试论刑事附带民事诉讼的取消和刑损赔偿诉讼的构建

Study on Canceling the Civil Suit Collateral to Criminal Proceedings and Setting up the Criminal Damage Suit

我国现行的刑事附带民事诉讼制度在构造上与公正、效率价值的冲突已表明其不具备存在的合理性。刑民合一的审理方式在实践中暴露出的种种弊端更进一步将刑事附带民事诉讼推向被取消的境地。对比之下的刑民分离式才是未来应当被采取的立法模式。在此基础上,探索和论证独立的刑损赔偿诉讼构建的合理性和操作的可行性则是论文的创新点所在。

The actual system of civil suit collateral to criminal proceedings in our country has made conflict between the value ofjustuess and efficiency on conformation,which indicates that the civil suit collateral to criminal proceedings has lose its rationality of being existence.The trial way of criminal procedure combined civil action has exposed so many defects in practice which lead the civil suit collateral to criminal proceedings going farther into the canceling circumstance.In contrast with the way hereinbefore,civil action separates from criminal procedure is just the right pattern that should be adopted in the future.For this basis,exploring and demonstrating the rationality of constructing as well as the feasibility of operating on the unattached criminal damage suit are the innovation points in the paper.