The Study On The National Compensation Responsibility Of Public Facilities Damage

With the transformation from management administration to serviceadministration, more and more public facilities permeate into our daily life,and our disaster and good fortune have much to do with them. The increasingperfection of the public facilities represents the transformation of the functionof the government and the establishment and perfection of theservice-pattern-government. But the corresponding part of the enrichment ofthe public facilities is the lag of the theory researches. To our nation, thepublic facilities are a comparatively new concept, there is still scope ofresolution and definition for their special position in law and relative qualityin law by way of legislation, in the compensation field, there's a need for theperfection of compensational institution that is relative to the public facilities.The discussion of the harm of public facilities is generally divided into fourparts:Part one, the harm of public facilities and the analysis of relevant concept.Through the comparison of the concepts of public facilities in every country,the author of this article gives a definition of it, that is, a natural object,composition and its equipments which are invested directly or through variousways of raising money by the governments and special entitled subjects, forthe benefits of public, with the management of governments and otherentrusted subjects. On the basis of the analysis of the comparison between theconception of public facilities and similar ones, the author clarifies theinternal and external meanings of public facilities deeply. At the same time, inthe opinion of the author, the most conspicuous feature of public facilities isthe utilization for the society without a purpose of making money, as to theright of belonging is not a decisive element to decide whether an object ispublic facility or not. Also, from the view of gearing people to center andmaxi mating citizens' rights ,the author thinks, we should expand theunderstanding of public facilities, public facilities don't only mean artificialstuffs, composition and their subsidiary equipments, but also the naturalproperty and mobile property which are regulated and preserved by nation.Part two, the present condition of the harm of public facilities ofdeveloped countries and the references of our country. With the increasingfunctions of the government, welfare measures and the enrichments of publicfacilities, citizens' day-to-day life can't separate from public facilities;therefore, the possibilities of their damage are increasing. Nowadays, indeveloped countries, national compensational commitments concludecompensational duties for the harm of public facility, but it experiences theprocess of negation to partly approval to completely approval of nationalcompensational commitment, also, the liability for compensation transmittedfrom civil compensation to state compensation in most countries.The author ,through the introduction of the compensation regulations ofpublic facilities, thinks our country should make reference to the advancedtheories and practical experience to transmit compensation commitments fromcivil compensation to state compensation gradually so that the countrycompensates for the its behavior of illegal violation, meanwhile beresponsible for the lost of not performing the safety obligation, therefore,benefits the legal rights of the citizens and also supervises the range of thepublic facilities and the obligation of the management subject. Nowadays,the applying area where the developed counties' public facilities harm thecountry's compensation obligation is enlarging, and the rule of non-obligationis decreasing. According to the author, we should extend the definition of the"harm" which involved in the compensation commitment of the publicfacilities. It concludes not only the direct harm but also the indirect harm, notonly the material harm, but also the spiritual harm. Second, we should have awide understanding of the "public facilities". It refers to not only the movableproperties but also the immovable properties, not only the objects of thecountry, but also the objects belonging to the country's management, in doingso, we completely protect the rights of the citizens, and we will make thecontribution to our country for its keeping pace with the world.Part three, the theory fundaments, present situations of regulation and theweaknesses of our nation's compensation of the harm to public facilities. Theauthor thinks, the national compensation of the harm to public facilities isconsidered as a special national compensation commitment, the theory basisof its compensation commitment originated from national compensationtheories, which includes the theory of people's sovereignty, the theory ofguarantee of people's rights, the theory of national legal representative, thetheory of special sacrifice, etc. Nowadays, the law theories of our national'spublic compensation bases mainly on The General Principles of Civil Law,the author thinks, the compensation of public facilities is in a blank situationin the system of national compensation laws, which is a huge weakness of thepresent law .There're two main causes: first, at the beginning of legislation,State Compensation Law settles attributive liability as violation principle, theflaws in the settlement and regulation of public facilities don't belong to theactions of violation the administrative right;second, the compensation systemof our nation originates comparatively late, the government isn't familiar withits operations ,and the compensation matter of public facilities is perplexed,therefore, it'll aggravate the burden of daily work to include it into nationalcompensation law, imposing greater pressure on the finance of thegovernment. But with the development of the country, greater practicalproblems will be caused by some flaws in this regulation, so at the same timeof his realizing the weaknesses in present laws, the author comes up the ideathat the actions of settlements and regulation to the public facilities which aretaken by government and entitled subjects are attributed to administrativeactions;he flaws that exist in the settlements and regulations of publicfacilities are illegal, couldn't be excluded national compensation law systemin the excuse of violation the regulation;and because of the non-profiting ofpublic facilities, it's unreasonable to impose regulation, preservation andcompensation commitment to one subject, therefore, the author presents hisidea ,that is, the quality of the compensation commitment of public facilities'harm belongs to the national compensation commitment, should be adjustedby State Compensation Law.Part four, some suggestion for the regulation of the compensationcommitment of public facilities' damage. The establishment of thecompensation regulation of public facilities needs not only the stable theorybasis, but also a set of perfective and feasible regulation, in order to make sureits effects in practice. First, from the aspect of attributive principle, the authorthinks, the scope of illegal liability ,which is adopted by State CompensationLaw, is too narrow, making it more difficult for victims to getcompensation ,in the compensation of public facilities' damage, non-falseprinciple should be adopted. In the matter of which way should be taken todefine the subject of compensation commitment, the author thinks, we shouldtake the principle of the people who sets and regulates public facilities shouldtake the compensation, and gives suggestion to some settlements andregulations. To the matter of compensation means, compensation scope,compensation expense, the author thinks, it should be take StateCompensation Law as blueprint, but the author gives suggestions to thespecial qualities of public facilities.