羅馬法開創了民刑訴權競合問題,并不區分兩種訴權的尊卑,允許被害人趨利性地選擇訴權行使。中世紀法學確立了刑尊民卑的觀念,它成為刑事附帶民事訴訟制度的主要基礎。這一制度在1808年的法國《刑事訓示法典》中形成模式,影響了包括我國在內的許多國家和地區。該制度有節約訴訟成本,兩事一辦的利好,但有抹殺刑民訴訟的根本區別,以民就刑的弊端,故以美國為代表的一些國家選擇了刑民分訴體制。《民法總則》第187條確立了民貴刑輕體制,但它的適用的訴訟法條件是刑貴民輕體制。該體制把刑事訴訟當作相關的民事訴訟的先決條件。這樣,實體法上的民貴刑輕與程序法上的刑貴民輕體制發生了強烈對抗。解決之道是在司法解釋中承認刑事被害人的訴訟方式選擇權,并承認參與競合的刑事責任和民事責任并非都具有財產性,故可以避免完全從執行的角度,而按照訴權行使和訴訟管轄的路徑來規定我國的刑民責任競合問題。

Roman law has founded the question of concurrence of civil and criminal actions,but did not distinguish the grade of dignity between the two kinds of actions,allowing the victim of crime to choose the action to exercise in way of chasing his interests. The medieval jurists established the percept of "criminal action outweighs civil action",which became the main basis of the institution of incidental civil action in criminal procedure. This institution was formed in the French Code of Criminal Instructions of 1808,affecting many countries and regions,including our country. The institution has the advantage of saving the cost of litigation,and of resolving two litigations in one procedure,but it has the defects of ignoring the fundamental difference between the criminal procedure and civil procedure,and of putting a civil procedure in the cage of criminal procedure. That is why some countries such as the United States chose the system of separating the civil procedure from the criminal procedure. Article 187 of the General Part of Civil Code has established the system of"civil liability outweighs criminal liability",but only applicable in a framework of procedural law in which criminal action triumphs civil action. The system treats criminal proceedings as a prerequisite for the relevant civil action. In this way,the substantive law that put into practice of percept of "civil liability outweighs criminal liability"and the procedural law that put into practice of percept of "criminal action outweighs civil action"conflict with each other. The solution lies in the future judicial interpretation to Article 187 of General Provisions of Civil Code and the right of criminal victims to choose from the actions available,and admitting that the concurring criminal responsibility and civil liability of a property nature. This can deal with the problem of concurrence of criminal responsibility and civil liability by resorting to the exercising of right to action and the jurisdiction of litigation,instead of having recourse to enactment of a judgement.