The Defect In Legislation For Our Criminal And Attached Civil Lawsuits System And Its Completion

A decent legal system could not only bring out justice substantively, but also make sure that the litigants are treated justly during the realization of rights; then this legal system is convenient and efficient, saving judicial resources in maximum. Our national civil suit collateral to criminal proceedings system has already emerged two lawsuits into one since its emergence, which on one hand makes things convenient for the litigants, saves the manpower, material resources and financial resources of the court, reducing the lawsuit cost in maximum, and on the other hand ceases the arguments bringing the society into a stable state. However, there are quite a lot of factors that this system gets bogged down in the dilemma that it's a pity to abandon it while difficult to adopt it. According to judicial practices, rights of most victims cannot be ensured feasibly and the compensations for their losses are just in written form and on script, the substantive rights cannot be realized, meanwhile, the defendants'litigious right cannot be ensured and the law application is not integrated and unfair so that it becomes difficult to remove the interest conflict among the nation, the society and the litigant individual. In view of this, this text is based on the comment and analysis of the status quo of our national civil suit collateral to criminal proceedings system and analyses the malpractice of the civil suit collateral to criminal proceedings system, coming up with some advices and tentative ideas about improving civil suit collateral to criminal proceedings system on the scope of accepting cases, the main body, the principles of compensation and the extent of compensation, the trial, the enforcement and so on.Specifically, besides the foreword and the conclusion this thesis is divided into 3 parts:In the first part, it's about the status quo of our national civil suit collateral to criminal proceedings. This chapter has two divisions. In the first division it begins with the demands of law theory and judicial practice, and expounds civil suit collateral to criminal proceedings on its concept, character and feature. Civil refers to the criminal side, in the criminal process, the people's court in resolving the defendant's criminal responsibility at the same time, with the loss suffered by the resolve of the victim or the People's Procuratorate instituted, because of the defendant's criminal act, and other damages caused by the civil Liability and litigation activities. Criminal side is essentially a civil action in the civil action, but is a special civil action. In criminal proceedings is the integration of certain components of civil, but it is not a simple sum of the two.In the second division, it summarizes the content of our national civil suit collateral to criminal proceedings, including the litigant, the proceeding, the trial and the remedy. And it points out that the regulations of our national code of criminal procedure are relatively principal and generalized, while not having clear and definite rules for many concrete issues, so there are many questions in practice and it's deficient in operating quality.In the second part, it's about the deficiency of our national civil suit collateral to criminal proceedings. The chapter has three divisions. In the first division it's pointed out that the judicial theory lags behind the age's development. The context analyses it on four aspects: departure from the modern judicial theory; not adapted to the reform of ways of court trials; in conflict with the new styles of cases turning up during the market economic development; conflicting with the judicial theory of no punishment in doubtful cases. Also it tells us that the main reason for the conflicting with modern judicial theories is that the civil procedure is not equal to the criminal procedure. In the second division it illustrates the present system is short of systematic nature, scientific nature and integral nature. In the code of criminal procedure in our nation we have only two clauses regulating on the civil suit collateral to criminal proceedings system, so this code lacks operational quality. In addition, to some extent it disagrees with the substantive criminal law, the civil procedure act, the civil substantive law and the judicial explanation, causing the legal system to be not integrated. The concrete shows are: the disintegration with the rules of the substantive criminal law; the disintegration with the rules of the civil procedure act; the disintegration with the civil substantive law; the conflicts in some relevant judicial explanations. In the third division it points out some issues existing in the trial practices of our national civil suit collateral to criminal proceedings. They are: the legislative conflicts in the adoption of the criminal and civil laws; the disintegrated cognition of the principles of compensation; the chaotic scope of compensation on cases; the uncertain understanding about the scope of the litigant body in civil suit collateral to criminal proceedings; abnormal methods of rights and remedy; issues about the institution of civil suit collateral to criminal proceedings that is instituted by procurator organ. Except the issues above, there are many other questions urgently needed solving in the practices of our national civil suit collateral to criminal proceedings, mainly including: the question about the way of trial in civil suit collateral to criminal proceedings; the question about victims'abuse of litigious right; the question about the unclear standard of proof of the lawsuit; and the executive issue of the civil suit collateral to criminal proceedings. In the third part, it's about the improvement to our national civil suit to criminal proceedings. This chapter has two divisions. In the first division, it's to establish precisely the judicial theory of civil suit collateral to criminal proceedings system, pointing out that the judicial theory of civil suit collateral to criminal proceedings should be founded on such basis that collateral civil proceedings should tend to possess its own human rights insurance value and strengthen the protection of the interest of victims while the criminal case tend continuously to protect the defendant. Hence it would coordinate the conflicts among the national public interest, the defendant's interest and the victim's interest. In the second division it's about the improvement of our national civil suit collateral to criminal proceedings, which is the focus of this text. It discusses the improvement on five aspects. Firstly it concerns about the scope of accepting case in the civil suit collateral to criminal proceedings. With the present condition of the scope of accepting case, it mainly discusses the perfect probe in the issue about the proceeded civil suit collateral to criminal proceedings on mental injury compensation, stating that the mental injury compensation has already been approved in civil proceedings and the collateral civil proceedings that is a special type of civil proceedings should include the mental injury compensation; and the character of the criminal responsibility and that of the civil one are extremely different, one cannot be exempted from responsibility for his/her criminal responsibility; it's forbidden to institute the collateral civil proceedings for the mental injury compensation while short of sufficient legislative authorities and violating the fairness doctrine in the law; the collateral civil proceedings including the mental injury compensation is more favorable to crack down the crime and secure the public. At the same time it works out a plan for the institution of important documents and the principle of compensation. Secondly it's about the main body in the civil suit collateral to criminal proceedings. It mainly probes in the improvement of the main body, comprising the enlargement the scope of the plaintiff in the collateral civil proceedings, the demolition of the proceeded civil suit collateral to criminal proceedings system of People's Procurator ate and the rational definition of the scope of defendant in collateral civil proceedings. Thirdly it's about the principle of compensation and the scope of compensation in civil suit collateral to criminal proceedings. It discusses about their improvements as follows: the dual compensation principle should be established that we should give priority to overall compensation while we should also sometimes settle compensation as one sees fit. Meanwhile the scope of compensation for the material losses should be clearly regulated. Fourthly it's about the trial of civil suit collateral to criminal proceedings, first of all, it analyses the trial, the mediation, the judge and the remedy, then it probes in the improvement of the trial proceeding, suggesting we make the informing system perfect, make the deadline for the institution of a proceeding perfect and we should collect litigious expenses and express the time limit of hearings. Fifthly it's about the enforcement of the civil suit collateral to criminal proceedings. It works out a plan for the countermeasure to the difficulty of perfect enforcement, and points out that the ultimate tackling mechanism lies in the establishment of the national compensation system.