Consultation type: Prosecution of complaints

Consultation content: Should the handling of national judicial relief cases be based on the termination of court execution? (Consultant: Qiu Xiaohong, Procuratorate of Fengman District, Jilin City, Jilin Province)

Personal opinion: With regard to whether the handling of judicial assistance cases should be based on the termination of court execution, in practice, it is generally based on the termination of this execution by the court. However, there is a certain contradiction between this and the timeliness of judicial assistance, which is not easy to grasp. It is unable to solve urgent problems in life. Therefore, it should not refuse to accept the application for assistance or to grant assistance on the ground that the procedure has not been terminated.

Answer expert Wang Peixiang: Article 7 of the Detailed Rules of the People's Procuratorate for the Work of National Judicial Assistance (for Trial Implementation) (hereinafter referred to as the Detailed Rules) stipulates the situations that the people's procuratorate should provide assistance, of which the first, third, fourth, fifth and sixth items are all subject to the condition that "no compensation can be obtained through litigation". In practice, in some places, the end of the execution by the people's court and the failure to implement the compensation issue in place are taken as the criteria for "no compensation can be obtained through litigation" in the review and approval, which tends to be one-sided. The "effective compensation cannot be obtained through litigation" stipulated in Article 2 of the Detailed Rules of Work can be grasped from the following aspects: 1. If the party concerned causes personal injury or property loss due to the criminal infringement or civil infringement of others, the actor shall bear the responsibility for compensation. Only the person responsible for the harm cannot compensate or cannot effectively compensate, It is considered that the state should provide assistance. National judicial relief is not national compensation, nor is it national subrogation to perform civil liability for compensation. 2. In practice, some people believe that the inability to obtain effective compensation through litigation is to go through the process of litigation, and ultimately do not get compensation. This kind of understanding absolutes this condition and cannot reflect the timeliness of judicial assistance. The case handling organ should not refuse to save people in case of death, danger or inaction. Instead, it should lend a helping hand in time to save people in distress. It should not refuse to accept the application for relief or rescue on the ground that the litigation process is still in progress. Otherwise, there will be no judicial relief function in the investigation activities of the public security organ, as well as in the examination, approval and prosecution of the procuratorial organ, which is inconsistent with the current judicial practice. If it is determined that effective compensation can not be obtained through litigation, relief shall be considered. 3. In the process of litigation, how to judge whether relief should be given mainly depends on several aspects: first, the types and circumstances of the parties' unlawful infringement; Second, the degree of personal injury or property loss caused by illegal infringement; Third, the parties' difficult living conditions and emergency medical assistance and other needs; Fourth, the compensation capacity of the person responsible for the harm. Pay attention to comprehensive judgment from multiple factors and aspects.