There is no evil in human nature than deliberate murder. Therefore, the Criminal Law of the People's Republic of China (hereinafter referred to as the "Criminal Law") has the strongest blows and the heaviest sentencing against vicious (intentional homicide / deliberate murder) criminal cases.
Article 232 of the "Criminal Law" stipulates: "Intentional homicide/deliberate murder shall be sentenced to death, life imprisonment or fixed-term imprisonment of more than ten years." But the starting point of sentencing is fundamentally different, as the same result of comparing the crime of intentional injury (causing death). In vicious criminal cases such as intentional homicide/deliberate murder, the first sentence is the "death penalty." Rather than other crimes, a progressive aggravated sentence is used when sentencing. Both the "strike hard" of the last century and the "homicide or murder cases that must be solved" in previous years reflect the high pressure of the party and the state on vicious criminal cases, and are a powerful guarantee for the people's government to create a safe and happy China.
With the rapid development of society, some individuals have become quite hostile for various reasons. To vent their dissatisfaction, or to be in an extreme mentality of revenge against society, the creation of extremely vicious criminal cases and human tragedies that cause mass deaths and injuries to innocent people have occurred from time to time.
Such as: "On March 01, in 2014, at Kunming Railway Station, Xinjiang rioters killed 31 people and injured 141 people. In 2018, Han X-hua drove and killed 5 students in Jianchang, Liaoning Province, and injured 21 students. Intentional homicide; 2021, in Putian, Fujian’s Ou X-zhong, intentionally murdered 2 deaths and 3 wounds; and the vicious criminal case of 7 deaths and 1 wounded in Caidian District, Wuhan, Hubei that just occurred on October 26, 2021, and so on. With a distorted psychology of revenge on society, the criminals who caused the tragedy caused irreparable harm to many victim families while destroying themselves.
Criminals who create vicious criminal cases must be severely punished by the law. The immediate execution of the "death penalty" is their final punishment. However, many victims’ families are fragmented due to the criminal acts of criminals, and their families are facing tremendous economic pressure in subsequent production and life. How to better protect the victims of vicious criminal cases is a major issue we are facing.
1. The basis and status quo of the protection of victims under the current laws and regulations
Article 101 of the Criminal Procedure Law of the People's Republic of China stipulates that if the victim suffers material losses as a result of the defendant’s criminal act, he shall have the right to initiate an incidental civil lawsuit during the criminal procedure. In the event of the death or incapacity of the victim, the legal representative and close relatives of the victim will have the right to bring an incidental civil lawsuit. Article 103 stipulates that: People's courts may conduct mediation in adjudicated civil litigation cases, or make judgments or rulings based on material losses.
Article 175 of the "Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China" (referred to as the "Criminal Procedure Interpretation") stipulates that the victim suffers material loses as a result of criminal infringement of his personal rights or destruction of property by criminals. In case of the losses, he or she has the right to bring an incidental civil lawsuit during the criminal procedure; if the victim is dead or incapacitated, his legal representative and close relatives have the right to bring an incidental civil lawsuit.
People's courts generally refuse to accept an incidental civil lawsuit or a separate civil lawsuit for compensation for mental losses due to criminal violations.
Article 178 of the "Criminal Procedure Interpretation" stipulates: After the people's court accepts a criminal case, it shall meet the requirements of Article 101 of the Criminal Procedure Law and the first paragraph of Article 175 of this Interpretation, The victim or his legal representative or close relatives can be informed that they have the right to initiate an incidental civil lawsuit.
If a person who has the right to initiate an incidental civil lawsuit waives the right to proceed, it will be permitted and recorded in the case.
Article 192 of the "Criminal Proceedings Interpretation" stipulates that the amount of compensation to be paid by the defendant will be determined based on the material losses caused by the criminal act and the specific circumstances of the case when a judgment is made in an attached civil lawsuit.
Where a criminal act causes physical damage to the victim, the reasonable expenses paid for treatment and rehabilitation, such as medical expenses, nursing expenses, and transportation expenses, will be compensated, as well as the income reduced due to missed work. If the victim is disabled, he will also be compensated for expenses such as living aids for the disabled; if the victim is killed, he will also be compensated for expenses such as funeral expenses.
If the driving of a motor vehicle causes casualties or major losses to public or private property, and constitutes a crime, the liability for compensation will be determined in accordance with Article 76 of the Road Traffic Safety Law of the People’s Republic of China.
Where parties to an incidental civil lawsuit reach a mediation or settlement agreement on civil compensation issues, the scope and amount of compensation will not be restricted by the provisions of the second and third paragraphs.
In summary, compensation for victims in criminal incidental civil cases is limited to direct losses. Specifically including: medical expenses, funeral expenses, support expenses (loss of labor, no source of living); direct losses such as food subsidies, nursing expenses, transportation expenses, and lost work expenses.
Mental comfort, death compensation, and disability compensation are not included in the scope of incidental civil compensation.
2. Deficiencies in victim protection
01 Missing important compensation items
Although criminal legislation provides protection for victims to initiate criminal and collateral civil lawsuits, compensation items are limited. In particular, death compensation, disability compensation, spiritual comfort money, etc. are not within the scope of compensation, and often the amount of compensation corresponding to these compensation items is huge.
02 Criminals are weak in compensation
In view of the fact that there are more victims in vicious criminal cases. The criminals’ ability to compensate is weak. Criminals have no means to compensate, and most of their families have given up providing assistance to criminals in compensation, which has caused the victims to be unable to receive effective protection for their economic losses. Even if there are incidental civil judgments, they cannot be implemented because they cannot be enforced. This makes the judgment a dead letter, which seriously affects the credibility of the judiciary.
3.Suggestions on the Protection of Victims in Vicious Criminal Cases
In view of the fact that our country does not have clear laws and regulations, the compensation of victims will be guaranteed by the state. In judicial practice, the compensation received by the victim is based on the compensation provided by the criminals and their families after criminal reconciliation and understanding.
Targeting a vicious criminal case like Caidian in Wuhan, Hubei on October 26. The above-mentioned civil compensation and relief is obviously difficult to achieve. Therefore, vicious criminal cases of mass deaths like Wuhan Caidian should not be identified and handled as criminal cases, but should be treated from the perspective of social stability and long-term stability of the country, and should be led by the government and participated by the society. While severely cracking down on criminals, it also enables the victim group to be effectively protected.
1.The government provides legal aid to seal up and freeze the properties of criminals in accordance with the law; it lays the foundation for victims to initiate incidental civil lawsuits and obtain compensation.
2.Launch judicial assistance funds to provide victims with necessary financial assistance
3.The Red Cross and other social and non-governmental relief organizations can carry out fund-raising for vicious criminal cases and provide assistance to victims.
4.In view of the vicious criminal cases of "lone-wolf-type" revenge against society, it is easy to cause social incidents of mass deaths and mass injuries. The government should sort through all kinds of vicious criminal cases, find out the source of the problem, prevent the slightest failure, and use the rescue methods and funds in the decision-making mechanism to fully care for the victims and their families.
5.On the basis of no charges for criminal incidental civil cases, and in the case that the main compensation items cannot be covered, to reduce the cost of rights protection for victims, a separate civil lawsuit should be clearly defined as the statutory situation for the reduction, exemption, and postponement of the payment of litigation fees.
Lawyer's point of view
The legal and judicial interpretation of the scope of criminal incidental civil compensation in our country has always been criticized for the practice of excluding the application of compensation for mental damage, death compensation, and disability compensation. The new "Criminal Procedure Law" implemented on March 1, 2021 still has not resolved the issue of "same life at different prices".
If it is said from the literal meaning that material losses do not include mental damage, it is excusable to exclude compensation for mental damage from the scope of criminal incidental civil (in fact, such a provision is also highly questionable). However, while the Supreme People’s Court has clearly identified death compensation and disability compensation as material losses in its civil judicial interpretation, it is also the case that the Supreme People’s Court has excluded them from the criminal and civil judicial interpretation issued by the Supreme People’s Court. It definitely violated the uniformity of the law.
o legal changes in this reality. We are even more convinced that the day is not far away!
Shi Yujie
Executive Partner of JAVY Law Firm
高级合伙人
Business Areas:
Criminal Defense and Agency, Dispute Resolution and Litigation.
Main Practice Experience
For the rape and murder case of Zhang XX and Zhang XX in Wu'an, Handan, the sentence was commuted to 8 years with a suspended death sentence;
The case of Ma X , in Jize, Handan, concealed or concealed the criminal proceeds was pursued and withdrawn the lawsuit;
Liu X was guilty and exempt from crime in Xingtai in his bribery case;
Hu X, general manager of Shijiazhuang Logistics Park, was found not guilty in the case of provoking quarrels;
In the case of Zhang X's embezzlement in Hengshui and misappropriation of funds, he was found not guilty;
The case of taking bribes by non-state agency staff, Liao X, Shenzhen, Guangdong province was probated (probation);
China Securities Regulatory Commission XX’s bribery case;
A bribery case of a deputy county magistrate in Xingtai
Tianjin Quanjian organization and leadership MLM case, and a certain organization and leadership MLM case;
Shijiazhuang New Future organization and leadership MLM case;
Zhang X in Chengde organized and led the underworld nature case;
An organized and led underworld crime case involving Zheng in Huizhou, Guangdong;
Huang X in Henan concealed and concealed Zhengzhou's criminal proceeds.
“Statement:
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