Study On New Problems Concerning Incidental Civil Action

The establishment of a system of incidental civil action, whether theoretically or in practice, is of great significance. Although the amendment to criminal procedure law enforced on January 1, 1997 defines principled stipulations over incidental civil action, faced with the new problems emerging in practice soon thereafter, the problems concerning incidental civil action have to be interpreted in the form of judicial interpretation. The problems concerning incidental civil action are being increasingly highlighted by the theoretical circle and judicial practice departments. The author, on the basis of referring to a great quantity of literature and coupled with his personal understanding of judicial practice, discusses the new problems concerning incidental civil action. The entire thesis is composed of five parts. Part I: Definition of the parties in incidental civil actions. The plaintiff in an incidental civil action may not be limited to criminal victims, and the defendant in an incidental civil action may not be limited to criminal defendants, and such action may also involve parties other than criminal victims and criminal defendants. Other victims in civil rights and interests suffering from material loss due to the criminal behavior of defendant, successors and near relatives of victims who died before bringing an incidental civil action and the individual or unit having paid medical expenses, nursing expenses and other expenses for the criminal victim under certain conditions may be the plaintiffs in incidental civil actions. The common person inflicting injury who is not pursued for liabilities for legal reasons, heir at law of the criminal defendant who has died in the complicity and accomplice at large may be also defendants in incidental civil actions. This section also describes persons who cannot be parties in incident civil actions. Part II: Legislation conflicts and applicable laws of incidental civil action. Incidental civil action is used to solve these two situations, each with its own unique nature. Criminal law, criminal procedure law, civil law and civil procedure law may have different stipulations in respect to prescribed period and evidences for action, way and term of appeal and counterappeal, whether legal costs are charged, etc, and in case of conflicts among them, unified and definite stipulation lacks in the selection of law. Therefore, for cases with the same facts and circumstances, different conclusions may be reached due to the adoption of different applicable laws. The author points out that proceedings shall focus upon criminal procedure law, and meanwhile, the stipulations of civil procedure law shall be referred to. This part also explains the possible conflicts regarding the subjects of action as well as the solutions when national and collective properties suffer from loss. Part III: Legal positioning of procuratorial department in incidental civil action. The author points out that procuratorial departments in incidental civil action is still the legal supervision department. The power of legal supervision exercised by the procuratorial department is the power of procedural initiation, which is substantially distinct from administrative power and adjudicative power. The procuratorial department is not the plaintiff in incidental civil action raised by it and does not enjoy interests relating to the action. The author emphasizes that the cases for which the procuratorial department brings incidental civil actions shall focus upon embodying public benefits and that the incidental civil actions raised by procuratorial departments are public-related actions. This part also points out the incidental civil actions to be raised by the procuratorial departments. Part IV: Compensation for emotional damage in incidental civil action. In the criminal procedure law currently in force of our country, the scope of compensation in incidental civil action is only limited to material loss, and emotional loss is not specified. The author points...