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On Improvement Of The System Of Criminal Judicial Compensation

Posted on:2011-03-11Degree:MasterType:Thesis
Country:ChinaCandidate:L YangFull Text:PDF
GTID:2166360305957522Subject:Law
Abstract/Summary:PDF Full Text Request
Criminal judicial compensation is defined as a kind of compensation system that national authorities make damages for citizens, legal person and other organizations when national authorities and theirs staffs who exercises the functions of investigation, examination, judgement and prison administration. Criminal judicial compensation is the main part of the system of national compensation. It is an important legal system of protecting civil rights and maintaining social justice. However, criminal judicial compensation in China has several legislated disadvantages which include unclear of principle of liability, narrow of scope of compensation, low standard of application and missing of compensation procedure. Based on the problems above, the author analyses the reasons and gives some advices for solution. The whole paper is divided into four parts, including principle of liability of criminal judicial compensation, the scope of criminal judicial compensation, the standard of application of criminal judicial compensation and the compensation procedure of criminal judicial compensation.Part one states the principle of liability of criminal judicial compensation. Based on the station of principle of liability of criminal judicial compensation, the part discusses that the principle of liability is at the core of the system of criminal judicial compensation which directly elaborates the legislation aim, value-orientation and directly influences compensation procedure, scope of compensation and standard of compensation. The part analyses the significant principles of liability in China and foreign countries which include fault liability, criterion of liability and result of liability. Through analysing criterion of liability applied by Chinese criminal judicial compensation, the part reviews the legislation defect in criminal judicial compensation which brings the standard of liability not included in the criterion of liability by mixing of criminal judicial compensation and administrative compensation. Next, the author arises the legislation advice that it should separate criminal judicial compensation out of administrative compensation strictly.Part two states the scope of criminal judicial compensation. Firstly, the part discusses the importance of the scope of criminal judicial compensation which is in order to provide remedy for citizens, legal persons or other organizations who suffer the infringement by national authorities in the process of criminal litigation. The attitude of remedy for citizens, legal persons or other organizations by the nation is directly elaborated by the scope of criminal judicial compensation, and this kind of attitude influences the basic situation of national, authority and personal right and elaborates the degree of rule of law in civilized country and the step of democratization. Through the investigation to the scope of criminal judicial compensation, the author figures the narrow of the scope of criminal judicial compensation, the difficulty for reach the scope and the width of the regulation of exemption. It is not included that overtime custody, innocent applied for non-custody and spirit injury compensation which weakens the value of human right by national compensation law and deviates the aim of national compensation. Base on the problems above, the author arises the relevant solution methods.Part three states the standard of criminal judicial compensation. Firstly, the part discusses the establishment of the standard of criminal judicial compensation which figures that the elements of economic development, situation of development of human right, policy consideration for victims by nation and affection for national legislation by citizens of a country shall influence the final legislation. The standard of criminal judicial compensation of China brings the injustice of criminal judicial compensation because that it could not contain indirect damage compensation or punitive compensation. The damage shall be divided into direct damage and indirect damage by causality between the damage and action of infringement. On one hand, the direct damage refers to the damage of direct increase or loss of current property caused by unlawful infringement. On the other hand, the indirect damage refers to the damage of loss of received interest in future of parties by unlawful acts. The author figures that it is injustice of just compensate the direct damage other than indirect damage because that the indirect damage exists objectively in most of the. time. The soothing standard of compensation applied by national compensation law in China is not good for implement the functions of making up the damage and preventing infringement. Based on the analysis, the author advances that the standard of criminal judicial compensation should contain the indirect damage compensation and establish the combining standard of compensation of compensability and penalty. It is good for protecting the legal right of victims, achieving the value aim of compensation and preventing and restraining the occur of infringement for citizens by national authorities and their staffs.Part four states the procedure of criminal judicial compensation. In this part, the author introduces the current situation of the procedure of Chinese criminal judicial compensation and legal models of procedures of criminal judicial compensation in foreign countries. Next, the part reviews the defects of criminal judicial compensation. The defects are as follows:Firstly, the regulation of compensation procedure is not injustice and it breaches the basic principle of natural justice that anybody could not be the judge of his/her own case. Secondly, it is irrational of the setting up of compensation institution. The power of decision to criminal judicial compensation procedure has been given to compensation committee of the Intermediate People's Court, High People's Court and Supreme People's Court. When adjudging items of national compensation, these compensation committees have never open a court session that the both parties could only wait for the decision instead of taking part in the compensation procedure. Otherwise, the compensation committees of the People's Court, as the final judge, take the system of final arbitration award. If the compensation committees have made mistakes, no other authority supervises the decision and the parties have no other remedy procedure. Thirdly, it is ambiguous of personal tort liability and national tort liability. In fact, it is totally different of personal tort liability and national tort liability. It is elaborated that the public officials have the subjective fault for the acts of breaking law in the execution of his office. In order to supervise the public officials to exercise their power under the laws, it must be admitted that it is existing two kinds of liabilities and they have obvious differences. Based on the three defects above, the author arises to establish unified national compensation committee which tries the cases of criminal judicial compensation. Otherwise, the author advices that it must differ the personal tort liability and the national tort liability strictly through studying the system of civil subject tort liability and relevant theories in civil law. The object of the paper is to differ the personal tort liability and the national tort liability better and carry out the functions of rescuing the victim's rights and supervising national authorities and their officials to exercise their power.
Keywords/Search Tags:Criminal Judicial Compensation, Principle of Liability, Compensation Procedure, Scope of Compensation, Standard of Compensation
PDF Full Text Request
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