On Reconstruction Of Incidental Civil Actions Legislation

Civil claim annexed to a criminal case (or "incidental civil actions") is a litigation system where civil liability is settled during the course of a criminal proceeding. Since its introduction from USSR to China more than three decades ago, incidental civil actions system has been widely put into practice and made a profound social impact. However, its limitations and problems have gradually shown. Substantively, there are problems such as how the principle of compensation is established, whether compensation for mental distress should be brought into jurisdiction, how direct damages and indirect damages are identified, whether it is reasonable to distinguish occupancy-type, disposal-type and destruction-type about property crime.Procedurally, there are problems such as how the subject of litigation is identified, how the judicial evidence system-including evidence criteria, responsibility for providing evidence and legal requirement for evidence-is established, complicity crime, law enforcement, etc.Due to the lack of refinement in the legislation of incidental civil actions, these problems have grown increasingly prominent, and a legislative reform is in order. Previous studies present two views concerning the Chinese legislative reform method of incidental civil actions:the "reformation" method, where the current legislation system could be gradually improved by acknowledging its merits and values and making amendments, and the "criminal versus civil" method, where the aforementioned problems cannot be resolved due to the contradictory nature of incidental civil actions, and criminal legislation should be separated from civil legislation according to the Common Law system, and civil tort damages caused by criminal offenses should be settled during civil actions, thus completely abolishing incidental civil actions. While the "reformation" method has its appeals, it lacks definitive and legitimate principles, thus failing to ensure its total legitimacy, and eventually leading to a negative extreme:large-scaled reference to civil laws.The "criminal versus civil" method has a seemingly rigorous logic, but as a mere imitation of the Common Law system, it only focuses on the contradictory nature of incidental civil actions and fails to acknowledge its legitimacy.Based on these traditional legislation reform studies, this paper presents the "generality of legal rights and particularity of legal procedures" theory of incidental civil actions (or "generality and particularity"), and reconstructs the current legislation system based on this core theory."Generality" refers to the general existence of civil action rights in both civil actions and incidental civil actions, whose substance and classification remain the same regardless of the different action proceedings. The range of civil rights protected in incidental civil actions is the same as that in civil tort litigations."Particularity" refers to the particular nature and purpose of incidental civil actions compared with criminal litigations and civil litigations, and the necessity of a special procedure different from that in other types of litigations. In short,"generality" expands the jurisdiction in different civil actions, providing equal protection to all the rights determined in civil law, while "particularity" establishes an independent system for incidental civil actions, thus eliminating the contradiction between criminal litigations and civil litigations.The theory of "generality and Specificity" avoided the limitation coming with conventional theory, unified the standard of problem analysis and formulated a scientific standard of legislative reconstruction. With the set-up of independent procedure construction, it resolved the challenge of "inherent irreconcilable contradiction "addressed before, also stabilized the foundation for the existence of system. Meanwhile. It is an open theory, can conduct and solve the other problems of incidental civil law legalization, and makes the legalization of the incidental civil law keep the trend of the times. further it can form a kind of system with stable foundation and opening-up content.The principle of "generality and specialty" is also reflected in the legislation of incidental civil actions, especially in France, Germany and Taiwan, which establish typical Continental Legal System. Though it is not explicitly provided, it is implemented in fact. The legislation in France provides that the one who suffers any material, physical, or mental damage caused by prosecution, has the right to file an incidental civil action, without differentiating impairment by disposal from that by damage. The legislation in German makes almost exactly the same provisions. The legislation in Taiwan provides that the scope of incidental civil action should be in accordance with provisions of Civil Code. Thus, let Civil Code provide the scope of protection of rights to file incidental civil action is a general rule. That is what defined as "principle of generality" by this paper. Meanwhile, the legislations mentioned above also provide specific and detailed stipulations for contentious procedure, maintaining the integrity of the system, which conform the "specialty of procedure" requirement. It is thus evident that principle of "generality and specialty" has been reflected in the overseas legislations.Under the guidance of the "generality and particularity ", this paper proposes that Incidental Civil Actions shall be reconstructed so as to solve the problems in current legislation, complete the validity of the Incidental Civil Action systems.Substantively, bring the extent of protection of Incidental Civil Action in correspondence with civil laws by coordinating criminal laws and civil laws so that problems exist in compensation principles, mental distress compensation, indirect damages and disposal-and-occupancy types of crimes can be solved. Procedurally, establish independent systems of incidental civil action, including firstly making provisions for the subject of lawsuit, sphere of application, handling process,-These are horizontal aspects. And secondly coordinating and completing the system. These are vertical aspects. Combine horizontal aspects and vertical aspects so that a precise and logical method can be found to solve the above mentioned problems.