刑事附带民事诉讼的调解研究

Study of Civil Lawsuit Mediation Attached to Criminal Lawsuit

新《刑事诉讼法》明确规定了调解作为附带民事诉讼的结案方式,但并未明确其具体的适用范围、程序,使调解与刑事和解制度产生矛盾,司法实践中二者也处于混用的状态。从刑事附带民事诉讼的性质着手,明确了附带民事诉讼不具有独立的民事诉讼的性质,附带民事诉讼调解也不同于普通的民事调解,在性质和法律效果上都与刑事和解一致,应对调解的适用范围加以限制,与刑事和解的范围作同一解释,并认为应当扩大现行立法对刑事和解适用范围的规定。

The new Criminal Procedure Law clearly provides mediation a kind of civil lawsuit resolution,but its specific scope of application and procedures are not clear,which brings about the contradiction between mediation and criminal reconciliation system.This paper begins with the nature of civil lawsuit mediation attached to criminal lawsuit,believes that civil lawsuit mediation attached to criminal lawsuit is different from civil action,it is consistent with criminal reconciliation in nature and legal effect,the scope of application of mediation should be limited to the same with criminal reconciliation,and believes that the current legislation should expand the scope of application of criminal reconciliation.