On The Compensation For Criminal Offender

Criminal offender’s payment means that the victims are paid from offenderbecause they have suffered damage in the crime. It is an ancient and importantactivity in judicial system, the most important exemplify of the idea in resiliencejudiciary, and indispensable to making up for the loss on account of criminalbehavior.The aim of the Criminal Procedure Law is more than solving criminalresponsibility problem of defendants, but also trying to repair the social relationshipdestructed by crime. The settlement for the damage caused by crime, to meet thevictim’s rights of getting compensation also should be an important mission. Howeverin our country, the existed incidental civil action system cannot make the obligee toobtain full payment, while on the protection to victim interests, it far did not meetbasic requirements. Therefore, in order to plus full impact and effects which thecriminal offender payment should have on criminal law to build a fair and justice, weshould break down the obstacles hampering payment function in actual operation,break through the current protection scope of offender payment.Except for an introduction and epilogue in this thesis, the main text is dividedinto three parts,30,000characters totally.Part Ⅰ is the analysis for systematic constitution of criminal damagecompensation. There are four essential factors in the legal relationship of criminaldamage compensation that are the compensatory claimants, the compensatoryobligors, the scope of compensation and the method thereof. In our country, inaddition to the victims in traditional legal concept, the claimants also should includethe people impaired by the indirect effect of crime. With an aim to improving thejudicial efficiency and resource conservation, the people impaired by the indirecteffect of crime should be placed on the plaintiff scope of the incidental civil action.The obligors are more than criminal suspects, defendants and the commonperpetrators without criminal responsibility, which are totally considered as criminaloffenders. It may also involve other units and individuals who have to offer paymentson the basis of legal liability, that range from the guarantors in the Criminal ProcedureLaw and insurance companies, to the third civil subjects such as statutory agents, employers or security obligors. It is better to meet the victim’s compensation requestto establish the third party payment system, however about this issue, the legalprovisions in current Criminal Procedure Law in our country is not perfect, and itneed to be guided by more specific regulations. The difference between the paymentfrom criminal offenders and that from other obligors is, the latter should not havesubstantial influence to criminal case, since it cannot reflect the penitent attitude ofcriminal offenders. The criminal damage compensation can divided into two parts, thecompensation for personal and property damage, and the one for mental damage. Inan analysis conducted about three kinds of criminal cases which is the most commonin causing personal and property damage, it is clear that, the compensatory scope indomestic practice is so narrow. The compensatory level of personal damage is low,and it is mainly use the method of returning the original objects to make up theproperty damage. The dispersive victims in part of crime of disrupting the order ofsocial administration are hard to gain compensation. The public interest litigation, inwhich procurator organ act as the plaintiff, is more beneficial to help the victims in alarge number and dispersion obtaining compensation. The vacancy for compensationof mental damage in criminal judicial system is shameful for a lot of legal men, while,no matter how the legislative intent might be, it cannot be concealed that thislegislation has been unequal to victims. Fortunately, a new judicial interpretationabout the criminal settlement system has identified the practice that victims andoffenders could settle down the issue of mental comfort. The criminal damagecompensation has four methods included with payment in money, labor, emotionalcomfort and substantial restrictive burden. We should actively explore the variety ofways other than money compensation, to encourage the offenders differed in theirfinancial situation to participate in compensation proceed equally.Part Ⅱ is the study for validating procedure of criminal offender’s payment. Inour country, the judicial validating procedure of criminal offender’s payment is theincidental civil action. The blemishes of this legal system in protecting private rightshave been shown for a long time. It is worth attention that, due to the different basisbetween criminal liability and civil liability, the rules of evidence is also differentbetween incidental civil action and civil procedure. So it is existed that offenderswithout criminal liability have obligation to bear civil liability in practice. Thesolution is admitting the rationality of difference between two litigation systems. The Court must explain this special character to the both parties in trial and documents ofverdict, instead of making an incidental civil decision depends absolutely on criminalverdict. Additionally, some civil subject of litigation is hard to be legal in theincidental civil action because of the different legislation, so this unbalanced must bemodified by judicial interpretation as soon as possible. The practical dilemma of theincidental civil action is reflected with: one side, the modest and limited criminaljustice conflicts with civil law’s pursuit to succor the private rights, the character ofcriminal judges has been confused for a long time; on the other side, the executionrate of incidental civil judgment is so low, rights for compensation claim has beenlimited constantly. Therefore, we must promote the realization of offender’scompensation by improve this form of action. These improved measures would be:establishing the settlement for compensation antecedently when criminal proceedingblocked, reforming the execution of incidental civil action, reforming the judicialpreservation procedure, and reforming the mediation in incidental civil trial.Part Ⅲ is the research into the promotion mechanism of criminal offender’spayment. With the aim to impel criminal offenders to perform their compensatoryduty, it will be necessary to establish more fair and reasonable compensatoryguidelines, in these four criminal legal mechanisms as described below. They arevictim-offender reconciliations, the judicial division, the reduction of sentence todefendant, and the Commutation and Parole. Firstly, the victim-offenderreconciliation is originated in grassroots judicial practice to protect victims. Now inour country the victim-offender reconciliation system based on cases of misdemeanorin public prosecution has been established. From the mode of incidental civil action tothe mode of reconciliation, the transformation of our legislation would contribute tomake up the shortage of the supplement to criminal offender’s compensation intraditional legal system. Since it was a big progress, also it is a new challenge. So thecompensatory problems in reconciliation have been analyzed in this text in order todefine the justice of compensation, to restrict one party’s regret, and to confine theunreasonable claim. Secondly, the judicial division for a juvenile offender includesthe non-prosecution of additional conditions and the suspended judgment system. Wewant more victims’ participation and accelerate the win-to-win with negotiation in theinstitution of non-prosecution of additional conditions. The suspend judgment systemwhich is still in experimental unit is lack of succor measure for victims, so we need settle down the suspended judgment in the premise of victims’ approval. Thirdly, themeasurement of penalty based on compensatory circumstances is a controversial issue.The measurement of penalty is a complex task, and that courts measure the penaltybased on compensatory circumstances must need more caution. With the adherence tothe principle of legally prescribed punishment for a specified crime and the principleof offences matching penalty, the court should weigh the compensatory circumstanceand judge all the circumstances in criminal cases. The last chapter is an analysis forhow to encourage prisoners to compensate in a system of commutation and parole.