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The Reflection And Improvement Of The Incidental Civil Action System

Posted on:2012-10-10Degree:MasterType:Thesis
Country:ChinaCandidate:G L NieFull Text:PDF
GTID:2166330332497773Subject:Procedural Law
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This article is divided into four parts to discuss the reflect and reconstruction of the incidental civil action system. In Chapterâ… , the article will expound character and values of the incidental civil action system. There were three viewpoints about its character.They were criminal lawsuit, the civil action and comprehensive standpoint. But at present, the third is the general point. The essence of the incidental civil action is civil litigation, but it is also different from ordinary civil litigation. It has particularity in filing, operation and applicable laws. The incidental civil action has value advantages in punishing crimes, the efficiency of lawsuit and maintaining legal judgment unified. Because of the effect of the traditional judicial philosophy, the more attention is paid to punishing crimes, reducing litigation costs and improving the lawsuit efficiency in design and practice of the incidental civil lawsuit system. Therefore the claim in compensation of victims who has suffered material losses caused by the criminal act of the defendant is ignored. The incidental civil lawsuit system should redefine its values in order to protect the legitimate rights and interests of the victims and realize the win-win justice and efficiency.In Chapterâ…¡, the article will expound the discussion and evaluation on the incidental civil action system. The incidental civil action of our country have less dependence. The system has many defects and especially has less attention to criminal victims in the process of application. So it brings some doubts to the existence or abolishment of the system. It includes three standpoint. The first is that civil suit should be separated from the criminal suit. The second is that the civil suit should be remained in some scope. The third is that we should improve the system. On the analysis of these two modes and the judicial philosophy and demand of our country, we should affirm its values and remedy its flaws at the present time so that it can extremly protect criminal victims' rights.In Chapterâ…¢, the article will expound the flaws in our incidental civil action system. Firstly, victims have no rights of procedure option. The victim can only file incidental civil action after his civil rights are infringed by crimes.The victim can bring the civil action separately only in the situation of preventing the criminal trial excessively delayed. The essence of the incidental civil lawsuit and subjectivity of program determine that the parties shall enjoy the rights to select procedure. Secondly, the incidental civil lawsuit deprive criminal victims' rights to claim mental damage compensations, which conflicts with the range of civil tort compensation and goes against principles of judicial fairness and human rights. Thirdly, compensation decision can't be carried out effectively. There are many reasons for this situation. On one hand, the defendants have no ability and property to compensate. On the other hand, the system itself is imperfect. For instance, in the stage of investigation and prosecution, there are no property preservation measures. Besides, no certain incentives which can prompt the defendant to compensate victims actively.In Chapter IV, the article will expound the improvement for our incidental civil action system. First, give the parties procedure option. Criminal victims can resolve civil damages which are caused by crimes through incidental civil lawsuit or civil lawsuit. Thirdly, construct criminal spiritual damage compensation. We could construct it from the constitutions, range and quota on the base of regulations of civil laws and the successful experience of judicial practice. Finally, improve execution of the incidental civil lawsuit decision. Authorize public security organs and procuratorial organs the authority of preserving property. Extend defendants' compensation ability to penal execution stage. Associate the situation of compensation with sentence, commutation and parole in order to encourage defendants to compensate the civil damage actively.
Keywords/Search Tags:Incidental Civil Action, Value Orientation, Procedure Option, Mental Loss
PDF Full Text Request
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