由证明标准析附带民诉制度

Analysis the Supplementary Civil Lawsuit Form the Angle of the Prove Standard

附带民诉以刑诉为制度设计出发点,其首要目标在于完成查明、制控与惩罚犯罪的刑事政策目的,保护被害人私权只是其第二位的目标。由于民、刑诉在证明标准上的差异,理论上存在只顾及刑诉,而不保障其附带之民诉的正义实现这一情形,此时对附带之民诉的裁判更难实现诉讼正义。应在立法上摈弃客观真实,采纳民、刑诉二元化的证明标准,同时给予法官一定的自由裁量权,这样才能保障附带之民诉部分的正义。

It is without saying that civil policy is regarded as more important in the system of Criminal supplement with civil lawsuit. Therefore, supplementary civil lawsuit is only the second aim of it. because the prove standards is different between criminal lawsuit and civil one, the justice of civil lawsuit ,in some instant, will be ignored by the judge. In my opinion, the different target of prove standard between criminal and civil should be paid enough attention. In addition, the system of two prove standards should be established.