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Legislative Research On State Compensation For Damage Caused By Public Facilities In Our Country

Posted on:2003-09-03Degree:MasterType:Thesis
Country:ChinaCandidate:X L YuanFull Text:PDF
GTID:2156360125470435Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
The state compensation law has developed for just more than one hundred years since its birth, in which the issue of compensation related with damage caused by public facilities is a fairly new field, relevant essays and books in our country handle it broadly by introducing examples of other countries, being lack of systematic discussion. Yet as a system of much characteristic and independence in state compensation law, it is so essential to make further probe. This essay starts from the standpoint of introducing system; summarize current regulations and practices as well as inadequacies in our country, hence leading to the analysis on need and feasibility of adding stipulations requiring state compensation liability caused by public facilities when modifying our state compensation law in the future. Besides, by comparing relevant systems in France, Japan and Taiwan, the author tries to grasp the rules, aiming at providing an informational framework and an analysis report that can be used for reference when drafting the modification.Except the introduction and conclusion, this essay has a main text that includes two chapters. The first chapter is researching need and feasibility of making legislation on state compensation for damage caused by public facilities, and the second is the relating substantial research. It totals more than 450,000 words (including 130,000 footnotes).The introduction refers briefly to the originating background of system of state compensation for damage caused by public facilities, by which it is pointed out that in our country such damage is not included into the scope of state compensation, rather the remedy is provided according to the related stipulations in GENERAL PRINCIPLES OF THE CIVIL LAW OF THE PEOPLE'S REPUBLIC OF CHINA. Thus the topic in this essay is drawn out, which is whether and how to compensate if damaged by public facilities. The first chapter mainly discusses both the need and feasibility of legislating on state compensation for damage caused by public facilities. On the need of legislation, by giving two typical cases of damages by public facilities, four aspects of such a need are put forward: (1) wrong application of law, demonstrating the damage should be remedied as state compensation rather than civil compensation from the viewpoint of legal relation; (2) inadequacy of existing remedies, including absence of remedy from state compensation, limits of civil compensation and inadequate state compensatory remedy; (3) increasing risk resulting from urbanization; (4) requirement that should be met when changing government's functions. On the feasibility of legislation, it is demonstrated from theoretical basis, legal stipulations and legislative materials, by marking out state compensation theory, especially the theory of state risk liability, understanding the legislative purpose of LAW OF THE PEOPLE'S REPUBLIC OF CHINA ON STATE COMPENSATION, comparing legislative examples from other countries.The second chapter sticks to the key point of "how to legislate" and makes a substantial analysis about state compensation system for damage by public facilities. It is divided into two sections, which are the concept and range of public facilities and confirmation of state compensation liability. In the first conceptual section, three standards are emphasized in judgment of public facilities, i.e. (1) installed or managed by administrative body, or installed by non-administrative body and managed by administrative body; (2) provided for to use of public purpose; (3) is tangible object or equipment. Besides, some discussion is made about the title in legal stipulations and the establishment and annihilation of public facilities. On the range of public facilities, some common forms are listed here, suggesting a legislative technique of defining the meaning of public facilities by LAW OF THE PEOPLE'S REPUBLIC OF CHINA ON STATE COMPENSATION and listing its forms by judicial interpretation. The second section mainly elaborates on the basis, standard and contes...
Keywords/Search Tags:public facilities, state compensation, state's liability to compensate for damage caused by public facilities, absence of installation or management, principal of liability, no fault principal of liability
PDF Full Text Request
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