刑事附带民事诉讼死亡、残疾赔偿金审判探析

死亡赔偿金、残疾赔偿金的刑事附带民事赔偿问题，囿于立法、司法解释不明确和矛盾、司法实践中当事人赔偿能力低下、大多无财产可供执行的困难等诸因素，在是否列入刑事附带民事的赔偿范围及如何判赔问题上存在颇多争议。笔者在综合考察研究相关的立法、司法解释及刑事附带民事赔偿审判实践的基础上，主张应当列入赔偿范围且应当全额判赔。但应当给原告出具风险告知书并尽可能争取调解解决。进入强制执行阶段後，如有财产的，全额执行；如无履行能力的，则应中止或终结执行。同时，对因中止或终结执行而生活极端贫困被害人及其抚养人应给予国家补偿救济或“低保”。

Analysis of compensatory payment for death and disablement in civil suit to collateral to criminal proceedings

Due to the uncertainty and conflict of legislative and judicial interpretation, and difficulties in property enforcement as a result of low compensating ability of the party, there is considerable controversies in the following two issues： whether compensatory payment for death and disablement should be included in the scope of compensations in criminal case appending civil lawsuits, and how to judge the amount of compensatory payment for death and disablement. Based on a comprehensive study both in relevant legislative and judicial interpretation, and trial practice on criminal case appending civil lawsuits, the author alleges that compensatory payment for death and disablement should be included in the scope of compensation and be paid for all of the expenses for damage, in condition of giving the plaintiff risk disclosure and striving for the resolution by mediation. When it comes to the enforcement stage, whole property of the party should be paid for all of the expenses for damage. The full enforcement of property should be ordered suspension or conclusion if the party is incapable of paying the compensatory payment. Meanwhile, the victims and their dependants who live in extreme poverty as a result of enforcement suspension and conclusion should be provided with state relief or minimum subsistence allowances.