Comparisons Between Administrative Compensation Syste M In Mainland China And Taiwan

As the core content of national compensation law and an important part ofadministrative relief system, administrative compensation system plays a significantrole in protecting legitimate interests of citizens, legal persons and otherorganizations. However, since the implementation of the system, limited by variousfactors like historical circumstances and realistic conditions, administrativecompensation system in mainland China still has some shortcomings, althoughhaving been amended twice, which are shown in doctrine of liability fixation, scopeof compensation, procedure of compensation and organ liable for compensation. Interms of the practical situation in China, based on the comparison between mainlandChina and Taiwan, this paper attempts to probe into feasible solutions, aiming toprovide theoretical support for the improvement of our administrative compensationsystem.The paper mainly includes following points.In section1, it makes a comparison of the doctrine of liability fixation betweenmainland China and Taiwan. With reference to globally prevailing doctrine ofliability fixation, it analyzes current doctrine of liability fixation in mainland China,and discovers that unitary doctrine of liability fixation has resulted in a number ofproblems. Therefore, we may reference the dual doctrine of liability fixationcurrently practiced in Taiwan, and should eventually establish a diversified liabilityfixation system mainly focusing on doctrine of liability fixation.In section2, it compares the scope of compensation in mainland China andTaiwan. Legislation in Taiwan references the situation in Japan and Korea, andincludes the compensation caused by damages to communal facilities. The scope ofcompensation in mainland China is comparatively limited. It recommends thatcompensation caused by damages to communal facilities, abstract administrative acts,discretionary administrative acts, internal administrative acts and negativeadministrative acts should also be included into the scope of administrativecompensation.In section3, it compares the procedure of compensation in mainland China andTaiwan. Firstly, in mainland China, the administrative organ has the power to pre-handle the compensation request, while in Taiwan, the “agreement first”principle is applied, which places the organ liable for compensation at an equal legalstatus, weakens administrative power and restricts the administrative body frommaking unilateral decisions to a great extent. Scholars have different understandingsfor relevant stipulations in mainland China. This paper suggests that the procedure ofhandling a compensation request should be stipulated by laws, and the operationstandards of pre-handling procedure should be made clear. Secondly, in theprocedure of compensation lawsuit, we may reference to adopt the method of gettingstate compensation by means of civil action, as practiced in Taiwan. Finally, itdiscusses the procedure of recovery. Taiwan uses the words of “claim forcompensation”, which sounds to be more prudent. Compared to the case in Taiwan,the recovery procedure in mainland China does not allow civil servants to file a suit,which cannot satisfactorily protect the personal interests of civil servants. It isadvisable that we may learn from the stipulation in Taiwan.In section4, it compares the organ liable for compensation in mainland Chinaand Taiwan. Legislative stipulations in Taiwan can be used as a reference to set arelatively independent committee responsible for compensations, which specializesin handling compensation requests resulted from infringing acts.