Improving Incidental Civil Action System

The incidental civil action system defined in the criminal law and the criminalprocedural law in our country, being aim at solving penal offence and civilcompensation integrated. From the view of legislation there is a trend to strengthenincidental civil action system, the incidental civil action system also is refined bySupreme People’s Court through judicial interpretation, and make it more operability.In legal practice significance of incidental civil action system mainly is showed insaving judicial resources, improving judicial efficiency, and relieving reducingburden of a injured party, for these reasons, most of the injured parties raisesupplementary civil action as selection. Incidental civil action system has broughtinto play a certain active role in the past legal practice, however, it become a mereformality to a certain degree rather than giving play to efficiency, it results in lackagainst protection of a injured party in rights and interests. Therefore, it is necessaryfor discussing the existing faults in our incidental civil action system, protection of ainjured party in rights and interests will be improved, with taking this as anopportunity, it is expected that, criminal law and criminal proceedings law canovercome ex parte state-based thinking, can consider penalty preferentially from theview of protection of a injured party in rights and interests. There are4respects ofdefects in the incidental civil action system: Firstly, there is certain aggravatetensions between criminal proceedings and civil proceedings, that a injured party iseffected to obtain procedural justice. In essence, incidental civil action belongs totort action. Starting of supplementary civil action program should be subjected toavailable criminal proceedings by law and entering in legal proceedings. You know ajudge more pay attention to criminal proceedings and results of judgments andrulings. Secondly, scope of accepting cases of the incidental civil action is toonarrow, especially, compensation for spiritual damages doesn’t been incorporatedinto the scope, an injured party obtaining substantive justice has been effected herein.In the criminal proceedings law of our country the compensation scope is limited in material damage, and in judicial interpretation by Supreme People’s Courtcompensation for spiritual damages is excluded from the scope clearly, a actionagainst compensation for spiritual damages from a injured party is forbidden afterthe relative criminal case is concluded. Unlike criminal law, in civil action the scopeof compensation for spiritual damages is expanding and is led to internalinconformity in law system. Criminal penalty inflicted to offender cannot commutethe civil liability to be borne to an aggrieved party. Thirdly, a judge’s decision indifficulty are increasing due to giving consideration to criminal and civil respects,rights and interests of a injured party cannot be protected enough possible. Becauseof specialization of work, in a civil compensation the understanding to evidence andprocedure in the view of a criminal judge isn’t as good as a civil judge, when thejudge is handling with a relatively complex case in supplementary civil action, whois in ability not equal to his ambition, and is easy to damage the legal rights andinterests of a injured party. Fourthly, court decision with incidental civil action isshort in effective implementation, rights and interests of an injured party cannot besufficient security. Supplementary civil action raised by an injured party cannot beperformed effectively due to non-available properties of a defendant, andidentification of judicial fairness is lost. Regarding to improving incidental civilaction system, firstly,a aggrieved party should be granted more free selection rightin legal procedures, while a criminal justice is doing trial a supplementary civilaction could be raised,a supplementary civil action can also be raised separately,secondly, having right o apply for criminal and direct judgment. criminal and directjudgment, in the process of hearing criminal crimes in a court the material losssuffered from a injured party according to function or application from a injuredparty can obtained a certain compensation for damage according to defendant’ssolvency margin. A injured party has right to apply for pre-performing through pathof legislative stipulation further, if,in the view of a injured party, through criminaland direct judgment whole economic loss cannot be compensated completely, whohas right to claim in a civil court again. Thirdly, we’d better to set up avictim-offender mediation system and the system of national compensation to ainjured party due to criminal damage as a addition. Fourthly, conservatory measures system to a injured party in rights and interests should be improved. Legal systemimproving is a step-by-step evolved process with development of society, althoughour incidental civil action system has some defects, however, under the currentjudicial system, seeking improvement of system is the best solution for promotingprotection to a injured party in rights and interests.