刑事責令退賠的適用困境、功能反思與制度重塑

Application Dilemma, Functional Rethinking and Institutional Remodeling of Criminal Restitution

責令退賠是刑法規定的救濟被害人損失的一條重要途徑；但責令退賠程序在當前面臨重重困境。一方面；這緣於學界與實務界對責令退賠的實然功能缺乏統一認識；另一方面；在於責令退賠的實然功能已不能滿足加強被害人權利保障的社會發展需求。當前的責令退賠是一種在無法追繳違法所得原物時強制犯罪行為人退賠等值財物的准不當得利衡平措施；為加強被害人的權利保障；應將責令退賠定位為一種盡可能利用刑事責任追究程序結果救濟被害人損失的准被害人損失救濟措施。為充分發揮責令退賠救濟被害人損失的功能；一方面；應以涉案財物最終歸屬為標準；將《刑法》第64條的涉案財物處置措施分為沒收與責令退賠兩種；並以人民法院判決時的涉案財物存在樣態為標準區分不同的執行方式；另一方面；區分責令退賠程序與沒收程序；以被害人申請作為啟動責令退賠程序的條件；理順責令退賠程序與刑事責任追究程序的關係；賦予並保障被害人程序參與權；增設財產保全措施；賦予被害人不服責令退賠裁決的上訴權；並允許被害人就未足額退賠損失另行提起民事訴訟。

Restitution is an important way to relieve victims' losses under the Criminal Law, but the restitution procedure is facing many difficulties at present. On the one hand, this lies in the lack of a unified understanding of the current function of restitution in the academic and practical circles, and on the other hand, it lies in the fact that the current function of restitution can no longer meet the new needs of social development in terms of strengthening the protection of victims' rights. The current restitution is a quasi-unjust enrichment measure that forces the perpetrator of a crime to surrender the proceeds of the crime when the original proceeds of the crime cannot be recovered, and in order to strengthen the protection of the rights of the victim, the function of restitution should be positioned as a quasi-victim-loss relief measure that makes use of the results of the procedure of pursuing criminal liability to relieve the loss of the victim as far as possible. In order to give full play to the function of restitution in relieving victims' losses, on the one hand, the system of measures for dealing with property under Article 64 of the Criminal Law should be reconstructed based on the criterion of ultimate belonging of the property involved in the case, divided into two kinds of measures for dealing with confiscation and criminal restitution, and differentiated from different ways of execution based on the existence of the property involved in the case at the time of the court' s judgment as a criterion; on the other hand, a distinction should be made between restitution and confiscation procedures, with the victim' s application serving as a condition for the initiation of restitution procedures, rationalizing the relationship between restitution and criminal accountability procedures, granting and safeguarding the victim' s right to participate in the procedures, adding property preservation measures, granting the victim the right of appeal against the restitution decision, and permitting the victim to file a separate civil lawsuit for the failure to reimburse the full amount of the loss.