【作者】 韩梅；

【导师】 徐卫东；

【作者基本信息】 吉林大学 ， 法律， 2009， 硕士

【摘要】 在民商事审判实践中,经常会遇到刑事犯罪与民商事纠纷案件交叉的问题。这一问题错综复杂,既涉及程序问题,又涉及实体问题。妥善处理好民商事纠纷与刑事犯罪交叉案件,对于打击犯罪和保护权利人的民事权益至关重要。刑民交叉案件有关问题的彻底解决,既有赖于立法的完备和司法的公正,也有赖于观念的更新和制度的建设。在实体上,刑事责任与民事责任虽然同属于法律责任,但是二者责任承担方式以及通过责任追究所体现的国家法律评价性质等方面都存在着质的显著差异,即刑事责任与民事责任不可相互转换,相互替代。但并不意味着二者在任何情形下都缺乏共同的联系,实际上,二者存在模糊的过度阶段,本文从质与量两方面对两者进行界定。另外,在刑民交叉案件的程序处理上,一直奉行的是先刑后民的处理程序和处理原则。其实,刑民交叉案件不同性质部分在处理程序和相互关系上,是先刑后民抑或先民后刑进行处理,这既要遵循案件不同性质部分即刑事部分和民事部分在适用诉讼程序上的各自的诉讼原则和诉讼规律,又要考虑案件不同性质部分在认定事实和实体处理上是否相互移存和相互影响来决定。更多还原

【Abstract】 Because criminal case crossing with civil case touches upon both investigation of criminal offence and implementation of civil liability, it not only makes the appeal of law towards dispute stand out, but also undertakes relieving function of conciliating the victim and restoring social relationship, which could be said great significance, while intersection in aspect of entity and procedure between criminal liability and civil liability of this kind of cases causes difficulty for judicial practice of such cases, therefore, it has weighty theoretical and practical values to research this kind of cases, regardless of further intensifying theory of criminal-civil relation or guiding judicial operation. It is fully necessary to make legal relation and legal liability clear while criminal cases and civil cases cross together, which comes down to a good many problems such as which judicial procedure should be started on earth, the criminal defendant and non-crime or this-that crime, which principle is more suitably to be applied and how legislative interest of the victim can be more effectively guaranteed etc. This thesis merely probes into entity and procedure of cases crossed with criminal and civil matters, and is divided into 3 parts:In part-1, the author makes a summary of criminal case crossing with civil case, in the first place, reviews history evolvement of criminal case crossing with civil case. Although law nowadays makes perspicuous and rigid stipulations of civil behavior and criminal behavior by modern significance, in phylogeny of law, these two liabilities originate from the same source, without great differences primarily. Along with continuous development of social economy, civil cases experience a process from confusion to separation then back to intersection, and researches of criminal case crossing with civil case appear to be rather urgent following unceasing emergency of criminal case crossing with civil case. Secondly, in view of analyzing theory and practice of criminal case crossing with civil case, the author points out that criminal case crossing with civil case is rooted from collaboration of criminal and civil norms, whose substance is aggregation of criminal liability and civil liability, and indicates it as basis and premise of researching criminal case crossing with civil case. Then the author reaches a conclusion that criminal case crossing with civil case refers to a phenomenon that different behavior respectively violates criminal law relation and civil law relation, but there is certain implicated connection between these behaviors, as well as the same behavior violates both criminal law relation and civil law relation simultaneously, or it is difficult to determine which law, criminal or civil, should be applied to adjust a certain behavior. In essence, it means that a case needs not only to settle criminal liability problem also civil liability problem. Ultimately, the author briefly analyzes and summarizes type of criminal case crossing with civil case appearing in judicial practices. By criteria of relation between criminal legal fact and civil legal fact, criminal case crossing with civil case is divided into implication of legal fact, collaboration of legal fact and complication of legal fact. The reason why the author chooses relation of the two legal facts as standard instead of others is that the main research motive lies in combing legal liability in criminal case crossing with civil case and maintaining unity of theoretical concept and logic.In part-2, the author, to start with entity of criminal case crossing with civil case, combs relation between criminal liability and civil liability. Occurrence of criminal case crossing with civil case in our country, at the earliest, is not originated from view field of substantial law but from suing procedure, thus, research on this problem is often cut in from procedural problem, however, the author thinks that content determines form, substantial law determines procedural law, it is necessary to research criminal case crossing with civil case from angle of substantial law, and to distinguish two types of liabilities so as to make sure basic principle and logic of solving criminal case crossing with civil case in substantial law, which is the correct way in keeping with logical relation and original nature of things. While analyzing qualitative difference between criminal liability and civil liability, the author puts forward preposing applicable principle of non-criminal law and modestly-restricted standard applied by Criminal Law. In aspect of cross between criminal liability quantity and civil liability quantity, the author disagrees that treatment of criminal case and even investigation of criminal liability can withstand civil liability undertaken by the civil part of the case, or rather, civil liability of the case should not be avoided because of criminal liability investigation, this is a problem of criminal case crossing with civil case in substantial treatment which must be made clear and clarified. Nevertheless, the author, in ambiguous zone of treating criminal case crossing with civil case, advices to relocate the damage-compensation system in criminal cases of our country.In part-3, the author mainly makes an exposition on perfecting trial system of criminal case crossing with civil case. There are indeed a good many differences between criminal liability and civil liability because they are two legal obligations with altogether different natures; however, they are connected by criminal case crossing with civil case due to a certain relation. Obviously, legal principles applicable of treating cases of this kind should be complex, it is impossible to settle all problems of such cases simply by applying principle of criminal prior to civil or principle of civil prior to criminal. There are plenty of unsettled problems in aspect of applying law of criminal case crossing with civil casein judicial practices, therefore, the author proposes that, in judicial practices, not only should we make decision abiding by different parts with different natures of the cases, to put it exactly, respective suing discipline of criminal part and civil part in applying suing procedure, but also we should consider whether different parts with different natures of the cases interplay and depend on each other in fact confirmation and substance treatment while treating criminal case crossing with civil case. We should establish principle of criminal and civil in parallel except for criminal prior to civil, civil prior to criminal, instead of applying a certain treating principle mechanically. In China, rule by law is still distempered, on condition that administrative authority intervenes with judicial authority inappropriately, establishment of criminal and civil in parallel principle can guide thoughts positively, can call private power back, can inhibit notion of great Criminal Law, can liberate the victim, the defendant and the judge who are stuck by civil suing system affiliated with criminal, and can make procedural value liberate from the sorrow of adhering to substantial value and establish independent position of procedural value really. Eventually, the author makes new imagination and reconstruction about traditional procedural criminal with civil system of treating criminal case crossing with civil case in our country, and proposes that the criminal victim or their close relatives are allowed to enjoy right of choice between issuing an independent civil lawsuit and an affiliated civil lawsuit, reasonably sharing suing cost and suing burden of the party so as to reach the win-win outcome that judgment of cases is fair and just, procedure of lawsuits is reasonable and efficient.更多还原