我国共同犯罪案件中退赔制度研究——以共同犯罪人退赔责任的确定为焦点

Research on the Compensation System in Joint Criminal Cases in China—Focusing on the Determination of the Compensation Liability of Joint Criminal Offenders

摘要: 实务中对于共同犯罪人退赔责任的方式至今仍无定论，故本文以共同犯罪人退赔责任的确定为焦点对我国共同犯罪案件中的退赔制度进行研究，开篇以合同诈骗案为例，提出司法实践中长期存在的共同犯罪人退赔责任不明确、追偿权争议等难题，随后通过梳理我国退赔制度的现状，发现退赔责任争议与追偿机制冲突等问题层出不穷。法理研究则表明，连带责任说虽利于保护被害人，但容易罪罚失衡；按份责任说符合罪责自负，但却难以保障全额赔偿被害人；实际获利说强调公平高效，但却可能增加诉讼风险。经过研究，本文提出共同犯罪人责任分配优化路径，即共同犯罪人对被害人承担连带退赔责任，但其内部承担按份责任并允许相互追偿。

Abstract: In practice, there is still no definite conclusion on the way for co-conspirators to fulfill their compensation obligations. Therefore, this article focuses on the determination of the compensation responsibility of co-conspirators to study the compensation system in joint crime cases in China. The article begins with a case of contract fraud, highlighting the long-standing problems in judicial practice such as unclear compensation responsibility of co-conspirators and disputes over the right of recovery. Then, by reviewing the current status of the compensation system in China, it is found that problems such as conflicts between compensation responsibility disputes and the recovery mechanism keep emerging. Legal research indicates that the joint liability theory is beneficial for protecting the victim, but it is prone to imbalance in punishment and penalty; the contributory liability theory conforms to the principle of “responsibility according to guilt”, but it is difficult to guarantee full compensation for the victim; the actual profit theory emphasizes fairness and efficiency, but it may increase litigation risks. After research, this article proposes an optimized path for the allocation of the responsibility of co-conspirators, that is, co-conspirators should bear joint compensation responsibility for the victim, but they should bear contributory liability internally and allow mutual recovery.