Research On The Procedural Regulation Of Overlapping Criminal And Civil Cases Of Competing Type

Competing type overlapping Criminal and Civil Cases have the duality of been simultaneously against social welfare as well as private interest in nature. But in the current judicial practice, competing type overlapping criminal and civil cases are mainly regulated by the system of criminal proceeding that primarily emphasize on the punishment for a criminal part. The civil part has lost the independent status and has a tendency to be secondary to the criminal part in procedure. According to the formal procedural theory, criminal and civil proceedings ought to have their own set of stand-alone program. Once the proceeding of one case is started, it should not stop in the sequence under normal circumstances until the parties get the effective judicial verdict.But according to the current point of view of the provisions of relevant judicial interpretation, as for the economic crimes, if a committed crime was found in a civil action, the court should stop the trial of the civil case, and the case should be transferred to public security organs for investigation. Only after the criminal part is finished, the proceeding of the civil part, which should comply with the result of the criminal part, can continue again. The provisions of the judicial interpretation reflect that the current legal system has a propensity to emphasis on punishing criminal action. Compared with the punishment for a crime, the protection for the civil rights of victim is deficiency.So in order to better protect the interests of the victim and reflect on the value balance of public and private interest, as for the competing type overlapping criminal and civil cases, the trial of civil tort part shall be independent from criminal part, namely giving the victims complete civil litigation rights. On one hand, it can get accustomed to the division theory between private law and public law as well as the autonomy principle of private rights. On the other hand, it can avoid the disadvantages of "doctrine of private right subordination". Consequently this can bring the instrumental value of procedure into implementation more effectively and also help to protect civil rights and interests. As a result, there is a need to give up the traditional idea of affiliation of private right. On the basis of dividing theory of public rights and private rights, it is quite needed to reconstruct the procedural regulation mode of competing overlapping criminal and civil cases from the starting point of principle of separation of crime and civil.This article, on the basis of analysis of the type of competing overlapping criminal and civil cases, the essence of its substantive law as well as the difference of criminal procedure and civil procedure, is trying to solve the specific problem of application of the procedure on competing overlapping criminal and civil cases through the construction of three open modes. At the same time, it is indeed to save but to limit the scope of civil suit collateral to criminal proceedings and suggest establishing transfer system for complicated civil disputes. Then it is important to abolish the judicial interpretation that demands the stop of civil litigation and establish the transfer system for special individual case. At last, this article concentrates on the program regulation mode of competing overlapping criminal and civil cases through the three modes of discourse.