| 《The People's Republic of China nation compensates a method》in 1994 on May 12th from people of the whole country representative conference the standing committee will pass, and come into force on January 1st in 1995 .This is a milestone of lawmaking. The nation indemnification scope is the important contents of the national indemnification system, also is measure one citizen main rule of law progress of main dimensions. The nation compensates the implement of the method with perfect, not only symbolized the our country socialism democracy and the legal system construction to turn into a new stage, and it has other laws not the special position and important function of the commutability in the propulsion by law the progress of cure the country .Our country nation indemnification the scope be limited by illegal behavior of infringe upon the personal rights and property right up .But the property and its theories compensated a responsibility from the nation regardless basis up, still from nation indemnification of return a responsibility to consider in principle, our country nation indemnification the scopes all have the necessity of the extension, and international community of national indemnification the scope also present to expand of trend.One part, concerning nation the basic theories of the indemnification. Pass the analysis to compensate the basic theories to nation, this text think, our country the national indemnification is a kind of direct oneself's responsibility, rather than generation responsibility, namely the nation indemnification responsibility belongs to a nation essentially but isn't a national organization and its staff member, because the national organization and its staff member carries out official business is entrust by nation, nation according to authorize and appoint and then become to undertake risk responsibility of the national organization and its staff member.Our country nation indemnification the system take the socialism democracy and the rule of law theories as by having Chinese special features basis, our basic state of the nation and west dissimilarity, but see from the law and the technique angle, abroad concerning nation indemnification theories in public bear equal thought should is our country nation indemnification of theories absorb.As for the our country nation indemnification return the responsibility principle, this text think should without the fault responsibility principle, namelyAs long as the national organization and its staff member exercises the job power behavior and result in the citizen,legal person and other organize the damage of the legal rights, then promise a load of indemnification responsibility.The second part, the our country nation indemnification scope of the present condition and its problem.《The People's Republic of China nation compensates a method》ruled administration to compensate to compensate two kinds of nation indemnification and pertaining to crime.The administration indemnification means the administration organization and its staff member exercises the administration job power illegally, the invasion citizen, the legal person results in to injure with the legal rights of other organizations of, is undertaken the mdemnification of[with] the indemnification responsibility by the nation.The administration indemnification is a nation indemnification of mainly constitute part. Our country nation indemnification method Article 3s,4 regulation rules settled administration indemnification of scope;The pertaining to crime indemnification means wrong imprison of judicial organ,wrong catch. wrong judge but cause of nation indemnification .Our country nation indemnification method 15 and 16 regulation rules settled pertaining to crime indemnification of scope.This text analyzed the our country nation to compensate an existent problem, 1 ,BE the lawmaking provision mode problem that compensates scope;2,BE the behavior or item that brings into the nation indemnification scope are little;3,BE the item breadth that dismisses the nation indemnification responsibility to be suffused with,not reasonable;4,BE the indemnification scope that the one returns the responsibility principle to cause to contract.The third part, comparison meaning up of nation indemnification scope.At Japan, for the behavior in the concrete case, as long as it doesn't belong to the exception of the nation indemnification responsibility, and matches the responsibility composing important item of, belong to the nation indemnification scope by all means inside. The Korean nation indemnification method 2 regulation rules settle:"the public official carry out a job, because of breaching an ordinance to cause intentionally or faultily the others is damaged and harm the nation of……or the local self-government group and should compensate it damage." For indirect injure to injure and spirit, the Korean nation indemnification method also brings it into the nation indemnification scope, its indemnification method Article 3s are the 4th provision:"violate because of the life, body and product it reduce and lose,damage etc., with the result that produce direct injure outside other injure, have to compensate in the illegal act with it have the equal cause and effect relation scope it."The United States,Germany and our country Taiwanese region all aggressive conduct and actions of the job infringement with negative is not bring into the nation indemnification scope. Admit the indemnification that the spirit injure on the American infringement method.The development trend taken a wide view nowadays the national indemnification in the world scope lawmaking, the most obvious characteristics, is a nation indemnification responsibility to extend continuously, the nation enjoys the scope of the responsibility immunities to contract increasingly, more and more of the nation compensate judicatory,the military indemnification is go to lawmaking indemnification etc. bring into gradually a nation indemnification scope.1, nation indemnification the realm extension turn, nation the indemnification is extend by the original administration indemnification to the judicatory indemnification, the lawmaking indemnification is go to military indemnification;2,injure and can compensate the scope extension to turn;3,return then the diversification of [with] principle, extended a nation indemnification the scope of the method.Four-part cent, further perfect our country nation indemnification scope of suggestionThis part, the article thinks the public facilities result in of the damage,the lawmaking organization infringement result in of damage,indirect lose,the spirit injure, administration is not result in of the damage,military injure, court of wrong judge behavior to result in of damage etc. the nation all should undertake the nation indemnification responsibility.End, this text thinks the nation indemnification rules some nations and doesn't accept but doesn't compensate the situation of with responsibility, then don't need the responsibility provision, from practice to see up, some don't need the responsibility provision too breadth to be suffused with, need to make some restrictions. |
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