Abstract
In China, both criminal law and criminal procedural law have stipulated that the scope of civil actions collateral to criminal proceedings (Xingshi Fudai Minshi Susong, hereinafter “CACCP) is narrower than the scope of civil actions under the civil law and civil procedural law. Although the recent two amendments to the PRC Criminal Procedural Law have set the scope of material loss, the Supreme People's Court (hereinafter “SPC”) has, through various forms - such as meeting minutes and judicial interpretations – interfered with these laws by setting up further limitations. Such actions have been constantly criticized by legal scholars.It is precisely this tension between the judicial restriction and academic criticisms that has stimulated my interest in investigating the necessity, feasibility, legality, fairness and effectiveness of judicial restriction towards the scope of the CACCP. Relying on first-hand materials and opinions of legal practitioners, this detailed and comprehensive study aims to grasp the specific problems in practice, debate the validity of different scholars' views, draws theoretical conclusions on whether the scope of the CACCP should be expanded or narrowed, and promote the study of the function of the entire CACCP system.
Empirical study is the major methodology employed in this thesis, and both quantitative and qualitative analysis is carried out on the collected data.
The empirical data in this study has been collected through specially designed questionnaires. The choice of questionnaire was made since it offers unique insight into the institutional and individual reasons behind the cases of infringement of property right relating to the CACCP; an area which lacks in research. Investigational personnel were instructed to go to two levels of courts (district people's courts and intermediate people's court) in H City and judges, lawyers and other legal service providers were invited to fill in the questionnaires in private. Additional questionnaires were designed to collect data relating to property recovery (Zhuijiao) and order to restitute (Zeling Tuipei). Relevant personnel were also arranged to interview partial persons in charge of law enforcement in both levels of courts in H City. I have also designed five charts of case analysis and re-analyzed the existing case archives kept in all courts of H City in the hopes that they will shed light on the actual situation of court trials relating to the CACCP.
Quantitative analysis has been carried out on data compiled from the questionnaires and five charts of case analysis, and has gone through two major steps: (1) initial handling which includes field examination, group examination and comprehensive examination and (2) generating statistical charts and cartograms through the operation of SPSS statistical software. I have attempted to use the index and numerical values generated from the charts and statistical tables describe the 'real' situation of the CACCP in the two levels of courts in H City and to figure out the causes and problems.
Qualitative analysis was carried on both the questionnaires and the original case files kept by courts. Five steps have been taken to achieve this purpose: (1) Initial handling by classifying charts and questionnaires, as well as reviewing the reliability and validity of such materials, (2) reading and analyzing the various situations of the CACCP in different courts from particular time periods, (3) coding and establishing the database, which consists of compiling questionnaires, charts and judgments and establishing electronic archives, (4) in-depth analysis and comparison of cases relating to the CACCP of different courts within the same time period, as well as those in different time periods, and (5) analyzing typical cases according to the order of proceedings such as prosecution, acceptance for trial, trial and execution in order to highlight the dynamic character of the CACCP.
This thesis consists of an introduction, main text, and conclusion, and is further divided into nine chapters. Chapter one introduces the significance of this research, the research materials and methodologies, and the structure of the thesis. Chapter two deals with rules and theories concerning the CACCP, including the scope of the CACCP and rules and theories of judicial restriction, rules and theories of alternative measures (recovery and order to restitute) of the CACCP, and problems needing to be examined. Chapter three discusses “should be” (Yingran) and “the actual” (Shiran) of the CACCP. It focuses on the scope of “should be” and “the actual” of the CACCP, crimes that are within the scope of “should be” of the CACCP, crimes that are within the scope of “the actual” of the CACCP, the reasons why crimes infringing on property right have not been included in the scope of “should be”, and the “should be” scope of the CACCP that is restricted by the SPC. Chapter four deals with “should be” and “the actual” of the CACCP by different courts in H City. It details the “should be” and “the actual” scope of the CACCP from different courts, as well as crimes that are covered by the “should be” and “the actual” scope of the CACCP, and concludes that judicial restriction is contradictory to the courts' different demands. Chapter five covers “should be” and “the actual” of the CACCP from different years. It includes the “should be” scope of the CACCP from different years and related type of crimes and “the actual” scope of the CACCP from different years and related type of crimes. The conclusion drawn in this chapter is that judicial restriction is weak and is not needed in practice. Chapter six discusses the implementation of alternative measures for the CACCP. Specifically it covers the relationship between the CACCP and the alternative measures, the type of crimes and accusations covered by the alternative measures, the implementation of the alternative measures, and the effectiveness and limitations of the alternative measures. Chapter seven deals with the remedies and execution of the alternative measures for the CACCP: victim's claim for compensation to start the CACCP and order and execution of recovery and restitution. The conclusion of this chapter is that both remedies and execution are not satisfactory. Chapter eight discusses the impact of the alternative measures of the CACCP on procedural rights and compensation, which includes the situation of informing victims to participate in trials, the situation of victims' attendance, the situation of delivering judgments to victims, and impact of the alternative measures on compensation. This chapter concludes that procedural rights will be infringed on and effect of the sentencing circumstance is limited. Chapter nine concludes the entire study by discussing the actual situation of the scope of the CACCP in China, the elements which need to be considered in order to improve the scope of the CACCP, suggestions to re-construct the scope of the CACCP from general theories, methods on handling exceptional situations, and redefining the relationship between recovery and order to restitute and the scope of the CACCP.
Based on the review of and research on the CACCP of courts of two levels in H City and the alternative measures, I have discovered that the scope of statutory CACCP has been subjected to the influence of judicial habit in judicial practice and thus has become narrower. Furthermore, the judicial interpretations of the SPC have affirmed or “legalized” this kind of abnormal practice and treated the recovery and order to restitute as substitute measures to the CACCP. I have also discovered that the judicial interpretations limit the exercise of the procedural right beyond the proceeding of recovery and order to restitute. Thus, this thesis proposes that correct views should be promoted in order to build up the scope of the CACCP, which could better protect the rights and achieve effectiveness of the litigation. I further believe that it is wrong for the scope of the CACCP to be restricted by the judicial habit and judicial interpretations and to be replaced by the recovery and order to restitute because they contradict the theory of effective litigation. The reasons behind these contradictions is that there is too much emphasis on the public power and too little on private rights and it replaces the civil evidence rule that is focused on fair protection with criminal evidence rule that is more focused on protection of defendant's interests. All these problems affect those whose partial property rights have been infringed on when exercising their right to sue. At the same time, the relevant judicial interpretations are ultra vires and are suspected to violate constitution and legislative law.
Relying on the theory of protecting victim's rights, the theory of victim's right to sue and the theory of procedural due process, this thesis intends to re-construct the theoretical model of the scope of the CACCP in China to achieve the goals of balancing and protecting the victim's property rights whilst at the same time imposing criminal responsibility on defendants. Re-construction starts with immediately abolishing judicial interpretations that limit the scope of the CACCP, since they are ultra vires. A general theory of the CACCP should also be built with a scope of the CACCP which embraces all claims of property losses caused by criminal offenders. An exceptional model should also be built to transfer some claims of the CACCP to civil proceedings because firstly, there is a large number of victims of criminal cases relating to illegally possession or disposing of victim's property, special tort crimes, or to responsible persons who are not the defendants. In these circumstances, if a victim institutes a CACCP, and the court, after examination, believes the case is too complicated, difficult, or not suitable to be resolved by the CACCP, it can transfer the case to the court that has a jurisdiction to handle the case in accordance with the civil litigation proceedings. Secondly, it can offer the right to choose different proceedings by the victim, i.e., the victim can either choose to seek compensation through the CACCP, or to choose to seek compensation through a civil litigation.
Reconstruction also requires re-locating the relationship between the scope of the CACCP and recovery and order to restitute. Specifically, there is a need to: (1) clarify that recovery and order to restitute are deemed to be compulsory measures in criminal proceedings. The precondition of recovery and order to restitute is either that the property that is illegally obtained by the defendant still exists or that the property illegally obtained by the defendant is missing but the defendant is able to compensate. The procedural requirement is that authorities responsible for investigation, prosecution and trial should identify the two situations through decisions or rulings. Those decisions and rulings will be invalid after a valid judgment is made for a criminal case. If a victim chooses to accept property through the recovery or order to restitute, he should, within that amount of property, give up his right to seek compensation in a civil case. However, he may still possess the right to seek compensation in a civil case for the amount exceeding the value of the property; (2) to give the priority to the CACCP. In other words, if a victim institutes a CACCP, even if the recovery and order to restitute is available, the CACCP should be prevail over the recovery and order to restitute.
| Date of Award | 8 Sept 2016 |
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| Original language | Chinese (Traditional) |
| Awarding Institution |
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| Supervisor | Minkang GU (Supervisor) |
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