论涉案财物审理程序中案外人的参与权保障

On Protection of the Participation Right of the Outsider in the Trial Procedure for Property Involved in the Case

通过对执行异议裁定书以及刑事诉讼与民事诉讼相关法律规范的分析,可以发现刑事诉讼案外人无从参与涉案财物审理程序是案外人财产权保障的重大缺陷,案外人"对物再审申请"存在刑民对接困惑,不服刑事判决财物处理部分的案外人异议在执行阶段难以处理。在《刑事诉讼法》中确立与案外人申请再审制度相仿的案外人申诉制度、明确特定的重审条件、理清既判力客观范围后,这些异议请求才能在再审程序中得到有效回应。相较于此"保底工程"的夯实,在通常诉讼程序中保障案外人参与权是更为关键的治本之策。在构建独立的"违法所得处置审理程序"与刑事附带民事诉讼程序扩张性修正之间,后者是较优选择。有必要在刑事附带民事诉讼程序中构建第三人参加诉讼、扩大原告人范围的财产权保护模式。

Based on the analysis of the ruling of objection to execution and the relevant legal.Norms of criminal and civil proceedings,we can find that it is a major defect of the protection of the property rights of the outsider to litigation that they cannot participate in the trial procedure of the property involved in the case,and there is confusion when the criminal procedure and civil procedure is connected for application for retrial toward the property of the outsider to litigation.It is difficult to deal with the objection of the outsider to litigation who refuses to accept the criminal judgment involved particular property in the execution stage.These objections can be effectively responded to in the retrial procedure,only if in the criminal procedure law,the special appeal system which is similar to the system of application for retrial by the outsider in civil procedure,with specific retrial conditions and the objective scope of res judicata,is established.Compared with the consolidation of the foundation project,it is a more critical solution to protect the right of participation of the outsiders in the trial process.The latter is the better choice between the establishment of an independent trial procedure for the disposal of illegal gains and the expansion of civil suit collateral to criminal proceedings.It is necessary to construct the mode of the third party participating in the litigation and expanding the scope of the plaintiff’s property rights protection in the civil suit collateral to criminal proceedings.