In a number of criminal cases that I have participated in, the author has found that some criminal judgments have identified contracts or creditor's rights disputes that have been confirmed by civil judgments as false litigation crimes, fraud crimes, extortion crimes, and sentenced to severe penalties, but the original civil judgments have not been revoked through any retrial process. This makes the author have two questions: the boundary between civil disputes and crimes is also the jurisdiction. Who the final say? Between different types of litigation, what procedures should be performed to overturn the facts identified by an effective judgment?

 

1、 General Rules for Handling Criminal and Civil Cross Cases

 

There are no clear legal provisions on the handling rules for cross criminal and civil cases, but there are several judicial interpretations with principled guidance, mainly including the principles of "punishment before the people", "punishment before the people", and "parallel criminal and civil", among which "punishment before the people" is the dominant principle. This is also basically the case in judicial practice.

 

（1） In the same fact, punishment before the people is primary, and punishment after the people is secondary

  

"If the case belongs to the same factual or legal relationship, punishment before the people is the principle of command.". Criminal proceedings address issues such as the determination of facts, punitive measures, and compensation in a unified manner.

 

Article 11 of the Provisions of the Supreme People's Court on Several Issues Concerning the Suspicion of Economic Crimes in the Trial of Economic Dispute Cases stipulates: "If a case accepted by a people's court as an economic dispute is considered not to be an economic dispute case but to be suspected of economic crimes after trial, it shall decide to dismiss the prosecution and transfer the relevant materials to the public security organ or procuratorial organ." Article 23 stipulates that "In the process of handling a civil case, if the people's court considers that the case does not belong to a civil dispute but is suspected of an economic crime and requires criminal responsibility, and transfers clues and materials suspected of an economic crime to the public security organ, the public security organ that accepts the case shall immediately review it and decide whether to file the case within ten days."

 

The above two judicial interpretations echo each other, clearly affirming the principle of punishment before the people, or the principle of criminal priority. "If the court considers that a crime is suspected, it shall directly transfer it to the investigation organ and shall no longer be tried as a civil case.". The public security organ shall immediately review the case and handle it as a criminal case. Criminal priority means excluding civil litigation, and any factual nature determined in criminal litigation cannot be further determined in civil litigation. Why should we punish the people first? It is generally believed that criminal proceedings are the exercise of public power, protecting not only private rights and interests, but also national and social interests; In addition, the investigative power of criminal proceedings can be infinitely close to objective reality and uncover the essence beneath the surface of things.

 

However, the attitude of the Supreme Court seems to be breaking through the principle of criminal priority. Article 12, paragraph 1, of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law to the Trial of Private Loan Cases", which came into effect on January 1, 2021, stipulates: "The borrowing behavior of a borrower or lender is suspected of committing a crime, or the effective judgment determines that it constitutes a crime, and the parties file a civil lawsuit, the private loan contract does not automatically become invalid. The people's court shall, in accordance with the" Contract Law " Article 52. The provisions of Article 14 of these Regulations shall determine the validity of private loan contracts. " This provision means that there can be civil proceedings after a criminal judgment, rather than all matters being decided by the criminal judgment. Even if it is determined to constitute a crime, the loan contract may still be valid and executed, with the characteristics of both criminal and civil law.

 

Coincidentally, on September 10th, 2020, Article 25 of the "Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Cases of Infringement of Trade Secrets" promulgated by the Supreme People's Court stipulates that "if a party requests to suspend the trial of a civil case of infringement of trade secrets on the ground that a criminal case involving the same alleged infringement of trade secrets has not yet been concluded, the people's court, after hearing the opinions of the party, believes that it must be based on the trial results of the criminal case, shall support it.". This provision is conditional on affirming criminal priority. The most important thing is to establish the principle of court dominance, endowing the court with the power to review and decide whether to punish the people first or to punish the people concurrently.

 

It is rare for the same fact to be punished before the people, and there are few corresponding provisions in judicial interpretations. If the determination of a crime depends on the outcome of the settlement of the civil dispute involved, usually judicial personnel judge the composition of the crime based on the expected outcome according to legal principles and laws, without the need for civil litigation. However, some civil disputes are highly controversial and technical, and the uncertainty of the outcome of the adjudication is significant. In addition, the outcome of the adjudication is crucial to whether the crime is constituted or not, and only the people can be punished first. For example, the crime of dereliction of duty can only be constituted with damage results, which can only be determined through civil litigation, and the investigation organ can only wait for the litigation results before deciding whether to file a case. In this way, it seems that the punishment after the ancestors is completely a practical need, rather than a principle determined by legal or judicial interpretation.

 

（2） Different facts, parallel punishment and civil law

 

"It is not the same factual or legal relationship, but only related. The principle is that the criminal and civil cases should be handled separately, provided that there is no conflict or impediment in the separate handling.". If the results of the referees will have an impact on each other, there should still be a distinction between priority or priority.

 

Regarding the parallel execution of criminal and civil law, both judicial interpretations have provisions. Article 10 of the Provisions of the Supreme People's Court on Several Issues Concerning the Suspicion of Economic Crimes in the Trial of Economic Dispute Cases stipulates: "In the trial of economic dispute cases, if the people's court finds any clues or materials related to economic crimes that are not in the same legal relationship with the case, it shall transfer the clues and materials to the relevant public security or procuratorial organs for investigation and punishment, and the economic dispute cases shall continue to be tried."

 

Article 22 of the Several Provisions of the Public Security Organs on Handling Economic Crime Cases also stipulates that "If a case suspected of economic crime is related to, but not the same legal fact, a civil case that is currently being tried by a people's court or has made an effective judgment document, or an arbitration institution has made a ruling, the public security organ may file a case for investigation, but may not request the people's court to transfer the case, rule to dismiss the prosecution, suspend the lawsuit, rule to dismiss the lawsuit, suspend the execution, or revoke the judgment or ruling, or request the people's law on the grounds of criminal filing The court set aside the arbitration award. " In addition to determining the principle of separate trials, this provision specifically emphasizes that public security organs cannot request the people's court to stop civil proceedings or reverse judgments. This is obviously not to gild the lily, but rather to regulate and restrict strong criminal proceedings.

 

2、 The Disadvantages of "Criminal Priority" in the Handling of Criminal and Civil Cross Cases

 

（1） Undermining the unity of law and order and the authority of court jurisdiction

 

The unity of legal order refers to the non contradiction between legal orders composed of multiple legal fields such as the Constitution, criminal law, and civil law. "An act that is considered lawful in one field of law cannot be considered illegal and prohibited in other fields of law, or it is impossible for a situation to the contrary to occur.".

 

There is no law that stipulates that the legal facts identified in a criminal judgment are more effective than those identified in a civil judgment, or that in the event of a conflict, the criminal judgment shall prevail. "No matter whether a criminal judgment or a civil judgment has legal effect, it is legally effective and must be enforced before it is revoked through a legal trial supervision procedure.". However, some criminal judgments directly identify acts that are determined by civil judgments as crimes, and the effectiveness of civil judgments has actually been overturned, but they are still legally valid in form, as there is no retrial or error correction procedure to judge their effectiveness. The result of conflicting judgments is that they are debtors in civil judgments and victims in criminal judgments; He is a creditor in a civil judgment, but a defendant in a criminal judgment. "Two judgments that both exist legally and effectively have distinct assertions of the same fact. This contradiction and conflict makes citizens feel at a loss in social life. It not only seriously damages the unity of legal order, but also damages the credibility of the judiciary, and further hinders the formation of citizens' belief in the rule of law.". 

 

There was once a criminal judgment that found a judge guilty of perverting the law in civil adjudication. The main fact is that the judge perverted the law in adjudicating a civil case, but when the criminal judgment took effect, the original civil judgment still existed legally and was not revoked by a retrial. If this civil judgment is lawful and fair, how can a judge be convicted of perverting the law? What did he do in vain? Judgment is the carrier of national public power, the expression of national will, and the public tool for determining division and stopping disputes. How can it be such a trifle!

 

（2） Failure to accept or reject a lawsuit on the grounds that it constitutes a crime deprives the party of its right to sue

 

The principal principle of cross criminal and civil cases is based on the principle of "punishment before people". Its main manifestation is that if a court believes that a crime is suspected during the trial of a civil dispute, it directly transfers it to the public security organ, and the parties have no right to remedy their claimed rights through civil proceedings. Criminal priority is the main principle for solving cross criminal and civil cases, creating a strong criminal litigation. In the criminal litigation system, effective criminal judgments are effective for other criminal proceedings, and the res judicata and binding force of judgments are obvious. Moreover, criminal judgments also have a clear binding force on civil proceedings, and any act that is found guilty will no longer be tried separately by the court as a civil dispute.

 

When the obligee is infringed and legal measures are taken, it is necessary to choose the most effective and beneficial approach, while criminal litigation is not necessarily the best choice. Criminal proceedings have a long cycle, narrow compensation scope, and create opposing relationships. For example, in some contract disputes and loan disputes, plaintiffs are more willing to realize their rights through civil litigation than sending the other party to prison, as that may lead to the death of the fish and the destruction of the net. And sometimes criminal means intervene rashly, which leads to a deadlock. For example, in a case in which the author participated, a central enterprise filed a civil lawsuit requesting a private enterprise to repay the arrears. After examination, the court considered that the private enterprise constituted a crime of contract fraud and transferred it to the public security organ. After a preliminary investigation by the public security organ, the case shall not be filed due to insufficient evidence. "If the central enterprise goes to the court to bring a lawsuit again, the court will not accept it.". Both procedures cannot be started, and the tens of millions of losses suffered by central enterprises are helplessly helpless.

 

"The court refuses to accept a civil case on the grounds of suspicion of a crime, or terminates the proceedings on the grounds that the case being tried is suspected of a crime. However, the court still rejects the plaintiff's lawsuit even though it knows that the public security organ has not filed the case, resulting in the lack of legal protection of the plaintiff's rights, in a serious violation of the provisions of the Civil Procedure Law that" the people's court should protect the litigants' rights to sue in accordance with the provisions of the law. ". It can be imagined that the rights of many parties are being shifted due to the different perceptions of the public security organs and courts, and there is no way to appeal.

 

（3） Interference with civil proceedings by criminal means

 

There are two main ways in which criminal proceedings interfere with civil proceedings.

 

One is to promote the resolution of civil disputes through criminal means. When civil disputes arise between the two parties, one party believes that the civil litigation is "insufficient in intensity" and that the litigation is proceeding slowly. In order to exert pressure on the other party and accuse the other party of being suspected of committing a crime, common offenses include fraud, extortion, and embezzlement. After filing a case, the investigation organ takes coercive measures such as arresting people and sealing up property, which indeed puts great pressure on the other party, and to some extent can force them to submit, even plead guilty against their will. The central government has repeatedly issued documents prohibiting public security organs from intervening in economic disputes, but in practice, they are still repeatedly prohibited.

 

The second is to escape civil liability by criminal means. "The party that should bear civil liability shall take responsibility and report the suspected crime of the other party.". This kind of behavior is more prominent in criminal cases. Many usurious or ordinary civil borrowers complain to the public security organs that the other party is a mafia force, and that they have been deceived or extorted. Once the lender is filed, the borrower becomes a victim, achieving the purpose of civil exemption.

 

Compared to peaceful and equal civil litigation, the unique coercive measures against the person and property of criminal litigation do give people a huge oppressive force. Actors all want to take advantage of criminal means to maximize their own interests in the settlement of civil disputes. Driven by interests, the abuse of public power has been repeatedly prohibited. It has to be said that the ease with which criminal means can intervene in civil disputes has much to do with the principle of criminal priority. Because criminal priority and civil giving way provide sufficient legal basis for criminal means to intervene in civil disputes.

 

3、 Rethinking on "Criminal Priority"

 

（1） Criminal Law Should Maintain Its Humility

 

Criminal law is a law that stipulates crimes and penalties, a "safeguard law" and a "backing law" implemented by other laws, and a final line of defense for safeguarding society. Criminal crackdowns should not be applied to problems that can be solved by other sectoral laws. "We often talk about modesty, but we don't remember it in our hearts, let alone put it into action. To some extent, modesty has become a slogan.".

 

In cross criminal and civil cases, the modesty of criminal law should be emphasized, and problems that can be solved by civil means should never rise to criminal means. Some civil disputes have led to infringement claims, which have been reported by the claimant as the crime of extortion. The Huang Jing case a few years ago originated when Huang Jing claimed compensation from ASUS for a defect in her laptop computer, but was arrested on suspicion of extortion. Although the procuratorate later decided not to prosecute, Huang Jing has been detained for 10 months. Similarly, the father of a child victim of "melamine" filed a claim with a milk powder company and was sentenced to five years in prison for extortion. After two retrials, he was acquitted.

 

Similarly, some behaviors that can be adequately regulated by administrative sanctions should not be subject to criminal means. For example, when the epidemic first hit last year, some mask operators did not know that prices could not be increased. Due to the prominent contradiction between supply and demand, the price of masks was generally increased. The Market Supervision Bureau issued a notice on the 23rd that the price of epidemic prevention materials should not be increased. A mask operator in Beijing raised the price on the 19th and 20th of the JD platform, but was removed from the shelves on the 21st. Before the price increase, he also asked the JD platform and replied that the price was autonomous, but later he was prosecuted for criminal responsibility for illegal business operations. The perpetrator has no idea that his behavior is suspected of committing a crime, otherwise he will not publicly sell it on the JD platform. For the same behavior, some places have issued oral warnings, some have imposed administrative penalties, but others have been investigated for criminal responsibility. For such pure profit-seeking market behavior, it should first be regulated by market rules, and then restricted by administrative penalties. Penalties should only be imposed on those who persist in raising prices upon notification and seriously affect epidemic prevention efforts. The frequent use of criminal means will only lead to greater damage to social relations, waste of resources, and push more people towards the opposite of society.

 

（2） Taking the Court as the Leading Factor to Determine the Handling Rules of Criminal Civil Cross Cases

 

In view of the contradictions and confusion exposed by criminal priority and in combination with existing judicial interpretations, the author believes that it is necessary to establish court led rules for handling criminal and civil cross cases.

 

According to the "Several Provisions of Public Security Organs on Handling Economic Crime Cases" issued by the Supreme People's Procuratorate and the Ministry of Public Security, public security organs cannot file civil cases that are currently being tried by the court or have made effective judgment documents on their own. Article 20 of the Several Provisions stipulates: "A case suspected of economic crime and a civil case that is being tried or issued with an effective judgment document by a people's court belong to the same legal fact or have an implicated relationship, and criminal filing must meet one of the following three conditions: (1) "During the trial or execution of a civil case, the people's court finds that there is a suspicion of an economic crime, orders not to accept the case, rejects the lawsuit, suspends the lawsuit, rejects the lawsuit request, or suspends the execution of the effective judgment document, and transfers the relevant materials to the public security organ;"; （2） The People's Procuratorate has notified the public security organ to file a case according to law; （3） "The public security organ considers that there is evidence to prove the existence of criminal facts and that criminal responsibility needs to be investigated, with the approval of the person in charge of the public security organ at or above the provincial level.". In the case of items 2 and 3, the public security organ shall, after filing a case, take coercive and investigative measures in strict accordance with the conditions and procedures prescribed by law, and send a copy of legal documents such as the filing decision and relevant case materials to the people's court that is currently hearing or making an effective judgment document, stating the reasons for filing the case, and at the same time notify the people's procuratorate at the same level as the people's court that handles the civil case, If necessary, it can be reported to the higher public security organ. "In the course of investigation, it is not allowed to hinder the normal conduct of civil litigation activities of the people's court." From the perspective of this provision, it is conditional for the public security organ to file a case, and it should give due respect and protection to the ongoing civil litigation and effective civil judgments. Firstly, there are three types of cases on file: court transfer; Notice from the Procuratorate; With the approval of the provincial public security organ, filing a case on its own is resolutely prohibited. Secondly, it is necessary to strengthen communication with the courts and procuratorates, copy materials, and explain the reasons for filing a case. Third, it cannot affect the normal litigation activities of the court.

 

If, during the process of handling a case, it is found that the criminal case belongs to the same legal fact or has an implicated relationship with the civil case that the court is currently hearing or making an effective judgment document, Provisions of Several Regulations "Copies of legal documents such as the filing decision, prosecution opinion, and other relevant case materials should be sent to the people's court that is currently hearing or making an effective judgment document, which should be handled by the people's court according to law. The public security organ and the people's procuratorate should simultaneously notify the relevant situation to the people's procuratorate at the same level as the people's court that handles civil cases. One month after the public security organ copies the relevant legal documents and case materials to the people's court "If no reply is received within the time limit, it may be reported to the higher public security organ if necessary.". The investigation organ will copy the relevant materials to the court and wait for a response from the court, which clearly requires the court to express its opinion on the criminal case filing, rather than just a simple notification. If the court replies that a civil dispute needs to be continued, it is not clear whether the public security organ can continue to handle the case.

 

Article 12 of the Provisions of the Supreme People's Court on Several Issues Concerning the Suspicion of Economic Crimes in the Trial of Economic Dispute Cases stipulates that "If the public security organ or procuratorial organ believes that an economic dispute case has been filed and tried by a people's court, and the public security organ or procuratorial organ believes that there is a suspicion of an economic crime, and provides reasons therefor with relevant materials to notify the people's court that accepts the case, the relevant people's court shall carefully examine it. After examination, if it is believed that there is indeed a suspicion of an economic crime, it shall transfer the case to the public security organ or procuratorial organ, notify the parties in writing, and refund the case acceptance fee. If it is believed that there is indeed an economic dispute "If a case is to be tried, it shall continue to be tried in accordance with the law, and the results shall be reported to the relevant public security or procuratorial organs by letter.". This provision makes it clearer that there is a principled solution to the civil dispute and criminal case being tried. The court does not consider it a crime and continues to try it as a civil dispute.

 

The regulations of the Supreme People's Procuratorate and the Ministry of Public Security make it clear that public security organs cannot easily file a case, and should fully communicate with the court, respect its opinions, and affirm the dominant position of the court. However, it is still possible to file a case with the approval of provincial public security organs. The Supreme Court's regulations, which are based on its own review results, consider that economic disputes continue to be heard, emphasizing the dominant position. Although neither of these two judicial interpretations clearly defines how to handle possible conflicts, based on its clear stance and logical reasoning, we can see that public security organs should respect and obey the opinions of the court, and when the court's opinions are clear, they should not take actions to the contrary, as the court exercises the jurisdiction to determine whether an act constitutes a crime.

 

Neither of these judicial interpretations provides for the handling of effective civil judgments when the court agrees to file a case with the public security organ. However, according to the provisions of the Civil Procedure Law, a trial supervision procedure should be initiated for retrial of erroneous judgments. Therefore, after reviewing the materials submitted by the public security organ, if the court believes that there is indeed a mistake in the civil judgment, it should initiate a trial supervision procedure to revoke the judgment that has indeed been wrong, in order to avoid possible conflicts between the criminal judgment and the civil judgment, and respond that the public security organ should file a criminal case. On the other hand, if the court considers that it does not constitute a crime and does not agree to revoke the civil judgment, while the public security organ insists that the case should be filed, it may consult with the procuratorate to provide an opinion, but the final decision power remains with the court.

 

（3） Grant the right subject the right to choose the remedy method to achieve optimal treatment

 

The author believes that the parties should be given a certain right to choose between civil and criminal remedies in the handling of criminal and civil cross cases, rather than being entirely determined by judicial organs.

 

Firstly, from the perspective of system design or legal provisions, the evidence standard for criminal judgments is "clear facts, reliable and sufficient evidence", while the evidence standard for civil judgments is highly probable. From the perspective of comparison, it can be inferred that the recognition standard of criminal judgments is high, and it is more difficult and less successful for the right subject to claim rights through criminal proceedings. For example, in the case mentioned above, central enterprises only want to repay their debts, and the debtor does not deny it. However, the court believes that it constitutes a crime of contract fraud, and the public security organ cannot file a case due to insufficient evidence. This has resulted in arrears that could have been claimed through civil litigation, but have become a football that courts and public security officials have kicked out.

 

Secondly, the rights subject only wants to restore their rights and compensate for losses, and does not want to pursue the criminal responsibility of the defendant. On the one hand, the subject of rights does not want to tear a face with the other party, which is like water and fire. On the other hand, in some loan disputes or contract disputes, if they are resolved by civil means, the defendant will continue to operate and have the ability to pay, and the losses of the right subject can be compensated. If criminal measures are taken, such as detention, arrest, and other detention measures, as well as the seizure of frozen property and accounts, making the defendant unable to operate and pay, which is not the result desired by the rights subject.

 

Thirdly, it is not only civil litigation that takes restoring rights and making up for losses as the principle, but also criminal litigation that is increasingly implementing the concept of restorative justice. Restorative justice believes that the main value pursuit of criminal justice is not to punish the perpetrators, but to eliminate conflicts between the two sides and restore damaged social relations through the initiative of the perpetrators to assume responsibility. Many judicial interpretations embody the concept of restorative justice, such as refund of compensation, refund of payment, and apology, which can mitigate, mitigate, or exempt criminal liability. "The Criminal Law stipulates that the crime of tax evasion can be exempted from criminal liability by making up taxes and late payment fines, and the Criminal Law Amendment (11) adds a provision that the crime of illegally absorbing public deposits can be actively refunded, with a lighter or mitigated punishment."; "For the crime of misappropriating funds, the punishment for returning the misappropriated funds may be mitigated, mitigated, or exempted.". The Criminal Law encourages criminals to return compensation and booty, compensate for victims' losses, and repair social relations with a light penalty, indicating that their pursuit of value is consistent and compatible with civil law, and the exercise of public power is also aimed at protecting private rights.

 

Therefore, the author believes that in some cases, if civil litigation can restore rights and compensate for losses without harming the interests of the state, society, and others, the parties should be allowed to choose their own legal remedies.

 

Summary

 

For a long time, criminal priority has exposed many drawbacks. The Supreme Judiciary has recognized this, and recent judicial interpretations have begun to correct deviations. But this is only the beginning, and there are still many problems to be solved. In practice, criminal priority has been dominant for a long time, and it is difficult to return. There is a long way to go to achieve the optimal solution of cross criminal and civil cases and the unity of legal order.

 

(This article is translated by software translator for reference only.)