compensation legislation for victims in China. Because if the state compensation is regarded as a kind of social welfare, there is no question of whether the state should compensate. In addition, China has provided social relief to the poor, so it is most appropriate to take social welfare theory as the theoretical basis of the national compensation system.
Three. Feasibility of establishing and implementing the national compensation system for criminal victims
1, China's sustained and rapid economic development has provided financial guarantee for the establishment and implementation of the national compensation system for criminal victims. The state compensation system is a system that the state gives economic compensation to criminal victims, and sufficient funds are the basis for the normal operation of the compensation system. Therefore, the source and implementation of compensation funds is the key factor to establish a national compensation system. Since the reform and opening up 20 years ago, China's economy has been developing at an unprecedented speed, and its economic strength and comprehensive national strength have been significantly enhanced. The national fiscal revenue is increasing year by year at a rate higher than the economic growth. The country already has strong economic strength and is fully capable of establishing this system.
2. The improvement of civic awareness provides public support for the establishment and implementation of the national compensation system for criminal victims. No matter from the perspective of protecting human rights or from the perspective of integrating with international rules, compensation is necessary and inevitable. It should be said that no matter from the perspective of social welfare, state responsibility or basic human rights protection, the theoretical basis of state compensation for victims is sufficient.
At present, China can take the following measures to set up a special fund for compensation for criminal victims, which can be obtained through the following three channels: (1) government financial allocation; In other words, the government will include the compensation for criminal victims in the annual fiscal and taxation budget, which will be charged separately and earmarked for special purposes. However, considering that China has a vast territory, a large population, a large number of victims who need compensation and a heavy financial burden, it is not feasible to push all the sources of funds to the central finance or local finance. Therefore, we can consider the implementation of the central and local hierarchical listing, * * * sharing, and setting up a victim compensation fund at the county level. (2) inject part of the fine income into the fund. Financial departments at all levels inject a certain proportion of the victim compensation fund according to the amount of fines paid by courts at all levels. (3) donations from all walks of life.
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