On The Construction Of China’s Supervisory Compensation System

In the context of the reform of the supervisory system,the supervisory compensation system,as a compensation and relief system to protect the legitimate rights and interests of supervisory subjects and maintain the orderly conduct of supervisory acts,is one of the important work elements of the reform.As a part of state compensation,supervisory compensation requires supervisory organs to bear the responsibility of compensation for the damage caused by their official acts.Theoretically,state compensation includes administrative and criminal compensation,while the compensation for supervision is both administrative and criminal due to the independent nature of the supervisory organs,the composite attribute of the supervisory function,and the ranking system of the supervision legislation,etc.Therefore,the nature of the compensation for supervision cannot be simply defined as administrative or criminal compensation.At the same time,the establishment of the supervisory compensation system has the legitimacy and theoretical basis of institutional needs.An analysis of real-life cases in judicial practice reveals that there are many cases involving the supervisory authorities in which the parties have applied for compensation from the supervisory committee.Such cases are often characterised as administrative litigation,and most of the decisions are rejected by the courts on the grounds that they do not meet the conditions for administrative litigation.Through theoretical investigation,the theoretical basis of the supervisory compensation system is sorted out.Firstly,the construction of the supervisory compensation system is conducive to the rule of law and the building of a socialist state under the rule of law.Secondly,the supervisory organs need to be supervised both positively and negatively,and the supervisory compensation system is conducive to the realization of the reverse supervision of power and the restraint of power.Thirdly,the supervisory compensation system is conducive to the realisation of state responsibility.Lastly,the human rights protection function is inherent in the supervisory organs,and the construction of the supervisory compensation system is conducive to the realization and improvement of the human rights protection mechanism.Therefore,from both practical and theoretical perspectives,there is a demand and necessity for the construction of a system of supervisory compensation.In terms of the path of institutional construction,there are four models: applying inspection compensation directly by reference to the criminal compensation system,establishing a special chapter in the National Compensation Law to provide for inspection compensation,classifying inspection compensation as administrative compensation and criminal compensation,and further explaining the Implementing Regulations of the Supervision Law.If we analyse these four models separately,we will find that adopting the path model of referring to criminal compensation is incompatible with the nature,procedures and powers of supervisory compensation and difficult to coordinate;if we adopt the path model of establishing a special chapter on supervisory compensation in the State Compensation Law,the conditions that need to be met for the law to be amended are that the law does not meet the needs of the current economic and social development,a certain number of cases have emerged in practice and the enacting authority makes amendments.An analysis of these three conditions reveals that the legislative model of establishing a special chapter on supervisory compensation does not meet the realistic conditions and therefore it is difficult to apply a special chapter on compensation;the adoption of the path model of nesting criminal and administrative compensation faces artificial tearing of supervisory powers and difficulties in judicial practice.As articles 67 and 68 of the Supervision Law provide for supervisory compensation,and the Implementing Regulations of the Supervision Law further explain supervisory compensation,it is feasible and reasonable to adopt the path of formulating regulations and procedural provisions on supervisory compensation for the sake of the analysis of the legal system’s status and the integration of the system’s construction.Along the path of formulating the regulation of inspection compensation,the following issues need to be focused on when constructing a specific system of inspection compensation in China: firstly,the objects to which inspection compensation applies need to be clarified.Secondly,the principle of imputation of compensation should be established.As for the principle of imputation of compensation,the principle of imputation of responsibility should be adopted as the main principle of imputation of illegality,supplemented by imputation of responsibility for results,given the composite nature of the supervisory power itself;as for the subjects applying for compensation,the scope of subjects applying for supervisory compensation should be broader,including not only natural persons but also legal persons and other organisations;as for the organs liable for compensation,the core logic of the supervisory compensation system lies in the fact that the supervisory organs and their staff The scope of compensation for supervision can be in line with the design of the norms of administrative compensation and criminal compensation,which takes the form of listing the circumstances that should be compensated plus a general underlining,and specifying The scope of supervisory compensation can be designed in line with the norms of administrative compensation and criminal compensation,in the form of a list of compensable circumstances with a general underlay,and a clear definition of circumstances exempt from compensation.As for the procedure of supervisory compensation,the procedural settings in the State Compensation Law and the experience of Taiwan in China can be used as a realistic reference for the procedure of supervisory compensation;as for the form of supervisory compensation,since the violation of personal rights is often irreversible,monetary compensation should be the main method,but the "two-tier structure" should still be adopted for compensation for moral damage.However,a "two-tier structure" should be adopted for compensation for moral damages,in which both pecuniary and non-pecuniary forms can be applied simultaneously or separately.