Research On Several Questions Of Criminal Incidental Civil Public Interest Litigation

The reform of public interest litigation is a hot topic in China's current judicial reform.In the field of criminal justice,public interest litigation is a form of reform with incidental civil public interest litigation.Compared with civil and administrative public interest litigation reforms,the criminal incidental public interest litigation reform started late,which is a shortcoming in the reform of public interest litigation.Through empirical analysis,it is found that in practice,many practitioners are quite confused about how to apply the procedures related to the incidental civil public interest litigation.It is the criminal procedure rule that caters to the practice of the incidental civil public interest litigation and makes adjustments on its own initiative;or the practice compliance rules,close to the rule of incidental civil litigation.This is a question of great research value.This article uses interviews,case studies,and literature research methods,on the basis of combing the key procedural issues,analyze the causes of different problems and propose corresponding solutions to establish a system of criminal incidental civil public interest litigation with Chinese characteristics.In addition to the introduction and conclusion,this article is divided into five parts:The first part is an overview of the practice of criminal incidental civil public interest litigation.According to the criminal procedure law and its judicial interpretation,the incidental civil action needs to be sued at the same time as the public prosecution case,that is,the“criminal cases and civil cases are heard simultaneously” model.Similarly,the criminal incidental civil public interest litigation should also be the same.However,with the promulgation of the “Code of Public Interest Litigation” and “Explanation of Public Interest Litigation” as the time node,and practice situation of criminal incidental civil public interest litigation can be divided into three parts,and combined with China Judgements Online and the judgment of the third-level court of the C city,it is found that in practice,there are mainly three modes of merger prosecution,another prosecution separate prosecution.Among them,the two modes of merger prosecution and another prosecution are facing the crisis of legitimacy and rationality,and the separate prosecution mode is inevitably subject to selective application due to the cognitive differences of the local procuratorates.It is worth noting that the prosecution mode directly affects the basis of compensation,resulting in a disparity in the amount of compensation.However,the prosecution mode is only a relatively straightforwardquestion.Considering that the criminal incidental civil public interest litigation is a new thing,there are still many contradictions with the provisions of the incidental civil action,and these conflicts have the risk of turning into a crisis.The second part is an analysis of jurisdictional issues.In terms of jurisdiction,the level of jurisdiction of criminal incidental civil public interest litigation is confused,and similar cases may be under the jurisdiction of the grass-roots courts or the intermediate courts;territorial jurisdiction is not appropriate,although the jurisdiction principle of “the first court to be accepted” resolves the problem of jurisdiction's concurrence,but the courts that are accepted may not have the conditions to hear such cases.The reason is that because the criminal level jurisdiction conflicts with the text and practice of civil public interest litigation,leading to the criminal incidental civil public interest litigation is basically in accordance with the jurisdictional provisions of civil public interest litigation.In addition,under the influence of the performance appraisal mechanism,some courts used the jurisdiction principle of “the first court to be accepted” and combined jurisdiction to compete for jurisdiction over criminal incidental civil public interest litigation.The third part is the analysis of the issue of judicial identification.In the judicial appraisal,the acceptance rate of the criminal incidental civil public interest litigation for the appraisal opinion is almost high.and in this case,the appraisal opinion is the key evidence for judging the facts of the crime,which also increases the rate of guilty referee.The analysis of this problem is caused by the fact that the judicial appraisal of the criminal incidental civil public interest litigation has strong professionalism and technicality.The judge is like a “outsider”and it is difficult to conduct substantive review of the appraisal opinions.In order to avoid the negative opinion of the appraisal opinion,leading to an adverse effect on the prosecution,and high appraisal fees for losing a lawsuit,it is not willing to let the appraisers and expert assistants appear in court,or even set up obstacles.The perfect countermeasure is to absorb the experts in relevant fields to participate in the trial activities.To achieve this goal,it is necessary to eliminate the obstacles of the prosecutors from the two aspects of "positive" and "anti".In addition,in view of the high cost of applying for expert assistants to appear in court,it is a “luxury” in the trial activities,and it can be reduced by establishing a public interest litigation “expert pool” and absorbing the jurors.The fourth part is the analysis of the problem of pre-litigation procedures.In the pre-litigation procedure,the provisions of the Criminal Procedure Law were violated,and thepre-litigation announcement was used as a precondition for prosecution.This is due to the influence of the right of restriction and the concept of litigation economy.The procuratorate is more inclined to urge the eligible subject to file a criminal incidental civil public interest litigation.Judging from the premise and effect of the concept of power limitation and the process and results of the litigation economic concept,these two concepts cannot be established in the criminal incidental civil public interest litigation and should be cancelled.The fifth part is the analysis of the direct loss problem.In the compensation for damages,the provisions for direct losses in incidental civil public interest litigation have been broken.Indirect losses and punitive damages are also included in the scope of compensation.When the procuratorate acts as a plaintiff with a criminal incidental civil public interest litigation,it can also reach a criminal settlement or mediation with the defendant.The reason is that in the criminal incidental civil public interest litigation,the specific circumstances of the loss are rather vague.If compensation is made according to direct losses,there may be a phenomenon of exemption from compensation or a small amount of compensation,which in turn will affect the construction of the crime.It is also a key reason for the reconciliation or mediation between the prosecutor and the accused.In addition,in order to severely punish consumer public interest litigation,the procuratorate introduced the practice of punitive damages.To this end,the systematization and regularization of damages should be promoted.In addition,it responds to the neutrality of the procuratorate and the principle of “maximizing profits”,and proves the legitimacy of criminal reconciliation or mediation between the procurator and the accused.