abstract
In recent years, the proportion of incidental civil cases in criminal cases is increasing, which not only directly endangers citizens' health and life safety, but also seriously affects rural economic development and social stability and increases judicial costs. Therefore, studying its characteristics, analyzing its causes, looking for its countermeasures and pre-visiting the occurrence of such cases have attracted extensive attention from the judicial circles. The author intends to analyze and discuss criminal incidental civil cases in order to attract more attention.
Keywords: prevention of criminal incidental civil trial
In the practice of criminal trial, civil cases incidental to criminal proceedings mainly include the following categories: intentional personal injury, traffic accidents, illegal possession of guns, provocation, intentional destruction of property and other cases. These cases are mainly civil disputes caused by property ownership, creditor's rights, personal rights, etc., which can not be resolved in time and turned into criminal cases. For example, if a civil dispute case caused by a dispute over a mountain forest or adjacent relationship can be resolved in time, it will be reconciled. On the contrary, the contradiction intensifies. Causing other criminal cases such as intentional injury to others or intentional destruction of public or private property. In 2008, Pubei County People's Court concluded 55 criminal cases 1 piece, including 2 cases of intentional injury, 7 cases of traffic accidents, 3 cases of intentional homicide, 2 cases of fire, intentional damage to property 1 piece, contract fraud 1 piece and robbery 1 piece.
First, the main causes of criminal incidental civil cases. Most of these cases are intentional injuries and traffic accidents. (1) The main reason for intentional injury cases is that since the reform and opening up, the diversification of the distribution system has produced conflicts of interest among all parties, which has led to an increase in disputes between neighbors, brothers and land, deepening contradictions, economic backwardness, ideological and moral decline, and weak legal awareness, and more quarrels and fights between brothers and sisters due to housework. In the off-season, fights are often caused by homestead, traffic and drainage; Sometimes it's because of the little things I encounter in my life; The damage caused by mutual distrust and bluffing also accounts for a certain proportion; Low educational level, weak legal concept and imperfect social prevention mechanism are the reasons for the increase of intentional injury cases. (2) The main causes of traffic accident cases. With the development of traffic network and the increase of vehicles, some drivers have weak safety awareness and low professional ethics, which leads to some accidents, all of which are caused by drivers' weak safety awareness, illegal operation, low professional ethics and poor safety management of enterprises. Some drivers lack proper driving skills, poor ability to deal with emergencies, slow response and improper methods. Some drivers drive illegally, take the lead in grabbing roads, speeding, fatigue driving, drunk driving and even driving without a license. People's lack of traffic awareness and failure to adapt to the environmental changes brought about by modern means of transportation is also a major reason for the increase in traffic accidents.
Second, the characteristics of criminal incidental civil cases.
1, criminal incidental civil cases generally have incidental civil actions, and the object of such cases is personal rights or property rights. Because after one party's personal or property rights are infringed, the injured party will file an incidental civil action at any time during the process of the criminal suspect being prosecuted. Therefore, the defendant should bear the corresponding civil liability and criminal liability.
2. The incidental civil action shall be tried together with the criminal action. Only in order to prevent excessive delay in the trial of criminal cases can the same trial organization continue to hear incidental civil actions after the trial of criminal cases is over.
3. After the combined trial of incidental civil action and criminal case, it is not restricted by the relevant provisions of civil procedure law and legal interpretation, which embodies the principle that criminal takes precedence over civil action. For example, it is decided that the trial time of ordinary civil cases must exceed the time limit for defense or proof, but incidental civil actions are not limited in this respect. Instead, it is mainly criminal and is tried together with the criminal trial. This is the main feature of criminal incidental civil cases.
Third, the trial of criminal incidental civil cases.
To do a good job in the trial of criminal incidental civil cases, we must do a good job in the following aspects:
1, in the process of marking, we must carefully review the following questions.
(1), review the legality of the evidence. That is, the main source of evidence must be legal. For example, all kinds of relevant evidence collected by public security organs according to legal procedures can be used as legal and effective evidence. Otherwise, it is considered as invalid evidence.
(2), review whether the main evidence reflects the facts of the case. In the trial of such cases, we believe that the victim's statement, the defendant's confession, witness testimony and expert conclusion are the main evidence. If these evidences can be consistent with each other and reflect the causal relationship between the facts of the case, they can be used as the main evidence to determine the facts of the case. On the contrary, the facts are unclear and the evidence is insufficient.
(3), review the main evidence of this case is in doubt. In the process of criminal incidental civil litigation, if there is doubt about the evidence investigated by the public security organ and the facts of the case cannot be ascertained without investigation, the judges may collect and check the evidence ex officio before or after the court session. In particular, if it is really difficult for the parties in civil litigation to give evidence, the judge should take the initiative to obtain it and lay a reliable foundation for the correct judgment of the case.
(4), review whether the subject of civil litigation is qualified. Civil subject of criminal incidental civil case The plaintiff in incidental civil action is generally the victim or the party whose property has been damaged, and the defendant in incidental civil action is the criminal defendant and other civil defendants. Whether the subjective qualifications of these parties are qualified or not is directly related to the quality of the case. Therefore, it is necessary to analyze specific cases. In the trial practice, we must adhere to the principles of giving priority to criminal cases, giving priority to civil cases and ignoring them. However, if the plaintiff in the incidental civil action is unqualified, he may be notified to make adjustments before the court session; If the criminal is at large, the defendant in custody may be jointly and severally liable for the economic losses of the victim, and then the defendant in custody may seek compensation from the defendant at large after serving his sentence; If the victim's murder result is related to other co-defendants who have not been prosecuted, we generally will not take the initiative to add it, so as not to cause excessive delay in the criminal part of the trial and damage the principle of criminal priority; If the defendant in other incidental civil actions is inconsistent with the facts of the case, if the plaintiff in the incidental civil action refuses to change after being told and continues to prosecute, a judgment may be made according to law.
(5), review the qualitative is accurate. In order to apply the law correctly, we must be qualitative and accurate. If the characterization is wrong, the whole case will be misjudged. In criminal incidental civil cases, it is generally easy to grasp the intentional injury to the person, but it is sometimes difficult to distinguish between intentional destruction of production and operation and intentional destruction of public and private property. Therefore, when marking the papers, we must analyze and compare the two cases and their four constitutive elements of crimes to determine the attributes of the cases. Only in this way can we crack down on crime steadily, accurately and resolutely. In the trial practice, there are two kinds of cases in which the procuratorial organs make qualitative mistakes. First, negotiate with the procuratorial organ in time, and the procuratorial organ will withdraw it and change its nature before re-prosecuting; Second, the nature is directly changed after the court hearing. Obviously, the second method is more direct and simple, but it actually deprives the defendant of his right to defense. Therefore, we believe that the first approach is more appropriate and conducive to protecting the defense rights of both the prosecution and the defense.
2, in the trial, must be carried out in accordance with the order of criminal before civil. The trial of criminal incidental civil cases is not only the trial of criminal cases, but also the trial of two different types of criminal and civil cases. Therefore, the characteristics of such cases determine that the order of trial must be criminal before civil. For example, after the judge announces the trial, the identification of the parties, the announcement of the cause of action, the reading of the indictment, the court interrogation, the cross-examination of evidence, the speeches and debates of both the prosecution and the defense should be carried out in the order of criminal first and then civil, with the principle of criminal priority as the main line throughout the trial.
3. Actively promote summary trials of ordinary procedures and summary trials. The vast majority of criminal incidental civil cases occur in rural areas, accounting for a large proportion of the total number of criminal cases. In order to close the case quickly, improve the efficiency of handling cases, punish illegal crimes in rural areas in time and crack down on rural bullies, it is necessary to implement common procedures to simplify trials and summary trials, which is also the direction of the reform and development of trial methods.
4. Pay special attention to the mediation of civil compensation. In view of the characteristics of criminal incidental civil cases, most of these cases were upgraded from civil disputes to criminal cases and were not adjusted in time. The defendant should not only bear criminal responsibility, but also bear civil legal responsibility. If the defendant's illegal and criminal acts lead to the victim's economic losses not being compensated in time, it will make the already contradictory parties worse. Therefore, only by doing a good job in civil mediation can we further improve the opposition of civil parties. Only in this way can the further settlement of civil disputes be facilitated. To do a good job in civil compensation mediation, we must pay attention to the following issues:
(1), distinguish civil liability. Most of the parties in such cases have low education, little legal knowledge and weak legal concept. After a civil dispute, these people can't look at themselves with the concept of "splitting into two", and they always feel that they are all right and can't see that they are wrong. They always put all the responsibility on each other and must not kill each other. Once the contradiction intensifies until it becomes a criminal case, the hostility between the two sides is relatively large. In view of this situation, before mediation, the facts of the dispute between the two parties are briefly summarized, and their respective problems are analyzed on the basis of the summary, so as to determine who bears the primary responsibility for civil fault and who bears the secondary responsibility. Through the judge's reasoning, both parties can clarify their own responsibilities and the legal responsibilities they should bear, which is conducive to the defendant's confession and automatic performance of the obligations of the mediation agreement.
(2) Adhere to the principle of legality and voluntariness. The principle of voluntariness and legality is the basic principle of civil dispute mediation, which must run through the whole process of mediation. According to this principle, the agreement reached through mediation has legal effect and is protected by law. If this principle is deviated, the agreement reached through mediation is invalid and not protected by law. In civil mediation, it is necessary to investigate the claim made by the plaintiff in the incidental civil action. Find out those that meet the legal requirements. Without legal basis, it will not be supported. For the personal or property losses claimed by the injured party, the specific amount of compensation shall be determined according to the scope and standards of compensation stipulated by relevant laws and regulations, and then the approximate proportion of compensation shall be determined according to the responsibilities of both parties, and the two parties shall negotiate and solve them in the spirit of mutual understanding and mutual accommodation. In the trial practice, we often encounter civil litigation claims that are mostly beyond the scope stipulated by law, and the amount of compensation requested is relatively large. If the judge does not distinguish between the size of civil liability and the proportion of compensation, it will be difficult for the two sides to establish mediation through automatic negotiation. However, if mediation can be carried out in the above way, the success rate is relatively high. For example, Li, the defendant tried in our hospital last year, had an argument with his brother because of a Nanzi tree. Li was seriously injured with a knife. Therefore, the victim Li not only claimed medical expenses, nursing expenses and other losses, but also claimed compensation of 6,543,800 yuan for mental damage. This request has no legal basis in criminal trial, but the defendant does not understand the law. When he heard this "astronomical" figure, he certainly felt a lot of pressure, but if the judge is mediating, therefore, the principle of legality and voluntariness is the most basic principle of civil mediation in incidental civil litigation.
(3) On the basis of doing a good job in civil mediation, judges should also pay attention to the cash rate of economic compensation in court. Because the defendant and his family can cash in the economic losses caused to the victim in court or in a short time after court, on the one hand, they have gained the understanding of the victim to the defendant, and at the same time, they have alleviated the increasingly heavy civil execution pressure and continuously solved the problem of "difficult execution"; On the other hand, it also greatly reduces the workload of judges in handling such cases and speeds up the handling of cases. To do a good job of cashing in court, we must first grasp whether the defendant and his family have the ability to make economic compensation. To do this, we must pay attention to know the situation before the trial and be aware of it during mediation. Secondly, it is necessary to seize the key figures such as the defendant's family, relatives or friends to make a breakthrough and make them cash in court; Third, for those who have the ability to make compensation, but can't cash it immediately, it is best for the criminal department not to rush to make a ruling and leave a short-term fund-raising period for the defendant and his family, which will help improve the cash-out rate of compensation. If it is really impossible to cash, a civil conciliation statement should be made in time to minimize incidental civil judgments.
5. When sentencing, it should be in direct proportion to the defendant's economic compensation and the victim's fault liability. Article 61 of the Criminal Law of People's Republic of China (PRC) stipulates that when a criminal is sentenced, he shall be sentenced according to the facts, nature and circumstances of the crime and the degree of harm to society, and in accordance with the relevant provisions of this law. The Summary of the Symposium of National Courts on Maintaining Rural Stability in Criminal Trials clearly stipulates that civil compensation can be used as a discretionary circumstance for sentencing. Therefore, there is a legal basis for the defendant's compensation and the victim's fault liability circumstances to determine the defendant's punishment. For the defendant who actively compensates, it shows that he does show repentance, and should respect policies and laws and give him a lighter punishment; For those victims who are obviously at fault, they should also be given a lighter punishment when deciding the punishment for the defendant. If compensation is equal to no compensation, the victim bears the same fault liability, which not only violates the legislative spirit, but also damages the principle of judicial justice. For example, the case of intentional injury of the defendant Huang Xiujin, which was tried in our hospital last year, is a good example. At 20 o'clock on the evening of June 5, 2005, the defendant heard neighbor Huang and his wife talking about the fact that the defendant was punished by Pubei Forestry Bureau for selling timber. Defendant Huang Xiujin once suspected that Zheng Ting tipped him off, so defendant Huang Xiujin went out to find Zheng Ting Theory, and then an argument broke out. The victim Deng Chaode happened to be drinking at Huang's house. After drinking, the victim Deng Chaode came out of Huang's house and went to the front of the defendant's house to participate in the defendant's quarrel. The defendant Huang Xiujin immediately accused the victim Deng Chaode of taking part in the informer. During the quarrel, the victim took off his clothes and pretended to fight with the defendant. Defendant Huang Xiujin immediately went into the kitchen and took out a pig-killing knife. Swinging in the direction of the victim Deng Chaode standing in the dark, the victim Deng Chaode was chopped seven or eight times, causing the victim Deng Chaode to lose his left upper limb above the wrist joint, the phalanx of his right index finger was broken, the tendon of the extensor dorsalis of his right middle finger, ring finger and little finger was broken, and the ulna of his right hand was broken. After forensic identification, the victim Deng Chaode's injury has constituted a serious injury, and the degree of injury has reached five levels of disability. The court presided over mediation on civil compensation, and the defendant and his family negotiated with the victim. The two sides reached a settlement agreement on a voluntary and legal basis, that is, the defendant Huang Xiujin's family would compensate the victim Deng Chaode for economic losses such as medical expenses in three phases of RMB 35,000.
6. The judgment should have sufficient reasons. Civil cases attached to criminal cases are mostly criminal cases caused by infringement of personal and property rights, and both the criminal and the civilian have great grievances. If we can use the main evidence of the case to briefly summarize the cause, process and result of the case, we can point out that the defendant must bear certain legal consequences because of his illegal crime, and make reasoning according to the fault liability of both criminal and civil parties, so that both parties can know where their actions are wrong and how much legal responsibility they should bear. After reading the verdict, the parties to the case can get corresponding legal education, which is helpful for the defendant to plead guilty, repent and turn over a new leaf. In practice, if we make great efforts in judging the case, the appeal rate of the case is relatively low. If quantity is the only thing, not quality, and no analysis and reasoning is added to the case, even if the entity handles it properly, most of the parties can't accept the judgment and appeal. For example, in the case of the defendant Wu Mou's intentional injury, it was found that the defendant evaded important issues in the public security investigation and prosecution stages, only confessed the crime scene, and his defender also pleaded not guilty, but other witness testimonies also confirmed that the defendant had committed violent acts against the victim. When the trial ended, his defender threatened to "see you at the second trial" if he didn't care about justice. However, in the judgment reason part, several witness evidences are fully used for reasoning, and the civil fault liability of both parties is clarified. In the end, the defendant Wu Mou didn't appeal, and the defense lawyer didn't "fight against injustice" for the defendant.
7. Judgment of criminal incidental civil cases. In the practice of criminal trial, there is no objection between criminal incidental civil judgment and civil judgment. However, there are two different opinions on writing methods, namely, solving economic compensation immediately or making a civil conciliation statement separately, and leaving criminal judgment as the first title. One view is that since criminal and civil cases have been tried together, both criminal parties and civil parties have participated in the proceedings, even if civil compensation has been settled immediately or a civil conciliation statement has been made separately, the first title should be "Criminal Adjourned Civil Judgment"; Another view is that since the civil part no longer exists, let's write "criminal judgment". In practice, we think the latter opinion is more appropriate. Because the civil part no longer exists, if you write a "criminal incidental civil judgment", the civil judgment is only zero, which is equivalent to gild the lily and obviously loses the meaning of the civil judgment. So writing "criminal judgment" is both objective and appropriate. However, in the facts and reasons of criminal judgment, we must briefly explain the economic compensation for the establishment of civil mediation, so as to organically link criminal judgment with civil mediation or compensation.
Four, the prevention of criminal incidental civil cases.
1. Strengthen the construction of mediation organizations in villages and towns, village committees and neighborhood committees, improve mediation institutions and equip enough mediators, thus resolving a large number of disputes over mountain land, creditor's rights and debts, neighborhood disputes and marriage and family disputes in villages and towns at all levels.
2. Mediation organizations at all levels, under the leadership of township party committees and governments, earnestly shoulder their responsibilities, build the party for the public and administer justice for the people, actively solve problems for the people, and nip civil disputes in the bud.
3. The Central People's Court must strengthen the guidance of mediation organizations of village committees and neighborhood committees, choose one or two mediation organizations as perennial contact points, conduct regular or irregular training, improve the professional quality of mediators, and gradually promote them from point to point. The people's court should incorporate this work of the Central Court into the year-end assessment.
4. The people's courts and the civil and commercial courts of the Central People's Court should go deep into the grassroots level, actively develop the source of cases, and strive to handle cases more, faster and better, so that all kinds of civil disputes can be digested in a timely, normal and orderly manner, and the occurrence of criminal incidental civil cases can be continuously reduced.
Strengthen the education of popularizing the law among the whole people and raise the awareness of abiding by the law. Make all the people truly understand what behavior is allowed by law, what behavior is not allowed by law, what behavior is illegal and what behavior is not illegal, make their behavior conform to legal norms, correctly handle contradictions among the people, correctly resolve disputes, and effectively control criminal incidental civil cases from the source.
Take the exam and contribute.
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3. People's Republic of China (PRC) Criminal Procedure Law National People's Congress 1 July 19971.
4. New Interpretation of Liu Jiachen Criminal Law (Specific Provisions) and Supporting Provisions 1 People's Court Press, August 2002.
5. The New Interpretation (Specific Provisions) of Liu Jiachen Criminal Law and its Supporting Provisions, 2nd edition, People's Court Press, August 2002.