摘要： 犯罪人近亲属承诺代为退赔后反悔所引发的民事诉讼,“同案异判”现象十分突出,实践中主要存在三种处置立场,即以不属于民事纠纷为由裁定驳回被害人起诉、以退赔具有人身专属性为由驳回被害人的诉讼请求,或者以承诺退赔协议为诺成性合同而要求犯罪人近亲属履行代为退赔的承诺。前两种立场在程序和实体上对被害人的诉求完全否认,均不足取。第三种立场“一刀切”地要求犯罪人近亲属履行代为退赔承诺,无法涵摄复杂的反悔样态,也并不科学。从应然角度,宜对犯罪人近亲属反悔的情形作类型化分析,再构建相应的处置体系。在类型上,犯罪人近亲属反悔可以分为单纯性反悔、代为退赔承诺完全未影响量刑的反悔、代为退赔承诺未完全达到预期目的的反悔以及因误解、被“胁迫”为由的反悔。对于单纯性反悔,不宜通过刑事再审程序剥夺对犯罪人的“量刑优惠”,犯罪人近亲属应继续履行代为退赔承诺;对于承诺代为退赔但完全未影响量刑情形,不应要求犯罪人近亲属继续履行代为退赔承诺;犯罪人近亲属预期诉求落空而反悔的情形,应以被害人与犯罪人近亲属是否存在预期宽缓幅度合意为判断标准进行综合衡量;对于因误解以及被“胁迫”为由的反悔,犯罪人近亲属不应再承担代为退赔责任或承担不超过犯罪人应退赔范围的责任。

关键词: 刑事涉案财物处置, 承诺代为退赔, 反悔, 互惠交易, 量刑优惠

Abstract: The phenomenon of “different judgments in the same case” is very prominent in civil litigation caused by the promise of the criminal's close relatives to retract the compensation on behalf of the victim.In practice, there are mainly three disposal positions: ruling to reject the victim's lawsuit on the grounds that it is not a civil dispute, rejecting the victim's lawsuit request on the grounds that the compensation has personal exclusivity, and requiring the criminal's close relatives to fulfill the promise of compensation on behalf of the victim based on the promise of compensation agreement as a promissory contract.From the perspective of necessity, a typological analysis should be conducted on the reasons or situations of the offender's close relatives' repentance, and a corresponding disposal system should be constructed.In terms of types, the near relatives of the perpetrator may retract their promise, which can be divided into simple retractals, retractals where the promise to retract the compensation on behalf of the offender does not affect the sentencing at all, retractals where the promise to retract the compensation on behalf of the offender does not fully achieve the expected purpose, and retractals due to misunderstanding or being “coerced”.For simple estoppel, it is not appropriate to deprive the offender of the “sentencing preference” through the criminal retrial procedure.The offender's close relatives should continue to fulfill the promise of compensation on their behalf.For cases where a promise to refund compensation on behalf of the offender has not affected the sentencing at all, based on the reason of disappearance of the “reciprocal transaction”, close relatives of the offender should not be required to continue fulfilling the promise to refund compensation on behalf of the offender.The situation where the expected demands of the close relatives of the perpetrator fail and the offender retracts should be comprehensively evaluated based on whether the victim and the close relatives of the perpetrator agree on the expected relief.For those who retract due to misunderstanding and being “coerced”, the close relatives of the perpetrator should no longer bear the responsibility of compensation on behalf of the perpetrator or bear responsibilities that do not exceed the scope of compensation that the perpetrator should return.

Key words: Refund Compensation on Behalf, Retract, Reciprocal Transaction, Sentencing Preference