On The Amendment Of State Compensation Law Of China

In the effort to recover damages caused by state activity, China Legislature adopted the State Compensation Act of the People's Republic of China in 1994. However, the law holds several severe defects, which result in justice failure in many cases. The discussion in this paper will just aim at these defects. In part 1, the flaw of "the criterion of irregularity" will be explored, beginning with semantic analysis of two key words. The author proposes that China should establish "the criterion of neglect" as a main principle in the law of State Compensation, although "the criterion of dangerous liability" and "the criterion of justice" also should be established in certain fields. Furthermore, in the cases of personal tort, "the criterion of dangerous liability" should be established all along the line. In part 2, the paper will probe into the possibility of state compensation result from military activity and failure of management of public installation. Meanwhile, the problem of spiritual injury and loss of possible interest is also discussed. In part 3, the paper will analyze the defects in procedure of state compensation. The author advocates abolishing the provision of "self deal first", which has become an obstacle on the way of claim, and bringing jury system into state compensation system, in order to avoid partiality in the case of the judiciary as a party. In part 3, the author will discuss the relation between state compensation and constitutionalism. As a conclusion, much emphasis is laid on judicature independence.