Some Problems, And It's Modification And Improvement On The State Compensation Law In China

Our country's existing State Compensation Law was enacted in April,1994, and put in force on January 1, 1995. Enactment and implementation ofthis law is an important issue in the process of the construction of democracyand legal system in our country. It indicated that China has entered into a newera of human rights protection. However, because the national compensationsystem of our country started relatively late, a lot of deficiencies in legislatingexist in our country's State Compensation Law, with the influence ofhistorical tradition, notion, custom and legislative system, etc. The authorputs forwards some suggestions on the questions existing in StateCompensation Law, modification and perfection of the law. The first chapter of this thesis discusses the framework, liabilityprinciple of State Compensation Law and the compensation of criminalquerying case. First, the chapter expounds some problems existing in thelegislative framework. In the legislative framework, administrativecompensation and judicial compensation are prescribed in the law. Whethersuch a legislative framework is scientific, reasonable deserves discussion.Administrative compensation and judicial compensation are prescribedseparately in different law or legistated soly in most countries in the world.Second, liability principle of State Compensation Law is talked in this part.Liabilityprinciple is the basis of making certain government department andstaff member's tort liability and standard of authority action. StateCompensation Law prescribes illegal principle as the liability principle ofjudicial compensation. It is disadvantageous to protect claimer's claim. Itdoesn't accord with the world trends either. The third argumentation is thecompensation of criminal querying case. State Compensation Law does notregulate whether or not government should compensate for criminal queryingcase. This leads to different views about this issue among legal academia andcauses confusions in the judicial practice. The essential of this issue is theextension of the liability principle of State Compensation Law. If the liabilityprinciple is result liability principle, claimers should be compensated for their 1damages when they don't withdraw the accusation. The second chapter expounds the compensation range, standard andexempt liability clause of State Compensation Law. Firstly, the range ofcompensation is dissertated. In view of temporal economical status,legislators neglected to effectively protect citizen's legal rights and interests.Quite a lot of administrative torts and judicial torts are not stipulated orexcluded clearly. For example, it does not include legislative compensation.The range of criminal judicial compensation is too narrow. The range of non-criminal judicial compensation is not enough. Secondly, the part discusses thestandard of compensation. Existing State Compensation Law prescribes thatgovernment only compensates for directly material damages. There is nocompensation for indirect losses and emotional distress. Becausecompensatory standard is too low, victim's loss can't be fully remedied. Sowe are unable to conciliate victims and effectively keep within limits of theactions of breach of law. We can't promote the government office to exerciseauthority in accordance with law, either. And then, the author expounds thefact that the exempt liability clause of State of Compensation Law is tooextensive. Article 17 of State Compensation Law, as exempt liability clause,some items are unreasonable, some are ambiguous and unclear, and theelasticity is excessive. This clause has become a shield that the judicialauthority adjudges "Don't Compensate". This article alone may enable"compensation law"turn into "not compensating law". The third chapter treats the compensation and execution procedures ofState Compensation Law. At first, the author puts insight into thecompens...