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Several research questions of criminal incidental civil action

Author: ZhangKai
Tutor: XieYouPing
School: Fudan University
Course: Legal
Keywords: civil suits attached to criminal proceedings
CLC: D925.2
Type: Master's thesis
Year: 2010
Downloads: 148
Quote: 0
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Abstract


The author discusses the following disputable issues regarding the standard of scope of suits and indemnities for civil suits attached to criminal proceedings, from the perspectives of the current situation and whether it shall continue to exist or not, the ascertaining of civil suit participants. The author also lays out the solutions for such issues.In Section 1, the author states the issue as to the current status and necessity for the systems of civil suits attached to criminal proceedings to exist. At first, from the three perspectives of legislation, enforcement of judgments and the capacity for criminal proceedings to cover civil claims, in order to demonstrate the current difficulty confronted by civil suits attached to criminal proceedings. Second, based on the statistics obtained from local courts’civil law suits, the author discusses the benefits of civil suits attached to criminal proceedings and its necessity from the three perspectives of the implementation of judicial policies balancing looseness and strictness, unification of judicial justice and efficiency, as well as the consistence of judicial practices. In Section 2, the author discusses the scope of acceptance of civil suits attached to criminal proceedings, indicating that damages caused by illegal seizure and disposal of the property of the injured shall also be subject to the scope of acceptance of civil suits. The physical damages caused from the destruction of the property of the injured shall also be subject to the scope of acceptance of civil suits. Such coverage not only covers direct damages, but also indirect economic losses, but also death indemnities and disability indemnities shall be included in the scope of indemnification. Though mental losses’indemnities is not incorrect from the theoretical point of view, due to the limit of current legislation, it shall not be supported, and it requires amendments to the criminal procedural law and the linkage with independent civil suits, in order to keep consistence of judicial judgments. Section 3 discusses the circumstances for the constitution of ineligible law suit participants (plaintiff and defendant) for purpose of the ascertaining of civil law suits’plaintiffs and defendants. Section 4 discusses the indemnification standard for civil suits attached to criminal proceedings, pointing out that indemnification shall be based on the actual losses of the injured. In Section 5, the author points out that in civil suits attached to criminal proceedings, and the solutions for the issues regarding how to deal with operation of fault liability principle, substituting indemnification by relatives, implementation of the judge’s interpretation rights, as well as partial reconciliation of law suit participants.Since the implementation of civil suits attached to criminal proceedings, cases are increasing year by year. But issues pops up regarding civil suits attached criminal proceedings. Opinions vary in the practical field and academic fields. The author based on the judicial practices, combines the relevant legal theories, demonstrates his own points and reasons regarding the disputes arising from civil suits attached to criminal proceedings, in anticipation of consummating the systems regarding civil suits attached to criminal proceedings in China.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Code of Criminal Procedure
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