动态与观点
Abstract
Article 101, Paragraph 1 of the Criminal Procedure Law (amended in 2018) stipulates: "Where a victim has suffered material loss due to the defendant's criminal act, they have the right to file an incidental civil action during the criminal proceedings. If the victim has died or lost the capacity to act, their statutory agent or close relatives have the right to file such an action." This mechanism represents a distinctive feature of China's criminal procedure system.
Over a decade ago, I represented a victim's family in an incidental civil action. A 17-year-old youth with a mild intellectual disability was suspected of killing an elderly woman in the fields outside their village. There were no eyewitnesses to the incident and a complete lack of direct evidence. While substantial circumstantial evidence existed—such as a prior dispute and the youth's presence near the scene—the confession of a youth with an intellectual disability could not be fully relied upon. Ultimately, the prosecution withdrew the charges, and the incidental civil action was terminated without a criminal verdict. This case starkly revealed to me many procedural intricacies and systemic limitations within China's incidental civil action system.
Role as the Victim's Representative
My authority as a representative was strictly limited to the civil aspect of the litigation; I possessed no legal standing to intervene in the criminal proceedings. Access to the criminal case files was restricted exclusively to the judge, the prosecutor, and the defense attorney. I was unable to review the full body of evidence or assess its sufficiency. Although theoretically aligned with the prosecution, I could offer them little practical assistance. My role was effectively confined to drafting civil claims and negotiating financial settlements with the defense counsel.
Institutional Advantages and Practical Realities
In theory, China's system of incidental civil actions allows civil claims to be adjudicated alongside criminal trials, thereby reducing litigation costs and procedural burdens for victims.
In practice, settlements are frequently reached through "criminal reconciliation," where monetary compensation is negotiated in exchange for judicial leniency. By actively compensating the victim during the criminal trial, a defendant may secure a lighter sentence, a suspended sentence, or a sentence reduction. For many victims, this dynamic becomes the sole realistic avenue for securing financial recovery, as most criminal defendants lack sufficient assets to satisfy civil judgments after serving prison sentences.
Standards of Proof in Incidental Civil Actions
Combining criminal and civil proceedings presents a profound theoretical conflict due to their fundamentally divergent standards of proof.
The standard of proof required for criminal convictions—"beyond a reasonable doubt"—is exceptionally rigorous. The chain of evidence must be virtually flawless; otherwise, the principle of "resolving doubts in favor of the accused" applies, and the criminal charge fails.
In contrast, civil liability relies on a "high probability" (or the "preponderance of the evidence") standard, a threshold significantly lower than that required in criminal law.
In criminal proceedings involving incidental civil claims, the civil ruling rests directly upon the factual findings of the criminal case. If the defendant is acquitted due to insufficient evidence, or if the prosecution withdraws charges, the ancillary civil claim is often summarily dismissed. This practice effectively imposes criminal law's highest evidentiary threshold onto civil litigation, resulting in substantial unfairness to victims.
The O.J. Simpson Case
The O.J. Simpson case offers a compelling comparative parallel. The Anglo-American legal system maintains a strict procedural separation between criminal and civil proceedings, establishing parallel yet distinct paths. This structure highlights fundamental differences regarding standards of proof, principles of liability, and underlying legal values, making the Simpson litigation a classic textbook example in the common law tradition.
In the criminal trial, applying the "beyond a reasonable doubt" standard, the jury acquitted Simpson in 1995, finding him not criminally liable.
In the subsequent civil trial, applying the "preponderance of the evidence" standard, the civil court found Simpson liable for the deaths in 1997 and ordered him to pay $33.5 million in damages to the victims' families.
Conclusion
Given the structural limitations of China's incidental civil action system, legal counsel representing a victim must carefully evaluate the procedural landscape. Depending on the specific circumstances of the case—and with the overarching goal of maximizing the victim's economic and legal interests—lawyers must strategically determine whether to pursue an incidental claim within the criminal process or to initiate an independent civil lawsuit following the criminal proceedings.
This article is provided for reference only and is not intended as formal legal advice.
律师介绍
Zunyi WANG
Beijing Hengdu (Shanghai) Law Firm
Zunyi WANG is an Attorney at Law at Beijing Hengdu (Shanghai) Law Firm and holds a Bachelor of Laws from Peking University. He holds the Legal Professional Qualification Certificate, Professional Qualifications for Banking Professionals (intermediate level), Qualifications for Securities Industry Practitioners, Qualifications for Futures Practitioners, and Qualification for Fund Practitioners. He has previously served at a primary people's court and as the head of legal and compliance affairs for a financial leasing company. He is a Committee Member of the Non-Bank Finance Committee of the Shanghai Bar Association (SHBA) and an Individual Member of the International Bar Association (IBA). Additionally, he serves as an Arbitrator of the Zibo Arbitration Commission, a Mediator of the People's Mediation Committee of the Shanghai Financial Leasing Association (SLA) and the Shanghai Pudong New Area Shangtong Commercial Mediation Center of the Shanghai Commercial Factoring Association (SCFA).
