Study On Judicial Compensation Procedure

According to the Sate Compensation law, sate compensation procedure is composed of criminal compensation procedure and administrative compensation procedure. The term "Judicial compensation" is the theoretical summary of state compensation in civil, criminal and administrative litigation. Judicial compensation has become a legal term on state compensation since the Supreme Court officially stipulated "non-criminal judicial compensation" and "judicial compensation" in the form of regulation and judicial explanation. According to the Sate Compensation Law, compensation for damage caused by the coercive measure of the people's court on civil litigation and on administrative litigation also applies to criminal compensation procedure. Consequently, the procedure of state compensation actually is consisted of two procedures: Judicial Compensation Procedure and Administrative Compensation procedure. Judicial compensation procedure is the method, approach and process adopted by the country to compensate for the citizens and organizations when the judicial organs and their staff violate the legal rights and interests of these citizens and organizations in criminal, civil and administrative litigation.Judicial compensation procedure has the following features: (1) Confirming the illegal offence is the prerequisite of judicial compensation, the responsible organ has confirming powers, separate confirming and beforehand disposal procedures; (2) The responsible organ is in charge of beforehand disposal which is an indispensable procedure; (3) Reconsider procedure is a necessary procedure but reconsider decision is not the finial decision; (4) The Compensation Committee inside the court hears the dispute and has the finial right to solve judicial compensation; (5) Compensation decision is carried out by the responsible organ. The applicant of compensation has no right to apply for the forcible implementation; (6) after paying compensation to applicant, the responsible organ has right to investigate and punish the person who is responsible for tort.Many defects have been exposed since the state compensation put into effect: (1) Confirming procedure blocks many people entering into compensation procedure. It is complicated to separate confirming procedure from beforehand disposal procedure; (2) Beforehand disposal procedure is another hindrance for people to gain compensation. It also makes irregular compensation possible; (3) Reconsider procedure can not solve dispute only to waste time and energy; (4) The configuration and judging approach of compensation committee in decision-making procedure is not complied with the modern legal theory; (5) It is very difficult to carry out the compensation decision; (6) The procedure of recourse is too simple and hard to be executed.For solving the fore-mentioned defects, this dissertation offers the following solutions: (1) Combine confirming procedure with beforehand disposal procedure to simplify the compensation procedure; (2) Make beforehand disposal procedure a selective way to enter into compensation procedure; (3) Make agreement procedure detailed; (4) Abolish complaining procedure and reconsidering procedure; (5) Redesign the national compensation committee; (6)Abolish beforehand payment, set a specialized organ for paying compensation; (7) Set time limit for claim; (8) Make the detailed regulations concerning the nature and concrete procedure of recourse; (9) Establish regulations for the procedural rights and redressing method for the endowed person. (10) Make the supervision system on claim perfect.