On Military Compensation

Based on the practice of the military compensation, this thesis is combined with relevant laws and regulations and draws upon relevant theoretical research results. It starts from the study of the status quo of the military compensation both at home and abroad, defines the scope and the principles of military compensation and focuses on the improvement of our country's military compensation legal system. And it uses comparative methods to systematically study the scope of the military compensation by integrating theory with practice.The body of the thesis is divided into the following four parts:The first part is the definition of military compensation. In this part,the author lists various definitions of the military compensation given by the current domestic scholars,carries out an in-depth analysis to explain the advantages and disadvantages of these viewpoints and thus educes the concept of military compensation.Military compensation refers to the legal activities in which the state assumes the tort liability and fulfill the obligation to make compensation for the damage to the legitimate interests of the citizens,legal persons and social groups,which is caused by military agencies and their staff when carrying out their duties in non-war military operations.lt is a responsibility taken by the state, the basis of the state's obligation of compensation for the danger of military activities and the consequences,and aims at providing the victims of the infringement caused by military activities with the right of getting relief. And also it introduces the characteristics of the military compensation, differentiates between military compensation and military pension and further defines the connotation and denotation of the military compensation.The second part is the basis of establishing the system of the military compensation. Although our country has no written laws and regulations about military compensation at present, as early as the estabilishment of Red Army, there are contents of the military compensation—pay for anything you damage—in "Three Rules of Discipline and Eight Points for Attention",compared with the general exemption stipulated in the laws of many countries. Based on this point, the author,from the military and cultural traditions of Chinese civilization and the history of establishing People's Liberation Army, discusses the constitution which supports the military compensation system,its legal basis and supporting facts.First of all,the establishment and improvement of the military compensation system consistent with China's national conditions conform to the basic principle of our country's "State Compensation Law". Its inherent meaning is to ensure the implement of the principles and spirit of the constitution. As a kind of state organs, military authorities should stick to the principles that the lawbreakers must be punished and the detriment must be compensated, and should not become the authorities with privileges which only bring infringement but avoid assuming the liability of compensation. Second, Our country executes the system in which under the highest legislative power the executive authority, procuratorial authority, judicial authority and military authority run in parallel. In such a system, the state executive authority and military authority are equally powerful and they are in the same status. The military authorities and executive authorities are mutual independent exclusive, which, to some extent, determines that the relationship between military compensation and administrative compensation should not be treated as generic so that the administrative compensation system can not be simply copied to the field of the military compensation.Therefore,it is also an indispensable requirement of improving the state compensation system,which is consistent with the nature,purpose and fine tradition of our army.The third part is the analysis of the conditions of the military compensation. The conditions of it is the core of the state compensation liability, which is not only an important criterion to determine whether the liability for compensation is qualified but also the main basis for judges to decide whether it should be compensated or not in the trial of the state compensation cases. On the one hand, it limits the scope of compensation, and on the other hand it protects the victim's claim rights.This section is based on the general survey of the state compensation and describes the requirements of subject, conduct, damage and causal relations in relation to the military compensation.That is,if the military compensation is to be qualified,the subject of the infringement must be national military authorities and military personnel in active service or the organizations and individuals entrusted by military authorities,who violate the legitimate rights and interests of the citizens, legal persons or other organizations while carrying out acts of military authority(military command and military executive powers) in non-war military activities,and military conduct and tort damage are in objective causal relationship, thus the state should assume the tort liability after the damage is caused. None of these four conditions mentioned above is dispensable.The last part is the idea of establishing a military compensation system. When the military authorities and their staff infringe the legitimate rights and interests of citizens, legal persons or other organizations in the execution of military powers, they should be compensated on behalf of the state. At this point, military compensation is the same as other state compensation. However, military compensation is conditioned by time of war, the country's political system and other factors, so it has its own characteristics, such as, the high degree of confidentiality and risk, the inoperability caused by the single set doctrine of imputation in practice in military compensation, so it is necessary to establish the imputation system of the military compensation compatible with the principle of imputation principle, the result principle and the fair responsibility principle. In the aspect of damage, the military activities has a high degree of damage, and sometimes they are destructive and break out suddenly. The victims are unable to take measures to avoid losses or reduce the extent of the loss. Even if finding the damage is happening, they can do nothing but face it... It is therefore necessary to determine the standard of the military compensation according to the principle of compensation. Under certain circumstances, the spiritual hurt should be included. Not only direct losses should be compensated, but also indirect losses should be compensated within limits. Compensation should be full value, timely, effective and comprehensive.Therefore, this part starts from the characteristics of the military compensation.Combined with relevant laws and regulations of the military compensation, this section mainly puts forward my own ideas of the legislation, principles, scope, procedures and allocation of responsibilities by drawing lessons from the present results of theoretical studies.From what has been discussed, it is concluded that there is a necessity of establishing a military compensation system consistent with China's national conditions and it is operable in practice. As a special form of compensation, it should constitute the state relief system for civil rights along with the administrative compensation and judicial compensation so as to solve the present puzzles caused by our country's lack of laws about military compensation, to maximize protection of the legitimate rights and interests of the citizens, legal persons or other organizations, to further play a greater role in running the armed forces and state affairs according to law and building a harmonious socialist society and truly reflect the original intention of the state compensation legislation, thus actively promoting the process of building our democracy and law.