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The Current Criminal With The Internal Conflict And Coordination Of The Civil Litigation System

Posted on:2008-08-31Degree:MasterType:Thesis
Country:ChinaCandidate:Y ZhouFull Text:PDF
GTID:2206360215472869Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The creation and existence of the Procedure of Civil Suit Collateral to Criminal Proceedings are the results 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 act violating both criminal law and civil law. The procedure is for reducing the proceedings load, improving proceedings effectiveness, guaranteeing to process the criminal case justly, defending the integrity of the judgment, and maintaining the legal rights of the state, the collective and the victim. Though the legislation idea worth the compliment, the case of civil suit collateral to criminal litigation has been a trouble in the criminal---trial practice of our country. One reason is under the mode of Procedure the conflict and contradiction still exist in the theoretic bases, legislating and judicial practice due to the difference in nature between civil litigation and criminal one; another reason is too brief in the current law. Though the Supreme People's Court has made judicial interpretations about the procedure, many defects still exist in the judicial practice. Along with the propulsion of the legal construction, the protection of procedure justice is be valued, the worth mindset of the Procedure of Civil Suit Collateral to Criminal Proceedings is queried. Author want to find the conflicts in the Procedure, and draw lessons from foreign experience, to find a new way to balancing and harmonizing the public law remedy and private one, to realize the judicial justice.This dissertation paper is composed of four parts, except for introduction, and the main content is as follows.PartⅠIntroduction of the Procedure of Civil Suit Collateral to Criminal Proceedings. Basis the reason why the victim want to enter the procedure and how to startup it, and what about the status of them, author think the procedure is just a civil suit. So, author proposes to harmonize the intrinsic conflict should follow this merit: give priority to fairness with due consideration to efficiency, discard the neglect of civil procedure, pay the same attention on both criminal and civil proceedings.PartⅡAnalyzing the intrinsic conflicts of the Procedure of Civil Suit Collateral to Criminal Proceedings. For the disparate alms, the legislating and judicial practice between civil litigation and criminal one are different. If we put them together, it must bring many problems. For example: the choose between fairness and efficiency, using laws incompatibly, the difference of the proof, ability of the judge. At the same time, Procedure is completely depended on criminal procedure, which has made a negative effect on its role in whole procedure. The protections for the litigants are not sufficient. So, to reform the Procedure is very urgently.PartⅢIntroduction to this Procedure in other countries. The aim of compare is to find the simitrdes and differentials. In England and America, this Procedure is not exist. In Germany and France, it actualizes also not very well. But there is also some consistent: allow the homicide to institute lawsuit for moral damage; admit the independence of civil remedy. These are useful for the reconstruction.PartⅣTo harmonize the intrinsic conflict in the Procedure of Civil Suit Collateral to Criminal Proceedings. First, author analyze some advice on how to innovate this Procedure, then give the brainchild of myself.: independent civil remedy is based on negatives, and the supplementary civil action in criminal proceedings is auxiliary. Allow the homicide to institute lawsuit for moral damage, and give them the right to choose the time to enter the proceeding. At the same time, endowing the judge with notify duty to guarantee the litigants use choose—right fairly. At last, author advise to establish the institution of "compensating fund", to protect the litigants'right further.
Keywords/Search Tags:The Procedure of Civil Suit Collateral to Criminal roceedings, Intrinsic conflict, Harmonize
PDF Full Text Request
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