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Perfecting Our Criminal Fringe Of Civil Litigation System

Posted on:2005-03-09Degree:MasterType:Thesis
Country:ChinaCandidate:L ZhangFull Text:PDF
GTID:2206360125970372Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The creation and existence of the Procedure of Civil Suit Collateral to Criminal Proceedings ("Procedure") is the result of concurrent existence of the public law and private law, and Procedure is designed to solve the problem of co-existence and undertaking of two kinds of liabilities facing one actor arising from the actor's conduct violating both the criminal law and civil law There are three modes of resolution in principle worldwide on the matter of criminal compensation, i.e. Attachment, Parallel and Balance the former of which is applied in China's legal system presently. Under the mode of Attachment, the victim usually can only launch civil litigation for compensationc together with the criminal litigation and is prohibited from starting the civil law suit alone before the criminal proceedings. Notwithstanding the fact that Attachment has played a positive role in simplifying the litigation proceeding, reducing the procedural burden of the litigant, protecting the state's, collective and individual properties and minimizing the harm and damage arisen from the criminal act, under the mode of Attachment the conflict and contradiction still exist in the theoretic bases, legislation and judicial practice due to the replacement of one litigation procedure by the other and the difference in nature between the civil litigation and criminal litigation; what is more worse, some deficiency do exist in Attachment itself e.g. the nature of being subsidiary in legislation base, the obscurity of legislation theory, roughness in the procedural specification, simplification in the provision and non-conformity or even contradiction with the criminal and civil judicial interpretation.All the deficiency mentioned above brings difficulties to the judicial personnel in the judicial practice and leaves space for the litigants' abuse of the litigation.There are many study on the above issues regarding with Procedure from the academic angle, but those from the practical angle are seldom be made. As a judicial personnel, Author believe that, from the practical trail and hearing point of view, it is necessary to understand the legal features and orientation of Procedure, make study on the range of cases covered by Procedure, confirmation of the litigant and substantive and procedural matters, amongst other issues, by considering the difficulty and perplexity caused by such deficiency, find a new method to clarify the existed obscurity in Procedure and propose constructive suggestion for the aim of establishing a more reasonable and scientific system of Procedure , offering more option to the victim for application of Procedure and balancing and harmonizing the public law remedy and private law remedy. The principles of improving the Procedure are as follows: precisely fixing the judicial ideology behind the Procedure, entitling the procedural option right to the victims, balancing and mitigating the legislative conflicts e.g. limiting the range of cases covered by the Procedure, determining the litigation fee of applying the Procedure and setting the system of Mental Compensation Collateral to Criminal Proceedings, establishing the special state compensation guidelines, standardizing the procedural legislation and improving the judicial remedy of the civil rights.
Keywords/Search Tags:Collateral Civil Suit, Introspection and Analysis, Pragmatic Study, Mechanism Improvement
PDF Full Text Request
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