The Study Of Recovery System In The State Compensation

With the integrity of national compensation system, recovery system is developing.They are linked closely, National compensation is the premise of recovery compensation, recovery is supplement and consummation of State compensation. The legislation of Countries not only formulated the state compensation, but also setting recovery system as a basic system. The setting of Recovery system aims to take punishable measures for related responsible personnel, supervise and urge them to perform official duties according to law, and be loyal to their duties, which is conducive to maintaining social justice and protecting the interests of the claimant. Our national recovery system established late, and there are a lot of the insufficient place in the legislation and practice, take the provisions of the relevant laws as an example, they almost make the similar provision on the subject and the condition of recovery basically; there is "blank" situation on the provision of the limitation, amount standard and procedures of the recovery, the imperfect legislation leads to the development of our country recovery system prefer to stay in theory to enforce in practice. Therefore, it is significant for the construction of our state legal system to publish corresponding supporting implementation rules and other laws and regulations and implement national recovery system.This paper is divided into four parts. It is as following:The first chapter is the basic problems of the national recovery in theory. Based on the concept, theoretical basis, conditions, the type, imputation principle of recovery, it will tide up theoretical aspects of recovery. The author thinks that recovery is an independent legal responsibility and has the disciplinary nature; The main types of recovery system in China include administrative recover recourse and judicial recovery, but the author suggests that our country recovery system should also contain recover legislation and the recovery of hazard caused by public facilities; state recovery should adopt imputation principle of the fault duties, there are mainly two aspects to judge whether one bear responsibility of recovery, one is that the actor does have the official identity or not; the other is that the implementing behavior of the actor is related to his duties or not. The second chapter is the implementing entity problem of the national recovery system. In this chapter, it mainly discussed physical problem of state recovery on the aspects of the subject of recovery, the object of recovery, recovery limitation and conscience money. The author thinks that we should establish a national compensation commission, implement unified national compensation affairs, execute national compensation and the recovery together, improve efficiency and solve the drawbacks of the compensatory obligations'organ as recovery authority. According to the experience of our country's legislation, recovery limitation should set as two years appropriately, we should clear the principle of the compensation in the national compensation law and relevant judicial interpretation, considering its actual situation and deciding the specific recovery on the basic of the highest standard in all regions.The third Chapter is the implementing procedures of the national recovery system. It mainly discussed on the aspects of the flexibility of recovery, recovery's burden of proof, exemption situation of the object of recovery and recovery procedure. It is the key section. The author approved that the object of recovery could take litigant means to maintain their own rights in disaffecting the recovery decision; which accords with the principle of fairness to carry out the burden of proof in the national recovery system; when the object of recovery was discussed to depose, it is primary to combine and summarize with the relevant provisions of the foreign system, and it concluded exception condition in according with our status. There are three aspects of general procedure, relief procedure and supervised procedure to discuss the implementing procedure of recovery. It is beneficial to recovery system implementation only the law clears the recovery program and makes the recovery executable,.The fourth chapter is the problem of misjudged case pursuit. The author thinks that the current case in which the charges were false or unjustly happened from time to time, in China and judicial personnel quality is not high, it is very necessary to establish the misjudgments pursue, and it played the educational and disciplinary role by investigating their responsibility of the relevant liability people. What's more, it is responsible to people, the respect for human rights, and maintaining on social justice.