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Research On Incidental Civil Action

Posted on:2008-01-29Degree:DoctorType:Dissertation
Country:ChinaCandidate:X W GaoFull Text:PDF
GTID:1116360218961310Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Incidental civil action means the proceeding during which the court deals with civil actions brought by the victim or other right holders or the prosecutor against the defendant for losses caused by the crime while deciding the criminal liability of the defendant. Since this action involves the cross between criminal case and civil case, it causes the conflict between the prosecution right of the state and right of civil action and a lot more problems therefore arising. These problems are presently impeding the exertion of advantages of incidental civil actions system and have made incidental civil action system deviate from the original aim of legislation of the system. How to solve the problems has become a key issue of the reform of incidental civil action of the judicial reform.There are three parts, eight chapters of this dissertation. Chapter one to Chapter five is the part that mainly deals with basic theories, the purpose of which is to lay theoretical basis for following analysis and deeper demonstration. Chapter six is part two, the review of present situation, which probes into the problems of present incidental civil action system in academy, legislation and judicial practice and attempts to analyze the causes of the problems. Chapter seven and chapter eight constitute the third part of this dissertation, which is a part about reform proposals. Part three proposes measures for improving and enhancing the establishment of incidental civil action system in China basing on the theoretical analysis and practice review. The main contents of the dissertation are as follows:Chapter one addresses the general introduction of incidental civil action system. Through the comparison between incidental civil action and criminal action, common civil action, the author tries to clarify the name and definition of incidental civil action and further probes into the nature of incidental civil action basing on this.Chapter two addresses the evolution of incidental civil action. The author tracks the history of the occurrence and development of incidental civil action system and seeks historic origin and legal culture of the system so as to provide a base for the reform and reconstruction of incidental civil action system.Chapter three analyzes modern legislation mode of incidental civil action. Basing on historic analysis, the author studies the different mechanisms of the system of handling cases involving both criminal and civil factors in countries belonging to different law systems and under different legal cultural backgrounds. Through this, the author attempts to come to his own reasonable answer to the choice of mode of incidental civil action.Chapter four analyzes the right of action of incidental civil action. The author analyzes right of public prosecution, right of private prosecution, right of civil action and criminal action that are involved in incidental civil action. From the aspect of the development and evolution of the right, the author makes a research into the conflict and coordination of rights of action in incidental civil action and puts forward his own conclusion.Chapter five analyzes the conflict of incidental civil action system. Through comparing the goals and values of civil action and criminal action, the author comes to the conclusion that there exists different goal and value orientation in incidental civil actions. Under the context of modern rule of law, there are system and practice basis for the different value orientation and goal to be balanced and coordinated through incidental civil action. However, they nevertheless belong to different actions, incidental civil action system is like a Damocles'sword which may bring goodness or damage depending on the way it is used.Chapter six addresses the present situation and problems of incidental civil action in China. Trough analysis of problems of the practice of incidental civil action in China from aspects of theory, legislation and judicial practice, the author comes to the conclusion that flaws of legislation and wrong concepts in judicial practice along with other reasons are the causes of the problems of incidental civil actions. The problems therefore need to be solved in concepts and system for the reform of incidental civil actions.Chapter seven addresses the improvement and reform of incidental civil action of China. Basing on above analysis and reviews, the author puts forward proposals for the improvement and reform of incidental civil action of China, including expanding the scope for the claims of incidental civil action, establishing criminal conciliation proceedings, establishing criminal absent trial and endowing option right of procedures to victims, etc.Chapter eight addresses state compensation of victims system. State compensation of victims is not a natural part of incidental civil action system, but in the event the victim can not get enough remedy through incidental civil action, it is necessary to for the victim to resume his social life through some certain compensation method. Therefore state compensation of victim is not absolutely isolated form incidental civil action. That is why state compensation of victims is also an important subject of 2007 judicial reform of China and also the reason why it is addressed in the last part of this dissertation.
Keywords/Search Tags:incidental civil action, right of action, goal for action, value for action, conflict and coordination
PDF Full Text Request
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