Law of the People's Republic of China on State Compensation (1994)
Submitted by Tom on Tue, 01/27/2009 - 16:37
(Adopted on May 12, 1994 at the Seventh Session of the Standing Committee of the Eighth National People's Congress and promulgated on the same day)
Whole document
Law of the People's Republic of China on State Compensation
(Adopted on May 12, 1994 at the Seventh Session of the Standing Committee of the Eighth National People's Congress and promulgated on the same day)
Chapter 1 General Principles
Article 1
In conformity with the Constitution, this Law is enacted to protect citizens, legal persons and other organizations to enjoy the right to compensation by the state and to promote the state organs to exercise their functions and powers in accordance with law.
Article 2
If a state organ or a member of its personnel, when exercising functions and powers in violation of the law, infringes upon the lawful rights and interests of a citizen, legal person or other organization and causes damages the aggrieved person shall have the right to recover damages from the state in accordance with this Law.
The obligations of state compensation shall be performed by the organs under compensatory obligations stipulated by this Law.
Chapter 2 Administrative Compensation
Section 1: Scope of Compensation
(1) imposing an administrative punishment in violation of the law, such as fining, revocation of a permit or license, order to suspend production or business operation or confiscation of property and article;
(2) taking a compulsory administrative measure in violation of the law such as sealing up, distraining or freezing of property;
(3) expropriating property and article or apportioning expenses in violation of rules and regulations of the state; or
(4) other unlawful acts which cause damage to property.
Article 5
The state shall not be liable for compensation in one of the following circumstances:
(1) where the personal act by personnel of the state organ, which does not relate to his exercise of functions and powers;
(2) where the act by a citizen, legal person or other organization itself causes damage; or
(3) other situations as provided for by law.
Section 2: Claimant for Compensation and Organs for compensatory Obligations
Article 6
The aggrieved citizen, legal person or other organization shall have the right to claim compensation.
Where the aggrieved citizen is deceased, his successor or other relatives with maintenance relation shall have the right to claim
compensation.
Where the aggrieved legal person or other organization has terminated, the legal person or other organization which succeeds its rights shall have the right to claim compensation.
Article 7
Where an administrative organ and its personnel infringe upon the lawful rights and interests of a citizen, a legal person or other organization and cause damage when exercising its administrative functions and powers, the organ shall be responsible for fulfilling compensatory obligations.
Two administrative organs or more which infringe upon the lawful rights and interests of a citizen, legal person or other organization and cause damage when exercising their joint administrative functions and powers, shall be the organs under joint compensatory obligations.
An organization authorized by law which infringes upon the lawful rights and interests of a citizen, legal person or other organization and causes damage when exercising its authorized administrative powers, shall be the organ under compensatory obligations.
An organization or individual entrusted by an administrative organ infringes upon the lawful rights and interests of a citizen, legal person or other organization and causes damage when exercising the entrusted administrative powers, shall be the organ under compensatory obligations.
Where the organ for compensatory obligation has been abolished, the administrative organ that continues to exercise the abolished organ's functions and powers shall be the organ under compensatory obligation;
where there is no such a continued administrative organ, the administrative organ that did the abolishment shall be the organ under compensatory obligations.
Article 8
Where the case has been reconsidered by the organ under reconsideration, the administrative organ which caused the initial damage shall be the organ under compensatory obligations; where the reconsideration decision by the organ for reconsideration aggravates the damage, the organ for reconsideration shall be liable for the damage resulting from the aggravation part.
Section 3: Procedure of Compensation
Article 9
The organ for compensatory obligations shall pay compensation in one of the circumstances as provided for in Article 3 and Article 4 of this Law once confirmed in accordance with law.
A claimant shall, first, file a claim for compensation with an organ under compensatory obligations and may, in the meantime, file a claim when applying for an administrative reconsideration and instituting an administrative procedure.
Article 10
A claimant may claim compensation from any one of the organs under joint compensatory obligations and the said organ under compensatory obligations shall pay compensation first.
Article 11
The claimant may, depending on different injuries suffered, file several claims for compensation.
Article 12
The claim for compensation shall be filed by presenting an application, which shall contain the following contents:
(1) name, sex, age, employer and address of the claimant, name and address of the legal person or other organization and name and post of its legal representative or main person in charge;
(2) the specific claim, factual basis and reasons; and
(3) the date of application.
Where the claimant has difficulty in writing the application, the claimant may entrust it with other persons or file a verbal application, which shall be recorded in writing by the organ under compensatory obligations.
Article 13
The organ under compensatory obligations shall, within 2 months from the date of receipt of the application, pay compensation in accordance with the provisions of Chapter 4 of this Law; in case of failure by it to pay compensation within the specific period, or where the claimant is not satisfied with the amount of compensation, the claimant may, within 3 months from the date of expiration of the period, bring an action in a people's court.
Article 14
After paying compensation, the organ under compensatory obligations shall instruct its personnel or the entrusted organization or person who has committed intentional or grave mistake in the case to bear part or all of the expenses for damage.
The competent authorities shall, in accordance with law, impose administrative sanctions on those responsible persons who have committed intentional or grave mistakes in the case; If the case constitutes a crime, the criminal responsibility shall be investigated according to law.
Chapter 3 Criminal Compensation
Section 1: Scope of Compensation
Article 15
Where organs and their personnel which exercise the functions and powers of detection, prosecution, adjudication and administration of prison cause any of the following infringements upon personal rights when exercising their functions and powers, the aggrieved person shall have the right to recover damages:
(1) a wrong detention of a person without criminal facts or without facts evidencing the person with gross criminal suspicion;
(2) a wrong arrest of a person without criminal facts;
(3) an adjudication of innocence is given to change an original sentence in the retrial according to the procedure for trial supervision, and the original sentence of penalty has been executed;
(4) bodily injury to or death of a citizen caused by torture arrangement or such violent acts as battery or abetting others in battery;
(5) the bodily injury to or decease of a citizen caused by unlawful use of weapon or police apparatus.
Article 16
Organs and their personnel which exercise the functions and powers of detection, prosecution, adjudication and administration of prison cause one of the following infringements upon property rights when exercising their functions and powers, the aggrieved person shall have the right to recover damages:
(1) where there is a measure, such as sealing up, distraint, freezing or recovery of property in violation of law; or
(2) where an adjudication of innocence is given to change an original sentence in the retrial in accordance with the procedure for retrial supervision, and the original court supervision of fine or confiscation of property has been executed.
Article 17
The state shall not be responsible for compensation in any of the following circumstances:
(1) where a citizen was put into custody or was sentenced criminal penalty because of his intentionally false confession or falsification of other evidence of guilt;
(2) where a person, who shall not bear criminal responsibility in accordance with Article 14 and Article 15 of the Criminal Law, was put into custody;
(3) where a person, who shall not be prosecuted for criminal responsibility in accordance with Article 11 of the Criminal procedure Law, was put into custody;
(4) personal act by the personnel of the organs that exercise the functions and powers of detection, prosecution, adjudication and administration of prison, which does not relate to his exercise of the said functions and powers;
(5) where the damage was caused by such intentional acts as self-injuring or self-disabling; or
(6) other situations as provided for by law.
Section 2: Claimant for Compensation and Organ for Compensatory Obligations
Article 18
The claimant for compensation shall be determined in accordance with Article 6 of this Law.
Article 19
Where organs and their personnel which exercise the functions and powers of detection, prosecution, adjudication and administration of prison infringe upon the lawful rights and interests of a citizen, legal person or other organization when exercising their functions and powers, the organs shall be responsible for fulfilling compensatory obligations.
The organ which makes a wrong decision to detain a person without criminal facts or a person without facts evidencing gross criminal suspicion shall be the organ for compensatory obligations.
The organ which makes a wrong decision to arrest a person without criminal facts shall be the organ for compensatory obligations.
Where a sentence is given to change an original judgment in the retrial, the people's court which made the original effective judgment shall be the organ for compensatory obligations. Where an adjudication of innocence is given to change an original judgment in the second instance, the people's court which made the judgment of first instance and the organ which made the decision of arrest shall be the organ for compensatory obligations.
Section 3: Procedures of Compensation
In any of the following circumstances, no criminal responsibility shall be investigated; if investigation has already been undertaken, the case shall be dismissed, or prosecution shall not be initiated, or innocence shall be declared:
(1) if an act is obviously of minor importance, causing no serious harm, and is therefore not deemed as a crime;
(2) if the limitation period for criminal prosecution has expired;
(3) if an exemption of criminal punishment has been granted in a special amnesty decree;
(4) if the crime is to be handled only upon complaint according to the Criminal Law, but there has been no complaint or the complaint has been withdrawn;
(5) if the defendant is deceased; or
(6) if other laws or decrees provide an exemption from investigation of criminal responsibility.
(Source:www.npc.gov.cn)