Legal Study On Damage Relief For Crime Victims Of China

The plight, how to relief the victims of crime, is an old problem, but it is recentlyhappened to make it as an important judicial issues considered. Victims in the criminal justiceprocess have been greatly ignored in the most time of human development history. Anunbreakable concept was established in the Wilson v. State, a famous case in the United States,it is that criminal proceedings litigation are dealing with the offender and state, victims, evenif there is any significance, it is only likely to serve as witnesses in such proceedings.However, in the last30years of20th century, the phenomenon of victims were excluded fromcriminal justice process began to change. In particular, as the crime rate of growth of thesixties and seventies, people began to concern the victims of crime and the criminal justiceprocess, making the offender’s rights debate as a prominent position, to care for the victim isthe characteristic of the times to some extent. In thirty years, the justification of certainpenalties tend to be more stringent often is to take tougher measures against perpetrators inorder to care about the victim. Supporting victims is not limited the political field, a numberof victim support organizations established, such as the well-known foreign “Mothers’ Unionagainst Drunk Driving”, and many states have adopted new laws to protect the rights ofvictims. The victim’s call played a significant function and led through a variety of recentcriminal justice reform, or at least play the effect of warning and appeal. In the past30years,the victims of the crime problem by the institutionalization of the process of public concern,the profound impact the criminal justice system is far more than other issues, from anotherperspective, the injury suffered by the victims due to criminal acts, the public and the legalsystem to its input than in the past more attention, the focus of concern is how they suffereddamage relief.The logical thinking of this paper is as follows, legal protection of certain rights orprotection for certain types of people there is always the root of the reasons and basis, it is noexception to protect the rights of victims from crime. What is the reason and basis, we canfind a legal basis for the protection of crime victims’ rights, as a civil law people, from thespirit of the civil law. But which system is based on? We found in the study of development ofrestorative justice, it is that restorative justice was originally accompanied by the rise of crimevictims’ rights movement and damage relief to victims invested a great deal of attention, whether it is the legislative or practice about restorative justice. Therefore, the restorativejustice movement and the rise of restorative justice reform in recent decades is the basis ofrelief to victims of crime damage. So the basic theory of restorative justice has become thefirst chapter. Restorative justice originated in the West, the practice of the system to protectthe rights of victims of crime more mature in western countries in comparison. It is necessaryto learn the practice of other countries and regions in order to provide enlightenment onChina’s current legal practice. A result of this is second chapter, the crime victims’ relieflegislation model on comparative review.On the basis of comparative study of victims’ rights in the world’s major countries andregions, especially damage relief mode, we can tally up three main ways to the relief ofvictims of crime in the legal system framework. This is also the contents of third chapter todiscuss; it is perpetrators compensation, third-party compensation and the state compensation.The criminal collateral civil proceeding is the most civil law countries, especially themost important way for China to achieve the compensation of the offender, this article isfollowed in chapter IV of the criminal collateral civil proceeding specifically and efforts toexplore the value proposition of our the criminal collateral civil proceeding. Although thecriminal incidental civil lawsuit has incomparable value in solving the crime victims’compensation compared with a separate civil action, but legislation involving crime victimsfor damages has many problems in our country in particular the provisions on criminalincidental civil lawsuit. For this reason, it is necessary to discuss specifically, thus the Chapter5of this article forms, status, problems and recommends of crime victims damage relief. Thesecond way of victims of the crime damage repair, third-party liability, is more mature in thedeveloped western countries, but on the condition of our country other third-partycompensation system (such as third-party compensation of non-financial institutions) is notconsistent with our current economic and social development level in addition to theinsurance payments, therefore, this article does not conduct in-depth study on third-partycompensation system. For the third channel of the damage relief of victims of crime, the statecompensation, the article concludes with suggestions for improvement of the crime victimscompensation system under the analysis and summary of the crime victim assistancemechanisms in chapter6of the article.The main content of the article are as follows:The first chapter focuses on the basic theory of restorative justice. This chapter begins bycombing the restorative justice generation and development, concludes that the core features of "restorative justice" is "restorative", Its core idea is who should be restored and whatshould be restored in the negotiation and fully participating environment. Secondly, tocompare and analysis three practice models(victim-offender mediation model, the mode ofgroup meetings, round table mode) of restorative justice in the criminal justice system, thesethree models practice shows that non-traditional sense of the alternative dispute resolutionmode is considered to be more equitable, because we can able to reach a mutually satisfactoryresults and reach a more thorough resolution of the conflict through this mediation model.Last, we can see that restorative justice believe that the most important to the crime is not topunish, but to actively compensate for damage caused by the crime and fix the social relationsdestructed by the crime in the conception process of the justice philosophy the concept ofcrime and the punishment concept under the traditional concept of criminal justice and theidea of restorative justice. Therefore, the restorative justice particularly stress the protection ofvictims and give a comprehensive and extra attention on the needs of victims includingmaterial needs, emotional needs, social recognition needs. So as to arrive the conclusion it isharmless justice (referred to as restorative justice), victim-oriented, fully repair the damagethat builds the main value fulcrum of restorative justice concept.Chapter II consists of two parts. The first part comparatively study on the legislative ofcrime victims’ rights (mainly damage relief) of the two legal systems and divides into threemodes, that is civil and criminal separation mode as the representative of the United Statesand Japan, incidental civil action mode as the representative of France and Germany andcompensation order mode of UK. All countries have different characteristics in these threemodels. The second part of the analyze the difference causes the issue of treatment of victimsof crime damage relief in different countries and regions in the processing mode, it shows thatdifferent traditional values is the fundamental reason, Different concept of right to relief is thedirect cause and litigation model of distinction is the legal reason.The third chapter discusses the way of relief to victims of crime damage including theoffender compensation, third-party compensation and the state compensation. The crimecompensation includes two kinds of criminal compensation and civil compensation, theformer refers to an order of compensation made perpetrators of a criminal sentence at thesame time as the penalty, the latter mainly refers to the victims to obtain compensation fromperpetrators through civil proceedings (including a separate civil and criminal incidental civilaction). Then suggests that introduce punitive damages in civil compensation to the victimdamages in the case of personal crime by sorting out the legislative situation of our punitive damages and personal injury compensation. Third-party liability includes non-financialinstitutions, third-party liability and insurance payments, non-financial institutions third-partyliability refers to individuals, companies, businesses or government agencies who should beresponsible for crime repairs to victims. State compensation, another in the sixth chapter isdevoted.Chapter IV elaborates in deeply into the details of criminal value proposition of anincidental civil action in-depth description. First of all, the paper reaches that the mostfundamental purpose of the criminal collateral civil proceeding is in order to achieve thedamages to the victims of the crime and able to highlight the efficacy of criminal penaltiesand civil remedies on the basis of defining the concept of criminal collateral civil proceeding.Second, discusses the nature of the criminal collateral civil proceeding and gets the view ofthis article, that is the essential attribute of the criminal collateral civil proceeding is civilproceedings and its function is still to resolve civil rights disputes on the basis of combing thedifferent theories view and analyzing on our current legislative attitude. Then, this chapteranalyzes and summarizes the core values of criminal with civil litigation and the valueproposition of our criminal incidental civil action and draws that the criminal core value ofthe incidental civil action is effectiveness values and compensation for the value of the entityon a timely, the design of criminal with the civil litigation system is not only to achieve thebenefits of civil damages issues but also reflects the significance of the criminal as solving thecriminal responsibility. Finally, we know that our ancient legal litigation culture of legalcombination of civil trials and criminal proceedings is of positive significance to our currentcriminal with the legislation and practice of the civil litigation system, that is providing a deepcultural background, trial basis and a wide range of national psychological identity on thebasis of analyzing the impact of litigation legal culture in China on incidental civil action.Based on this, this chapter argues that continues to maintain the criminal with the civillitigation system on the basis of the existing litigation system in China, it is the most sensiblechoice for our, the only efforts we need to do is to make its perfect on the existing basiswhether it is based on its own system of values or litigation legal and cultural traditions inChina.The fifth chapter studies on the status quo and problems of damage to the relief ofvictims of crime in China from two angles of the legislation and practice. The main problemsof our crime victims damage relief legislation are as follows, perpetrator type ofcompensation is incomplete (lack of criminal compensation), lacks the moral damage compensation for criminal collateral civil proceeding, the range of compensation for materialdamage is not clear, the scope of the subject of proceedings is narrow or not clear enough.Whether is qualified plaintiff for a stake in third-party criminal acts in criminal collateral civilproceeding, whether can become a co-defendant of criminal collateral civil proceeding for thecommon virulence not be prosecuted for criminal liability, fugitive accomplice, the death ofthe offender’s heirs before case has been concluded and the third party responsible for theoccurrence of crime. Corresponding legislation does not respond to the above practiceproblems. The main problems in China’s crime victims’ relief practice are as follows. First, theabsolute number of the criminal collateral civil proceeding cases is small and the relatively islow rate. Second, the type of criminal incidental civil cases is single and mainly concentratedin the intentional homicide, intentional assault, rape and other assault crime, traffic crime soon. Third, the criminal with the civil judgment is "vulnerable" status.Chapter VI study on the crime victims compensation system. Firstly, detailers combingthe legislative evolution of the victims compensation system and knows that the statecompensation for victims of the system has become one of the iconic practice of moderncivilization. Secondly, after analyzing the rationale behind the state compensation system anddiscoursing various point in this paper believe that it is inevitable requirement of restorativejustice concerning damage relief of the victims of the crime to compensate victims of crimeby the state, also is a necessary logical premise of the theory of "restorative" justice and is theinevitable logical conclusion of the government’s theory of liability whether based on thetheory of government responsibility in which the theoretical basis. Then, more examines thevictim compensation system of the Two Legal Systems and China’s Hong Kong and Taiwanand summarizes the commons of the object of compensation and the compensation range onthe basis of identify their differences. Lastly, gets the feasible suggestions for the constructionand improvement of China’s crime victims’ compensation system from the object ofcompensation, the scope of compensation, compensation standards and limitations,compensation sources, compensation agencies and compensation procedures and otheraspects.