중국법의 배상명령(刑事附带民事诉讼)과 우리 법의 시사점 - 범죄피해자의 손해배상과 관련하여 -

Abstract

This study is to provide an helpful material for the vitalization of our present system of compensation order, through the chinese example, which has never been introduced until now in Korean studies. 67) In Korea, the act on special cases concerning expedition，etc. of Legal proceedings(herinafter referred to as the Act), promulgated on Jan. 29，1981 (Act No. 3361), last amended Jan. 17, 2012，introduced the order for compensation, for the first time. According to the Act(article 25), when a conviction is to be declared in the procedures of criminal trial of the first instance or the second instance against the crimes as stipulated in several articles of the Criminal Act, the court may, either ex officio or upon application from the victim or his successor, order a compensation for direct physical damages, medical expenses, and solatium occurred due to the criminal acts of the accused case. The main purpose of the compensation order is to prevent delay in litigation and to ensure prompt realization of the Crime Victim Protection. The system is specified in the Article 25 et seq. of the Act. However, this was not so active in Korean practice and its effectiveness has been also questioned. In this study, we try to give some comparative basis of suggestions of the reform for our act and its activation. In this study, I focused on the Chinese compensation order, which is called incidental Civil Action( 刑事附带民事诉讼) in China. After outlining its background and giving the general survey, if necessary, I examined the substantial and procedural points about it. For example, the subject : the creditors and the obligators, the requirements of the liability for damages, the object for the order, the scope and extents of the damages and the compensation procedures, etc. The main sources of this order are the penal Code(articles 36 to 37, 64), the Code of Criminal Procedure(chapter Ⅶ Incidental Civil Actions, articles 77 to 78) and the interpretations of the Supreme People's Court on some issues concerning the implementation of the Criminal Procedural Law of the People's Republic of China(articles 84 to 102)，etc. Especially the judicial interpretation on criminal procedure code are newly released on Dec. 24, 2012, to help courts better adapt to the revised law and ensure clients' rights, which we also surveyed both of them. If a victim has suffered material losses as a result of the defendant's criminal act, he shall have the right to file an incidental civil action during the course of the criminal proceeding(article 77, paragraph 1). On top of that，if losses have been caused to State property or collective property, the procuratorate may file an incidental civil action while initiating a public prosecution. When necessary, the People's Court may seal up or distrain upon the property of the defendant. An incidental civil action shall be heard together with the criminal case. Only for the purpose of preventing excessive delay in a trial of the criminal case may the same judicial organization, after completing the trial of the criminal case, continue to hear the incidental civil action(Article 78). The judicial interpretation contains more specific stipulations on the compensation standards for incidental civil actions and some problems are also clarified in this interpretation. In the last part, I gave some brief suggestion for the compensation order in Korea and added the translation of the legal chinese text into Korean. In our exploring the chinese example about the compensation order, this study is limited to consideration of brief sketch of its status quo, so we have to wait another comparative models for Common law countries and the continental law countries. Nevertheless, it is to be hoped that this simple study lays the foundation work on the reform of our compensation order.