Should the victim get civil compensation, and what should be the premise?

There are two views in the theoretical circle on whether the victim should get civil compensation and what should be the premise of handling such cases. First, incidental civil damages should fully absorb the reasonable content of the principle of fairness in simple civil compensation. When determining the scope of tort compensation, we should give full consideration to the defendant's compensation ability and limit it to the defendant's existing recognized property share, and take this as one of the judgment bases to make an appropriate judgment. If the defendant has full compensation capacity, he shall be awarded full compensation; If he has only partial compensation ability, he will be awarded partial compensation; If he is incapable of compensation, he will not get any compensation. Another view is that the principle of total compensation should be applied when solving the compensation problem of incidental civil action, and the scope of the defendant's liability for compensation should be equal to the scope of the actual economic loss caused by the tort, and the defendant should not pay less or not because of his limited or no compensation ability. Theoretical differences lead to different practices in trial practice. According to the investigation, the main ways to deal with incidental civil litigation cases in which the defendant really has no compensation ability are as follows: first, according to the principle of actual damage compensation, judge compensation; Second, the judgment does not compensate; The third is to rule that the prosecution is dismissed; Fourth, no judgment or ruling will be made in the text of the judgment document, but the reasons for not paying compensation will be clearly defined in the part of the judgment that the court thinks. The author advocates that the incidental civil action against the personal rights or property damaged by criminals should be the same as the ordinary civil action, regardless of whether the defendant has the financial compensation ability, it should be fully compensated according to the actual damage of the victim. First of all, it is necessary to clarify the purpose of establishing the system of criminal incidental civil action. The establishment of incidental civil action system in China lies in protecting the legitimate rights of victims legally, fairly and efficiently. On the one hand, it is conducive to the procedural litigation of the parties and avoids litigation; On the other hand, in entity, criminal victims can get timely compensation economically and materially. If the defendant is found to be incapable of compensation at present in the incidental civil action and is not awarded compensation according to the actual damage, the victim will later find that the defendant is capable of compensation, and then file a civil action beyond the limitation of action, and the victim's loss recovery will not be guaranteed. Secondly, the legislative evolution of incidental civil action. The judicial interpretation of incidental civil action is mainly reflected in three judicial interpretations, one is the Supreme Court's Provisions on the Procedure of Hearing Criminal Cases (hereinafter referred to as the Provisions), and the other is the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC) (hereinafter referred to as the Interpretation). Thirdly, the Provisions of the Supreme People's Court on the Scope of Accepting Cases in Criminal Incidental Civil Litigation (hereinafter referred to as the Provisions) clearly states that the compensation capacity of the parties should be considered when accepting incidental civil litigation. If the victim can't provide evidence to prove that the defendant does have property for compensation, the people's court shall rule to reject it. However, both the Interpretation and the Regulations have abolished similar provisions, but stipulated that the people's court should decide to suspend or terminate the execution if it finds that the defendant really has no property to execute after hearing an incidental civil lawsuit. The original intention of this legislation is that if the victim can't provide evidence to prove that the defendant really has property and needs compensation, or the defendant is incapable of compensation, the people's court should still accept it and make a judgment according to law. After entering the execution procedure, if it is found that the defendant really has no property to execute, the execution shall be suspended or terminated. According to the principle that the new law is superior to the old law, the trial of criminal incidental civil litigation cases should be based on interpretation and provisions. Third, judging from the contents of the regulations, there are two main kinds of material losses suffered by victims because of criminal acts: one is that they suffer material losses because their personal rights are violated by crimes or their property is destroyed by criminals; The second is the material loss caused by criminals illegally possessing and disposing of the victim's property. Before the implementation of the regulations, the above two kinds of losses can be solved through incidental civil litigation. Article 86 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC) (for Trial Implementation) (hereinafter referred to as Interpretation (for Trial Implementation)) stipulates: "If the victim suffers material losses due to criminal acts and is compensated in accordance with the relevant provisions of the Criminal Law, he can also bring an incidental civil action." After the promulgation of the Interpretation (Trial), incidental civil actions can also be filed for material losses suffered by property crimes such as theft and fraud. The court generally feels that the scope of incidental civil action is too wide, which affects the timely conclusion of criminal cases. Based on this, the "Regulations" limit the scope of incidental civil litigation to compensate for the first kind of losses, exclude the second kind of losses from incidental civil litigation, and stipulate that it should be resolved through civil litigation. The legislative spirit of the "Regulations" is that both kinds of losses should be compensated to the victims, but different ways can be chosen. If the material loss caused by the same criminal act should be considered in the incidental civil action, but the compensation ability of the defendant should not be considered and the problem should be solved by civil action, it is obviously not in line with the legislative spirit. Moreover, the victim can't recover the first kind of loss only through incidental civil action. According to Article 89 of the Interpretation, if the victim fails to file an incidental civil action, he may file a civil action after the criminal trial takes effect. If we judge the compensation of incidental civil action according to the defendant's compensation ability and judge other civil actions according to the principle of actual damage compensation, there will inevitably be two embarrassing situations. Fourth, civil liability is different from civil liability. The former solves the responsibility nature of illegal acts, which is a trial stage problem, while the latter is a performance ability problem, which is an execution stage problem.

How to get civil compensation as a victim in a car accident? 1. negotiated compensation is just an agreement, and both parties can not abide by it and it is not mandatory. If you think it is unreasonable, you can negotiate or bring a lawsuit to the court. The police only play the role of mediation, and there is no coercion.

Whether to hire a lawyer depends on your own wishes. Claims for compensation are usually made after discharge. At this time, the medical expenses will be clear, and it is best for the doctor to list them clearly in the case. The lost time fee is also easy to calculate at this time. Of course, there is also disability compensation, if there is a disability appraisal. And moral compensation.

After civil compensation, how can the victims get the compensation they deserve? Grasp the property status of the other party, and apply to the enforcement agency for execution at any time (quietly), but be careful, such as whether the other party is related in court.

The defendant refused to pay civil compensation to the victim. How should the victim protect his rights and interests and apply to the court for enforcement?

Can I get compensation from industrial injury insurance after obtaining civil compensation? Industrial injury insurance belongs to the category of social insurance, which is essentially different from civil damages. However, because the compensation of industrial injury insurance is based on the occurrence of industrial accidents and related to labor safety accidents or labor protection defects, industrial accidents are also evaluated as civil tort in civil law. This leads to the relationship between industrial injury insurance compensation and civil damage compensation.

Zhang's son was killed by a car sent by a logistics company while working in a factory. Later, it was recognized as a work-related injury by the Labor and Social Security Bureau.

Subsequently, Zhang applied to the social insurance management center for payment of work-related injury benefits. The social insurance management center decided not to pay Hu's work-related injury insurance benefits on the grounds that Zhang's compensation for traffic accidents exceeded the amount approved within the scope of work-related injury insurance benefits. Zhang filed an administrative lawsuit, but the court of first instance ruled that Zhang's claim was rejected. "trial focus"

Zhang refused to accept the judgment of the court of first instance and appealed.

After trial, the court of second instance held that according to the provisions of the Labor Law, the conditions and standards for workers to enjoy social insurance benefits are stipulated by laws and regulations. Social insurance premiums enjoyed by workers must be paid in full and on time. The Law on Work Safety stipulates that employees who are injured by production safety accidents have the right to claim compensation from their own units in addition to enjoying social insurance for work-related injuries and the right to compensation in accordance with relevant civil laws. According to the Regulations on Industrial Injury Insurance, employees of various enterprises and individual industrial and commercial households in China have the right to enjoy industrial injury insurance benefits in accordance with regulations. The Interpretation on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases stipulates that the people's court shall support the claim of the obligee for compensation to a third party to bear civil liability for personal injury caused by infringement by a third party other than the employer. In addition, the Reply on whether employees or their close relatives can get compensation from work-related injury insurance after obtaining civil compensation makes it clear that employees or their close relatives who suffer work-related injuries due to a third person can apply for compensation from work-related injury insurance institutions in accordance with the Regulations on Work-related Injury Insurance.

To sum up, employees or their close relatives who suffer work-related injuries due to the third party's reasons, after receiving compensation from the third party, will not affect their right to enjoy work-related injury insurance benefits in accordance with the provisions of the Regulations on Work-related Injury Insurance.

Accordingly, the court of second instance held that the social insurance management center's administrative act of not paying work-related injury insurance benefits on the grounds that the amount of personal injury compensation obtained by Zhang had exceeded the amount approved within the scope of work-related injury insurance benefits was unfounded in law and should be revoked according to law. The court of second instance decided to revoke the judgment of first instance and ordered the social insurance management center to make a new reply. "lawyer's opinion"

It can be seen from the case law of the court of second instance that the court supports whether employees or their families can get compensation from industrial injury insurance after receiving civil compensation higher than industrial injury insurance.

(a) for the employer, it is both an obligation and a guarantee.

For employers, it is their legal obligation to pay work-related injury insurance according to law. But at the same time, paying industrial injury insurance is also a guarantee, which can reduce the employment risk. Because once it is identified as a work-related injury, medical expenses, living care expenses, disability pension, death pension and other expenses. Can be paid from the industrial injury insurance fund, without the employer.

Therefore, timely payment of work-related injury insurance by employers can reduce conflicts with employees, reduce employment risks and ease the relationship between companies and employees to some extent.

(2) For employees, they can win double compensation.

Industrial injury insurance and traffic accident damages are two different legal relationships, which are different in nature and cannot replace each other. According to the above-mentioned legal provisions, especially the Reply on whether employees or their close relatives can get compensation from work-related injury insurance after receiving civil compensation, employees or their close relatives who suffer work-related injuries due to a third person may apply to the work-related injury insurance institution for compensation in accordance with the provisions of Article 37 of the Regulations on Work-related Injury Insurance.

Therefore, employees or their close relatives who suffer work-related injuries due to the third party's reasons, after receiving compensation from the third party, will not affect their right to enjoy work-related injury insurance benefits in accordance with the provisions of the Regulations on Work-related Injury Insurance.

Is civil compensation for work-related injuries obtained at the same time? The Trial Measures for Industrial Injury Insurance for Enterprise Employees stipulates the rules of "compensation". This provision was abolished on June 9, 2007. 1 996101October1200711October 9 shall be handled in accordance with these regulations. In this case, the "make-up difference" rule should be applied.

On June 9th, 2007, 165438+ Opinions on Several Issues Concerning Work-related Injury Insurance issued by Beijing Municipal Labor and Social Security Department stipulated "double" compensation, that is to say, compensation from the third responsible party and work-related injury insurance benefits can be obtained at the same time.

Can I still enjoy work-related injury treatment after obtaining civil compensation? No, you can only enjoy one kind of treatment. After civil compensation, industrial injury insurance only bears the insufficient part.

After the criminal judgment, can the victim still claim civil compensation?

Article 77 of the Criminal Procedure Law: If the victim suffers material losses due to the defendant's criminal behavior, he has the right to bring an incidental civil action in the course of criminal proceedings.

Article 89 of the Judicial Interpretation of Criminal Procedure Law

The incidental civil action shall be initiated after the criminal case is put on file and before the judgment of first instance is announced. Before the judgment of first instance is pronounced, if the person who has the right to bring an incidental civil action fails to do so, no incidental civil action may be brought. However, a separate civil lawsuit may be filed after the criminal judgment takes effect.

Whether the funeral cannon (commonly known as the three-eye cannon) can get civil compensation for personal injury.

The losses of Party B shall be compensated by Party A. ..

If A proves that B is at fault in the crime, it can reduce A's liability for compensation. The allocation of specific responsibilities shall be decided by the court according to the circumstances of the case.

How to determine the responsibility and whether Wang should get administrative compensation or civil compensation is one of the manifestations of administrative violation. As long as the administrative omission has a practical impact on the damage result and has a causal relationship with the damage result, it should be liable for compensation. However, not all damages caused by administrative omission need to be compensated by administrative organs, nor is it only a legal remedy to apply for administrative compensation for damages caused by administrative omission. Therefore, the determination of the liability for compensation of administrative omission has become the key to whether administrative omission produces liability for compensation.

First, the constitutive elements of administrative omission liability

(A) administrative omission infringement established

Only when the infringement of administrative omission is established can the liability for damages of administrative omission be involved. At the same time, we should pay attention to the difference between administrative omission infringement and civil infringement, and the key is whether it involves the exercise of administrative power. The establishment of administrative omission needs to meet the following three conditions:

1. The administrative subject is legally liable to the counterpart. This legal obligation is a legal administrative obligation, which comes from the explicit provisions of laws, administrative regulations and rules, or is obtained through its authorization. For the violation of behavioral obligations in other normative archives, in view of the characteristics of many subjects and low legal effect level in other normative archives, the consequences should be analyzed in detail and cannot be generalized: at the same time, prior behaviors can also cause behavioral obligations. Preceding behavior refers to the behavior that the administrative subject carries out first, which puts the legitimate rights and interests of the relative person in a dangerous state, and the administrative subject has the obligation to take active measures to prevent the damage.

In addition, administrative subjects have the obligation to correctly perform legal procedures when performing their statutory duties. As China's administrative procedure law has not yet been promulgated, the legal obligations related to administrative procedures are mainly scattered in various laws, regulations and rules. For example, the Administrative Licensing Law stipulates that administrative organs have the obligation to hold hearings on major licensing matters involving public interests; The Administrative Punishment Law stipulates that the administrative organ has the obligation to inform and listen to the statements and defenses of the counterpart in the process of implementing the administrative punishment: Article 3, paragraph 2 of the Administrative Punishment Law stipulates that "…… or the administrative punishment is invalid if it is not carried out in accordance with legal procedures". Signed here, the administrative subject performs legal duties and does not comply with legal procedures, resulting in serious and obvious legal defects in the specific administrative actions it has made. When this violation can be clearly seen by the common sense of an ordinary person with normal reason, it constitutes a particularly effective condition for specific administrative actions. When dealing with the consequences, after a specific administrative act is deemed invalid, in principle, it should be restored to the state before the specific administrative act is made as much as possible. The administrative organ shall return the benefits obtained from the parties, cancel the obligations it requires the parties to perform, and at the same time, if it causes damage to the parties, it shall compensate the parties for their losses. Therefore, the administrative subject may be liable for compensation if it fails to perform its legal procedural obligations correctly.

2. The specific behavior that the administrative organ has not made a positive decision: To judge whether the administrative organ has made a specific behavior, the standard should be not the result, but the appearance form. For example, melon farmers were robbed and asked the public security organs for help. The public security organs sent people to stop it in time, but when they arrived, the people had dispersed and there were few melons left. From the result, the public security organs failed to stop the looting, but from the appearance and form, the public security organs have made specific rescue actions. Therefore, what fails to reach the applicant's statutory expected date is not an important element of administrative omission, but whether the administrative organ has taken the initiative to do something, which should be judged from the appearance form.

3, the administrative organ did not make specific behavior. Referring to the provisions of Article 39 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China, the first is the "60-day" period stipulated in the general law: it is reasonable to choose the "60-day" period as the time limit for judging whether the administrative organ performs its statutory duties, which is made by comprehensively considering different types of administrative acts. And this "60 days" is the mature period of administrative behavior stipulated by law. After "60 days", it is legally considered that the administrative procedure has ended and the administrative behavior has reached a mature level, which is suitable for the people's court to review; Secondly, the time limit stipulated by the special law. Laws, regulations, rules and other normative documents clearly stipulate the time limit for administrative organs to perform their statutory duties, and the time limit stipulated by laws, regulations, rules and other normative documents shall prevail; The third is the time limit in an emergency. In case of emergency, the counterpart requests the administrative organ to perform its statutory duty of protecting his personal rights and property rights, and the time limit for responding to his application is not limited by the time limit stipulated by the special law and the general law. If the administrative organ fails to perform its statutory duties, the counterpart may immediately bring an administrative lawsuit.