State Compensation Law of the People's Republic of China:An Introduction
Author: 翟建雄 ; Source:chinalawinfo.com
Abstract: Since its establishment in France in the later portion of the 19th century, and particularly since the ending of the First World War, the legal system of state compensation has been adopted in many countries. Whether in the form of basic law, civil law, or case law, state compensation law has undergone significant expansion. On May 12, 1994, like other countries before it, China enacted the State Compensation Law. This article provides information on the legislative background and the content of what is China's state compensation law.
Table of Content
Ⅰ. Legislative Background
Ⅱ. Content of China's State Compensation Law
·Principle of Imputation
·Ingredient of Compensation Liability
·Claimant for Compensation
·Scope of Compensation
·Organ for Compensatory Obligations
°Organs for administrative compensation
°Organ for criminal compensation
·Procedure for Compensation
°Procedure for administrative compensation
°Procedure for criminal compensation
°Compensation commission
°Recovery of damage from state functionary
·Methods of Compensation and Calculation Standards
Ⅲ. Conclusion
Ⅰ. Legislative Background
When the People's Republic of China was established in 1949, the state compensation system, as an important measure of protecting people's democratic right, was included in the agenda of China's socialist legal construction. The General Programme of the Chinese People's Political Consultative Conference, which acted as the interim constitution formulated shortly after the new Chinese government was established, provided that people and organizations held the right to make procuratorial organ and judicial organ charges against any state organ or functionary for violations of law or dereliction of duty. This right confirmed the principle that the state organ and public functionary bore legal responsibility for their violations of the law. Further, it worked to lay the legal foundation for the establishment and development of China's state compensation system.
On January 1954, the Government Administration Council (now State Council) of the Central People's Government, promulgated the Interim Regulation of the People's Republic of China Concerning Port Administration. The Twentieth article of this regulation allowed the port authority to arbitrarily prohibit ships from leaving the port. The regulation also provided that the ship owner has the right to bring a claim against the port authority in order to recover damages suffered from prohibition of leaving port. Furthermore, it preserved the owners right to enter into a lawsuit against the port authority for any such violations. This was the first administrative regulation pronouncing the law of state compensation liability, as well as the first such regulation to actually be put into practice.
On September 20, 1954, China promulgated its first Constitution. The document provided, in part, that citizens who suffered losses as a result of infringement upon civic rights, by a state functionary, maintained the right to compensation in accordance with the law. This too, was the first time that the Chinese state compensation and basic law were confirmed by an existing constitution.
Since 1979, China has revised its legal system, adding numerous clauses concerning state compensation into the Chinese laws and administrative regulations, including:
·General Principles of the Civil Law
·Regulations on Administrative Penalties for public Security
·Trademark Law
·Forestry Law
·Regulations Concerning Requisition of Land for State Construction
·Interim Regulations Concerning Seaport Administration
·Administrative Procedure Law
One such example is found in Article 121 of the General Principles of the Civil Law, which states that
[i] ]f a state organ or its personnel, while executing its duties, encroaches upon the lawful rights and interests of a citizen or legal person and causes damage, it shall bear civil liability. Another is located in Article 42 of the Regulations on Administrative Penalties for public Security which provides that the public security organs shall admit their errors to those who are punished by mistake and shall return fines and confiscated property to those wrongfully punished.
It is noteworthy that the Administrative Procedure Law, promulgated on April 4, 1989, contains a chapter relevant to the administrative organ's liability for compensation of those rights which have been infringed. Article 67 of this law provides that citizens, legal persons or any other organizations suffering damage as a result of infringement upon lawful rights and interests, shall have the right to claim compensation. Meanwhile, provisions on administrative compensation liability, conditions of bearing compensation duty, organs for compensatory obligations, procedure of compensation and expenses of compensation, have all been included in the chapter.
In order to ensure the implementation of administrative Procedure Law, and further perfect the socialist legal system, the Commission of the Legislative Affairs of the Standing Committee of the National People's Congress (NPC), initiated the drafting of the State Compensation Law. On the basis of comprehensive investigation, and summarization of the legislative experience of foreign countries, as well as solicitation of opinions from all sides, a committee composed of legal experts drafted the State Compensation Law and submitted the draft to the Standing Committee of the NPC for deliberation. On May 12, 1994, the Law of the People's Republic of China on State Compensation (hereinafter compensation law), was adopted in the Seventh Session of the Standing Committee, of the Eighth NPC, and promulgated by Order No. 23 of the President of the People's Republic of China. Thus, the first State Compensation Law in Chinese history was created.
Ⅱ. Content of China's State Compensation Law
The State Compensation Law of China consists of 6 chapters and 35 articles. Generally, it can be divided into five parts: general principles; administrative compensation; criminal compensation; methods of compensation and calculation standards; and supplementary provisions which provide the principle of imputation, ingredients of compensation liability, scope of compensation, claimant for compensation, organ for compensatory obligation, methods of compensation and calculation standards.
Principle Imputation
Currently, the imputative principle of compensation liability carried out in the countries of the world has established that the state compensation system can be divided into three categories: the imputative principles of fault liability, risk responsibility, and infraction of law. Article 2 of the compensation law stipulates that:
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.
Thus, the imputative principle defined in China's state compensation law is the fault liability. Although there is no legislative interpretation on what is violation of law, it can be seen from the relevant provisions of the Administrative Procedure Law that a violation means a violation of the constitution; administrative rules and regulations; local regulations; and international covenants, treaties and agreements that China has accepted. A violation of law includes erroneous application of the law or regulation, violation of legal procedure, exceeding authority, misfeasance, failure to perform, or delay in the performance of statutory duty.
Ingredient of Compensation Liability
According to the provisions of compensation law, there are four ingredients of compensation liability:
a) The subject of official action. The subject, according to compensation law, refers to the state organ and its personnel; namely state administrative agency, procuratorial organs and judicial organs to which personnel belong.
b) Infraction of law in exercising functions and powers. The unlawful acts exerted by a state organ or its personnel in performing their duties.
c) Harmful consequences. Damage that can cause liability of state compensation has been limited to the scope of damage to a personal or property right, subject to compensation law.
d) Causation. There must be a causal connection between unlawful functional action and damage.
Claimant for Compensation
According to compensation law, there are three kinds of persons who qualify as claimants for purposes of administrative and criminal compensation. Those eligible must be citizens, legal persons, or other organizations. Each category contains the specific qualifications subject to the relevant law.
(A) Citizen: Citizen refers to natural persons who are of the nationality of the People's Republic of China. Citizens who are claimants for compensation are as follows:
a) Aggrieved citizen himself. According to the provisions of the General Principles of the Civil Law, a citizen aged 18 or over shall be treated as an adult. He shall have full capacity for civil conduct, may independently engage in civil activities, and shall be considered a person with full capacity for civil conduct. A citizen who has reached the age of 16, but not the age of 18, and whose main source of income is derived from his own labor, shall be regarded as a person with full capacity for civil conduct. Aggrieved citizens with full capacity for civil conduct can exercise a right of claim to recover damages from the state.
b) Guardian or legal agent of aggrieved citizen. When an aggrieved citizen cannot effectuate the right of claim, due to youth, or other causes, and is in a state of having limited or no capacity for civil conduct, that right of claim for compensation can be exerted by his guardian or legal agent. According to the provisions of the General Principles of the Civil Law:
A minor under the age of 10 shall be a person having no capacity for civil conduct; a minor aged 10 or over, but not the age of 18, shall be a person with limited capacity for civil conduct. The parents of a minor shall be his guardians. If the parents of a minor are dead or lack the competence to be his guardian, a person from the following categories who has the competence to a guardian shall act as his guardian:
(1) paternal or maternal grandparent;
(2) elder brother or sister;
(3) any other closely connected relative or friend willing to bear the responsibility of guardianship and having approval from the units of the minor's parents or from the neighborhood or village committee in the place of the minor's residence.
If none of the persons mentioned above are available as guardian, the units of the minor's parents, the neighborhood or village committee in the place of the minor's residence or the civil affairs department shall act as his guardian.
Mentally ill persons, unable to account for themselves, shall be considered as one with no capacity for civil conduct. A person from the following categories shall act as guardian for a mentally ill person mentioned above:
(1) spouse;
(2) parent;
(3) adult child;
(4) any other near relative;
(5) any other closely connected relative or friend willing to bear the responsibility of guardianship and having approval from the unit to which the mentally ill person belongs or from the neighborhood or village committee in the place of his residence.
If none of the above persons as available to act as guardian, the unit to which the mentally ill person belongs, the neighborhood or village committee in the place of his residence, or the civil affairs department, shall act as guardian.
c) The aggrieved citizen's successor or his other relatives who supported or were supported by him. According to compensation law, where the aggrieved citizen is deceased, his successor or other relatives with maintenance relation, shall have the right to claim compensation. The beneficiaries, according to the Law of Succession of the People's Republic of China, include first: the spouse, children, or parents; and second: brothers and sisters, paternal grandparents, or maternal grandparents.
In addition, the succession law also defines that widowed daughters-in-law or sons-in-law who have made the pre-dominant contributions in maintaining their parents-in-law, shall, in relationship to their parents-in-law, be regarded as successors first in order. Where a decedent survived his child, the direct lineal descendants of the predeceased child inherit in succession.
(B) Legal Person. A legal person, pursuant to the General Principles of the Civil Law, shall be an organization that has capacity for civil rights, capacity for civil conduct, and independently enjoys civil rights and civil obligations in accordance with the law. A legal person shall have the following qualifications:
a) Establishment in accordance with law;
b) Possession of the necessary property or funds;
c) Possession of their own name, organization and premises;
d) Ability to independently bear civil liability.
The legal person whose lawful rights and interests are infringed upon shall be the claimant for compensation within the scope defined by state compensation law. Where the aggrieved legal person or other organization has been terminated, the legal person or other organization which succeeds its rights shall have the right to claim compensation.
Scope of Compensation
China's state compensation law divides the state compensation into two categories: administrative compensation and criminal compensation. The compensation law makes distinct provisions to each scope of compensation.
Scope of administrative compensation
The state compensation law defines that there are two items that can produce administrative compensation liability: unlawful administrative acts that infringe upon the citizen's personal rights, and unlawful administrative acts infringing upon the property rights of a citizen, legal person or other organization. This provision enumerates the items that can produce administrative compensation liability.
Items which infringe upon the personal right:
a) Unlawful detention or an unlawful compulsory administrative measure which restrict the personal freedom of a citizen;
b) Unlawful custody or otherwise unlawful deprivation of personal freedoms;
c) Violent acts such as battery or abetting others in battery causing bodily injury to or death of a citizen;
d) Use of weapons or police apparatus in violation of laws and causing bodily injury to or death of a citizen;
e) Other unlawful acts which cause bodily injury to or death of a citizen.
Items which infringe the property right::
a) 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;
b) Taking compulsory administrative measures in violation of the law, such as sealing up, detaining, or freezing of property;
c) Expropriating property or apportioning expenses in violation of the rules and regulations of the state;
d) Other unlawful acts which cause damage to property.
The state, subject to compensation law, Shall not be liable for compensation in any one of the following circumstances:
a) Acts by personnel of the state, outside the scope of his or her functions and powers;
b) Acts by citizens, legal persons, or other organizations where they themselves cause damage;
c) And other situations as provided for by law.
Scope of Criminal compensation:
According to the Law of State Compensation, where organs and their personnel which exercise the functions and powers of detection, prosecution, adjudication and administration of prisons cause any of the following infringements upon personal rights or property rights when exercising their functions and powers, the aggrieved person shall have the right to recover damages:
a) Unlawful detention of a person without criminal facts or without facts evidencing gross criminal suspicion;
b) Wrongful arrest of a person without criminal facts;
c) Adjudication of innocence given to change an original sentence in retrial as according to the procedure for trial supervision, where the original sentence has been executed;
d) Bodily injury to or death of a citizen caused by a torture or violent acts including battery or abetting others in battery;
e) Bodily injury to or death of a citizen caused by unlawful use of a weapon or police apparatus;
f) Where there is a measure, such as sealing up, constraint, freezing or recovery of property in violation of law;
g) 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 sentence of fine or confiscation of property has been executed.
According to the compensation law, the state shall not be responsible for compensation in any one of the following circumstances:
a) where a citizen was placed into custody or assessed a criminal penalty because he has intentionally fabricated a confession or falsified other evidence;
b) where a person, who shall not bear criminal responsibility in accordance with the Criminal Law, was placed into custody (according to the Criminal Law, any person who has reached the age of 16 and commits a crime, shall bear criminal responsibility; any person who has reached the age of 14 but not the age of 16, and commits a crime including intentional homicide, intentional injury causing serious injury or death to person, rape, robbery, drug trade, arson, explosion, shall bear criminal responsibility. If a mental patient creates a dangerous situation at a time when he or she is unable to recognize or control his or her own conduct, he or she shall not bear criminal responsibility.)
c) Where a person, who shall not be prosecuted for criminal responsibility in accordance with the Criminal Procedure Law, was placed into custody. According to the Criminal Procedure Law, in any of the following circumstances, no criminal responsibility shall be investigated:
(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 suspected offender is deceased;
(6) if other laws provide an exemption from investigation of criminal responsibility;
d) personal acts and powers of detection, prosecution, adjudication and administration of prison, which do not relate to the exercise of the said functions and powers;
e) intentional damage resulting in self-inflicted injury;
f) other situations as provided for by law.
Organ for Compensatory Obligations
Organ for administrative compensation
The obligatory organs for administrative compensation, according to compensation law, include the following:
a) Administrative organs and their personnel that infringe upon the lawful rights and interests of a citizen, a legal person, or other organization, causing damage when exercising their administrative functions and powers, the administrative organs shall be responsible for fulfilling compensatory obligations;
b) Administrative organs that 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.
c) An organization authorized by law that 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.
d) An organization or individual entrusted by an administrative organ which infringes upon the lawful rights and interests of a citizen, legal person or other organization and causes damage when exercising the entrusted administrative powers, the administrative organ shall be the organ under compensatory obligations.
e) where an 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.
f) 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 aggravated the damage, the organ for reconsideration shall be liable for the damage resulting from the aggravation.
Organ for criminal compensation
The obligatory organs for criminal compensation embrace the following organs subject to the compensation law.
a) Where organs and their personnel which exercise the functions and powers of detection, prosecution, adjudication and administration of prisons, 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.
b) The organ which erroneously detains a person without criminal facts or without evidence of gross criminal suspicion, shall be the organ for compensatory obligations.
c) The organ which makes a wrong decision to arrest a person without criminal facts shall be the organ for compensatory obligations.
d) Where a sentence is given to change an original judgement in the retrial, the people's court which made the original effective judgement shall be the organ for compensatory obligations. Where an adjudication of innocence is given to change an original judgement in the second instance, the people's court which made the judgement of first instance and the organ which made the decision of arrest, shall be the organ for compensatory obligations.
Procedure for administrative compensation
Unlike the procedure for civil compensation, the procedure for administrative compensation is composed of administrative and judicial procedures. The claimant, before filing an administrative compensation suit, shall first file a claim for compensation with an organ under compensatory obligations. The organ under compensatory obligations shall, within 2 months form the date of receipt of the application, pay compensation subject to the provisions of the compensation law. In case of failure to pay compensation within the specific period, or where the claimant is not satisfied with the amount of compensation, the claimant may, with 3 months form the date of expiration of the period, bring an action in a people's court.
Procedure for criminal compensation
Where the claimant claims compensation, the claim shall, first, be lodged to the organ for compensatory obligations. The said organ shall, within 2 months from the date of receipt of the application, pay compensation to the claimant in accordance with the provisions of compensation law. In case of failure by it to pay compensation within the period specified or where the claimant is not satisfied with the amount of compensation, the claimant may, within 30 days from the date of expiration of the time limit, apply for reconsideration by an organ at a higher level.
Where the organ under compensatory obligations is a people's court, the claimant for compensation may, pursuant to the provisions of compensation law, apply to the compensation commission of the people's court at the next higher level for a decision of compensation.
The organ for reconsideration shall, within 2 months form the date of receipt of the application, make a decision. Where the claimant for compensation is not satisfied with the reconsideration decision, he or she may, within 30 days from the date of receipt of reconsideration decision, apply for a decision of compensation to the compensation commission of the people's court at the same level at the place where the organ for reconsideration is located; Failure by the organ for reconsideration to make a decision within the period specified, the claimant for compensation may, within 30 days from the date of expiration of the time period, apply for a decision of compensation to the compensation commission of the people's court at the same level at the place where the organ for reconsideration is located.
Compensation commission
In China, the problem of criminal compensation is not solved by general judicial proceedings. The decision for compensation is made by the compensation commission within the court, which is the characteristic of China's state compensation system. According to the compensation law, an intermediate people's court or the people's court above the intermediate level shall set up a compensation commission, which is consist of 3 to 7 judges. The compensation commission shall make a decision of compensation on the principle of the minority subordinate to the majority. The decision of compensation made by the compensation commission must be executed.
Recovery of damage from state functionary
There are definite limitations on administrative recovery and criminal recovery in the compensation law, of which the former stipulates that after paying compensation, the organ for administrative compensatory obligations shall instruct its personnel to bear part or all of the expenses for damage. The authorities will impose administrative sanctions on those persons responsible 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. The latter states that having paid the compensation, the organ for criminal compensatory obligations shall recover part or all of the damage from its personnel in situations that any of the following circumstances:
a) bodily injury to or death of a citizen caused by torture arrangement or such violent acts as battery or abetting others in battery;
b) bodily injury to or death of a citizen caused by an unlawful use of weapon or police apparatus;
c) embezzlement, bribery or wrongful actions out of personal considerations or commission of fraudulent acts by perverting the law.
The competent authorities shall, in accordance with the compensation law, impose administrative sanctions on those responsible persons who fall in one of the circumstances as mentioned above; If the case constitutes a crime, the criminal responsibility shall be investigated in accordance with law
·Methods of Compensation and Calculation Standards
China's state compensation law provides that the main method of state compensation shall be the payment of damages. Where the property can be returned or can be restored to the original state, it shall be returned or its original condition restored.
Where the personal rights of a citizen are infringed, the amount of money for compensation per day shall be calculated according to the average salary per day of the staff and workers in the state of the previous year.
Where the rights of life and health of a citizen are infringed, the amount of money for compensation per day shall be calculated according to the following provisions:
a) Where bodily injury is caused, medical expenses and compensation for losses of income for absence from work shall be paid. The amount of money for compensation per day for losses of income shall be calculated according to the average salary per day of the staff and workers of the state in the preceding year. The maximum amount shall be five times as much as the annual average salary of the staff and workers of the state in the preceding year.
b) Where partial or total loss of the ability to work is caused, medical expenses and compensation money for disablement shall be paid. The amount of money for compensation for disablement shall be calculated according to the seriousness of loss of the ability to work. The maximum amount of compensation money for partial loss of ability to work shall be ten times as much as the annual average salary of the staff and workers of the state in the preceding year. The maximum amount of compensation money for total loss of ability to work shall be twenty times as much as the annual average salary of the staff and workers of the state in the preceding year. In case of total loss of ability to work, living expenses shall be paid to the person who is maintained by the aggrieved and without ability to work.
Where the injured is deceased, funeral expenses and monetary benefits shall be paid, the total amount of which shall be twenty times as much as the annual average salary of the staff and workers of the state in the preceding year. Living expenses shall be paid to the person who is maintained by the aggrieved before his or her death.
d) The granting of living expenses shall be made in light of the relevant provisions concerning subsistence relief promulgated by the local civil administration department . Should the person maintained be a juvenile , the living expenses shall be paid until the juvenile reaches the ages of 18; should the person be of no ability to work, the living expenses shall be paid until his or her death.
Where the property rights of a citizen, legal person or other organization are infringed, it shall be dealt with according to the following provisions:
a) in the case of an imposition of fine or penalty, recovery or confiscation of property, or expropriation of property and articles, or appointment of expenses in violation of the provisions of the state, the property shall be returned;
b) in the case of sealing up, constraint and freezing of property, causing damage or destruction to property, compensation shall be paid according to the provisions of c) and d) as follows;
c) in the case of damage to property, restoration shall occur. If the original state can not be restored, corresponding compensation money shall be paid according to the seriousness of the damage;
d) in the case of destruction of property, corresponding compensation money shall be paid;
e) in the case of the property that has been auctioned, proceeds from the auction shall be paid;
f) in the case of rescission of a permit or license, order to suspend production or business operations, compensation shall be paid to cover the necessary expenses incurred during the suspension period;
g) in the case of other damages caused to the property, compensation shall be made in light of direct loss of the property.
In addition to payment of damages, the China's state compensation law also provides that any of the following circumstances as provided for in the compensation law such as:
a) unlawful detention or an unlawful compulsory administrative measures to restrict the personal freedom of citizen;
b) unlawful custody or otherwise unlawful deprivation of the personal freedom of a citizen;
c) wrongful detention of a person without criminal facts or without facts evidencing gross criminal suspicion;
d) wrongful arrest of a person without criminal facts;
e) adjudication of innocence 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;
Where said acts are confirmed according to the law, causing infringement upon the rights of reputation and honor of the aggrieved person, the organ for compensatory obligations shall eliminate the ill effect, rehabilitate the reputation of the person, and issue an apology to the extent that the infringing acts caused damage.
Ⅲ. Conclusion
China's state compensation system has allowed redress for grievances against illegal government actions. Qualified individuals have the ability under this system to recover damages for injustices perpetuated against them by government actors. This system is an important measure of protecting the people's democratic right.