刑事附带民事诉讼的三种模式

刑事附带民事诉讼的三种模式

Three Models of Civil Suit Collateralto Criminal Proceedings

    期刊名称：《法学研究》
    期刊年份：
    作者：陈瑞华
    单位：北京大学法学院
    中文关键词：附带民事诉讼;先刑后民;刑民分离;先民后刑
    英文关键词：incidental civil action;“criminalliability first;and then civil liability”;“separating criminal and civil liabilities”;“civil liability first;and then criminal liability”
    中文摘要：
    中国现行刑事附带民事诉讼制度建立在“刑事优先于民事”的基础上，是一种“先刑后民”的程序模式。该模式造成了附带民事诉讼调解难和附带民事判决执行难，且导致附带民事诉讼违背民事侵权法的一般归责原则。学术界提出的“刑民分离”模式，尽管具有理论上的正当性，却可能在实施中面临着一系列的制度障碍。司法实践中盛行的“先民后刑”模式承认民事赔偿折抵刑事处罚的合理性，有效地促成了被告方与被害方的和解，解决了被害人的民事赔偿问题，但在理论正当性上面临争议。刑事附带民事诉讼制度中三种程序模式的并存，反映了中国法律制度中普遍存在的问题，也显示出司法实务界自生自发的改革所具有的生命力，值得我们在推进法制改革的过程中给予足够的重视。
    英文摘要：
    China’s current incidental civil action system is founded upon the basis that criminal liability has precedence over civil one, so the procedure model can be characterized as “criminal liability first, and then civil liability”. However, due to “the conciliation difficulties” and “the executive difficulties” in incidental civil action and its civil judgment, the victims always embark on the road of complaints and petitions, for they often cannot obtain satisfactory civil compensation. Additionally, the substantive defects of this model, such as its compensation scope is too narrow and its compensation standard is too low, also makes incidental civil action grow out of the general imputation principles of tort law, resulting in the widespread civil injustice.As the model of “criminal liability first, and then civil liability” faces not only the criticism of its legitimacy in theory, but also a serious crisis in its implementation effects, two programs have taken sharp to substitute this model, that is, the model of “separating criminal and civil liabilities”, which was adopted as an ideal reform program, and the model of “civil liability first, and then criminal liability”, which was created by judicial practice. The former is an advanced reform measure, which was raised on theoretical considerations by jurists and some judicial officials, while the latter is a spontaneous self-reform measure. The proposed “separation model” can not only fully protect the victims’ civil rights of appeal, reflecting the requirements of procedural justice, but also make the incidental civil compensation truly comply with the general imputation principles of tort law. However, if there is no substantial change in China’s current judicial system, it may be a confusing problem whether this ideal model can effectively help the court out of the existing predicament. The model of “civil liability first, and then criminal liability” will greatly promote the mediation rates of incidental civil action, and effectively circumvent “the executive difficulties” brought by sentencing, and then satisfy all the parties of the proceedings. However, this model faces certain challenges in theory.The coexistence of the three models of incidental civil action shows that, in promoting the reform of legal system, we should not only pay attention to those ideal reform programs derived from the legal concepts and principles, but also not lose sight of the reform experiences spontaneously created by judiciary themselves. Keyword: incidental civil action, “criminal liability first, and then civil liability”, “separating criminal and civil liabilities”, “civil liability first, and then criminal liability”
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