涉案财物灭失刑事赔偿标准的法律认定

The Legal Identification of the Standards for Criminal Compensation Caused by the Loss of Case-involved Property

在刑事赔偿当中,对于涉案财物灭失的刑事赔偿标准,由于法律规定过于模糊,理论界对于这一问题也存在一定的争议。目前在司法实践中,已经开始尝试按作出赔偿决定时的价格确定赔偿金;对于涉案财物被非法拍卖、变卖的,也不再适用《国家赔偿法》第36条第5项的规定。司法实践中的做法既具有进步意义,也有其局限性。因而,仍然应当通过修法明确:涉案财物灭失的,应当按侵权行为发生时或作出赔偿决定时的价高者进行赔偿;涉案财物被违法处置的,不能仅给付拍卖、变卖价款。为避免挂一漏万,还应当确立"有利于被害人"的赔偿原则。

There are some theoretical controversies on the standards for criminal compensation caused by the loss of case-involved property because of the vagueness of law. Nowadays, it has started to set compensation according to the price when the compensation decision is made in the judicial practice. When it comes to the situation where caseinvolved properties are auctioned or sold illegal, the provisions of item 5 in article 36 of the Compensation Law of China will not be applied any more. This kind of conduct in practice has progressive meaning and also has limitation as well. Therefore, it should still be confirmed by modifying law that when case-involved property lost, damages ought to be compensated according to the higher price when infringement occurs or compensation decision is made; if the case-involved property is illegal disposed, the compensation ought not to be limited to the money from auction or selling. The compensation principle which favors the aggrieved person should be established in case that there are some situations neglected.