Procedural Principle For Interlocked Penal And Civil Cases

It is a long-standing difficult problem that how to deal with the procedure for interlocked penal and civil cases. This has got broad attention from the professional and practicing society during last two to three years. However, there is no systematic research on what is real interlocked penal and civil case, as well as what is the juristical principle on solving interlocked penal and civil cases.First, by introducing several typical cases, this article will bring out the common procedural issues during the trail of interlocked penal and civil cases. Such issues give negative impact on the criminal and civil procedure, add litigation costs and make confusion on law enforcement concept, and also are negative to protect the legal rights of the nation, collectivity and individual. Furthermore, it will impact the adjustment of social economical relations and have the public reasonably suspect the justice. This article discussed necessity and the imminence to study the procedural principle on solving interlocked penal and civil cases, from the urgent trial practice needs and the juristical concept of"balance of public and private rights"and"balance of justice and efficiency"to construct modern law country.To better study interlocked penal and civil cases, this article briefly introduced the main difference among the nature, purpose, starting method, evidence responsibility and evidence standard for penal and civil cases. This article pointed out that the nature of the interlocked penal and civil case is the aggregation of liability, which is the aggregation of penal and civil liabilities. So the definition on interlocked penal and civil case is: an illegal behavior violates penal and civil regulations at one time and causes the aggregation of penal and civil liabilities, which leads to the conflicts on the criminal and civil procedures. Then this article analyzed main characters of the interlocked penal and civil cases from the view of liability aggregation. This article also discussed (1)the identity of objectivity, which means the civil and penal liability are caused by one violation; (2)aggregation of liability, which means the civil and penal liabilities can not absorb each other, nor they can exist together; (3)identity of subject, which means there is only one subject to take the responsibilities; and (4)the conflicts on procedures, which caused by the aggregation of civil and penal liabilities. By making clear the definition and the characters, this article introduced every academic viewpoint on the classification of the interlocked penal and civil cases, by the method of case study. Nearly all the viewpoints think the interlocked penal and civil case are mainly criminal case with incidental civil actions. However, the writer does not agree with that. After excluding the criminal cases, civil cases and criminal cases with incidental civil actions, this article pointed out that only those penal and civil cases caused by one juristical fact, which then cause conflicts on procedure and the power of judgments, are real interlocked penal and civil cases. This article also discussed the criminal case with incidental civil actions system, from the point of view of origin, definition and nature. The civil action with criminal cases are special civil lawsuit and not interlocked penal and civil cases according to the four characters. It is just an integrated suit system to improve efficiency and save justice resources.In 1980s and 1990s,"criminal case first"is a well accepted theory in the litigation area. In latest years, there are more voice on protecting private rights. More and more academic and practicing professionals question the"criminal case first"concept. This article first introduced the definition of"criminal case first"principal, which is that the violation is against penal and civil laws at one time and causes aggregation or co-existing of the penal and civil liabilities, and in such situation, the violation should be tried as criminal lawsuit to see whether it is a real crime and should take criminal liability. And then to see whether to take civil action if there is any aggregation or co-existing of penal and civil liabilities. This article then introduced the juristical origin of"criminal case first"principal, which was formed during law enforcement practice and acknowledged by the juridical explanation. There is juristical theory to support the establishment and existing of such principal, which including: when there is conflict between individual and public interest, public interest prevails; for trial proof standard, proof for criminal cases is higher than that of civil cases; the force of criminal verdict is higher than the force of civil judgment. By case study, this article analyzed the reason"criminal case first"has been challenged is because that the law enforcement agents abuse or inappropriately use the"criminal case first"principal. This is not caused by the principal itself and its principal status to solve interlocked penal and civil cases should not be changed.Finally, this article gave two suggestions on the mechanism to solve interlocked penal and civil cases. First, it shall be made clear that the principal of"criminal law first"should only be adopted in the following three situations: (1)it is hard to determine the legal connection involved with the same legal fact is penal or civil, that is interlocked penal and civil cases; (2)the same legal fact causes both criminal and civil liabilities, which are co-existing and the victim bring the civil action during the criminal trail; (3)the same legal fact causes both criminal and civil liabilities, which are co-existing. But the victim does not bring civil action during criminal trial or the court does not accept the application of the civil action during criminal trail. Secondly, if there is conflict of power between criminal and civil judgment, the civil judgment shall be withdrew and shall not issue supplemental ruling to amend the effective civil judgment.The topic of this article was inspired by trail practice and is not pure theory research. This article was written in a way to connect the theory with practice, to find the questions, analyze question and solve questions, by studying typical cases, which also made a prominent character of it.