Research Of The State Compensation Liability’s Constitutive Requirements

From the history of the world scope, the national compensation system wentthrough several stages which include negation, relative certainty and fully affirmed.And the national compensation system connects with the development of manyprinciples like people’s sovereignty, rule of law, protection of human rights, stateresponsibility and so on. In nowadays, there is no doubt that the State shall beresponsible for compensating undoubtedly damaged the parties on the exercise ofpublic powers. And the national compensation system had been built in manycountries.In the national compensation theory, the liability theory is more specific andclear than the doctrine of liability fixation as the basis and standard when judging thenation whether nation will bear the legal liability or not. In China, although there aretwo main theories "Three elements" and "four elements" in the academic circles, thereis no essential difference. Generally speaking, the main elements, the behavior factor,damage and causality are all indispensable. However, both theories are parallelconstitution factors, and ignore the ground for elimination of misfeasance, and lack ofpracticability at the judicial practice, they can not reflect the relief function and theprotection of human rights perfectly. Thus, we try to quote “The three class ofprogressive elements” in criminal law, and "The tort behavior of three layer structure"in tort law. We also hope to fully demonstrate the advantage and the rationality of thetheory in both criminal and civil fields, then provide the Legitimacy andconvincingness for the "Three class" constitution theory”, and build a new nationalcompensation system which is different from the past. All in all, I’ll try my best tohelp the correct use of the national compensation system at the development of theoryand judicial practice.