Research On Cross Of The Civil Law And Criminal Law

The cross of the civil law and criminal law is a traditional but new-developed problem. The traditional character depends on that the intersect existed at the beginning of division of department laws, while the new-developed means that the problem becomes more prominent in the complex and intertwined"benefits field"during the period of social transformation. The problem stems from practice and also involves in both substantial and procedural issues of two department laws spheres, i.e. civil law and criminal law, hence the research confronts dual challenges both in theory and practice, substance and procedure. It should be of great value to research and guide the practice in order to widen the application scope of criminal law.Date back the history of relationship between civil law and criminal law, we should reconsider"different law departments in a unique body"and the result is that civil law and criminal law were regulated in the same code; the responsibilities and litigant procedures were different. Focus on the modern relationship between civil law and criminal law, it epitomizes on such cases as crime intersected with civil disputes and commercial disputes. Because the intersect of civil law and criminal law originates in the relevant cases and the judicial practice also begins with the procedural coordination of the conflicts, the current research circumstances embodies three characters: The practice circles show more concern for the research than the academic circles. The research on procedural problems is more plentiful than on substantial problems. During the examination of procedure, it fundamentally reaches the common cognition about"the co-existence of civil law and criminal law", paralleling"first criminal, second civil"with"first civil, second criminal", and"restrictive application of civil litigation attached to criminal litigation". But as the vagueness of the emphasis and direction of substantial research, the outcome is not copious. The article fixed the discussion scope on criminal, civil substance and procedure, and regard the common knowledge of relevant theory in criminal and civil spheres as the prerequisite of logic, choose the criminal law as visual field of research in order to distinguish guilty or not guilty in the intersect of civil law and criminal law, also choose civil law as visual field in order to analyze the assumption of civil responsibility in criminal cases.Categorization thinking will be the first phase to clarify the criminal-civil intersects cases. In order to reach the convenience of defining substantial issues in practice and the consistence between theory concept and logic, we should determine the legal facts as the standard of categorization. It takes two steps to categorize legal facts: first, separate the implication of connection and coincidence between the civil and criminal facts, and then make the second division separately. The civil and criminal facts are usually connecting in the following ways: subject-identity category, object-identity category, and subject-object identity category; and the coincidence usually happens in the following circumstances: crime-tort coincidence, crime-contractual acts coincidence, crime-unjust benefits coincidence. Also we can make a further and specific division on the intersect category of crime and torts, which will make the research on the intersect field between civil and criminal cases becomes more open and leave more research space for the future.In the criminal-civil dialectical relationship from the criminal law perspectives, the substantial core of the problem is the definition of guilty and not guilty. There are three relational analyses. In the joint relationship, criminal crime and civil torts correspondent to each other at three points, i.e. act, the result of act, and the accountability. They have the same objective on the function of punishment, precaution, compensation and conciliation, and complement mutually on regulation function, all that mentioned above constitutes the joint jurisprudential basis. It has three joint points here: first, joint on the concept of act. Generally the statutory crime should maintain the consistence on the connotation and the extension of concepts to joint crime and torts accurately. Second is the joint on the pattern of the liability. In the field of criminal legislation and judicature, view the existence of partly strict liability correctly; apply the new-developed negligence theory to identify negligent crime reasonably, and establish the substitution liability in the crime of a unit, and keep it joint with the civil liability in the pattern of liability. The third is the joint on the form of liability. During the execution, we should depend on the"obligation priority","civil compensatory liability priority"rules to make the property-oriented penalties joint smoothly, and master joint between the punishment against freedom and civil compensatory liability. In the prevention relationship, civil legitimate act will prevent the crime because of the adaptability, real and consistent declaration of intention; the unjust benefits act will prevent the crime because of its lack of statutory violation; most of the torts immunity defense will prevent the commitment of the crime (exception includes the third person's fault, victims'voluntary and so on.) In the demarcation relationship, apply the legal purpose to explain, understand accurately the meaning of the ownership in the criminal and civil law, and different definitions of illegal possession and the relationship of the property registration and the identification a crime. In the standard of demarcation, we should master the character of crime, the quantity of crime and the evidence.Criminal-civil dialectical relationship in the civil visual field epitomizes on the assumption of civil responsibility in crime. First, make the rights subjects joint with compensatory obligee in criminal-civil sphere. Second, common prevention relationship in crime and civil creditor's rights include: the criminal part prevents validity of the contract. It also can divide into two parts: absolute prevention and relative prevention. Absolute prevention means that if the crime facts coincide with the contract facts, and the contract coincided with crime falls into one of the invalidity situations regulated in the Contract Law, the contract should be absolutely invalid. If a contract is made by fraud, duress or nauseous collusion and such measures mentioned above constitute a crime, impair interests of the states or fall into"concealing an illegal purpose under guise of the legitimate form", the contract should be absolutely invalid. If it simultaneously meets three requirements that the coincidence of crime facts and contract facts, and that criminal activities have a certain causal relationship with the contract's establishment, the crime will prevent the validity of the contract relatively. The crime part prevents the apparent agency. Intentional crime will prevent the establishment of apparent agency, while the negligent crime leaves some room of its existence. Criminal pursuit of booties cannot prevent well-intentioned requirement, otherwise it will breach the justice and efficiency rules. In the tort liability caused by crime, the type of crime that will assume the substitution liability includes: during the process of discharging the duty, negligent crime and intentional crime impairing interests of other units should not exist substitution liability. The type of crime that will assume joint and several liability includes: joint crime, joint tort, joint negligence, one-sided accomplice, coincidence crime with fault connection, and concealing, covering up, selling booties with no pre-collusion. The type of crime that will assume liability by shares includes such circumstances as coincidence crime with no intent connection, and actors intentional joint with others (units) to negligently cause damages. The type of crime that will assume supplementary liability includes: crime of property violation. In the crime of infringing upon citizens'right of the person, it should be not apply uniformly to the supplementary liability but flexibly mastered based on the extent of the performance of protective duty and the level of fault of the supplementary liability. Because of special character of legal causal relationship between the criminal activities and results in crime, there is no space for negligent counteract in crime, with an exception, i.e. crime of causing traffic casualties. There exists liability of invalidity of contract, pre-contractual liability, liability of performance of the contract and liability of breach of contract.The procedural problem of the intersect of criminal-civil law epitomizes on the current reexamination about civil litigation attached to criminal litigation and foundation of coordination system; it is impossible to tie them together. There are so many conflicts between the civil attached to criminal litigation and purely civil litigation that they should be separated. In the notion of the priority of public power and exercise the"criminal parallel with civil law"rules, set the"civil first, criminal second"and"criminal first, civil second"as the exceptions, and make the exceptions clarified through judicial explanations as much as we can.