Reflection On The Perfection And Development Of The State Compensation Scope

The state compensation scope is the important part of the statecompensation legal system. It is the criterion measuring the democratic legalsystem of one country. The state compensation scope depends on the politics,economy and the culture tradition of one country. Different countries havedifferent state compensation scope. Even if in the same country, the statecompensation scope is different in its different historical period. On the onehand, the state compensation scope is closely connected with thedevelopment of the social economy and the strengthening of the democraticidea. On the other hand, the extending of the compensation scope is the maintrend according to the objective rule of the social development and thehistory and reality of the other countries in the world.As far as we know that the current State Compensation Law has playedsignificant role in many ways. It has promoted the establishment of thedemocratic legal system in our country and has accelerated the advancementof our social civilization. It also has safeguarded the personal rights and theproperty rights of our citizens. But now we have to review the meaning ofthis law after it has been implemented for over ten years. Many disadvantageshave been found in this law. One of the most significant disadvantages is theproblem of the state compensation scope. The compensation scope is toonarrow which has severely affected the carrying out of the StateCompensation Law. The current State Compensation Law has not only beenfar away from meeting the need of building a peaceful society, but alsoconflicted with the development of the democratic legal system of ourcountry. In this case, it is necessary for our country to extend thecompensation scope. By reviewing the scope of the current StateCompensation Law and analyzing the state compensation scope in othercountries, this article puts forward some tentative plans and ideas on how toperfect and develop the state compensation scope.This article is divided into three chapters:Chapter one is the review on the compensation scope of the current StateCompensation Law.At the first, the thesis briefly introduces the main contents of thecompensation scope of the current State Compensation Law including thedefinitions of the administrative compensation and judicial compensation,criminal compensation and non-criminal compensation. It also introduces theprinciple determining the liabilities for our state compensation. It outlines thefundamental framework of our compensation scope through the aboveintroduction.In the next part, the author reviews the scope of the current StateCompensation Law through four aspects, including the legislative mode, theprinciples determining the liabilities for state compensation, the specificcontents of the compensation scope and the exemption scope. Then theauthor points out that the enumerating mode and the single principledetermining the liabilities have already restricted the carrying out of the statecompensation law. A lot of circumstances are excluded from the statecompensation law, such as the compensation of spiritual damage, thecompensation of public establishment damage and the compensation ofabstract administrative acts and administrative omission which lead to thenarrow compensation scope of the State Compensation Law. The author alsodemonstrates that the compensation scope depends on the exemption scope.The exemption scope of the current Compensation Law is fixed by thegeneral mode which directly results in the wide exemption scope. This iswrong and unfair.Chapter two is the brief introduction of the state compensation scope inforeign countries.First, the thesis introduces the general legislative mode of the statecompensation scope of foreign countries and the case mode of French. Thesemodes are useful for the state to sufficiently realize the purpose ofsafeguarding the legitimate rights and interest of citizens, legal persons andother organizations.Secondly, the author considers that comparing with our single principledetermining the liabilities, the principles adopted by most foreign countries intheir compensation law are more reasonable and equitable. With strongmaneuverability, these principles can effectively realize the function of theState Compensation Law.Thirdly, the state compensation scope directly depends on the scope ofthe subjects of official infringement. In foreign countries, the scope of thesubjects of official infringement is considerable wide and broad which leadsto the state compensation scope extending gradually.Fourthly, with the advancement and development of the society, manycircumstances are brought into the foreign state compensation law, such asthe compensation of spiritual harm, the compensation of public establishmentdamage and the compensation of abstract administrative acts andadministrative omission which are the wants of our compensation scope. Itshows the maturity and advancement of the legal system of the statecompensation and reflects the development degree of social civilization indeveloped countries.Chapter three is the legal thinking on the perfection and development ofour state compensation scope.Through the reflection on the scope of the current State CompensationLaw and the analysis of the state compensation scope of foreign countries,the author concludes that comparing with that of the other countries in theworld our state compensation legal system comes into being late. It is deeplylimited and influenced by the political regime, theoretical ideas, economicaldeveloping level and the nation's financial capability. The small scope of ourstate compensation law can not embody the whole cases of authorityconducts infringement of the state organs and also can not satisfy the needs ofthe subjects of right. These defects restrict the development of the democraticlegal system and are becoming a big barrier of the advancement of oursociety.In the first part of this chapter, the author puts forward some principlesthat should be followed in the course of developing the state compensationscope. The author suggests that two principles should be established. One isthe principle of where there is harm, there should be compensation, the otheris the principle of official conducts standard. In addition, the diversificationprinciples determining the liabilities for state compensation scope should beestablished in the legal system of state compensation law. The principle ofviolating laws and regulations should be regarded as the primary principle,the others should be regarded as subsidiary ones. These principles mentionedabove should be combined effectively in practice.In the second part of this chapter, the author suggests that in order toenrich the contents of our state compensation scope, we should substitute thegeneral way for the enumerating way to determine the state compensationscope. We also should make the compensation scope of the current StateCompensation Law as a stand and use the successful experiences of the statecompensation scope of foreign countries for reference. Additionally, weshould not deviate from the actual circumstances of our country.In the third part of this chapter, the author suggests that we should addsome concrete contents into the compensation scope including thecompensation of spiritual damage, the compensation of indirect loss, thecompensation of public establishment damage, the compensation of abstractadministrative acts and administrative omission, the compensation ofimproper judging acts made by the people's court and the compensation ofmilitary affairs damage.In the fourth part of this chapter, the author suggests that the stateindemnity legal system should be established. The administrative organs, thejudicial organs and the officials and servants therein may infringe upon thelegitimate rights and interests of citizens, legal persons and otherorganizations in the course of legally exercising their functions, which is thesame as in the course of illegally exercising their functions. The statecompensation legal system should be combined with the state indemnity legalsystem. Only in this way, can we establish a whole safeguarding mechanismon state infringement.In the last part of this chapter, the author suggests that we should designa scientific exemption scope on state compensation. According to thedifferent cases, the exemption scope of the state compensation should bereduced and restricted, especially in the Item 1, Item 2 and Item 5 of Article17 of the current State Compensation Law. In this way, we may develop thescope of the state compensation from the other aspect.