论文部分内容阅读
我国的刑事附带民事诉讼制度难以保证被害人之损害得到及时有效赔偿。应当通过修改立法赋予被害人民事赔偿先行起诉权,即在检察机关提起刑事诉讼前,允许被害人提起单独的民事诉讼,这样可以摆脱刑事附带民事诉讼制度带来的种种限制,保证被害人最大限度地实现其求偿权。先行做出的民事判决对后行的刑事判决没有既判力,因此民事程序前置不会影响刑事审判的正常进行。由于民事诉讼的证明标准低于刑事诉讼,被害人有能力在先行的民事诉讼中完成举证责任。然而一旦败诉,即使后行的刑事判决认定被告人犯罪成立,被害人也只能接受民事诉讼败诉的后果,这是其选择行使先行起诉权必然承担的风险。
China’s criminal incidental civil procedure system can not guarantee the victim’s injury to be timely and effective compensation. It should give the victim the right to sue in civil compensation by amending the legislation. That is, before the procuratorial organ lodges a criminal lawsuit, it allows the victim to bring a separate civil lawsuit so as to get rid of the restrictions brought by the criminal incidental civil lawsuit and guarantee the victim to realize the maximum Claim. Civil judgments made in the first place have no res judicata in the criminal judgments of the later ones. Therefore, the proceeding of civil proceedings will not affect the normal progress of the criminal trial. As the standard of proof of civil litigation is lower than criminal litigation, the victim is able to complete the burden of proof in the first civil litigation. However, once a defeat is made, even if a criminal conviction in later practice determines that the defendant committed the crime, the victim can only accept the consequences of the losing of the civil lawsuit. This is the inevitable risk that the victim should choose to exercise the right of first proceeding.