200 1 July1Sunday night 1 1, a major traffic accident occurred in the suburb of Liaocheng, Shandong. Driver Yang drunk driving a new Dongfeng truck on the highway, suddenly pulled to the side of the road, and knocked a pair of mother Yao and son riding bicycles out of more than ten meters away. In order to avoid responsibility, the driver Yang hurriedly fled. The mother and son who were hit died of excessive blood loss in the hospital. Although the son didn't die, he suffered a serious brain injury and lost the ability to speak. Moreover, his skull needs further plastic surgery, otherwise his life will be in danger. One leg will be disabled for life. The next day, the driver Yang was arrested. The criminal Yang was brought a civil lawsuit by the local people's procuratorate according to law. The people's court sentenced Yang to 13 years in prison and compensated the victim for funeral expenses and medical expenses totaling 300,000 yuan. But the criminal Yang borrowed from the east and borrowed from the west to sell cars. Less than a month after the transportation, he owed a lot of money and could not pay the victim. Yao's husband, Xu, got only 30,000 yuan from the criminal Yang, even one tenth of his son's medical expenses. Since then, the fate of the Xu family has been very difficult. In order to treat his son, he tried everything, even lost his job, and finally saved the child's life, but a series of sequelae needed further treatment. Faced with the enormous pressure of life, Xu was forced to rob again and caused serious injuries, and finally went to prison. The son was left to Xu's elderly parents to take care of and finally died.
In this case, Xu could not get effective compensation from the injurer, and the bad situation made him embark on the road of crime, which was tragic and thought-provoking. According to the author's investigation, there are many similar cases in China's judicial practice. This can not help but make us reflect on China's criminal policy and criminal system, and whether we have overlooked something. In fact, China's current criminal justice system is centered on how to treat the perpetrators of crimes, that is, criminals, without fully considering the victims of crimes. Victims who have been infringed by criminals often can't get effective compensation, and they are isolated and helpless. The vicious circle produces a changeable role from victim to perpetrator, which causes re-infringement to society. Therefore, the author believes that it is necessary to establish a material comfort mechanism for crime victims-the victim's national compensation system, so as to alleviate the victim's revenge on society, realize the victim's protection and reintegration into society, restore their normal life, and maintain the health and stability of society.
The reason why China's subsidies and remedies for criminal victims have been in a relatively weak situation is that so far, China has not established a national relief and compensation system for criminal victims. As early as after World War II, this system was quickly adopted and spread in New Zealand, Europe and America, and Japan even set up a special national compensation committee. And enacted the Law on Compensation and Other Welfare for Criminal Victims. The purpose of this system is to set up a public fund to provide relief for victims of serious crimes, regardless of the form of government funding or charitable donations. To put it bluntly, the state will give the victims due compensation on behalf of those criminal defendants who really can't afford it; It not only protects the victims by law, but also protects the dignity of national laws.
When many countries have entered the "victim era", if many countries have entered the "victim era", if we are still blank, even if we do not consider the defendant's affordability when making a judgment, it will cause the victim to appear that the law has presided over justice for her, but she has not felt the real "victory" and can only fall into "waiting indefinitely", which is one of the reasons why some cases are difficult to execute at present. Therefore, the present situation of our country objectively requires us to conduct in-depth research on the state compensation system for victims and establish a state compensation system with China characteristics. It is urgent to establish this system.
First, the necessity of establishing a national compensation system for victims in China
The "victim" mentioned here refers to a criminal victim whose life, body, property and other personal legitimate rights and interests have been violated in a criminal case. On the occasion of being killed by a crime, the criminal's responsibility can be investigated from two aspects: criminal responsibility and civil responsibility. However, when criminal responsibility is investigated, because the state monopolizes criminal proceedings, the meaning and feelings of criminal victims are sometimes not reflected in the criminal procedure law; On the other hand, when civil liability is investigated, the victim demands damages from the injurer, but the effect of the system is not fully exerted because the injurer is unable to compensate. Especially in the case of causing serious personal crimes (death, serious injury), the damage compensation system hardly works. In this way, if the victim of a crime has suffered great damage because of the crime, but he can't take measures to restore the victim's feelings and protect the victim from the law, it will lead to the distrust of criminal victims and citizens in the legal order, including criminal justice, and then weaken the regulatory function of criminal law. The significance of criminal policy to protect crime victims lies in maintaining and ensuring citizens' trust in legal order, including criminal justice.
The establishment of victim compensation system can prevent the inversion of evil and accelerate the purification of society. Evil rebellion refers to the reverse change of the victim after the victim's legitimate rights and interests are violated by criminal acts, under the control of bad psychology and driven by other factors, that is, the transformation from the victim to the victim. Everything is in constant motion and change, and the victim, as an objective thing, is not static. Crime, as a vicious stimulus imposed on the victim by external forces, will make the victim enter an unstable state immediately after being killed. This kind of person may not only learn from the victim's incident, get rid of the negative emotions brought by crime quickly, cheer up and throw himself into a new life, but also embark on the road of transforming from victim to offender. In practice, some victims, after their legitimate rights and interests have been infringed, have a mentality of revenge on society without legal protection, and vent their anger on innocent people, becoming criminals who endanger others and society. Some people will have the criminal psychology of stealing other people's property if their property is stolen or robbed by others. Under the control of this psychology, they will soon become the perpetrators. There are many reasons for this situation, including personal understanding, social environment, people around the victim's cold reception and discrimination, and mistakes in legal work, which make the victim's rights not protected by law. The comprehensive effect of various reasons has pushed the victim to the road of crime step by step. Once this evil inversion is formed, it will often be crazier than ordinary criminals and more harmful to society. The author believes that strengthening the relief and compensation for the victims, doing well the ideological work of the victims' families and relatives, and appeasing the victims' traumatized hearts can prevent the victims from reverse transformation and reduce the potential factors of crime. If this work is done well, it will further promote and strengthen crime prevention, greatly reduce crime and purify the social environment.
Therefore, it is necessary to establish a national compensation system for victims in China, whether to protect citizens' trust in legal order, or to prevent crimes and maintain social order.
Second, the theoretical basis of establishing the national compensation system for victims in China
Investigating the development history and present situation of the state compensation system for victims abroad, we find that there are four main viewpoints on the theoretical basis of establishing the state compensation system for victims in the theoretical circle at present:
(1) Social insurance theory, that is, state compensation for crime victims is an additional social insurance. The purpose of various social insurances is to enable people to cope with accidents with a stable and safe life. The problem of being infringed by crime should also be regarded as one of the accidents that social insurance helps solve. If the victim can't get enough compensation from other channels, the state will compensate him, and the victim will not be forced to bear the losses caused by this accident alone.
(2) Being expected, that is, the reason why the state establishes the victim compensation system is because it is expected. First of all, the actual situation of victims living in poverty is one of the social backgrounds that make this system necessary. Second, the civil damages system is not fully functional in terms of criminal victims, because in fact, the victims and their families can't recover a lot of losses caused by criminals.
(3) Fatalism, that is, crime is an inevitable disaster in any society, and its victims become unfortunate victims because of some chance. Therefore, there is no reason for the victim to bear or bear this unfortunate damage alone. According to this statement, the lucky ones who have not been killed in society should share the losses of some unlucky ones. (2)
(4) the theory of state responsibility, that is, the state has the responsibility to prevent crimes from happening to citizens. Therefore, if the state fails to fulfill this responsibility, it should give appropriate compensation to the losses or property suffered by the society.
The above four statements have one thing in common, that is, the loss of the victim should be compensated by the state or society. The author tends to the theory of state responsibility. Ma Huaide, an expert in administrative law, said: "The state will not compensate for pure accidental injuries. The reason why the state compensation is proposed means that the state should bear certain responsibilities in this incident, such as poor public security or dereliction of duty of the responsible person. The specific compensation standard can be reduced to less than civil compensation, and the property loss is entrusted to the property loss assessment agency, and then the average calculation is made. The government should entrust existing institutions, such as civil affairs bureau, legislative affairs office or finance bureau, to designate state compensation for victims. If the victim does not agree, he may also have the right to bring a lawsuit to the court and pursue administrative compensation. " The author thinks that the state has the obligation to restrain crime to some extent. This is because the state monopolizes the power to use violence to suppress crimes and punish criminals. For example, in violent crimes, because the state does not allow citizens to carry weapons to prevent crimes, they are at a disadvantage in the process of fighting criminals, which eventually leads to serious violations of their rights and interests. In criminal proceedings, the state should be responsible for the relative disadvantages of victims and criminals in the process of committing crimes. The state does not allow lynching when punishing criminals, so when the victim can't get strong compensation from the offender, the state should give the victim effective compensation and bear indirect responsibility. Moreover, for a socialist country like ours, the national interest is above everything else, and the people can sacrifice themselves for the country. Therefore, as a public authority like the state, it is even more obligated to comfort the people's suffering and safeguard their interests. Otherwise, the rights and obligations between the state and citizens will be in an unbalanced state, and the state will play a role of only enjoying benefits and not fulfilling obligations. Therefore, whether from the perspective of state responsibility or from the perspective of the balance of rights and obligations between the state and citizens in China, the state should make necessary compensation for crime victims.
Three. Conditions and scope of state compensation for victims
The conditions and scope for criminal victims to enjoy state compensation mainly involve two issues, one is which victims can be compensated, and the other is the criminal nature of the damage. Different countries have different legislative provisions on the object of compensation. Most countries limit the object of compensation to the damage caused by violent crimes to people's lives and health. In principle, New Zealand has a compensation system for a very wide range of victims. States in the United States stipulate that non-violent crimes against property are not within the scope of state compensation. For the victim, the victim who is not physically injured does not belong to the scope of compensation. As far as the impact of crime on victims is concerned, the state will not compensate victims who do not need treatment or have no impact on their work. At the same time, the victims who are mainly responsible for their own murder and those who get enough insurance compensation after being killed are not included in the state compensation. Is the compensation for victims limited to intentional crimes, or does it also include negligent crimes? Some countries clearly stipulate that it is limited to victims caused by intentional crimes. However, some countries, such as France, compensate victims caused by intentional crimes or negligent crimes.
In my opinion, drawing lessons from foreign legislative experience and combining with China's actual situation, the compensation object determined by China's future national compensation legislation should not ask whether the criminal's criminal behavior is intentional or negligent, nor should it ask whether the victim has suffered physical damage or property damage, but should be based on the living difficulties of the victim and his dependents. Anyone who has one of the following circumstances, but the offender can't compensate or make a small amount of compensation, may apply to the state for compensation:
1. The victim was disabled due to infringement and needed huge medical expenses, which he could not pay.
2. The victim suffered huge economic losses due to the infringement of the perpetrator, and the living conditions of himself and his family were poor, and there was nowhere to land.
3. The victim lost his labor force because of the infringement.
When the victim dies, the life of the family that depends on it can't be guaranteed.
5. The perpetrator is incapacitated or mentally ill.
6. Other circumstances in which the criminal act leads to extremely difficult life for the victim.
In addition, some scholars have suggested that the injured legal person can also be the applicant for state compensation. The author thinks that the injured legal person can get property insurance after being killed, so he can't apply for compensation as a victim. As to whether foreigners can apply for compensation as victims in China, the author thinks that if the criminal acts occur within the jurisdiction of our country and the conditions of the victims meet the requirements of our country, our country should give them some compensation according to relevant procedures and standards.
Four, the state compensation award and enforcement agencies and procedures
(a) the ruling and enforcement organs of state compensation
In Japan, the executive body of state compensation for victims is the prefectural public security committee. In France, the award of compensation is made by the compensation committee in the jurisdiction of the case. In other countries, compensation is decided and implemented by a special victim compensation bureau.
According to the current situation of China's political system, the author believes that in China, the power of adjudication on compensation can be exercised by the people's courts. A criminal case in which the victim is infringed shall be decided by the court, and it shall be decided by the trial organization that tried the criminal case. After the judgment, the procuratorate allows the applicant to appeal or protest. Judicial organs are superior to public security organs, civil affairs organs or specially established organs in exercising the power of compensation adjudication. The specific performance is: (1) The court is the final adjudication organ of criminal cases, which makes the case have the final result and the victim has been identified. When the case was in the public security organs, because there was no final result, the composition of the victim had not yet been determined. (2) The court judge is familiar with the case to determine the amount of compensation. (3) The judicial organs have trial levels, and the system of final adjudication by two trials can be adopted. This is also conducive to the supervision of the ruling.
The following procedures can be implemented to award compensation:
(1) The victim, his family members and those who were raised before his death shall file an application with the people's court that originally tried the case within one year after the conclusion of the criminal proceedings.
(2) The collegial panel of our college examines the following situations:
-The victim's gender, age, occupation and occupation type, fixed monthly income and whether there are any dependent family members.
-the nature of the victim, the degree of the victim, whether there are sequelae and types, the amount of treatment fees, the relationship between the victim and the defendant, and whether the victim is at fault and degree.
-Impact after being killed: changes in the victim's career, income and family life caused by the crime.
-Damages: whether the defendant paid the compensation, the amount of compensation, whether he obtained life insurance and other compensation and the amount of insurance compensation.
(3) The collegial panel of our court made a ruling. The main contents of the ruling include whether to compensate and the amount of compensation. If the victim or the person who has the right to compensation according to law refuses to accept the ruling, he may appeal to the court at the next higher level, and the procuratorate at the same level may lodge a protest with the court at the next higher level. The time limit for appeal or protest is ten days.
(4) The court of second instance ruled. After examination, the collegial panel of the court of second instance can make the following treatment: (1) uphold the ruling of first instance; (2) Cancel the ruling of first instance and make a new ruling directly; (3) The court shall issue a reduction ruling for the new ruling.
The compensation case and the original criminal case are two cases, which can be handled separately. If the compensation case is returned by the court of second instance, it will not affect the validity of the original criminal case judgment.
8. Sources and issuing organs of compensation
Compensation should be mainly borne by the state treasury, and charitable funds can also be set up to expand the sources of funds. The payment of compensation may be stipulated by the court that originally awarded compensation.
Verb (abbreviation of verb) The amount, form and time limit of state compensation.
(1) Compensation amount
At present, countries all over the world have different regulations on the amount of state compensation for victims. Some stipulate the maximum amount, some stipulate the minimum amount, and some directly stipulate the specific compensation method. In Britain, the maximum amount of state compensation in principle does not exceed twice the salary at the time of murder. New Zealand stipulates that the compensation for losses above money shall not exceed 1000. According to Japanese regulations, the amount paid to the victim himself is calculated according to 80% of the victim's usual income before being killed. According to the degree of physical injury, the compensation multiple of the highest injury is 1340 times, and the compensation multiple of the lowest injury is 1050 times. For the victim's family, wife, husband over 60 years old, parents, grandparents, brothers and sisters,/kloc-children or grandchildren under 0/8 years old, disabled patients as stipulated by the State Public Security Committee, compensation is 1300 times, and other compensation is 1000 times. Another example is California's regulations: the state compensates the minimum loss 100 USD and the maximum compensation is 25,000 USD.
The author believes that China can learn from some good practices abroad and stipulate the maximum and minimum limits of state compensation, and pay compensation according to the different identities of applicants. However, the amount of compensation should be determined in line with the current economic level of China. When making compensation, the following conditions should also be comprehensively considered:
1, the nature of the victim, the degree of damage and the size of the victim's fault.
2, the victim's family status
3. Whether to obtain compensation through other means.
How to determine the amount of compensation? In my opinion, before the specific compensation standard is worked out, we can refer to the administrative regulations such as "Disability Evaluation Standard for Injured Persons in Road Traffic Accidents" and "Appraisal Standard for Disability Degree of Workers' Occupational Injury" to determine the disability compensation for victims.
(2) the form of compensation
Is the compensation for the victims in cash or in kind? Or is it a combination of cash and physical form? In terms of cash, is it a one-time payment or an annuity payment? Foreign countries generally adopt a single form of cash compensation, and the payment of compensation is one-off, not an annuity. Some people think that China's compensation system has the nature of social security system, mainly to help victims get rid of life difficulties. According to China's current underdeveloped national conditions and previous social relief methods, cash and kind can be used alone or in combination. The author thinks that, because the compensation in kind meets the needs of the victims, in practice, the victims and the issuing institutions will have different opinions on the scale, style and value, so it is better to use cash. The compensation should be paid in one lump sum.
(3) Time limit for compensation
Foreign countries also have different provisions on the time limit for compensation. In Alaska, USA, the time limit for the applicant to report the case is 5 days, and the application period is 2 years. If the time limit is exceeded, the state will no longer accept it. In Japan, compensation for victims is proposed by the victims or their families within two years from the date of knowing the victims of crimes or within seven years from the time when the victims occurred. Article 706 of the French Criminal Procedure Law stipulates that the right to claim compensation should be filed within 1 year from the date of committing the crime, and the right to claim will be lost after the deadline; When criminal responsibility is initiated, the one-year period shall be extended from the time when the court makes a final judgment on criminal proceedings. However, if the person who makes the request within the time limit proves that he has a legitimate reason, the Committee shall accept his request. The author agrees with the French practice. As mentioned above, the victim shall file an application with the court of our country within one year after the end of criminal proceedings, and the country will not accept it after the deadline.
Sixth, the system conception of compensation law.
Judging from the situation of foreign legislation, some countries have formulated separate compensation laws, such as Japan's Law on the Payment of Crime Victims. Some countries have made some principles in the criminal procedure law and formulated separate laws and regulations to make detailed provisions. For example, France has stipulated the claim for compensation in the fourteenth part of its Criminal Procedure Law, and in this part, it also stipulates that the litigation procedure of compensation decision shall be stipulated by the decree of the administrative court.
The author thinks that China's compensation law should be divided into two parts: entity and procedure. The Criminal Procedure Law stipulates the content of the procedure in principle, and the substantive content and detailed content of the procedure can be formulated as a law, called the Victims Compensation Law, which integrates the entity and the procedure. It stipulates the object, scope, conditions, methods, amount and procedures of compensation.
Starting from a traffic accident case, the article on establishing a national compensation system with China characteristics was included in www.3edu.net 3EDU Education Network.