Legal Thought Of Infringement Personal Rights Incidental Civil Lawsuit System

Infringement personal rights incidental civil lawsuit is a special procedure of lawsuit, which not only considers the criminal responsibility of the defendant who assumes it, but also considers how to make up the loss of victim's personal rights. It is a difficult to balance out these two things in the judicial practice. Nowadays, there are some deficiencies in the system, so we should amend, supplement and improve it in time in order to get better legal effects and social effects.This thesis is divided into three parts:Part one overview of infringement personal rights incidental civil lawsuit systemPersonal rights are civil rights that is legally enjoyed by civil rights and can not be separated from itself. Personal rights consist of the personality right and identity right. personality right consists of three physical right, right of body, health and life and spiritual right, right of name, photos, reputation, privacy, sexual freedom, freedom of marriage and personal dignity and personality freedom, while identity right includes parental right, right of relative, right of spouse and so on, these rights are enjoyed on the basis of certain personal status. In narrow sense, the definition of victim in this passage can be considered as the economic losses due to the violation of right of life, health and body or the natural person suffering from material damages. Infringement personal rights incidental criminal lawsuit refer to the lawsuit activity in the process of criminal lawsuit, the economic loss compensation problem caused by defendant is done with attached the dealing of defendant's criminal responsibility. Essentially, infringement personal rights incidental civil lawsuit is a special judicial processing; people's court is the authority. This kind of lawsuit is preceded incidentally, relying on criminal actions; it must fit with the principle of a legally prescribed punishment and deal with criminal responsibility and civil responsibility of the defendant. On the basis of studying parallelizing lawsuit pattern and incidental lawsuit pattern abroad, the author makes a further analysis that the present lawsuit pattern of dealing with criminal compensation in our country is incidental lawsuit pattern, affirming its being value and necessity.Part two the confusion when dealing with cases of overview of infringement personal rights incidental civil lawsuitBy observing the current situation and development tendency of the criminal victim's right protection abroad and in Taiwan, we summarize several features of criminal action in some countries and regions: the criminal victims have complete client position; they have the rights to take part in the decision of prosecution and plea transaction. In particular range part of victim's duties as witness are absolved, in the compensation range the spiritual damage is listed in the compensation range, some aid agencies raised by government and people have been set up, the rights guarantee to the criminal victim have been improved gradually. The author gives further analysis on the rights guarantee of criminal victim's body right. First, the defects in process: the prosecution of victim and the exercise of supervision right are not sufficient to protect the victim's legal rights and interests; there is no concrete rule for the obligation of the victim's agents. Some problems in the condition of incidental lawsuit pattern; the imperfectness in legal assistance the victim get; the escaped accomplice can not become the defendant of incidental lawsuit; the victim enjoy incomplete right of appeal; it is difficult to promise the compensation in incidental lawsuit; Secondly, the defects in physical content: the spiritual damage is not listed in the compensation range; the problem of different people having different value still exists; in addition, it lacks of relevant systems on the compensation to he criminal victim, which caused when the victim can not get compensation from the defendant or the whole compensation, they will get into trouble and can not get compensation from the country in time.Part three legal thought of infringement Personal rights incidental civil lawsuit system improvementBy learning from legal rules and development trend of the protection to the criminal victim in foreign countries and regions, the author adds and improves our country's infringement Personal rights incidental civil lawsuit system in following three aspects:I, legislative improvement in procedures: (i) The victims are endowed with the right of procedure option in limited raising incidental civil lawsuit or single raising incidental civil lawsuit. incidental civil lawsuit should limited in a reasonable and feasible range to make the civil compensation and criminal case solved together timely; on the other hand, when the victims fail to get economic compensation in other ways, they can choose single incidental civil lawsuit to solved compensation problem timely and ensure the victims can get equal compensation through two different kinds of procedures; (ii) The victims are endowed with the complete right of appeal, they can choose to appeal in criminal part or civil part. Then the quality of the case will be improved further by adding supervision; (iii) The rules about the criminal victims getting legal aid should be improved and the right and duty of delegate agents should be clarified. Both the criminal defendant and criminal victim should get equal lawsuit assistance and relief rights, avoiding the asymmetry of right protection and lack of related rules. (iv) The rules of advanced execution and property preservation to prevent criminals and their relatives from shifting property after the criminal cases. Meanwhile, the advanced execution should be executed in advance to relieve victims from predicament. (v) In infringement Personal rights incidental civil lawsuit, the escaped prisoners should be listed as the defendants. By criminal lawsuit, the defendant can be confirmed whether they should assume criminal responsibility. if the defendant absents, the court can neither judge the escaped prisoners assuming criminal responsibility, nor carry out penalty, however, if the defendant absents when dealing with criminal compensation and the case fact can be found out according to available evidence, the defendant who should assume compensation responsibility will be judged as absence; if there is accomplice, the civil compensation will be judged attaching with compensation responsibility on the basis of clarifying the circumstances of the case. (vi) the compensation should be combined with extenuation, probation, reduction and parole in the criminal law. Actually, the defendant has compensated the damage of the victim, the light sentence of extenuation ought to be changed into light sentence of should be, at the same time, the defendant's continuing perform of compensation should be considered as the expression of regret, which can be taken as the plot of reduction and parole. in addition, in the probation and parole period , if the defendants are found they have the ability of compensation and refuse to fulfill obligation for compensation, this will be one of the conditions that revoke the reduction and parole. The people who refuse to carry out punishment will be punished for plural crimes.II, legislative improvement in entity: (i)the range of compensation should be enlarged, the mental damage of the victims should be listed in the range of compensation to make sure that the victims can get equal relief no matter he choose incidental civil lawsuit or single raising incidental civil lawsuit. (ii) The standard of compensation between urban and rural should be unified. Discriminatory format should be avoided, which is favorable for the protection of equal human rights.III, setting up the compensations and aids system of restorative justice and state justice: the material damage and spiritual damage which includes destroyed personal relationships and social ties with wide and general sense should be revived. The defendants should be encouraged in a. genuine penitent spirit, which is favorable for the prevention the criminals from crime again. What is more, if the case can not be detected timely and the victims fall into difficult position due to defendants'lacking of compensation ability, the state should provide compensations and aids for them. The legislations should be made for the people compensating for the victims on the object, range, condition, standard ,capital origin, application procedures and administrative organization, and long-term mechanism also should be set up to put the victims'compensations and aids into use.