Civil Liability System Of Priority Development And Narrowed

The Company Law of the People’s Republic of China (hereinafter referred to asthe Company Law) has established the priority principle of civil compensation for thefirst time in chinese legislative history since1993, and then about9department lawsregard to this system have been promulgated one after another, but these departmentlaws are concentrated in business law and tort law. In fact, there exist the concurrenceof civil liability for damages, criminal fine and administrative penalty in anydepartment law, because there must be corresponding liability form and its realizationprocess in every department law which establishes legal subject right (or obligation).However, why other department law lack the regulation of the system? What’s more,there is also short of thorough analysis and discussion about the system in legalscience research field. Is the realization order of legal responsibility really withoutany controversy? Drived by this question, based on the clue of “Article215in theCompany Law(2005)”, the author’s research will focus on the application of thepriority principle of civil compensation.As the opening of this paper, the first chapter unambiguous defines such twopremise problems: the first, it is closely linked with the political background at thetime that the priority principle of civil compensation was established in the CompanyLaw in1993. the second, the nature of the priority principle of civil compensation isnot “legal real right for security” as some scholars said. In addition, the author drawout following text by comparing the system in9existing laws.The second chapter divides “Article215in the Company Law(2005)” into twolevels of constitutions and legal effect using mature logical structure analysis methord.The author think that “this law”, in “violates the provisions of this law”, should belimited to “the command behavior standards” in the Company Law. And theconcurrence of civil liability for damages, criminal fine and administrative penaltydoesn’t require the same illegal behavior inevitably, that is, it is not sure that theremust be competition of rules and regulations.The third chapter analyzes that: civil liability for damages, criminal fine andadministrative penalty don’t have simultaneity on responsibility estabilishmentprogram; there is short of information sharing platform on establishing responsibility;the determination standards of “property” and payment forms of three kinds ofliabilities don’t require simultaneity. The author answers the question why it is notrequire simultaneity when respongsibility subject’s property is not enough to pay, which raised in the first chapter.The fourth chapter mainly discusses relief approache when violating the thepriority principle of civil compensation, based on the situation that “Article215in theCompany Law(2005)” is implemented less in the juducial practice. The approach is toconfer the civil compensation obligee the right to apply for administrativereconsideration or to filed a protest in criminal procedure by the procuratorial organs,in order to guarantee the implementation of the administrative penalty or criminalfines. At the same time, the author advocates that civil litigation property preservationshall prior to criminal fines or administrative penalty, in order to realize priorities ofthe civil liability for compensation.The fifth chapter discuss the limitations of the priority principle of civilcompensation, that is, the realization of personal rights should give way to the publicinterest. Therefore, from the social law, the author suggests that workers’ debt and taxshould be more preference to the realization of the civil liability for compensation.The sixth chapter deeply discuss the legal status of the priority principle of civilcompensation. In view of the differences and inappropriateness of "the confiscation ofproperty" in the legislation in criminal law, administrative law and civil law, theauthor still insist on that the priority principle of civil compensation should be limitedto civil compensation field. In addition to establishing its priority in the administrativepunishment law and civil law code in the future,the auther also suggests that thepriority principle of civil compensation shall be promoted to the basic right inconstitution.The seventh chapter summarizes the legal methodology of the whole text, andsorts out the persperctives of full text in the ways of "the public law and the privatelaw","substantive law and procedural law","jurisprudence and part of the law".