附帶民事訴訟之檢討

Abstract

民、刑事訴訟法均自上世紀末開始經歷重大變革，許多法理已異於立法初期，為免新舊法制衝突，有必要重新檢視附帶民事訴訟制度，並自程序法理探討其於當代法制應有之制度功能。在肯認被害人保障亦為憲法訴訟權保障前提下，為有效保護被害人，在刑事訴訟附帶民事賠償制度中，有必要限制處分權主義，並在特定犯罪類型中，強制被告履行民事賠償義務；又為免刑事庭濫行移送民事庭而害及被害人保護，敦促刑事庭於犯罪成立之證據基礎上附帶就民事糾紛一併解決，應刪除移送制度，課予法院就附帶民事糾紛自為裁判之義務；而於刑事庭已為事實認定前提下，為保障被害人有效另訴請求損害賠償，可於附帶民事訴訟增訂禁反言條款，以促進事後之民事訴訟。

Since the procedural law reforms dramatically began with the end of the 20th century, many legal theories become much different from those adopted by their first drafts. It becomes necessary to reexamine the Incidental Civil Procedure so that any conflicts between the new and old systems could be found. After affirming crime victims’ protection is central to the right to fair trial, it seems important to limit the civil procedure theory requiring the plaintiffs to initiate a civil lawsuit while dealing with tort claims during criminal procedure. In some cases, it is mandatory for a public prosecutor or a court to order restitution ex parte so that the crime victims should be protected effectively. With recognition that the criminal court is obliged to concurrently resolve the incidental civil lawsuit based upon criminal investigation only, Article 504 of the ROC CPXC should be abolished. In order to facilitate the crime victims to recover all losses in a latter civil lawsuit, it is favorable to add the estoppels collateral clause in the ROC CPC.