The Comparative Study Of State Compensation Standard Between Taiwan And Mainland

The legal form reveals the inherent rule and structure model of social operation;the rise and fall of the rule of law dominates the prosperity and decline of a nation.The realization of rule of law in China, firstly requires the state organs and otherorganizations with public power to obey the law honestly and to be punished whenbreaking the law. State compensation can make up for the damages caused by illegalpublic acts and constitutes an important guarantee for a country under the rule of law.Among state compensation system, the compensation standard shows the degree ofnational compensation for victims, reflects the interests option and value orientationof a country when it is in disputes with its people, and can be taken as an importantmark to measure a country’s process of democracy and rule of law.Most countries and regions in the world take national tort as a special form ofcivil tort and require the state and its people bear tort liabilities in the same mannerand with same criteria. Thus the national and civil compensation standards are almostmixed. The state compensation system in mainland China, originates from civil lawand used to apply civil tort compensation standard to national tort field. However,after the passage of State Compensation Law, taking into account the country’seconomic situation and financial burden, it stresses to provide limited remedy tovictims of national torts. Thus state compensation standard is lower than the civil one and victims cannot get enough compensation for the damages caused by illegal publicpower acts.To perfect and upgrade the standard of state compensation in mainland China,we need to break the bottleneck which hinders the improvement of compensationstandard, and learn theories, precedents, legislations and litigation practices from thedeveloped foreign countries and regions. The development of state compensationsystem in China’s Taiwan region shows that, it not only copies the legislative mode ofKorea and Japan, but also absorbs the German doctrines, thus gives birth to rich statecompensation law theories, abundant judicature arguments and extensive explanationsby justices in the court of judiciary, improves the high unification of national and civilcompensation standard. Taiwan area once shared the same origin of legal culture andjudicial tradition with mainland China, and made active improvements of its legalsystem based on the learning from developed countries. Therefore, compared to UK,the United States, Germany, Japan and other developed countries and regions, Taiwanregion’s theories and practices in state compensation system are more suitable forMainland to learn and transplant.From the point of equivalence of damage and indemnity, state compensationstandard can be divided into three kinds, limited compensation, full compensation andpunitive compensation. Taiwan region, based on the theory of private law, nationalvicarious liability and two separate procedures for rights protecting, with the systemof quotation of civil law, dual jurisdictions and application of civil litigationprocedure, promotes the unification of national and civil compensation standard. Atthe same time, based on the theory of special sacrifice, the separate legislation ofcriminal compensation also promotes the equivalence of damage and indemnity. Withthe principle of full compensation, litigations of state compensation in Taiwan showsgreat vitality. However, based on the strict differentiation of public and private lawand with the principle of national orientation, Mainland’s legislation stresses toconsider the national financial burden and makes national compensation standardindependent of that in civil tort. National compensation items are limited andcompensation amount is lower than the actual loss. What’s more, trial organization and procedure of state compensation is also different from that in civil field. Due toadoption of limited compensation principle, victims of national tort in Mainlandcannot get enough remedy. Thus, trying to get national compensation throughnegotiation procedures instead of litigations and other statutory procedures is commonin Mainland.Through specific comparisons of legislations and judicial practices betweenTaiwan and Mainland, we can find that in Taiwan, the compensation for damages topersonal rights and interests, is divided into property damage and non propertydamage. It stresses the entire scope of compensation and the principle of contributorynegligence is applied. The judicature enjoys broad discretion space for determiningmental injury with considering multiple factors. The compensation for damages toproperty rights and interests, stresses to cover all damages and loss of interest. Injudicial practice, the theory of not real joint debt relation and mixture of national andcivil claims in the same litigation, lessen the burden of plaintiffs. In Mainland,however, the compensation for damages to personal rights and interests, does not fullyconsider actual losses and specific circumstances of individual victims. It often usesthe national average salary data to determine damages, thus makes the compensationnot be equivalent to actual losses. As far as mental injury is concerned, there existgreat difference of refree ideas among different courts. And the compensation fordamages to property rights and interests, emphasizes the principle of direct lossescompensation. In judicial practice, the narrowed interpretation of direct loss and theenlarged determination of indirect loss, further reduces state compensation standard.Due to different referee ideas, similar cases in Taiwan and Mainland show totallydifferent results.The full compensation principle taken by Taiwan can make remedies highly fitwith losses and fully protect lawful rights and interests of victims. However thesystem of Taiwan makes the legislation of state compensation incomplete and is easyto make public and private law theory fuzzy, leading to disputes in the jurisdictions ofadministrative court and civil courts. Therefore, not all Taiwan’s theories and systemsare suitable for Mainland to transplant. To improve and upgrade the standard of state compensation in Mainland, we need to carefully choose and sum up the contentworthy of reference, based on the prudent comparison of cross-strait differences. Atpresent, integration of public and private law theory provides theoretical support forcivil compensation standard to be applicable to state compensation area and thetransfer from nation orientation to people orientation helps to reshape the relationshipbetween the state and the people. Therefore, by reference to Taiwan’s theories,legislations and judicial practices, firstly, Mainland needs to rebuild the principle byenhancing the limited compensation to full compensation. Secondly, when choosingthe standard model, we can follow Taiwan’s method of citing civil laws andregulations, or can copy the relevant provisions of civil tort law, or choose the path ofself renewing, that is, redesign the national compensation standard with the newprinciple of full compensation. Under the path of self renewing system, we can makefull reference to Taiwan’s legislative technique, flexible standard and reasonablejudicial discretion, set up elastic standards and provide judges with reasonablediscretionary space, aiming to realize the consistency between compensation amountand actual damage. Specifically, in the area of enhancing the compensation standardfor damages in personal rights and interests, we need to pay attention to item’sseparate accounting and distinguishing criminal and noncriminal compensation,abandon the national average calculation, and objectively measure the victim’s actualloss. In the area of enhancing the compensation standard for damages in propertyrights and interests, we need to make reasonable choice of compensation mode underthe principle of covering all the damages and loss of interests, and make fullmeasurements of losses by abandoning the notion of direct loss. In the mental injuryarea, we need to explore objective rules of calculating mental loss solatium, fullyconsider all kinds of related factors and enhance the adequacy and openness ofjudicial reasoning in such field.