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A Rethink Of The Concept Of Criminal Procedure Prior To Civil Procedure In The Procedural Law

Posted on:2012-11-16Degree:MasterType:Thesis
Country:ChinaCandidate:X GuFull Text:PDF
GTID:2216330371954004Subject:Law
Abstract/Summary:PDF Full Text Request
The handling of interlocked penal and civil cases has always been a tough problem in judicial practice. At present, the study on interlocked penal and civil cases almost limited to the aspects of entity and pure jurisprudence instead of the study on procedure problems. Theoretical circles and judicial circles have begun to doubt the legitimacy of the principle of criminal procedure prior to civil procedure, but short of the systematic research conclusion guided by judicial practice.Based on a real case, this paper sums up the focal points and divergent opinions of the case, and via the focus of the case to sorts out relevant legal issues, that is the issue about criminal procedure prior to civil procedure in criminal proceedings. Then the paper explains the concept of criminal procedure prior to civil procedure, presenting a process that the concept of criminal procedure prior to civil procedure has been mistreated as a judicial principle to be applied universally after the review of the relevant normative documents. Convinced that the legal status of criminal procedure prior to civil procedure, namely it is not a judicial principle, is just a model of handling the case parallel to civil proceeding before criminal proceeding and combination of criminal procedure and civil procedure, presenting a taxonomic analysis of interlocked penal and civil cases, enumerating several frequent situations in judicial practice, thus coming to the conclusion that there is a basic handling model under different circumstances, which is explained by some cases (these are real cases handled in our work). And therefore, the procedures of interlocked penal and civil cases will be discussed more completely, so as to promote the procedure handling of such cases to achieve the effects of effectiveness and operability. This paper divides the interlocked penal and civil cases into cases caused by the same legal facts including civil cases subject to penal cases, penal cases subject to civil cases and no priorities between penal and civil cases, and interlocked penal and civil cases caused by different legal facts. Believing that the key of choosing handling models is to judge the relevance of the results of civil cases and criminal cases, in other words, which case result have to rely on the other, and hence the other should be handled first, and if both results are not affected each other, then both cases can be handled together. Summing up the general way of judging the nature of interlocked penal and civil cases, namely the civil case analysis and criminal case analysis, is to examine if there is "correspondence"between elements of civil relationship and elements constitute criminal crime. Supposing that there is no correspondence, the case is civil case, in the event that correspondence is existed, the analysis of qualification and order of the act should be applied to judge whether the act deserves criminal punishment or whether there is a ground to prevent from committing crime, so as to judge whether the case should be regulated by criminal law or not.By rethinking the concept of criminal procedure prior to civil procedure, the paper proposes such three handling models as criminal procedure prior to civil procedure, civil proceeding before criminal proceeding and combination of criminal procedure and civil procedure for interlocked penal and civil cases, in an effort to provide theoretical basis and thought in procedure for the handling of such cases.
Keywords/Search Tags:interlocked penal and civil cases, criminal procedure prior to civil procedure, civil proceeding before criminal proceeding, combination of criminal procedure and civil procedure
PDF Full Text Request
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