从刑民实体判断看交叉案件的诉讼处理机制

鉴于刑民实体关系的处理对司法实践中刑民交叉案件审理顺序的直接影响,刑民交叉案件应当坚持实体法和程序法的双重视角考察。在交叉案件的实体判断中,法秩序的统一不在于保持违法概念、违法判断的一致,而在于维护"合法"判断一致。强行将民事违法性作为刑事违法的判断前提,极有可能想当然地以合同无效、过错等充实尚无定论的民事违法性,反而导致了刑事违法判断的"失真"。在交叉案件的审理中,裁判的统一是客观事实的最大限度统一而非客观事实和法律评价的完全一致。贯彻了违法判断(相对)独立性的"刑民并行"模式既尊重了审判的独立性,也有助于避免因案件受理顺序的不同而导致裁判结果不同,是更为合理、高效的诉讼处理机制。但是,当刑民审判存在先决关系时,作为交叉案件审理例外模式的"先刑后民"和"先民后刑"具有一定妥当性。

On the Litigation Mechanism of the Overlapping Case: From the Perspective of Substantive Judgment between Criminal Law and Civil Law

The way how to deal with the relationship between the criminal law and the civil law has a direct effect on the trial sequence of the overlapping case in the juridical practice.For the overlapping case,the dual perspective of both substantive law and proceeding law should be insisted.For the substantive judgment of the overlapping case,the unity of the legal order is not based on the consistenle between the illegality conception and the illegality judgment,but the conformity with the legitimacy judgment.Regarding civil illegality as the premise of criminal illegality,which,on the contrary,will lead to the"distortion"of criminal illegal judgment,since it is very possible to enhance the inconclusive civil illegality with the contractual invalidity,fault,etc.In the trial of the overlapping case,the unity of the judgment is the maximum unity of the objective fact,not the complete accordance between the objective fact and the legal evaluation.The parallel application mode of the criminal law and the civil law implements the relative independence of the illegality judgment.The mode not only respects the independence of the trial,but also avoids different judgment results on account of different acceptance sequence.It is the more reasonable and efficient litigation mechanism.The exception trial mode of the overlapping case that"firstly the criminal law,then the civil law"and"firstly the civil law,then the criminal law"is reasonable in certain degree,when there is prerequisite in the criminal trial and the civil trial.