Font Size: a A A

Basic Research On The State Compensation System Of Crime Victim

Posted on:2011-12-20Degree:DoctorType:Dissertation
Country:ChinaCandidate:W H DongFull Text:PDF
GTID:1116330338960184Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
This paper focuses on the demonstration of the theoretical basis and the construction of the theoretical system about the state compensation system for crime victim.Building on the state condition of China,this paper explores out feasible legislative approach for the state compensation system of crime victim in China,and works out a compensation system that is in accordance with the economy,politics and social development of China.This paper consists of 7 chapters,amounting to some 175,000 words.The state compensation system of crime victim refers to the system for the crime victim,who is violated to casualty by criminal act but can not obtain criminal damage compensation from the offender or other approaches,to get material aid offered by the country to incompletely fill up the crime victim's damage.The state compensation of crime victim is one type of state compensation for social accident,belonging to the state compensation in judicial field.As for the theoretical basis of state compensation for crime victim,there are many doctrines.However,these doctrines can not avoid from the conflict of self-justification.This paper maintains that the theoretical basis of state compensation system for crime victim can be explored from two dimensions,namely,its endogenous and exogenous theoretical accordance.The endogenous theoretical accordance of state compensation system of crime victim is study of multiple protection of priority to legal interests in the vision of rights and obligations.The state compensation to the crime victim is in itself one part of the state protective obligation system.However,this sort of protection is limited.Only those crime victims infringed of their rights of life and health but not all can obtain compensation.Its justifiable accordance can date back to the multiple protection of priority to the legal interests of life and health---under the background of nation's violence monopolized by the nation,the crime victim is allowed to take justifiable defence when infringed in his rights of life security and health by criminal act;the crime victim's commitment of abandoning rights of life and health should exempt the actor from crimes.Thus,such special and multiple protection in criminal law will be further extended when compensation of criminal damages can not be realized,which is where the justifiable accordance of the emergence of compensation law for crime victim and of taking those crime victims affected in legal right of life and physical health as the compensation object lies.Simply put,it is the so-called multiple protection theory of priority to legal interests in this paper.---The compensation offered by the nation to the crime victim is also the continuation of criminal protection,aiming at the protection of crime victim's legal interests of priority,and one part of the multiple legal protection system.The exogenous accordance of the compensation system for crime victim is study about risk sharing in the view of risk society.We are in a commonly-linked risk society.It is an organic ingredient of the prevention system in crime to take crime victim's rights and needs seriously.The common fear to danger is conducive to the forming of a mechanism united as one.Therefore,the thought of risk sharing of collective response to risk runs through the whole process of risk control.This thought contains the anxious watch over achieving a reality world for the complicated controlling system of crime including protection for the crime victim,and the state compensation to the crime victim is an ingredient of the controlling system and it is also a realistic option to counter the crime victim's danger.The state compensation system to the crime victim belongs to the judicial field,which is a complementary legal system in connecting social law and criminal law.It also belongs to the organic ingredient of the criminal policy.The state compensation system should reflect four fundamental principles:principle of statutory, principle of necessary compensation,principle of fair compensation and principle of prompt compensation.To guarantee the state compensation system to the crime victim from being improperly abused or being utilized inappropriately,we should regulate the exclusive and restrictive application of the system,which is the most complex issue in the compensation theory. That is the reason attributable to the crime victim himself and appropriate consideration of compensation to the crime victim.The reason attributable to the crime victim refers to crime victim's act that leads to the criminals infringement or plays a formative role in the result of infringement.Based on the theory that every person should be liable for his own act,the crime victim while not the country or community should assume the liability for the result led by his act.The reason attributable to the crime victim calls for systematically profound and stereotyped research on the crime victim's act。The crime victim's act can be classified into 5 different categories according to its harmfulness to society and its effect to the infringement result in the criminal interactive process.These five categories are the following. a) compensation should be rejected due to crime victim's self-damage act.b) compensation rejected due to crime victim's aggressive act.c) compensation should be rejected if crime victim's damage is caused by illegally nonviolent or intimidatory infringement from the criminal.d) provocation act.Compensation rejected if crime victim's damage is led by severe provocation act;compensation should be partly given if crime victim's provocation act is intermediate and low grade.e) compensation should be rejected if the damage is caused by crime victim's illegally criminal act of self-trapping in danger or severe negligent act compensation partly given if crime victim's act of self-trapping in danger is intermediate and low grade.The appropriate consideration of compensation refers to decision of compensation to the crime victim should observe every crime victim's relevant factors to ensure that judgement on whether compensation is needed or not and its amount is worked out properly according to the social attitude.The appropriate consideration is an all-round and leading judgement with the judgement of reason attributable to the crime victim as its antecedent foundation.It is not a two-way while not one-way comprehensive judgement, which requires special consideration on particular issue of various aspect.There are no presently enough conditions to the exercise the state compensation law to crime victim in China.However,since the need of its legislation is quite urgent,a state assistant system to crime victim, as a transitional legal system, can be taken into account to correspondingly meet such needs.By the time when conditions all needed are ready,the State Compensation Law to crime victim shall be independently enacted.In the transition phase,the state assisting system to crime victim should be an urgent judicial relief system that embraces relevant ingredients such as the general social assistant system and state compensation system.With some 5 to 8 years of development of this transitional legal system,the social security level and economic development are supposed to reach a greater leap, by then the realistic conditions for legislation of the compensation law for crime victim may be met.The legislation of state compensation law to crime victim should take the legislative system that contains both substance and procedure.Technically,we should abandon the extensive legislative model and make comprehensive and concrete arrangement for related system and links of compensation to crime victim so that an accurate and practical compensation law for crime victim can be enacted. Specifically, for the financial resources of compensation, besides the major resource of governmental fiscal budget,fine, labour income of the criminal in prison, criminally confiscatory property,and proceeds of crime pressed can be used compensation.Governments of the municipal and district-level and above should set up special fund for the state compensation.System of Accounting separately and independently and special fund for special use should be implemented in both central and local governments.The special fund for compensation should be under unified management and should be granted by a compensation institution.The fiscal and auditing departments of governments in all levels should supervise and preside the use of special fund for compensation at the same level.The compensation range should be set based on the severe damage result to crime victim's life and health.The damage casualty caused by people of no criminal liability should also be brought into the compensation range.The seriously wounded crime victim and the family member of the decedent should be the compensation objects.The family member of the decedent should only involve the direct relatives and the dependant of the crime victim.For the exclusive and restrictive conditions of compensation,it can be regulated by referring to the discussion conclusion of the reason attributable to the crime victim and appropriate consideration on compensation to crime victim.The compensation is classified to compensation for family member of the decedent and compensation for the severely wounded crime victim.It is not suitable to directly set the maximum compensation at a concrete amount,while it should be calculated by a base(the multiplicand) to itself a certain number of times. Given every possibility,per capita wage of workers is a comparably fair and rational optional base.As for the arrangement of compensation institution,the judicial administration department of the municipal and district-level should set the review committee of compensation to the crime victim as the most fundamental compensation institution。The reconsideration committee of compensation to the crime victim,responsible for the reconsideration application of the crime victim's dissatisfaction to the compensation committee and make the reconsideration decision, should be set in the judicial administration department of the provinces, autonomous regions and municipalities.The highest compensation institution is set in ministry of justice and its main authority is to conduct,coordinate and supervise the state-level compensation work.Given the professional demanding of the compensation,the compensation institution should adopt the collegiate system to make compensation decision and administrative reconsideration.The staff of the institution should consist of lawyers with certain years of practice,judges,procurators and doctors,or scholars with certain research on criminology,criminal law,criminal policy and medicine.The compensation procedure includes such 4 aspects as application of compensating cases,trial,decision-making and the redemption procedure of dissatisfaction to the decision.After receiving the compensation application,the compensation committee shall make an inquiry and deliberation on the case,and other bodies and organizations should cooperate with and assist the committee.Since the receiving of application,the determination shall be made in a certain period of time after the compensation committee's deliberation.If the applicant has dissenting opinion toward the compensation decision,he can initiate an administrative review to the reconsideration committee of compensation.
Keywords/Search Tags:crime victim, state compensation, multiple protection of priority to legal interests, risk sharing, legislative means, legislative suggestion
PDF Full Text Request
Related items