Study On The Defects And Improvements Of State Compensation In Judicial Practice

The national compensation system is that when state organizations and their officers of stateillegally exercise powers, violate the citizen, corporation and other organization's legitimate rights and interests, the state must bear the compensation responsibility to the victim. The 41s` in 3rd section of our country `s Constitution stipulates that," Citizens who have suffered losses as a result of infringement of their civic rights by any state organ or functionary have the right to compensation in accordance with the law." The constitution entrusts with our country citizens to obtain the compensation power to have to depend upon the more concrete detailed legal laws and regulations to give the standard and the safeguard. Law of the People's Republic of China on State Compensation promulgated on May 12, 1994, and went into effect as of January 1,1995. This legal objective lies in maintains the citizens, the legal persons and other organization's legitimate rights and interests, safeguards it legally when necessary enjoys obtains the national compensation the right, simultaneously also is for supervises the administrative organ and the judicial organ well legally exercises the authority, limits its authority abusing. The legislation has basically established our country's national compensation system, which is the important achievement of the democratic government by law construction, is also the symbol which the rights of citizens'system consummates day by day.Although the National Compensation Law has come into effect more than ten years, the limitation in juridical practice is more and more prominent. The torts of the executive branch and judicial organs are continually occurring. When the citizens'rights and interests are violated, their compensations are hard to come by. Both the state organizations and the citizens understand it superficially and incompletely. Many problems which is not found in procedure of lawmaking have arisen along with the social life and is becoming increasingly complex. Attention is concentrated on the evolution and legal basis and characteristic of national compensation system. And the paper is established in our country's reality and aim at the limitation and predicament of the national compensation system, and by means of using beneficial achievements of the foreign national compensation system to probe into developing and perfecting the four principle of the National Compensation Law which include doctrine of liability fixation,the extension of compensation , the procedure of compensation and the standard of compensation.Doctrine of liability fixation of the national compensation is that the state bear the responsibilities of compensation according to the standard which is established by law. The state will be hold responsible for these action that accord with this standard. This principle is the basic of the whole country, embody the legislative inspirit of the national compensation directly, mirrors the value orientation of national compensation. It means a lot to establish the constitution and the exonerative qualification of national compensation and the degree and assuming burden of producing of proof. According to National Compensation, doctrine of liability fixation of national compensation is violation of law. It is self-contradiction, not identical with criminal procedural law, excessively close restraint victim to obtain compensation and not in consonance with the trend of diversification of doctrine of liability fixation of national compensation in international and other defects. Doctrine of liability fixation of national compensation should be a liability fixation system. There are guidelines which are general or widespread used. There are some special principles which is special and aim at special cases. The guidelines are violation of law. The special principles include fault liability principle,no-fault liability principle and consequence liability principle and so on, and there is definite difference and discrepancy among the sphere of application of every principle. One of them consequence liability principle is used for judicial decision, fault liability principle is used for some public behaviors with discretional character, no-fault liability principle covers risk and venture responsibility and other public behaviors.The extent of national compensation is that when state organizations and their officers of state illegally exercise powers; violate the citizen, corporation and other organization's legitimate rights and interests, and the extent of rights that the victims acquire national compensation by the law. Namely the organization of national compensation performs its compensatory obligation by law. Our country "National Compensation Law" is divided into tow aspects, namely administrative compensation and judicial compensation. In addition, about the extent of tortuous compensation for damage, our country "National Compensation Law" takes compensatory principia of compensate person for direct and material damage. It is to place repristination and returning an original. firstly, and compensation for damage for second. And compensation for damage is accord to the extent of direct property damage. It is devoid of compensation for spiritual damage. So our country "National Compensation Law" both the extent of behavior and tortuous damage is too narrow. From the national compensation law all over the world and juridical practice about our country "National Compensation Law" for more than ten years to see, we should expand the extent of the National Compensation Law. The way of establishing the extent of national compensation should be changed from enumeration only to Joining generalization and enumeration together. The abstract administration behavior of the indemnity and national administration organization increased to establish public facilities constitution, management minor faults to cause on account of duty with the result of damage compensation. Increase to establish reasonable of the indirect loss compensate and the material compensation for spiritual damage, and appropriately improve the compensatory standard of infringing the citizens'personal freedom. Increase to establish a kind of compensation that the damage attributable to internal administration behavior and expands the scope of the extension criminal compensation properly. Make "National Compensation Law" be limiting a national power abuse, support the legal rights and interests of citizen, legal person and other organizations, guarantee them to obtain a national compensation by law.The procedure of compensation is to carry out the regulations of idiographic national compensation. our country "National Compensation Law" prescribes the procedures of the administrative and the criminal compensation . However, these procedure is set up unfairly, or too tedious, or lack operability, so it has a strong negative impact on the realization of the legal rights an interests of citizen ,legal persons or other organizations be violated by state organizations and their officers'illegal behaviors. It also obstructed the process of building a country governed according to law. Specifically, a great deal of claiming of national compensations are limited outside the procedure, just because the claiming for compensation procedure is unreasonable, and there are many defects in procedure of arrangement gonging forward and self-confirmed procedure and proceedings of judicial decision, which is against victim enjoyment of their national compensatory rights. Therefore we consider that procedure of arrangement gonging forward can be changed to the procedure that can choose in advance, allow to make a request for quitting the self-confirmed procedure to choose freely to the organization of administrative reconsideration or the organization of liability for damages or the court. And we can redesign self-confirmed procedure and can reform the constitution of national compensate committee. About the difficulty in proof, national compensatory burden of producing evidence system should be established. The accuser will burden of gonging forward with the evidence, the appellee will burden of further producing evidence.The national compensatory standard is that influence the standard of calculation on the range of amount of national compensation and related bases. National compensatory standard reflects National compensatory problem deeply as the important component in the national compensation system. it is a important sign as a democracy and monocracy. How to conform the national compensatory standard, which relates to the protective degree of victims'legal rights. The compensate standard over low is a big problem of our country "National Compensation Law", it needs to change. The compensatory standard in "National Compensation Law" is different from civil compensatory standard, which is a lower compensatory standard. Many defects are found in juridical practice. The national compensatory standard should be a little higher than the civil standard in whole. And it should insist the principle of complete compensation; carry out drastically, people oriented and justice. I suggest that national compensatory standard should be improved, including)that increase to establish the material compensation for spiritual damage, enlarge the scope of compensation for direct damage, increase to establish reasonable of compensation for indirect damage, heighten the compensatory standard in violating the personal freedom of citizen. Exaltation to infringe upon citizen Human body the indemnification standard of the freedom. Compensatory and castigatory compensatory standard should be established.Many years of theoretical study and practical experiences have proved that: If the state compensation legislation is not complete, it will induce two disastrous consequences: On one hand, serious damage to state organs and their staff members to engage in public service activities of the initiative. If there isn't the system of state compensation, state organizations and their officers must answer for their behavior during performing their duties. Namely, they are the more passive to performing their duties, it is the safer for their interests ;they are the more positive to perform their duties, it is the more likely compensate others use their own property. It must embarrass realize of the function of a state, damage the social common interest, and is harm for citizen's personal rights and freedom, if administrative officers slack to their duties. On the other hand, it will lead to that the rights of victims can not be relieved effectively. The damage result in official business is usually more serious, and staff of state organ whose personal financial power is very limited, it is not only unfair at their own risk, but the arbitrament will also become a mere scrap of paper just because they are lack of solvency. This is never a way to protect the citizen in democratic state. Therefore, in order to fully mobilize the state organs and their staff in the official national activities of enthusiasm, initiative, and to ensure that national duties because of violations of the victims suffered damage can be fully effectively relieved, we should amend and improve the national compensation legislation as soon as possible in order to ensure the comprehensive realization of social fairness and justice.