【作者】 郭振强；

【导师】 杨可中；

【作者基本信息】 华东政法学院 ， 法律， 2007， 硕士

【摘要】 刑事被害人国家补偿制度是刑事诉讼中人权保障的一个重要方面,国外刑事被害人国家补偿制度已普遍建立,我国作为世界人权保障运动的积极拥护者,理应在此方面做出努力,以顺应国际人权保障的普遍标准。就我国而言,尚未有刑事被害人补偿制度的相关立法,学者们对此问题研究的观点也不统一,笔者对此提出一些初潜的看法,期望能对该制度在我国的建立有所裨益。全文共分三部分,约二万八千余字。第一部分刑事被害人国家补偿制度概述。界定了被害人国家补偿制度的内涵和外延。还阐述了我国目前建立此项制度的必要性,认为我国建立该制度在观念层面、理论层面、实践层面、物质层面均具有可行性。第二部分我国刑事被害人国家补偿制度现状。该部分共分三节。第一节从理论基础上分析,归纳了学者们对此问题的九种观点,认为这九种观点局限于利益层面,虽具有一定的合理性,但尚不足以担当起理论依据的重任。文章认为公平正义的理论、国家的契约责任理论、利益权衡理论、效益价值理论、公共福利理论,不仅吸收了上述学说的合理内核,而且返回到了理论的原点,有助于深入理解刑事被害人国家补偿制度的理论依据。第二节审视了我国刑事诉讼法及相关司法解释,认为我国对被害人权利的保障仍存在诸多不足。第三节从司法实践现状上分析,我国目前在没有建立被害人国家补偿制度的情况下,对于被害人因犯罪行为遭受经济损失的,通常通过民政救济和刑事附带民事诉讼进行保护,但这两种途径都有其自身的缺陷。第三部分我国刑事被害人国家补偿制度构建。该部分认为补偿适用公平正义原则、损害与补偿相均衡原则、赔偿为主,补偿为辅原则。补偿的犯罪类型主要限定为暴力犯罪,包括故意和过失的暴力犯罪。对严重超出自身经济承受能力的非暴力犯罪的被害人也应该给予适当的补偿,如因诈骗犯罪,被害人生活难以维继的。犯罪被害补偿的对象及范围方面,文章认为我国应当借鉴国外的有益经验,可以向国家请求犯罪被害补偿金的对象应为被害人本人、被害人遗属。范围限定为身体伤害、物质损害。笔者还通过分析认为精神损害不应当列入被害补偿范围。资金来源与管理方面,文章认为在我国应当建立专门的补偿基金,资金来源可包括国家税收、罪犯缴纳、社会捐赠、外国政府或国际组织援助等。此外还对补偿程序及职能机构作了具体的分析。更多还原

【Abstract】 As an important part of assurance of human rights in criminal action, national compensation system for criminal victims has long been developed in many foreign countries. As an active supporter of national action for the Guarantee of human rights, it is true time for China to play up its role to meet related standards. Nowadays in China, legislation on compensation system for criminal victims has not been established. What’s more, scholars have different views on this question. In this thesis, several opinions have been held forth, which may be of some help for the establishment of this system in China.There are Three parts in this thesis, total word number of which is about 28 000.Part I:Summary of national compensation system for criminal victimsIn this part, connotation and extension of national compensation system for criminal victims have been defined. Necessity of establishment of this system has also been illustrated. It is believed, it is practical to develop this system considering such actual situations as the notions, theories, practical experiences and materials in China.Part II: Analysis of current situation of national compensation system for criminal victims in ChinaThere are three sections in this part. In Section One, 9 different views held by scholars have been listed and analyzed. It is concluded that all these views are limited to the attention on advantages and interests, which can not act as theoretical foundation. Whereas theories about justness and rightness, nation’s contractual obligation, theory of comparative advantage, effectiveness and values theory and public welfare theory have not only absorbed the reasonable ideas in the 9 views listed above,but also returned back to the origin of theory, which is helpful for deep understanding of the theoretical core of national compensation system for criminal victims. In Section Two, criminal suit law and related judicial interpretations of China have been analyzed. It is concluded that there are many failures in assurance of Criminal Victims. In Section Three, the practical judicial experiences have been evaluated. Because national compensation system for criminal victims has not been developed, economic losses of criminal victims are usually compensated through administrative remedy and subsidiary civil actions, which have their own shortcomings.Part III: Construction of national compensation system for criminal victims in ChinaIt is believed that the principle of justness and rightness, the principle of compensating equalization and the principle of reparation giving priority to compensation are applicable in the compensation of criminal victims. Criminal types which need compensation for criminal victims are mainly violent crime, including negligent and intentional violence. Considerate compensation should be applied for criminal victims of nonviolent crime if they can not afford the dangerous consequences. For example, the criminal victims of crime of fraud, who can not afford their life, should be compensated. As for the object and extent of compensation, it is believed many useful experiences of foreign countries can be learned. Applicants for national compensation may be the victims and their relatives. The extent of compensation includes both bodily injury and material damage. From the study of the author, it is convinced mental damage should be excluded from the extent of compensation. The financial sources and management of national compensation system are also been studied. Special compensation fund should be established in China, whose sources may be tax revenue, payment of criminals, social donations and subvention from foreign governments and national institutions. At the end, procedures and administrative organization of national compensation system have been analyzed in details.更多还原