Relief System for crime victims

Keywords: Criminal Victims / Save / offender

Summary: Criminal Justice, crime and victims attendant, in the past, we have focused too much attention to the protection of the rights of the offender, while the protection of victims and relief negligence. Relief system for crime victims, marking Criminal legislation and Justice in our country the focus of protecting the rights of the accused from the mere transfer of equal protection of legitimate rights and interests of victims, both the value of social protection, Criminal Law, the specific demands of direct reflection of the Criminal policy of a harmonious society is a necessary requirement. either from the real However, perspective or point of view ought to build this system has its legitimacy, but also its important to establish the theoretical basis and practical significance.



First, the criminal history and status of the victim assistance system considerations

Criminal proceedings stArted, through a long appeal to the state prosecution by the private process, after the crime occurred, the remedies of victims of proceedings both Civil and criminal Bufen based on the prevalence of the ancient Germanic Law model in the prosecution of victims, but also are based on the "Jigonghaoyi" prevailed in the era of Roman Law model of public prosecution, until after the rise of national thought, come slowly to non-personal best is about crime, they violated not only the personal legal interests, and more is the public order and public interest, which means that the national legal interests. [1] the state as Law-makers, who hold the monopoly of judicial resources, the defenders of social order, the guardian of Civil rights, people should be prosecuted for crimes, but not let the solution in the private power, or any person from criminal Law and state control in addition to this, view the nature of crime changed, the beginning of the formation of the state prosecution model for Civil law and common law countries have a common respected.

From the above, the theory of modern criminal procedure is initiated and established by the state prosecution as a symbol of the criminal Justice model, the basic use of the "state - the perpetrators," the dual structure, in this structure, isolated criminal people against the powerful state apparatus, which highlights the weak position, for which the concept of human rights protection and the prohibition of double jeopardy under the guidance of the principles, whether legislative or academia, are biased protection of the rights of the accused pArty's problems, and victims of criminal the right to have some light, as a result of which changed hands and atrophy. As Western countries after World War II, the crime rate soared, the marginalized victims of the tragic situation of the growing interest of "national standard" rule of law concept of "social based "concept of the rule of law replaced by the human rights protection, balance and protection of the rights-based theories of Justice to victims of school to establish and continuously rounded development, and Research priorities will soon be located in the protection of the rights of victims and rescue up , as an opportunity to all countries in Europe, America and Asia, has established and continuously improve the Victim Assistance in the legislation. victimology has become a new discipline, was held in 1973 in Jerusalem, victims of the First International Symposium, "The Victim Compensation and damages "as the first meeting important issues, and in 1979 the third Symposium on the victims, set up a" World Society of the victims. "

Other countries in Europe and America reflect the rights and status of criminal victims, and legislation to protect and rescue their time, China is also gradually on the "national standard" of the criminal legislation and policy reflection and improvement, promote the "social standard" transition, proposed for the state, society and individual rights should be effectively protected, the rule of law to establish a harmonious society, and in recent years and plan to actively advocate for crime victim assistance system. Theoretically, in 2006 successfully held in Guangxi University the "Criminal Victims Protection" international seminar on the protection of victims of international trends and coping strategies in China. in May 2008 from 17 to 18 days, by the Supreme People's Court and the Australian Human Rights and Equal Opportunity Commission co-sponsored, Shandong Qingdao City Intermediate People's Court co-organized, "China-Australia seminar on protection of Crime Victims", seminars around the "protection of victims of criminal law and its improvement," "Criminal Victims Relief Theory and Practice", "Criminal Victim Protection System in Australia Comparison of the "three topics in depth discussion, and agreed that people should focus on protection of the rights of crime victims and the balance, strengthen and improve the protection of the rights of victims and relief. on May 9, 2008, by the Procuratorial Daily < <radius of the rule of law>> magazine, the National Prosecutors College <"China Prosecutor>> magazine and the Wuxi City, Jiangsu Province, People's Procuratorate jointly sponsored the legislation system of criminal victim assistance workshop, introduce and discuss the system on the Exploration and victim assistance theoretical thinking. legislation, the NPC Standing Committee Victims of Crime Assistance Act has been included in the proposed 2007 legislative program, and the NPC Internal and Judicial Committee of the Legislative Research to aid the victims as the focus of this year, [2], the theoretical study and legislation to promote the Research results are obvious in many places, the judicial practice, has established a relatively complete standardized system to help the victims to bridge the injury of their experience in resolving their difficulties. According to incomplete statistics, in Supreme People's Court in Henan Province across the country, Lanzhou City Procuratorate, Changzhou City Procuratorate, more than 20 victims of the criminal judicial assistance system established and successfully implemented.

But the current situation of our country, compared with the extra-territorial, both institutionally and in practice are urgently improved. While Europe, America and Asia, Japan, Korea and other countries and China's Hong Kong, Macao and Taiwan also experienced the basic from concern to concern the rights of crime victims and perpetrators balance protection of the rights of victims to rescue the stage, but most of these countries and regions which have been in a relatively mature stage, while China is still in its infancy, it does not that the rescue of victims is not important in our country, in essence, for the importance of this problem we are not inferior to the other, apparently all in a positive brewing.

Second, the establishment of the legitimacy of the criminal system of victim assistance

Legitimacy refers to the existence of things with a reasonable basis for establishing the legitimacy of the victim assistance system is that the reality of the rights of victims need relief, compared to the same crime, the protection of the rights of the imbalances and to achieve legal value. And as a legal Proposition judgments, is that for both facts and norms, the two are complementary aspects of a problem. laws and regulations has always been difficult to get rid of their limitations caused by the lag, no matter how clever the legislators, are not accurately predict the social changes needed to adjust the status of norms, but due to the fact touched the emergence of legal norms to be waiting for the basic spirit of fairness and Justice, it was timely to make corresponding adjustments to maintain the continuity of Law and relative stability, and the fact that no matter how the changes in a longer period of time, the stability of both its quality and the development of materials mostly continuous trend, so the facts and specifications to accompany the line. In addition, The establishment of a legal proposition, all consideration to the pursuit of justice and human rights advocated by the modern rule of law, protection of the principle of balance, only to withstand the test of the two propositions to be able to call it true proposition, it has a long-term vitality .

(A point of facts and norms for Analysis of the Real

As the stArt of criminal proceedings has gone from private action to the indictment of the phases, the crime has gone from private power to public power to resolve, when the country fully grasp the power of investigation, prosecution right, right after the trial and punishment for the protection of rights of the accused will be on the scene. It is true that the defendant faced a strong state apparatus is, indeed, become weak, thus, protect the legitimate rights of the perpetrator, is the resident head off, but ignore the other side alone - - the situation of victims, when the victim lost the real status of the pArties, but the lack of relief when their rights will be how to treat! Although the "criminal proceedings must maximize the use of procedures and the referee after the results of the defendant, the victim and the public announcement system of criminal cases in the legal dispute has been 'final curtain' in order to restore social peace life. However, it should be noted, This so-called peace, peace is only just legal order, because even if executed prisoners, the law can not be completely healed because of crime victims and their families for injuries resulting from criminal proceedings only in the line up within the scope of the purpose of punishment, meet the needs of all pArties should be reported to it, let alone prevention should be reported in addition there are considerations. "[3], Zhang Jun, Jin Ruchao, Ma Jiajue, Qiu Xinghua such familiar names as the general public in addition to live one life means litter, a run-down families, the other seems to have a silent, face the families of victims of "legal IOUs," the pain, in addition to reporting to sympathetic onlookers, the more is waiting and silence. But, as a national and society, we must face the victim can not fully restore the mental trauma and physical make up is a blank should be a result of their helpless and lonely situation, and must not turn a blind eye, which is related to rule of law, justice and social stability and development. If not, their damage to heal, it is secondary to their injuries, in addition to different countries suspected of responsibility, but also easily lead to psychological pain inverter and will pass on their social and others. because "... ... the unfortunate attention for their survival decreased with the deepening misery. It is for this reason, violations continue to create new violations: hate is more durable than the feelings of love, because hate sustained from the act to get the power ... .... "[4]

In contrast, however, did not crack the case in many of the victims in criminal cases, even the perpetrators brought to justice only to the spirit of comfort are not, and this is a huge number of a group. Here is the 2002-2006 data public security organs criminal case / number of statistical detection: [5]

Time / 2002 2003 2004 2005 2006

Filing / Parts 4336712 43938934718122 46484014653265

Detection / Parts 1925090 18426992004141 20973692212625

Storage case / piece 2411622 25511942713981 25510322440640

Detection rate 44.4% 41.9% 42.5% 45.12% 47.54%

Clear from the above data can be seen ,2002-2006 average annual detection rate of the national public security organs hovering between 40% -50%, which means that the number of detection then not detected relative to the number filed in a weak position Every year some 2.5 million criminal case not solved, a large number of victims can not get their dream of justice - through the law to get material to make up and seek spiritual comfort, for they are a forgotten corner of the , is a lack of protection in the normative group.

For our current law, protection of the rights of victims and relief regulate the legal situation of missing an extent which rendered the victim as described above. In the protection of the rights norms, although given the victims suffered through litigation to recover their material losses and personal injury compensation right, but the victim should have the right to request compensation for moral damage is due to start and run criminal proceedings insecurity, caused by complete specifications for the relief of victims of anomie. Current <<Criminal>> Article 77 provides: "Victim of the accused criminal acts of people suffered material losses in the criminal proceedings, the right to file an incidental Civil action. "<<Penal Code>> Section 36 provides:" The crime victim has suffered economic losses, in addition to the criminal shall be subject to criminal punishment, and should be sentenced under the circumstances I wish compensation for economic losses. "<<Supreme Court on the scope of the criminal with the provisions of Civil Procedure>> The first provides that:" due to criminal violations of human rights suffered material loss or criminal damage to property was suffered material losses, may file an incidental civil action. But the Supreme Court <"On the admissibility of the People's Court of victims in criminal cases brought the issue of civil litigation for damages the spirit of approval>> of the judicial interpretation clearly states:" For Victims of criminal cases the defendant's criminal conduct because the spirit of the loss suffered incidental civil action filed, or after the conclusion of the criminal case, the victim filed a separate civil action moral damage, the people's court shall not accept. "

From the victim in the position of pre-trial proceedings of view, pre-trial investigation of criminal process, both in terms of doctrine mode, or in the adversary model, the state has a strong investigative resources and power sources are Needless to say, the right of investigation States have also no doubt that the victim is largely determined the location of the witness box, take orders from the investigation organ arrangement, the law gives victims and their agents have powers of investigation are extremely window dressing. either as active or passive role in the role of , victims are in a position to be dominant. re-trial procedure from the point of view, recourse by the public prosecution by the state to exercise, the victim is only entitled to a limited extent from the right of appeal. The lawsuit from the victim enjoys the status of analysis, criminal proceedings, the law gives the victim the identity of the parties is also only right to give evidence, but denied his appeal as a direct victim of criminal rights, and its civil and criminal appeals process is highly dependent Thus, the lack of protection of their rights can be seen, even if the victim was given party status, but also mostly limited to the name or part of civil rights. Admittedly, the national interest is important, but not that of individual interests will never be in the second bit, rather than equal protection. "countries - the perpetrators," the dual structure among the victims of the negligence of their own flawed character, in any case, the state should not be in order to safeguard its own authority as the direct victims of neglect the demands made by the individual, should not neglect the protection of legitimate rights and interests of victims, relief procedures and norms of reasonable and sound design. From the point of view of the purpose of punishment, whether for utilitarian or penalty is retribution, out of prevention or correction, nothing to do with the victim, more out of the maintenance of social order perspective, whether legislators or the judiciary, in considering this issue, mostly from the national perspective. Thus, crime the role of human nature by the criminal people to play, and the role of the victim were totally abstract to serve as the ground state, as the victims were excluded.

From the facts, the victim's situation is not ideal or more people reported only compassion and lack of protection, from the perspective of norms, protection of the rights of victims, assistance for the humble and much-needed improvement. Therefore, we must from the facts and comprehensive look at the perspective of norms, "In fact, as the object of the facts always need to undergo standardized evaluation, and in an evaluation, the specification of the fact that they tend to cut ... ..., in short, of facts and norms Jian interaction always exists. In fact, outside of continuity not only in the specification, and continue to shape the norms, which contributed to the transformation of norms and, in this transformation process, to set their own also. However, the interaction between facts and norms of confirmed that, in any case should not be denied based on the fact that the basic position. After all, it is the fact that dominate the shaping of norms and the transformation of its system, and regulate the influence of the facts is always limited. and the fact that the only human common sense divorced from the normative system, sooner or later face the question of its legitimacy and the transformation of the requirements. "[6] and the victim assistance system is intended to establish the legitimacy of this requirement.

(B fair justice and protection of human rights point of view of the theory of probability analysis should be

In fact, natural law, and ought to have two sides, "the criminal law should be probability, in essence, is a value issue. Value of the criminal law is a real probability in the criminal law on the basis of the criminal law ought to answer." [7] the author proposed in the above analysis on the Real through the study of fairness and justice and protection of human rights to illustrate the function of criminal law to establish the legitimacy of the victim assistance system problems.

Criminal justice not only for the primary value, and that "the primary value of the social system, just as truth is the primary value of the same ideological system. A theory, no matter how elegant and simple, as long as it is untrue, it must be rejected or amend the same, certain laws and institutions, regardless of how they are efficient and organized, just as long as they do not, it must be modified or abolished. Everyone has the inviolability of justice based on this inviolability Even the name of the interests of society as a whole can not be exceeded. Therefore, justice denied for the greater good of some people to share some other people deprived of freedom is justified, does not recognize the larger interest of many people can enjoy more than enough to compensate for minority imposed sacrifices. therefore, in a just society, equality is true of civil liberties, the rights guaranteed by the justice not subject to Political or social interests of trade balance. "[8] and the theoretical framework in the victim assistance , but justice for the victims concerned about the return requirements. a long time, "the traditional criminal law theory that crime is a violation of state law, the offender is the damage caused by the damage against the state, its legal relationship involving mainly between the State and crime, so the penalty for their crime is a crime should bear the burden or cost. Once the crime occurred, the state will follow the principle of statutory crimes to punish course, once the end of the sentence, the offender will be return to society. "[9] so" countries - the perpetrators, "the one-dimensional mode of thinking ignored the" country - victims of "the relationship between the inspection, if the damage is limited under the main body of the country or abstract social relations, difficult to get rid of "countries - the perpetrators," the dual structure model, the unfair justice too, in essence, a crime against target both national and legal interests, including individual legal interests, both tangible physical harm, but also intangible mental injury, thus, "countries - the victims," latitude assistance system for victims of the country have created the logical starting point, but also "the concept of justice is to bring our attention to the building as part of standardized rules, principles and standards on fair and reasonable. ... ... just concerned about the legal norms and institutional arrangements for the content of their effects on humans and their happiness in the promotion of human values and civilization building. from the most extensive and the most general sense, justice concerns can be considered a group of order or a social system is appropriate to achieve the basic goal. If we do not attempt to give a comprehensive definition, then we may point out that to meet the reasonable needs of individuals and ideas, and at the same time promote the production of progress and improving the degree of social cohesion - which is the continuation of life necessary for a civilized society - is the goal of justice. "[10] Justice Perspective on Crime and punishment on the victim can not be ignored, only the state aid given to victims in order to truly achieve justice, rule of law. Indeed, "to give each person what their wishes should be the concept of justice is an important but and universal components. Without this element, justice in society Shengxing impossible. "[11]" However, it is clear that only others to foster a fair and caring mental attitude, not in itself sufficient to justice in a dominant position. implemented in good faith and justice, but justice must be aimed at achieving the objectives of social and institutional means of practical measures to be implemented. "[12] Thus, the establishment of victim assistance system is particularly urgent.

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Legal protection of human rights but one of the important goals pursued in the traditional power standard and modern "people-oriented" concept of the criminal justice process of the contradictions and blend, rights can not always avoid the stigma of power. Between state power and civil rights is that the former is the subtle to the degree the latter, the former is the guarantee for the latter, while restricting the former while the latter have to follow the former. Criminal Justice, in the "state - the perpetrators," the dual mode vulnerable people face state criminal and should be protected, but in this framework, the rights of crime are treated unfairly, the State will promptly security, the status of the victim being left out when it is hard to protect the rights of victims, and "in the analysis system of criminal law framework, why should view the introduction of the victim, or the legitimacy of the introduction of perspective based on what the victim is a very complex theoretical problem. the traditional analytical framework finds that the main crime is not against the interests of specific individuals, and the authority of the state and legal order. for the restoration of legal order violations suffered by, the state needs the punishment of the perpetrators justify their own authority. Therefore, countries need to deal with monopoly rights of crime, victims were positioned to assist countries the alleged witness. However, this will be the object of the victim is obviously the lack of basic legitimacy. If the establishment of the dominant position of the perpetrators of modern criminal law is an important contribution to individual freedom proposition is applicable to 'countries - individuals' two yuan offender treatment paradigm of the relationship between the state and the results, then the problem is actually the victim involving the same freedom as the principal and practice of how the issue of respect, does not apply 'countries - individuals' binary paradigm to deal with the state and The relationship between the victim becomes groundless. After all, the victims of the conflict (crime) is one of the parties is subject to criminal violations directly to the specific object. in the interests of victims and national interests do not coincide between the cases, the State based on its own the interests of the considerations will be abruptly absorbed victims themselves, can only be seen as a tragedy. "[13] In view of the protection of human rights, crime and victims rights should be subject to reasonable protection, not trade-off should be balanced protection, criminal law is also true, if the criminal law is simply that the perpetrators of human rights protection law, then the law would set the balance to unbalanced state, not only inconsistent with the fundamental values of human rights content of its own, but contrary to the basic requirements of law and justice held that the law but to achieve "justice for all" and set up. Thus, in order to achieve a balanced protection of victims of human rights treatment, crime and punishment of the criminal law to achieve protection of human rights the value of the target establishment of victim assistance system is actually necessary.

Third, the criminal victim assistance system based on building and Choice Theory

Construction of the system of criminal victims in China, is still cutting-edge things, the process is long and difficult, but it is particularly meaningful and far-reaching. Such as bacon words: "For all things, especially the most difficult things that people should not expect sowing and reaping the same time, in order for them to mature, there must be a nurturing process. "is the case, the author intends to analyze the building based on the theoretical framework of interpretation.

The current aid system is based on the theory of the victim complex, there are: First, state responsibility, said that to Rousseau's social contract theory based on the theory that the State exclusive defense forces, the personal responsibility to protect citizens, property, liability, criminal victims of the did not do harm to the responsibility of the state, therefore, should be the state Victim Assistance. world's first legislation on victims - New Zealand <<Crime Victim Compensation Act "> this theory as a basis, the second is social insurance, said The theory that the payment of social insurance, its purpose is to respond to threats to stability in their lives or safety of the accident, so the victim can not receive adequate compensation from other sources and rescue cases, the state and society should help, rather than the victim alone to bear. as a legislative basis for the Japan <<crime victims and other benefit payments to pay Law "> and the third is social welfare, said the theory that the victim's aid should be a social welfare system, national, social out in moral assistance should extend the hand of criminal victims. Netherlands <"Violence Crime Compensation Fund temporary Law"> This says that mining. There proposed bailout of the criminal is a victim of social assistance to the weak position, is a moral obligation, namely, that public assistance, and scholars are expected to say that the rescue of victims, because the system itself be expected, for two reasons: (1 victims live in poverty in the state, is the the social background of establishment of the system, (2 the function of civil procedure are not sufficient to make timely and full relief of victims.

I believe that State responsibility should be adopted and Social Welfare said that the combination of the two theories as the basis for building this system. "Background of legislative thinking contract raises theoretical thinking of people: members of the society as equal partners in the contract as negotiations normative behavior of people's future laws and regulations, they are most concerned about the future if someone does not comply with the law have already been developed, and then against the legitimate interests of their own, how to resolve this dispute, so people will be against the interests of the default compensation, but the interests of the show, as some material form such as damage to property can be restored after the make up or get some benefits, such as human life, health, freedom, etc. Once the damage can not be restored, or simply can not make up for the original level. For the former, contract negotiation legislation members can mutually agreed by the aggressor to the victim to the same compensation. For the latter, one can only based on the original and inherent sense of justice and the simple principle of equality mutually agreed by the countries to impose criminal penalties that a negative evaluation, to return to the aggressor against, reflecting the national exclusive power of punishment. But the return has not been matched to the material interests of crime victims compensation, since the aggressor to the victim losses and interest is not restored to the original, absolute equality of status, the second best, the victim can ask a relative, there are practical meaning of equality. "[14], which means that only quality into a measure of the material compensation. And when crimes against the person who is unable to take responsibility for the crime to the victims of the loss, including material and spiritual, this time, the state should assume its contractual obligations, that is, inadequate protection of its members the responsibility to help the victims. Moreover, the welfare state from its members of society, its members can not be subjected to crimes against life in time to make up for difficulties caused, either moral or responsibility for, the State its welfare should be the relief, to ensure their normal life.

In addition, the victim assistance system in the building should pay special attention to the following three issues:

First, the definition of victims. Placed in the framework of relief system evaluation, the concept should include the victims themselves and their dependents. Broadly speaking, should include a courageous person. For the victims themselves and their dependents should be included which no doubt, courageous, assisting the judiciary for the detection of cases of criminal acts were being infringed, they should also be included on the inside.

Second, the aid agency to be established. On the aid agencies of the settings, I suggest the management of funds should be the decision authority with the relief agencies were set up, the two can be mutual restraint, but also the responsibility clear. Which may set up a special fund management business institution, will aid in the decision authority to the judiciary can, so to ensure that relief funds can increase the value of the law may also be familiar with the specialized agencies and personnel for timely assistance to victims and to save manpower and material resources.

Third, the source of relief funds. Relief system for crime victims, the question of money can be described as the most practical question is to establish the economic foundation of the system. At present, China's fiscal revenue overall in good condition, should be the main source of financial provision as a . In addition, criminal penalties imposed on the offender's income, the offender during the part of prison labor income and social capital and other contributions can be unified into relief funds for special management.

In short, the construction of criminal victims assistance system, is to achieve "both to protect the rights and interests of crime, and protection of victims rights," the balance of justice and harmony based on justice legislation is to promote democracy and the rule of law, fairness and justice under the harmonious win-win move Perspective However, the reform of criminal justice, social development, with the updated and improved gradually, and therefore relief system for crime victims not be accomplished overnight, it must be combined with the growth of the soil, constantly reaching perfect, which means Mr. Long Zongzhi and statement, "China's judicial reform in general can be placed only within the social system, within and outside the interactive approach to justice, and thus only the conditions of, the progressive, improvement." [15]

Notes:
[1] [Taiwan] Lin Yu Xiong book: <<Criminal> "(the book Zonglun series, the first 37-39 pages, the Chinese People's University Press, 2005.


[2] For details see <<Sino-Australian Symposium on Protection of Crime Victims - A Comparative Perspective of the Criminal Victims Protection>>, http://www.yfzs.gov.cn/gb/info / xsll/yjdtyzs/2008 -06/23/1407096759.html, <<Crime Victims Relief System legislation (Wuxi) Conference>>, http://live.jcrb.com/html/2008/227.htm.


[3] the same [1], p. 10.


[4] [Italy] Beccaria a, Huang Feng translated, "<On Crimes and Punishment>> Encyclopedia of China Press, 1993, p. 98.


[5] These data were derived from <<PUBLIC Research "" (results published in 2002-2006.


[6] Lo Tung Yan: "Between Facts and Norms - from the perspective of the victim reflection of substantive criminal law system", "<and Foreign Law>" -2006 No. 3, p. 301.


[7] Chen Xingliang book: <<Penal Code of the value of the structure>>, China Renmin University Press, 1998, p. 12.


[8] [U.S.] John? Rawls's book: <<Justice>>, China Social Sciences Press, 1998, pp. 1-2

[9] Xia Lian, Fengxin Lin: "On the Concept and the criminal justice system in development - under the concept of an integrated interpretation of the law", Journal of Zhejiang University (Humanities and Social Sciences) 2008 No. 2, p. 87.


[10] [U.S.] E? Bodenheimer was: <<Jurisprudence - the philosophy of law and legal methods>> Deng Zhenglai translation, China University of Political Science Press, 2004, p. 261.


[11] Ibid, p. 277.


[12] Ibid, p. 278.


[13] Lo Tung Yan: "Victims and the Criminal Law Theory Perspective Reconstruction", "<Political Forum>" -2006 No. 5, p. 128.


[14] STAFF, Chen Shuzhi: "Law philosophy of crime victims' compensation'",<< State Taiyuan UNIVERSITY" "(Social Science Edition) 2006 No. 1, p. 54.


[15] Long Zongzhi: "On the judicial reform in the relative rationalism", "" China SOCIAL SCIENCES "> 2, 1999, p. 130.

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