摘要
罗马法开创了民刑诉权竞合问题,并不区分两种诉权的尊卑,允许被害人趋利性地选择诉权行使。中世纪法学确立了刑尊民卑的观念,它成为刑事附带民事诉讼制度的主要基础。这一制度在1808年的法国《刑事训示法典》中形成模式,影响了包括我国在内的许多国家和地区。该制度有节约诉讼成本,两事一办的利好,但有抹杀刑民诉讼的根本区别,以民就刑的弊端,故以美国为代表的一些国家选择了刑民分诉体制。《民法总则》第187条确立了民贵刑轻体制,但它的适用的诉讼法条件是刑贵民轻体制。该体制把刑事诉讼当作相关的民事诉讼的先决条件。这样,实体法上的民贵刑轻与程序法上的刑贵民轻体制发生了强烈对抗。解决之道是在司法解释中承认刑事被害人的诉讼方式选择权,并承认参与竞合的刑事责任和民事责任并非都具有财产性,故可以避免完全从执行的角度,而按照诉权行使和诉讼管辖的路径来规定我国的刑民责任竞合问题。
Roman law has founded the question of concurrence of civil and criminal actions, but did not distinguish the grade of dignity between the two kinds of actions, allowing the victim of crime to choose the action to exercise in way of chasing his interests. The medieval jurists established the percept of ＂criminal action outweighs civil action＂, which became the main basis of the institution of incidental civil action in criminal procedure. This institution was formed in the French Code of Criminal Instructions of 1808, affecting many countries and regions, including our country. The institution has the advantage of saving the cost of litigation, and of resolving two litigations in one procedure, but it has the defects of ignoring the fundamental difference between the criminal procedure and civil procedure, and of putting a civil procedure in the cage of criminal procedure. That is why some countries such as the United States chose the system of separating the civil procedure from the criminal procedure. Article 187 of the General Part of Civil Code has established the system of ＂civil liability outweighs criminal liability＂, but only applicable in a framework of procedural law in which criminal action triumphs civil action. The system treats criminal proceedings as a prerequisite for the relevant civil action. In this way, the substantive law that put into practice of percept of ＂civil liability outweighs criminal liability＂ and the procedural law that put into practice of percept of ＂criminal action outweighs civil action＂ conflict with each other. The solution lies in the future judicial interpretation to Article 187 of General Provisions of Civil Code and the right of criminal victims to choose from the actions available, and admitting that the concurring criminal responsibility and civil liability of a property nature. This can deal with the problem of concurrence of criminal responsibility and civil liability by resorting to the exercising of right to action and the jurisdiction of litigation,
出处
《比较法研究》
CSSCI
北大核心
2017年第4期106-121,共16页
Journal of Comparative Law
关键词
民事责任
刑事责任
竞合
刑贵民卑
民贵刑卑
civil liability
criminal liability
concurrence
criminal action outweighs civil action）
civil action outweighs criminal action
