论宣告死亡结果在刑事法中的效力

On the Effect of the Declaration of Death In Criminal Law

在司法实践中,有的刑事判决推定适用民法中的宣告死亡结果。但宣告死亡结果和危害结果之间存在本质的差别:前者是对未然事实的盖然性判断,后者是对已然事实的确定性证实;在价值取向上,宣告死亡制度基于对生存者利益和社会利益的保护,而推定则基于对被告人权利的保障;在效力上只能限制前者的适用范围;在救济程序上,宣告死亡撤销制度也不能适用于刑事领域。因此,在中国当下的法治环境中尚不能在刑事法中推定适用前者。

The declaration of death in civil law have been presumed as a criminal judgement in judiciary praction. But there are lots of essential distinction, between declaration of death and result of damage, the former is just a possible judge for future fact, while the latter is a verification for goings-on; in value level, the system for declaration of death is based on the protection for the benefits of the existent and society, however the presumption is based on the security for the accused; as for the the effects, the fomer must be limited in its own applying scope; and during the relief procedure, the system for repealing the declaration of death cant be used in criminal law. So the declaration of death cannot be presumed in criminal law under the current conditions of legal administration in China.