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刑事附带民事诉讼在我国已实施多年,其在维护社会安定,保护当事人利益上一直发挥着积极的作用。但是随着社会关系的日益复杂,刑事和民事法律体系的日益庞大,这一制度在立法上,司法实践中出现了许多不可调和的矛盾,这些矛盾又最终归结为刑事附带民事诉讼中存在的“刑事和民事”、“公权和私权”、“公正和效率”的矛盾。理论界提出了解决这些问题的方案,包括完善论、选择论、有限保留论。笔者在此主张彻底分离论,让附带民事赔偿从刑事附带民事中脱离出来,回归到民事诉讼中。
Criminal incidental civil action has been implemented in our country for many years, and has always played an active role in maintaining social stability and protecting the interests of the parties concerned. However, with the increasing complexity of social relations and the increasing number of criminal and civil legal systems, many irreconcilable contradictions have emerged in the legislative and judicial practice. These contradictions have finally been attributed to the existence of criminal and civil lawsuits, “Criminal and civil”, “public and private rights”, “justice and efficiency” contradiction. Theorists have proposed solutions to these problems, including the theory of perfection, the theory of choice and the theory of limited reservations. I hereby advocate a thorough separation theory, so that incidental civil compensation can be separated from criminal incidental civil matters and returned to civil lawsuits.