Research On The Issues Concerning Right Guarantee Of Criminal Victim

In recent years, under the overall background which pays attention to the right guarantee of criminal victim throughout the world and along with the continuous penetration of socialist democratic and legal construction in this country, more and more attention to the issues concerning the right guarantee of criminal victim has been paid by various circles of society, issues concerning right relief of criminal victim are paid more attention by the field of theory and that of practice. Although there are legislative grounds for the issues concerning right relief of criminal victim in this country, compared to the international theory and practice for the right relief of criminal victim, there are deficiencies in the legislative and judicial practices in this country. The author considers that it is necessary to study up on the issues concerning right relief of criminal victim in this country in the context of building a harmonious socialist society and under the direction of the criminal policy of combining lenience and strictness so as to complete legal system, effectively protect the rights and benefits of victim and realize social equity.In the academic circles of this country, there are different points of view for defining the conception of criminal victim, and the conception of criminal victim is expounded by those points of view from different angles. The victims researched in the paper are criminal victims which refer to persons involved whose lawful rights suffer the direct invasion of criminal behavior.The issues concerning right relief of criminal victim have been existed since the ancient time, and it has different forms of expression in different countries and different historical periods. Making a comprehensive view for the developmental history of the right relief of criminal victim of every country in the world, it has been experienced the following three developmental stages on the whole: private relief-public relief-the combination of public relief and private relief. In the middle of 20th century, along with the rising and development of the subject of criminal victim, issues concerning the right relief of criminal victim were received attention again, and it gradually became a hot issue in the theory and practice of criminal action. Victims'voices to require right relief ran up day by day, and the idea of law was gradually changed from Social Selfish Departmentalism to State Selfish Departmentalism.On Dec. 11, 1985, Declaration of Fundamental Principles for Obtaining Axiom for the Victims who have the Behaviors of Crime and Abuse of Power was passed through by General Assembly, which has determined the fundamental principle and leading procedure for protecting the human rights of victim as well as systems and procedures of indemnification, compensation, assistance etc. It is the first important declaration concerning the right relief of victim passed by the United Nations, and it symbolizes that the issue concerning victims has already entered into the stage of legislative implementation from the stage of theoretical research in the international scale.Corresponding measures are drawn up by every country in the world one by one so as to actively push forward the legislative work and judicature practice work for the right relief of criminal victim, the rights of criminal victims are confirmed by law, and their litigation status is increased to a large degree. In both civil law countries and common law countries, the right relief of criminal victim is strengthened, and the rights of victims and accused persons are given reasonable and proper balance, victims have certain right to speak in criminal action.Certain legal rules are made for the issues concerning right relief of criminal victim in this country both in substantive law and procedural law, which have made great progress compared to before and achieved a certain achievements, however, compared to the progress of society and the development of guarantee of human rights, the legal rules concerning the right relief of criminal victim in this country have already fallen behind the requirements of social reality in certain degree, and it is necessary to reconstruct the right relief of criminal victim in this country on the basis of absorbing the advanced legislative experiences and judicial practices of foreign countries.The entity of criminal victim is expanded without stipulating the compensation for mental damages, on the contrary, in judicial interpretation, the request to the compensation for mental damages is excluded in the protection domain of criminal lawsuit affiliated right, and the mental damages is brought into protection domain. Along with the rapid development of China's economy for more than 10 years, it is necessary to study up on the issue concerning compensation for mental damages of criminal victim so as to adapt to social development and effectively protect the rights of criminal victim. After the 20th century, the compensation for mental damages is stipulated in criminal legislation by many countries. While according to the current Criminal Law and Law of Criminal Procedure in this country, it is not within civil procedure's scope of accepting cases. Therefore, it is necessary to modify the current criminal laws, extend the scope of criminal victim's rights to claim damages and bring the compensation for mental damages of criminal victim into the extent of compensation.Criminal victims'procedure rights of litigation should be completed. On the phase of putting on record, criminal victims'rights to know and rights of relief should be strongly protected. On the phase of prosecution and trial, criminal victims'rights to know and rights to participate in should be completed. On execution phase, the participatory system for criminal victims should be designed in procedure. Criminal victims who belong to offences against property should be allowed to file incidental civil action.A kind of system should be established--system of state compensation to crime victims. It has great immediate significance to establish the system of state compensation to crime victims in this country. Firstly, from the angle of criminal victim, the establishment of the system of state compensation to crime victims is favorable to realize criminal victims'rights to claim damages. Especially for those victims who have seriously difficult in life because of criminal behaviors, giving certain material compensation to them which can reduce social unstable factors and protect social harmony. Secondly, from the angle of state's punishment for crime, the generalized practice at present which exchanges probation or light punishment for the realization for criminal victims'rights to claim damages can be changed.The restorative judicial idea should be introduced so as to promote the theory and practice of criminal reconciliation in this country. The restorative judicial idea is mainly shown as follows: through apology, compensation, community services and help in life, victims'material and emotional damages caused by crimes are compensated and victims'life which is influenced by crimes is returned to normal, at the same time, offenders are also socially reintegrated through active and responsible conducts so as to win the understanding of victims as well as their families and society.Under the great background of contemporary China who advocates building a harmonious socialist society and as the active response on criminal judiciary, the criminal policy of combining lenience and strictness is proposed. The criminal policy of combining lenience and strictness provides the space and possibility to play a role for restorative judicial idea and criminal reconciliation in this country, differentiating different crimes, punishment should be different according to different circumstances and it should be based on the concrete situation, and within the lenient and strict limitation, the realization of criminal victims'rights and defendants'return to society as well as the compromise of both sides are taken as the plot to be investigated when measuring punishment, undoubtedly, it will produce the social effect which achieves maximum results with little effort.Criminal reconciliation in this country refers to that in criminal action, presided over by judicial authority or the third party (professional staff), criminal victim and injuring party negotiate on the criminal conflict of both sides, come to an agreement on compensation and come to an accord on application of punishment. The reconciliation between both sides will be taken as the statutory circumstances to be considered for punishing on the lenient side, lightening or exempting from punishment by judicial authorities when measuring punishment, in this way, in the criminal cases, victims will be satisfied, defendants will be understood, confess guilt and be willing to receive punishment, state will solve disputes to the full extent permitted by law and under the forgive and harmonious state.The conclusion is that issues concerning right relief of criminal victim are a systematic engineering participated by many parties. On the basis of fully drawing lessons from the excellent theoretical results and rich practical experiences concerning the right relief of criminal victim from each country, fully considering the actual conditions in China, combining the developmental situations of economy in this country, the level of citizens'legal consciousness, the ability and quality of judicial office etc., the theoretical research and practical operation of the right relief of criminal victim in this country should be gradually carried forward.Under the great social background of building a harmonious socialist society and under the direction of the criminal policy of combining lenience and strictness, the learning and educational activities of Justice for People are carried out by judicial authority. Criminal victims should become an important subject of concern in building harmonious society, the beneficiary of the criminal policy of combining lenience and strictness and also the service object of Justice for People. Social contradiction can be resolved to the utmost extent so as to promote social harmony and stability through paying attention to issues concerning right relief of criminal victim and trying hard to realize the right relief of criminal victim.