刑附民判决执行的阻却及制度改造——以被害人为视角

The Analysis on Formative Reasons and Countermeasures for Execution Difficulty of Incidental Civil Decision

刑事附带民事判决屡成空头支票已成为常识性诉讼现象,刑事诉讼法遵循的重犯罪惩罚,轻被害人权利保障的立法理念,无疑是重要的幕后推手。消除这种现象应当重新诠释刑事司法正义之内涵,将被害人权利保障提升至应有的高度,赋予被害人选择提起独立民事诉讼或附带民事诉讼的程序权,完善公诉案件刑事和解制度,以及审前程序的财产保全制度,将刑民判决执行挂钩。

Incidental civil decision becomes blank check is a common phenomenon, which is formed for multiple system background, the defendants are deprived of personal freedom and even life for crime is undoubtedly the important reason, but it is not the only factor, the criminal procedure law adopts the idea of paying attention to criminal punishment and disdaining safeguarding the victim s＇ rights, which is undoubtedly an important cause. The ways of eliminating the phenomenon should be explaining criminal justice again, attaching impor- tance to protect the victim s＇ rights and promoting it to the due height, giving the victims the right to choose in- dependent civil litigation or incidental civil lawsuit, setting up criminal reconciliation system for public prosecution case and pretrial property preservation procedure, contacting its execution to that of criminal decision.