Filing of Civil Lawsuit after criminal judgment is recovered or compensation is refunded

Can a civil lawsuit be filed after the criminal judgment is recovered or compensation is refunded?

In the actual handling of criminal and civil cases, there are many difficult and controversial issues. But in general terms, there are two basic issues: one is how to grasp the operating sequence of criminal procedures and civil procedures, and whether the two are the first and the second, and whether they can go hand in hand. The second is the issue of res judicata after a criminal or civil judgment is made, that is, to proceed first The effectiveness of the criminal judgment or civil judgment on the civil part or the criminal part.

 

 

1. On the issue of criminal and civil procedures

A basic rule of criminal and civil cases is that criminal cases and civil cases involving the ‘same fact’ should be resolved through criminal proceedings in principle. "

 

Specifically, from the perspective of the subject of the conduct, the "same fact" refers to the conduct performed by the same subject, and the conduct performed by different subjects does not belong to the same fact; from the perspective of legal relationship, the victim of a criminal case is also a civil law 

The counterparty of the relationship can be identified as the "same fact"; from the perspective of essential facts, only the facts that are disputed in a civil case are also essential facts of a criminal offense.

 

The above judgment criteria are relatively clear and easy to operate. But at the same time, it should be noted that according to the above-mentioned standards, the scope of "criminal-civilian intersection" cases is relatively narrow. 

From a practical point of view, how to grasp the scope of criminal-civil cases is actually a problem with large differences of understanding, and this is a crucial issue in the reasonable construction of a mechanism for handling criminal-civil cases.

 

Regardless of whether it is law enforcement or case handling or the formulation of judicial documents, it is not appropriate to implement "one size fits all" regardless of circumstances. 

When dealing with criminal and civil cases, we must make clear a basic position, that is, we must choose ideas and mechanisms that are more conducive to protecting the legal rights of the parties and solving the problems more fairly and effectively. 

Rather than being entangled in the judgment of the "same fact", and then hesitating in deciding whether to apply the mechanism of "criminal first and civilians later", it is better to take a stand that better protects the interests of the parties and handle cross-criminal cases based on the principle of seeking truth from facts.

 

Specifically, in accordance with Article 150, paragraph 1, item 5 of the Civil Procedure Law, “this case must be based on the outcome of another case, and if the other case has not been concluded, the trial should be suspended”.

 The time sequence of criminal and civil litigation in inter-civilian cases, and whether there is a dependency relationship between the two, determine the acceptance and trial of criminal and civil litigation:

 

(1) When there is no contradiction between the handling of civil and criminal proceedings caused by criminal and civil cases, and there is no mutual dependence between the two, they can be "concurrently" and proceed separately or in parallel.

 (2) When the civil lawsuit and the criminal lawsuit caused by the criminal-civil intersecting case may conflict, and the proceeding of the civil lawsuit needs to be based on the result of the criminal lawsuit, the civil lawsuit should be “prior to the criminal”.

 (3) When criminal litigation triggered by criminal-civil intersecting cases requires the result of civil litigation as a prerequisite, it should be "first the citizens and then the punishment".

 

 

2. Regarding the res judicata of prior judgment

In handling criminal and civil cases, a basic position should be clarified: the difference between criminal and civil proceedings is natural, but once a criminal or civil judgment is made, we should fully respect the outcome of the judgment and cannot easily negate the civil or criminal law. Use civil to deny criminal.

 

 

1. The civil judgment has been sentenced to compensate for losses, but it has not been executed or cannot be executed. Should the defendant be sentenced to refund in criminal cases?

 

In practice, some people believe that because civil judgments have not been executed, the handling of civil cases should not be considered in criminal proceedings, but should be refunded or recovered in the amount of criminal cases ascertained. 

This actually uses criminal judgments to replace civil judgments. According to the above-mentioned clear judicial position, this approach needs to be reflected.

 

The civil judgment for compensation for losses has been made, which means that the victim's claim has received judicial relief, and there should be no need to return the criminal judgment. 

As for the enforcement of civil judgments, it is only a practical issue, which is restricted by many objective factors, but it will not change the fact that the victim’s property losses have been protected by the court’s effective judgment. What's more, even if the criminal judgment is refunded or recovered, there may still be the problem of impossibility of enforcement.

 

People may believe that in practice, the victim's right to choose the method of litigation should be respected. Once he chooses to resolve it through civil litigation, the criminal litigation should be initiated cautiously. 

This is also a powerful measure to prevent some civil parties from abusing criminal proceedings and "promoting the people with punishment". Some people may worry about improper civil judgments. 

This problem also exists in criminal judgments. Moreover, the realization of the rights of parties includes two links: civil judgments and enforcement. For some problems in the judgments, judgments in the enforcement field can also be used. Regulation.

 

 

2. Can a civil lawsuit be filed after the criminal judgment is recovered or refunded?

According to the 1998 Supreme People’s Court "Regulations on the Scope of Criminal and Attached Civil Litigation", if the victim cannot recover the loss in the People’s Court according to law or ordered to return compensation, he may initiate a civil lawsuit separately.

 

However, from a practical point of view, the general enforcement rate of criminal judgments involving recovery or refund of compensation is not high (there are many reasons for this). 

Therefore, there is a view that although the criminal judgment involves recovery of stolen goods but the victim has not been fully refunded, the victim should be allowed to initiate another civil lawsuit.

In practice, some local courts have also introduced the practice of issuing a certificate of not all returned stolen goods to the victim in order to allow the victim to successfully file a civil case.

 If we follow the aforementioned judicial position, we understand that, in principle, the parties should no longer be allowed to initiate another civil lawsuit.

 In particular, if there is a clear amount of refund and the subject of the refund and the subject of the right in the criminal judgment, if it cannot be enforced only because the defendant is insolvent, the victim should directly apply to the court for enforcement instead of it is allowed to file another civil lawsuit with the court for the same loss, because the people's court has already made judicial confirmation and guarantee for the loss claim, and further lawsuit will only waste judicial resources and the cost of the parties.

 

Of course, the enforcement department should pay attention to the enforcement of criminal judgments, and should not make "different treatment" between criminal enforcement and civil enforcement, and especially should not deliberately set thresholds to artificially exclude the enforcement of some criminal sentences.

 

Finally, what I want to say is that the handling mechanism of criminal-civilian cases is a very practical topic. Three concepts should be established in actual case handling:

 

The first is the overall concept. We must look at the facts of the case in a comprehensive manner, especially for cases involving criminal and civil litigation, we should look at the problem as a whole, and we should not go to the front, discuss the matter and deal with it one-sidedly.

 

The second is the concept of integration. There should be more exchanges between civil and criminal, and they should be good at mutual borrowing ideas. 

For example, criminal judges should listen to the opinions of civil judges on issues directly related to the validity of contracts, while civil judges should listen to the opinions of civil judges on issues directly related to the validity of contracts. Listen more to the opinion of the criminal judge.

 

The third is the concept of coordination. The differences between criminal proceedings and civil proceedings naturally exist. Under the current institutional framework, it is difficult to reach a complete agreement between the two. 

Conclusion

However, coordination and unity on issues of principle should be emphasized. Retreat to the north and negate each other. For example, if the criminal is not recognized as a crime, the civil still recognizes that the contract is valid.