Judicial Compensation

Individual rights are always be infringed by judicial power. Many countries have established the system of compensation for judicial torts to protect the rights of the aggrieved party. This paper aims to study the theoretical foundations of the system of compensation for judicial torts and reconstruct the system established by the State Compensation Law in China.The title of this paper is "Compensation for Judicial Torts". There are six parts in this paper.Chapter one is concerned with "right to compensation for judicial torts and liability for compensation for judicial torts". If the rights of the citizens, legal persons or other organizations are infringed by exercise of judicial power, the aggrieved party can achieve the right to compensation for judicial torts and the State should compensate for judicial torts therefore. From the aspect of the aggrieved party, the right to compensation is a kind of public right with which he can claim to the State for compensation if his rights are infringed by judicial power. From the aspect of the State, the liability for compensation is a kind of liability for compensation if the judicial organs and their personnel infringe the legal rights of the aggrieved party, which owes to the State itself. The main difference between compensation for judicial torts and administrative compensation is that if the judicial organs and their personnel take criminal coercive measures or other measures but they stop investigating crime in the following procedures or the court gives judgment of acquittal, the liability for compensation for judicial torts is liability to hazard in essence.Chapter two is "overview on system of compensation for judicial torts". With the waning of the sovereign immunity and the movement for civil rights, the liability for compensation for judicial torts was accepted by many countries in the last years of 19th century. In the middle of the 20th century, many countries established the system of compensation for judicial torts by law, with the development of the theory of human rights and rule of law after the World War II. The system of compensation for judicial torts stemmed from the consciousness of rights and developed with the theory of human rights. The direct purpose of the system of compensation for judicial torts is to protect human rights, and the final purpose is to keep the public order to be harmonious and stable.Chapter three is about "doctrines of liability fixation and important conditions of liability for compensation for judicial torts". Basing on analyzing doctrines of liability fixation in civil torts law and doctrines in other countries and areas, this paper puts forward the system of doctrines with principle of legality as the main one with principle of no-fault liability as the supplementary one. The important conditions include following ones: firstly, the subject must be judicial organs and their personnel; secondly, judicial wrongful acts must be related to the exercise of judicial power, including de facto acts and neglect of duty; thirdly, the damage caused by judicial torts must be damage to the legal rights of the aggrieved party, including damage of property and moral damage; fourthly, appropriate cause, which consists of cause in fact and legal cause, must exist...