Research On Criminal Compensation Procedures

In order to investigate and punish criminal acts that cause serious harm to society,the state has specially formulated substantive criminal laws specifying crimes and penalties.The state also sets procedural criminal laws to regulate investigation,prosecution,trial and execution of penalties,and guarantees that public security and judicial organs exercise their functions and powers according to law and protect the legitimate rights and interests of the prosecuted and other individuals.However,the operation of state public power in the process of criminal prosecution still inevitably causes certain damage to the rights of citizens,legal persons or other organizations.Such damage may be caused by the illegal acts of the staff of state organs that exercise specific powers,or may be hampered by the limitations of technical means or the defects of the criminal litigation system itself.It may also be caused by a combination of these factors.Since the damage cannot be completely eliminated,the state should provide relief and compensation for the losses of the individuals thus affected.This is also one of the costs of the state prosecution of crime.Since the implementation of the Law of the People's Republic of China on State Compensation(“State Compensation Law”)in 1995,criminal compensation has been formally established at the legislative level;reviewing and determining criminal compensation has become an institution related to criminal justice,especially a function of the people's court.After a series of wrongful cases were re-tried and judged,the role of criminal compensation in protecting the legitimate rights and interests of citizens,promoting state organs in exercising their powers according to law,resolving social contradictions,maintaining social stability,and promoting socialist democracy and the rule of law were revealed.However,it is undeniable that due to certain historical backgrounds,judicial environment,legislative techniques and other factors,the State Compensation Law has more deficiencies in the part of criminal compensation.After two amendments in 2010 and 2012,the legislation on criminal compensation There are still major defects in scientificity and rationality,especially in the part of the criminal compensation procedure,which leads to difficulties in the process of requesting,reviewing,deciding and executing criminal compensation in judicial practice.This paper aims to analyze the criminal compensation procedures in the current judicial practice by analyzing the provisions of thecurrent legal norm system on criminal compensation procedures,in an effort to discover existing problems,and propose ideas and suggestions for solving the problems.In addition to the Introduction,the full text is divided into seven chapters,about 170,000 Chinese characters.Chapter 1,Introduction: Legislative Norms and Positioning.Starting from the concept of criminal compensation and criminal compensation procedures and the relationship between them,Chapter 1 discusses the concept,scope and function of criminal compensation,the intrinsic value of criminal compensation procedures,and the connection between criminal compensation procedures and criminal proceedings.The concept of criminal compensation is much larger than “unjust verdict”.In the process of pursuing a crime,the state public power may inevitably cause certain damage to the rights of citizens,legal persons or other organizations,regardless of whether the state organs and their staff violate the law,or even intentionally.Such damages are also one of the costs of the state prosecution of crimes,providing timely relief to the rights of the affected individual exhibits the state's attitude towards the protection of individual rights.The criminal compensation procedure is the necessary procedure for the realization of criminal compensation;it uses relief and protection of individual rights as its fundamental purpose,and resolves disputes between subjects at unequal standing.To a certain extent,it has the function of judicial review of criminal justice practices.Criminal procedure law is closely related to criminal compensation.On the one hand,the infringements related to the criminal compensation are the acts or omissions of the state organs or their staff in the process of criminal prosecution.The principle of statutory procedure and innocent presumption is also applicable to criminal compensation.The outcome of criminal proceedings plays a decisive role in the initiation of criminal compensation.On the other hand,criminal compensation provides timely and necessary relief for various damages that may occur in criminal prosecution activities,and promotes and guarantees that criminal proceedings are conducted in accordance with law and regulations.China's current criminal compensation and administrative compensation,non-criminal judicial compensation are stipulated together in the State Compensation Law,which means there is one law for two systems and substantive law and procedural law are not divided,the nature of criminal compensation procedures is unclear,and as a result the theoretical community has different thoughts for it.The current criminal compensation procedure can be divided into two stages: the pre-procedure and the compensation committee review anddecision stage.The pre-procedure includes the compensation committee's initial processing and re-consideration procedures,which is obviously an administrative procedure,and the compensation committee review and decision procedure has the nature of a litigation.In recent years,reforms like the cross-examination/hearing have been carried out,however,due to the organizational structure and unclear authority of the compensation committee,the institutional design like the use of decision to close a case,which is final,and written trials for most cases,makes the procedure quite different from the typical litigation procedure.At present,a majority of the problems in the judicial practice of criminal compensation are caused by the defects in the aforementioned legislation,and the criminal compensation procedure needs to be reformed and improved.Chapter 2,Comparative Study of Criminal Compensation System outside China.In Chapter 2,a comparative study is done on criminal compensation and procedures in France,the United Kingdom and the United States.France was the first country to have a modern state compensation theory and a first state liability case.Since 1956,French law stipulates that the state should be responsible for the police's acts in the handling of cases,including the scope of the acts that can be compensated,the elements needed,the scope of damages for compensation,and the standards for compensation for mental damage have always been developed and improved,and a set of procedures for the trial of criminal compensation cases and judgment by the National Detention Compensation Commission have been established.The criminal compensation in the United Kingdom adopts the model of “application +decision of the minister of state + judicial review”.After the court finally makes the judgment on the compensation case for wrong verdict,the claimant can request the central government to pay the compensation.The relevant laws and judicial practice in the United States have many restrictions on the scope of compensation,where multiple remedies coexist,there are various compensation methods but there are more restrictions on monetary compensation.Comparing the several methods commonly used in the US criminal compensation procedure(application for criminal compensation,private bills,and infringement lawsuits),in case of dissatisfaction with the decision of the pre-procedure(applying for compensation to the agency liable),lawsuit can be brought to the court for criminal compensation litigation,which can protect the rights of the claimant,save judicial resources and social resources,and help the claimant to return to normal social life as soon as possible.In the US criminal compensation procedure,the applicant usually needs to prove the eligibility of the application,cause for the absence of exemption,evidence for prosecutions exceeding mandatory time limit,and evidence of innocence.However,current criminal compensation in the United States is not satisfactory.The call for burden of proof by the government and relevant public authorities is increasing.The controversy caused by this has not yet been determined,but the relevant theories are still instructive for the reform of the system in China.China's criminal compensation system is compatible with the current economic and social environment in terms of substantive norms,but the compensation procedure legislation is seriously lagging behind,restricting the exertion of the core functions of criminal compensation,and impairing judicial authority and credibility.Chapter 3,General Idea of Reforming and Improving the Criminal Compensation Procedure.Starting from the legislative model of criminal compensation,Chapter 3 proposes to distinguish the current administrative compensation,criminal compensation and non-criminal judicial compensation,which are currently included in the same state compensation law,and standardize the separate legislation of criminal compensation and compensation procedures.Based on this,this chapter puts forward the general idea of reforming and improving the criminal compensation procedure: maintaining the“two-stage” basic structure of the pre-procedure and criminal compensation procedure;the pre-procedure is the first step to review the compensation request by the compensatory agency,where the compensatory agency and the claimant can negotiate on the specific method and amount of compensation;canceling the re-consideration procedure,where the claimant not satisfied with the decision made by the compensatory agency or in case the compensatory agency delays in making it decision,the claimant can lodge a suit with compensation committee of the people's court regarding the criminal compensation.The review and handling of the case by the compensation committee is the most important part of the criminal compensation process,which fully embodies the basic principles of due process,and the neutral compensation committee should decide the dispute with full participation of the parties.The existing compensation committee review and decision procedure cannot meet the above requirements,and the introduction of litigation is the focus of the whole criminal compensation procedure,including clarifying the nature of its litigation procedures.The overall system design should follow the basic principles of the procedural law and reflect the litigation structure of “the combination of three parties”,with relatively complete rules of evidence.Chapter 4,“Parties to the Criminal Compensation Procedure” analyzes the rights(power)and liabilities(duties)of the claimant,the compensatory agency and the compensation committee in the criminal compensation procedure,puts forward specific suggestions within the overall reform framework based upon the research findings in judicial practices.Indemnifying the claimant's qualification and determining whether it has the right to request for compensation is the first step in initiating the criminal compensation procedure;in the case of the death of the directly injured natural person,the determination of the indirect victim,and the effectiveness of the claim for compensation when the number of persons claiming compensation is large is the focus of determining the claimant's qualification.The liability for criminal compensation is borne by the abstract body—the state,and the compensatory agency is used to facilitate the compensation of the claimant to exercise the right to request for compensation and facilitate the litigation.The case of a single infringing entity is relatively simple,and it will be much more complex if there are multiple infringing entities where the liable entity will be determined using the “post-liability principle”.The request for compensation must meet the conditions stipulated by the law,and the organ for compensatory obligations should review the materials received,and decide whether to file the case or not.The compensation committee is the internal institution of the people's court and is the “fourth trial organization” that makes judgments on criminal compensation cases.The provisions of the current law have led to the compensation committee being only a body that is temporarily convened,and there is only one office which is responsible for day-to-day affairs.However,in fact,the compensation committees and compensation offices of the courts at all levels have unclear responsibilities,unclear positioning,and no power at all.The issue of “separation and disjunction between trial and decision-making” is prominent,which runs counter to the new mechanism for the operation of judicial power of “justice,efficiency,power and responsibility,supervision”.Direction of the reform of the compensation committee is to further “substantialize” the reform,and make it a business unit with a physical structure,which will hear the cases in the form of collegiate bench;and the duties of the compensation committee will be defined based upon the characteristics of the criminal compensation cases.Chapter 5,Construction of Criminal Compensation Procedures.Focus of the reform and improvement of the criminal compensation procedure is the litigation transformation ofthe current compensation committee review and decision procedures.The program can be divided into two parts: filing and trial.In the process of reforming the registration system for registration,there are cases in which the number of criminal compensation cases is increased,judicial resources are tight,the degree of specialization of relevant staff is not high,and the standards for filing cases are different.The conditions for the registration of criminal compensation should be refined.It is clear that the case of not filing a case and the receiving department shall stipulate stricter procedural review standards and strengthen the supervision of case filing.In terms of reform of trial methods,the current mode of trial based on written examinations has seriously violated the requirements of the development of the rule of law.The cross-examination/hearing methods that have been introduced are not applicable to all cases,resulting in low participation and unfair procedures.Inconsistent with the current mainstream reform of judicial openness,the authority of the judiciary has also been questioned.The construction of criminal compensation proceedings should be comprehensively applied to examine cases by means of cross-examination,regulate the investigation and evidence collection of the Compensation Commission,promote the disclosure of criminal compensation proceedings,and clearly define the type and effectiveness of criminal compensation judgments.Chapter 6,Burden of proof and the standard of proof for compensation for mental damages in criminal compensation.Compared with the proof of wrong,the liability for proof of moral damage in criminal compensation is much more complicated,and it can be said that it is the biggest problem in criminal compensation cases.The judicial status and relevant regulations concerning criminal compensation cases involving mental compensation were detailed and sorted out.According to the provisions of the current law and relevant judicial interpretations,"who advocates and who gives evidence" is still the basic principle of the distribution of the burden of proof in criminal compensation cases.In special circumstances-if the detainee dies or loses capacity during custody,the compensation obligation agency Provide evidence that there is no causal relationship between one's own behavior and death or incapacity.The existing provisions on the burden of proof are relatively crude,and the standard of proof is not clear.On the basis of the previous reform plan for criminal compensation litigation,it is necessary to further improve the provisions on the burden of proof and the standard of proof.The system of burden of proof and proof of constructing criminal compensation cases should be combined with the facts of criminal compensation,and the dynamic allocation of burden of proof should be realized in the process of continuous promotion.The claimant for compensation shall have the burden of proof for the facts of the subject,the existence and severity of the damage,and the facts of the request to the organ for compensatory obligations,and shall be clear to the extent that the facts are clear and the evidence is sufficient.The organ for compensatory obligations shall bear the burden of proof for the facts and legal basis for the conduct of relevant powers and duties,the statutory exemption situation,the non-existence of the damage facts,and the fact that there is no causal relationship between the acts and the damages,and the facts are clear and the evidence is indeed sufficient.Proof standard.In the case of applying for criminal compensation on the grounds of extorting a confession by torture or causing bodily harm or death on the grounds of assault or ill-treatment,the claimant for compensation shall file an act of illegal forensics such as extorting a confession by torture,or a clue or material to be improperly treated.The standard should be the same as the requirement to initiate the legality investigation procedure for evidence in criminal proceedings.Afterwards,the burden of proof that the relevant act of the proof is legal or does not have a causal relationship with the damage shall be borne by the compensatory organ and shall meet the criteria of “excluding reasonable doubt”.Chapter 7,“Procedures for the Implementation and Recovery of Criminal Compensation”.Starting from the implementation of the current decision of the Compensation Commission,it is pointed out that the real reason for the difficulty of implementation lies in the lack of implementation procedures.Through the investigation of the recovery situation,it is found that the meaning of the claim is greater than the actual effect.After the compensation,the “one-sided accountability” is obviously more than the law.Recovery.The complete criminal compensation procedure shall supplement the prescribed enforcement procedures,including the possible use of enforcement measures,clearly stipulate the recovery responsibility of the compensation obligation agency and the scope of the object to be recovered,and standardize the compensation management and payment system.Finally,under the background of judicial reform,the reform of the criminal compensation procedure is not isolated,but should have the support of top-level design and coordination with all parties.The relevant supporting system should be reformed and improved at the same time,for example,adding special countries in criminal proceedings.The organ's obligation to inform the application for criminal compensation rights and further improve the judicialassistance system are closely related to the fact that criminal compensation has been implemented.