On The Legal Issues Of Death Compensation In Incidental Civil Action

In civil tort cases,the compensation scope includes compensation for mental damage and material damage,so the compensation for death can often be supported,but the relevant legal basis is contradictory."Tort liability law" and "the supreme people's court on the trial of cases on compensation for personal injury to explain some issues of applicable law(hereinafter referred to as" personal interpretation ")will be involved in the death compensation terms written material damage compensation in legislation of compensation for mental injury and with the relevant provisions of,and the supreme people's court on civil tort liability of compensation for mental injury to explain some issues of article 9 of the(hereinafter referred to as the "spirit to explain")expressly the qualitative for mental damages,according to the legal logic,the death compensation in civil suit collateral to criminal proceedings should be supported.However,the reality is quite the opposite,the death compensation is often not supported in the criminal collateral civil action.That is to say,this confusion about the nature of compensation for death affected whether it was supported in the incidental civil action in the early stage.Especially in 2006 the supreme people's court of the fifth national conference on criminal trials address(hereinafter referred to as "the fifth session of the national criminal trial speech")content once again its qualitative for mental damages,and the judicial interpretation points in the second paragraph of article one hundred and thirty-eight and article one hundred and fifty-five(2)to strengthen the only material damage compensate a principle,early in the judicial practice in civil suit collateral to criminal proceedings has quite part of the court will its qualitative for compensation for mental damage compensation and its exclusion from the gate.At present,especially with the emergence of the supreme people's court(2013)273,the nature and trend of death compensation is defined as "material damage compensation".However,legislators and judicial adjudicators often refuse to compensate for the occurrence of events that damage the judicial image,such as the difficulty in execution and the entanglement of petitions.In view of this,the legal issue of death compensation in incidental civil action is still worthy of further study.This paper USES comparative analysis,empirical analysis and literature analysis tostudy the legal issues of death compensation in criminal incidental civil action.In addition to the introduction and conclusion,the main content includes four parts.The first part is the summary of death compensation in criminal incidental civil action.This part elaborates the definition of death compensation,the theoretical basis of death compensation,and also discusses the scope of criminal incidental civil action compensation,and makes it clear that death compensation should be included.The second part is about the problems and reasons of death compensation in incidental civil action.There are four main problems.One is the legislative problem.The criminal procedure law and its related judicial interpretation do not clearly stipulate the compensation for death in the criminal incidental civil action.The second is the judicial problem,in the criminal collateral civil action the court often does not support to the death compensation lawsuit request;Its 3 it is "with the same life different valence" problem.The fourth is the problem of execution.Even if the death compensation is supported,the execution rate is extremely low and the execution is difficult,resulting in the serious phenomenon of empty judgment and entangled petition.And cause there are four major causes of these problems,first of all,we have a "death" in the history of "beat off the hook,and fined not dozen" awareness of death damage result error,in the second place,there are still some scholars defined death compensation for mental damage compensation,third,in the article 9 of the spirit is still active,and the criminal procedure law and relevant judicial interpretations have not clearly stipulated compensation for death,fourth,criminals are often poor cannot lead to perform difficult for compensation pestering petitioning problems mount.At the same time,the problem of "same life,different price" caused by the great difference between urban and rural areas also occurs from time to time.The third part is the comparison and reference of foreign judicial relief system about death compensation.This paper mainly discusses the legal provisions of the judicial relief system of death compensation in Germany,the United States and Japan,and provides references for the construction of related systems in China in the future,such as the source of funds,scope of compensation and compensation procedures.The fourth part is the perfection of death compensation system in incidental civil action.It is the core content of the full text.First of all,we need to reshape the legislative orientation.For this reason,we need to change the traditional wrong concept of "punishment without punishment,punishment without punishment" and "life for life",unify and clarify the legal nature of death compensation as material damage compensation,and bring it into the scope of criminal incidental civil lawsuit compensation.Secondly,we need to improve the compensation standard of death compensation,respect reasonable differences based on the principle of "the same life and the same price",set the minimum and maximum limits,and bring the living expenses of the dependant into the scope of death compensation in theory and legislation.Finally,we need to improve the enforcement measures,change the traditional "lose one" mode,establish a "crime and illegal community" compensation "community" the victim of the new model-"compensation fund" system,at the same time in order to solve the victim near relatives the stressed state of a national leading compensation mechanism,and is not the immediate execution of a death sentence for criminals,providing jobs,improve the labor remuneration,labor remuneration will be compulsory in proportion to compensate the victim close relatives,all the rest for himself,make its not already due to poor prison crime again,and to compensate the victim of close relatives.