Improvement Of The Incidental Civil Action System

This article is divided into four parts to discuss improvement of the incidental civil action system. In Chapter I, the article will expound general principles of the incidental civil action system. The incidental civil actions are short for the criminal procedure actions incidental civil actions. It is the system that if a victim has suffered material losses caused by the criminal act of the defendant, he shall have the right to file incidental civil actions during the course of the criminal proceedings. Although the incidental civil actions are part of the criminal procedure actions, it is independent of the criminal procedure actions in nature. Diversity of the legal modality lies on the fact that the incidental civil action system is between civil actions and criminal procedure actions. That is to say, the incidental civil actions are neither civil actions, nor criminal procedure actions. The incidental civil actions pay more attention to priority of criminal procedure actions. The incidental civil actions give priority to the criminal laws as well as criminal procedure laws. Practical significance of the incidental civil action system rests with timely and effective protection of the victim who has suffered material losses caused by the criminal act of the defendant. On the one hand victims often expect that the defendants can be brought to just trial as soon as possible, they care more about the relief of their material losses on the other hand. The incidental civil actions can satisfy victims on both sides. The incidental civil actions can economize legal resources and reduce litigation costs by means of improving the efficiency of criminal procedure actions. The incidental civil actions resolve two entity liabilities through one legal procedure. This is why the incidental civil actions can reduce consumption of legal resources and avoid repeated litigations. In a word, the incidental civil actions can protect legitimate rights of victims perfectly and wonderfully.In Chapter II, the article will expound legislation Comparison of the incidental civil action system. Firstly, the article contrasts our incidental civil action system with Anglo-American law system. As there is difference between our system and Anglo-American law system, this article will not compare ours with theirs. But in Anglo-American law system, compensation orders have something in common with our incidental civil action system. For example, both systems proposed by victims protect the legitimate rights and interests of victims in the process of the criminal proceedings. But the compensation order system and the incidental civil action system are different from each other in nature. We should learn from the compensation order system, because it can expand the authorities of judges by means of using compensation orders in timely manners to protect the legitimate rights and interests of victims. Secondly, the article contrasts our incidental civil action system with systems of the civil law countries. This article will mainly introduce details of the incidental civil action system in France and Germany. After several amendments to criminal law, the criminal procedures of France have considerable provisions of the incidental civil action system. Compared to France, such provisions are relatively rigid in criminal law of Germany. And it leaves so little space over judicial practice. However, the regulation that judges are not allowed to make judgments which could do harm to the rights and the interests of victims provide us with useful experience.In Chapter III, the article will expound the flaws in our incidental civil action system. Firstly, there are some legislative structural defects in our incidental civil action system. For example, legal status of procurator organs is not clear enough; the third party has no rights to participate in civil proceedings; moral damage compensation is excluded from the scope of civil compensation, and so forth. Secondly, there are some defects in judicial practice as well. Adequate attention has not been paid to compensations of victims. In court proceedings, judges often pay little attention to the claims of victims for material losses. Compensations for the material losses and penalties for the crimes will offset silently and publicly. This fact seriously disobeys the request of justice and fairness.In Chapter IV, the article will expound the improvement for our incidental civil action system. First of all, we should update our judicial spirit and discard wrong ideas. It could not be stressed excessively that specific circumstances of the case should be based on the priority of the application of criminal law. We should find a balance between justice and efficiency. We should know that there is no absolute justice. Both justice and efficiency are the values of our incidental civil action system. We should not attend to one thing and lose another. It is the premise of our incidental civil action system that we should protect the rights and the interests of victims effectively. The remedies put in practice by criminal towards material losses of victims should be taken into consideration. Penalties and compensations can not replace and offset. Secondly, we should take measures to improve the structure of our incidental civil actions system. We should pay more attention to the protection of the legitimate rights of victims. And this should be a kind of judicial spirit. The spirit that material losses of victims should be remedied first of all should not be an abstract concept but a specific action in our criminal law. What we should consider carefully is that compensations must be regulated with specific conditions and can be effectively carried out with certain legal procedures.