基于大数据样本的刑事附带民事诉讼司法重构经验与逻辑

The Experience and Logic of Judicial Reconstruction of Civil Suit Collateral to Criminal Proceeding

吸收自前苏联的刑事附带民事诉讼制度在经过多年的本土化发展之后,逐渐具备了助力解决我国司法实践问题的中国特色。通过大数据样本的实证研究,发现刑事附带民事诉讼在司法实践中存在被过度透支的现象,其不仅被扩张适用于精神损害赔偿领域,还影响辐射至普通民事诉讼中,严重地背离了该项制度的预设目标。刑事附带民事诉讼的底层逻辑是以程序正义换取诉讼效率,其功能是在保障实体正义的基础上提升诉讼效率,而非兼顾程序正义与诉讼效率。正确适用刑事附带民事诉讼,就必须明确其系简化的民事程序的本质,并在司法实践中严格遵守"因犯罪行为造成物质损害"这项立法限制。

After years of localized development, the civil suit collateral to criminal proceeding system absorbed from USSR gradually has the Chinese characteristics, which helps to solve the practical problems in China. Based on the empirical study of the sample cases, it is found that the civil suit collateral to criminal proceeding is overdrawn in judicial practice, which is not only extended to the field of compensation for mental damage, but also radiated to the common civil litigation. These practices have seriously deviated from the goal setting of the civil suit collateral to criminal proceeding system. The basic logic of the civil suit collateral to criminal proceeding is to exchange procedural justice for procedural efficiency, whose function is to improve the efficiency of litigation on the basis of safeguarding substantive justice, rather than considering both procedural efficiency and procedural justice. In order to apply the civil suit collateral to criminal proceeding correctly, we must make clear its essence is simplified civil procedure, and strictly abide by the two legislative restrictions of "related to crime" and "material damage" in judicial practice.