| The question that compensation for mental damage in incidental civil action of criminal to criminal cases has always been a hot topic in the theoretical and practical circles.The current criminal law in China prohibits the victim from making compensation for mental damage,and the dispute has been very great.The criminal procedure law amended in 2012,for the first time in the indirect accepted the mental damage compensation in the law,through the incidental civil lawsuit mediation and criminal reconciliation system,gives mental damages of the victim,the criminal law made a major breakthrough in the field of compensation for mental damage,but still face mediation,settlement rate is low,especially in the judicial practice,"connection with different sentence","spiritual comfort absence" phenomenon,the serious influence to the judicial authority and credibilityThe articles divided into five parts,focusing on the compensation for mental damage in incidental civil action.In the first part,the author analyzes three cases randomly selected on the website of Chinese judgment documents,which indicates that there exists the problem that the compensation rights of criminal victims for spiritual damage cannot be guaranteed in China's judicial practice.The denial and exclusion of compensation for spiritual damages in the criminal field not only results in the conflict between criminal law and civil law,but also leads to the violation of basic jurisprudence and international legislative trends.The second part is a practical examination.Taking the crime of rape as an example,the author makes a more detailed empirical analysis on the compensation for mental injury in three different procedures:incidental civil action,separate civil action and criminal settlement.The reason why "rape crime" is taken as an example is mainly because the crime of rape has multiple characteristics in reality,which will cause psychological trauma hard to heal to the victims,causing spiritual damage is often higher than material damage,and the protection of women's sexual rights has priority.Therefore,the crime of rape is typical in terms of the compensation for mental damage to the victims of criminal crimes.Through the data,it is further illustrated that the spiritual damage compensation in practice is confronted with such problems as low mediation compensation,different judgment standards and limited criminal reconciliation,so the right of spiritual damage compensation for criminal victims needs to be established and reform is urgent.The third part is the analysis of necessity,the author from the nature of civil suit collateral to criminal proceedings,guarantee of the rights and interests of the victim,maintain the unification of legal system in our country,to overcome the limitations of criminal reconciliation system and unified judicial practice five perspective,this paper essentially belongs to the civil suit collateral to criminal proceedings of civil litigation,the establishment of mental damage compensation is not only has the rationality in theory,can solve the conflict of legislation,the conflict,safeguard the rights and interests of the victim.The fourth part is institutional construction,the mental damage compensation system of civil suit collateral to criminal proceedings shall be written to the legislation,including clearly established basic principles,conditions,scope of compensation,compensation subject,compensation standards and run the program,comprehensive and detailed provisions,to ensure the system is feasible.The fifth part is the improvement of supporting measures,corresponding measures of concrete in civil suit collateral to criminal reconciliation and criminal mediation,set up the advance execution and improve the implementation safeguard measures,the provisions of the victim assistance system state three aspects,the supplement of compensation for mental injury civil suit collateral to criminal proceedings,mutual cooperation,jointly safeguard criminal victims the right to receive compensation for mental damage. |
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