A Study On Some Problems Of Criminal Compensation

State Compensation Law has positive effect on safeguarding citizens'personal right and property right after issuing it for enforcement ten years inour country. Due to amending of Criminal Law and Criminal Procedure Law,some regulations of State Compensation Law show faultiness and limitation injustice practice. Therefore this article consider that improving criminalcompensation system should clarify principle of culpability for criminalcompensation, expend scope of it, stipulate compensation of non-prosecutionwith doubts cases and improve criminal affirmation system.The cognition of principle of culpability for criminal compensation can'tcome to unification at present in our country. It mostly cover that principle ofmalfeasance, principle of liability with fault, principle of liability without fault,doctrine conclude of principle of liability with fault and strict liability, doctrineconclude of principle of malfeasance and principle of liability without fault. Soit considers that principle of culpability for criminal compensation shouldadopt principle of malfeasance and strict liability. Articles15(4),(5),16(1) ofState Compensation Law indicate that act done by infringe of fact by judicialofficials adopt standards that see whether judicial officials illegally exercisinghis authorities. It adopts principle of malfeasance by all appearances. Stateshould compensate for it unless exception of restitution , under thecircumstances of compensation duty of error detain, error arrest, erroradjudication and innocent custody in articles15(1),(2),(3),16(2)of StateCompensation Law as long as the person in penal process is innocent byjudicial office. It adopts strict liability. It accords with strengthening thelegislation tenet of protecting personal right, avoids difficulty in cognizance ofsubjective error during the process that judicial officials illegally exercising hisauthorities, makes for safeguarding legal right of victim. Thus this articleconsiders that it should nail down principle of culpability for criminalcompensation in legislation. It adopts principle of malfeasance forcompensation during the process that judicial officials illegally exercising hisauthorities. It adopts strict liability under the circumstances of compensationduty of error detain, error arrest, error adjudication and innocent custody.Analyzing legislation of criminal compensation in our country, this articleconcludes that the regulation of criminal compensation scope is too narrowand isn't beneficial to protecting victim's legal right. Therefore this articleconcludes how to improve criminal compensation scope as following: firstly,the innocent person who is sentenced control, probation for fixed-termimprisonment, deprivation of political rights should be compensated; secondly,the innocent person who is taken posting a bail and await trial with strictliberty of moving or living at home is entitled to compensate; thirdly, thepeccadillo person who is sentenced heavy is entitled to compensate; fourthly,the illegal extended custody person is entitled to compensate; the fifth , it canbring moral damage into criminal compensation, because moral damage is notmaterial damage, but it is exist and can show from the way what victims sayand act, its degree can make certain; the moral damage that is committed bystate to citizens, artificial person and other organization begin with legal form,its scope and degree is rather than damage to property right and personal right;Although elimination effects and abolitio restitutio famiae is the essentialmeasure of moral damage, money damages is the most effective method insocialist market economy; the sixth, towards to the questions that exist inapplying State Compensation Law article 17 in practice, this article bringforward the idea of improving excuse of criminal compensation, namelystipulate the intent to hypocritical state, when the criminal circumstances ispretty, has not serious hazard, not to be conviction, the country cannotadvocacy to avoid duty from the principle, but self-dependence to the judicialpeople can avoid the duty.Furthermore this article considers that it must compensate for thenon-prosecution with doubts cases in legislation of our country. The basis ofprinciple of law to the non-prosecution with doubts cases is "presumption ofinnocence"and "innocent until proved guilty". Firstly, the comprehension tothe "no crime facts"should be concluding no crime facts in fact and in lawpresumption. According to State Compensation Law, it shouldn't compensateto no crime facts in law presumption. Secondly, innocent until proved guilty isan important rule determined by active Criminal Proceedings Law, in the stageof judge it behaves mainly in non-prosecution with doubts, it can't cognizantthe defendant is guilty when lack of evidence, which should make the innocentjudgment in that because of lack of evidence, the charged crime can not cometo existence; Accordingly, in the procedure of examination for charge itbehaves mainly on "non-prosecution with doubts". "Innocent until provedguilty"is the important embodiment of the rule when doubts exist, it ispropitious to the defendant, and also it is an important measure to protectpersonal right in criminal action. Thirdly, it is the demand to protect the legalrights of party; also it is the duty of the judicial office. Fourthly, it can enablethe judicial office work perfectly.When this article deal the criminal non-prosecution with doubts cases inpractice, there exist some false conception which influent the transactions ofthe criminal non-prosecution with doubts cases such as the faintness oflegislation, the disunity of executing of law and "fear to compensate, unwillingto compensate". So this article suggests that it should be define in thelegislation that define "no crime facts"on the substantial law conclude both"no crime facts"in facts and in law presumption; delete the procedure ofexamination to the uncertain cases in procedure, put the compensation ofuncertain cases to one situation of that the state must compensate.The institution of criminal affirmation is the chiefly condition when dealwith the criminal compensation cases, also is the necessary procedure if thecompensate claimant want obtain the state compensate. But the procedure ofcriminal affirmation have suffer more and more castigation, also influent theeffect of exert of state compensation in practice. Firstly, the main body ofaffirmation is the compulsory office of compensate. This procedure is contraryto the natural justice rule that "everybody cannot be the judge of themselves".Secondly, the procedure of affirmation is not maturity. It is manifested in thatrelief approach of criminal compensation is single, just enact the measure ofmaking complain, furthermore, the concrete specific procedure of makingcomplain is not definite, the procedure of affirmation is lack of time limitation.Thirdly, the standard of affirmation is not definite, that is the standard whetherthe enact of Criminal Procedure Law or the enact of State Compensation Law.Therefore, to improve the institution of criminal affirmation, we should createthe separated mechanism between the compulsory office of compensation and...