Exempt from state compensation
Dai hongbin
There are three articles in the first section of Chapter III of the State Compensation Law that specifically stipulate the scope of criminal compensation. Articles 15 and 16 stipulate the scope of criminal compensation for personal infringement and property infringement. However, article 17 excludes compensation. Some people say that this article provides for state exemption, which is still very popular. Is that really the case?
Article 17 of the State Compensation Law stipulates: "In any of the following circumstances, the state shall not be liable for compensation: (1) A citizen is detained and sentenced to punishment for intentionally perjury or forging other guilty evidence; (2) A person who is not criminally responsible according to Articles 14 and 15 of the Criminal Law is detained; (3) A person who is not investigated for criminal responsibility according to Article 11 of the Criminal Procedure Law is detained; (4) Personal acts of the staff of organs exercising the functions and powers of state investigation, prosecution, trial and prison administration that are not related to the exercise of their functions and powers; (five) the damage caused by the intentional act of self-injury or self-injury; (6) Other circumstances prescribed by law. " These six situations all stipulate that "the state shall not be liable for compensation." The original text used the words "the state is not liable for compensation" and there is no "state exemption". The following is aimed at these situations.
1. Citizens are detained or sentenced to punishment for deliberately making false statements or forging other evidence of guilt.
This is the situation stipulated in the first paragraph of Article 17 of the State Compensation Law. Article 15 of the State Compensation Law stipulates: "If the organs and their staff who exercise the functions and powers of investigation, prosecution, trial and prison management infringe upon personal rights in the exercise of their functions and powers, the victims have the right to compensation: (1) wrongfully detaining a person who has no criminal facts or has no facts to prove that he is suspected of serious crimes; (two) the wrong arrest of people without criminal facts ". If a person who has no criminal facts or has no facts to prove that he is seriously suspected of committing a crime is wrongly detained, or a person who has no criminal facts is wrongly arrested, the state shall be liable for compensation. In criminal cases, the compensation for detention is generally based on the result, but it is later determined that the detained person does not constitute a crime, and the relevant authorities in custody should give the state compensation. Under the provisions of the State Compensation Law, a citizen is detained and sentenced for deliberately making false statements or forging other evidence of guilt, but the citizen does not actually constitute a crime referred to in detention or punishment. His detention and punishment is actually the detention and punishment of an innocent person. If a citizen is detained or sentenced for deliberately making false statements or forging other evidence of guilt, according to the provisions of Article 15 (1) and (2) of the State Compensation Law, it seems that the state should also bear the liability for compensation, because it also belongs to wrongful detention or wrongful arrest. Generally speaking, when an innocent person is detained and sentenced to punishment, he should be compensated by the state. Article 17 (1) of the State Compensation Law stipulates that it is a special case to be detained or sentenced for the crime of false confession or forgery of criminal evidence. The special reason is that the main reason for being detained or sentenced to punishment is the intention of the parties themselves. The State Compensation Law excludes this situation from the scope of state compensation, and does not give state compensation to citizens who deliberately make false statements or forge other guilty evidence and are detained or sentenced to punishment. Here to determine whether the state actually gives state compensation is not based on the result that citizens do not constitute a crime, but on citizens' false confessions and forged criminal evidence, so as to determine that the state does not assume responsibility and specifically exclude it. This article belongs to the exemption of state compensation.
Two, in accordance with the provisions of Article 14 and Article 15 of the Criminal Law (later changed to Article 17 and Article 18), detain people who are not criminally responsible.
This is the situation stipulated in the second paragraph of Article 17 of the State Compensation Law.
1, under the circumstances specified in Article 17 of the Criminal Law.
Article 17 of the Criminal Law stipulates from the perspective of the age of criminal responsibility: "A person who has reached the age of 16 commits a crime and bears criminal responsibility. A person who has reached the age of 14 but under the age of 16 commits the crime of intentional homicide, intentional injury, serious injury or death, rape, robbery, drug trafficking, arson, explosion and poisoning, and shall bear criminal responsibility. If a person who has reached the age of 14 and is under the age of 18 commits a crime, he shall be given a lighter or mitigated punishment. If a person is not given criminal punishment because he is under the age of sixteen, his parents or guardians shall be ordered to discipline him; It can also be taken care of by the government when necessary. " The detention of a person who is not criminally responsible mentioned in Item (2) of Article 17 of the State Compensation Law shall refer to Items (3) and (4) "A person who has reached the age of 14 but is under the age of 18 commits a crime and shall be given a lighter or mitigated punishment." And "those who are not given criminal punishment because they are under the age of sixteen shall be ordered to discipline their parents or guardians; It can also be taken care of by the government when necessary. " These two situations. In these two cases: First, a person who has reached the age of 14 but under the age of 18 commits a crime and should be given a lighter or mitigated punishment, and the perpetrator may not bear criminal responsibility. Second, if I am under the age of 16 and have not been subjected to criminal punishment, the perpetrator will naturally not bear criminal responsibility. The criminal law provisions use the word "crime", which confirms that the related behaviors of people of these two age groups still constitute crimes and are guilty people. Just because he is young, the law does not pursue his criminal responsibility. Because the perpetrator has constituted a crime, it does not meet the conditions stipulated in Article 15 of the State Compensation Law for wrongly detaining a person who has no criminal facts or has no facts to prove that he is seriously suspected of committing a crime, and wrongly arresting a person who has no criminal facts. Of course, the state will not be liable for compensation. The situation of this provision is that the state has no responsibility and does not belong to the state compensation exemption.
2, the provisions of article eighteenth of the criminal law.
Article 18 of the Criminal Law stipulates from the perspective of the criminal responsibility ability of special personnel: "A mental patient who causes harmful results when he can't identify or control his own behavior, and is confirmed by legal procedures, shall not bear criminal responsibility, but his family members or guardians shall be ordered to strictly guard and treat him; When necessary, the government forces medical treatment. Intermittent mental patients who commit crimes when they are mentally normal should bear criminal responsibility. If a mental patient who has not completely lost the ability to identify or control his own behavior commits a crime, he shall bear criminal responsibility, but he may be given a lighter or mitigated punishment. A drunken person who commits a crime shall bear criminal responsibility. " Related to Article 17 of the State Compensation Law are Paragraphs 1 and 3 of Article 18 of the Criminal Law.
Paragraph 1: A mental patient who causes harmful results when he is unable to identify or control his own behavior and is confirmed by legal procedures shall not bear criminal responsibility. The criminal law makes it clear that his behavior does not constitute a crime, and he certainly does not bear criminal responsibility because of his serious defects in his ability to act and the lack of elements that constitute a crime. Because the mental patient's behavior ability has serious defects, causing harm to others, although his behavior and damage results have reached the standard of criminal responsibility ability, they cannot be regarded as crimes and will not be investigated for criminal responsibility. For the safety of others and social order, for the safety of mental patients themselves, or to verify whether the perpetrator is really a mental patient, it is necessary to take compulsory measures to detain him. Because the harmful behavior of mental patients does not constitute a crime, they are detained. According to the principle stipulated in Article 15 of the State Compensation Law, it belongs to the detention of innocent people, and the detention of innocent people generally requires state compensation. However, the State Compensation Law has made exclusionary provisions, stipulating that the state is not criminally responsible for this. In this case, the state should be exempted from compensation.
Paragraph 3: A mentally ill person who has not completely lost the ability to identify or control his own behavior commits a crime, and he shall bear criminal responsibility, but he may be given a lighter or mitigated punishment. In this case, the perpetrator has constituted a crime, and only the specific criminal punishment is given a lighter or mitigated punishment. Because this behavior has constituted a crime, he naturally does not bear the responsibility for his detention, which does not fall within the scope of compensation stipulated in Article 15 of the State Compensation Law, and he will not be compensated.
Three, in accordance with the provisions of Article 11 of the Criminal Procedure Law (later changed to Article 15), the person who does not pursue criminal responsibility shall be detained.
This is the situation stipulated in the third paragraph of Article 17 of the State Compensation Law. Article 15 of the Criminal Procedure Law stipulates: "In any of the following circumstances, criminal responsibility shall not be investigated, and if it has been investigated, the case shall be dismissed, or prosecution shall not be initiated, or the trial shall be terminated, or the person shall be acquitted: (1) The circumstances are obviously minor and the harm is not great, and it is not considered a crime; (two) the crime has passed the limitation period; (3) Being exempted from punishment by an amnesty order; (4) Failing to tell or withdrawing a crime that should be dealt with only after being told according to the Criminal Law; (5) The defendant died; (6) Being exempted from criminal responsibility according to other laws. "
1, the circumstances are obviously minor and the harm is not great, so it is not considered a crime.
Most people think that in this case, the perpetrator has constituted a crime, but because the circumstances are minor and the harm is not great, it is not considered a crime, but it still belongs to the category of crime. Therefore, compensation should not be paid for wrongful arrest, detention or wrongful arrest. Of course, it does not belong to the state exemption, but the state itself is irresponsible and does not assume the state's liability for compensation.
2, the crime has passed the limitation period.
The perpetrator has constituted a crime and should be investigated for criminal responsibility. Criminal responsibility shall not be investigated because the limitation period for prosecution has expired. The crime has been constituted and should not be compensated by the state. Does not belong to state immunity.
If the perpetrator constitutes a crime, he should also bear the corresponding criminal responsibility, because the release of national Amnesty cannot be investigated for criminal responsibility. The state is not liable for compensation, which is not an exemption.
4, in accordance with the criminal law to deal with the crime, did not tell or withdraw to tell.
The private prosecutor did not tell him, and the court could not make a judgment on the relevant person, let alone a guilty verdict. If the private prosecution is withdrawn, the court will no longer continue to hear and judge private prosecution cases without plaintiffs, nor will it make a guilty verdict on the defendant. In this case, it is impossible to judge whether the defendant is guilty from the perspective of court judgment. Maybe he is really guilty or innocent. Due to the lack of judgment, there is no legal document that clearly determines his guilt or innocence. According to the spirit that the defendant cannot be found guilty without a court decision, the defendant should be presumed innocent in a case of private prosecution. In this case, if he is detained, it should generally be regarded as the detention of innocent people. According to the spirit of Article 15 of the State Compensation Law, the detention of innocent people should be compensated by the state. However, because the private prosecutor voluntarily withdrew the lawsuit, the private prosecution case could not continue and a judgment could not be made. It is also to encourage reconciliation between the two parties in private prosecution cases and increase social harmony and stability. Generally, the court is allowed to withdraw the lawsuit. The withdrawal of private prosecution is generally made when the private prosecutor and the defendant are reconciled, understood and properly handled. Even if the court decided to detain the defendant before, it was understood and properly resolved through reconciliation between the two sides. Generally, after the private prosecution is withdrawn, the defendant will not raise any objection or claim for compensation for detention, even if it is raised. And whether the defendant is really guilty is indeed defined. If the private prosecutor is not allowed to withdraw his private prosecution and continue to hear the judgment, it is really unclear. Based on the above considerations, even if the defendant is detained after withdrawing the private prosecution, the state will not be compensated. This situation should be exempted from state compensation.
If the defendant dies, the situation is similar to telling the case.
Other laws and regulations exempt from criminal responsibility, no analysis.
Four. Personal behavior of the staff of the organs exercising the functions and powers of state investigation, prosecution, trial and prison management unrelated to the exercise of their functions and powers.
This is the situation stipulated in Item (4) of Article 17 of the State Compensation Law. Because the damage is caused by an individual, the actor should bear the corresponding civil liability and make compensation. It has nothing to do with the actor's unit and authority behavior, and there is no causal relationship between the state organs and their authority behavior and the damage consequences, so the state should not be liable for compensation. This is an irresponsible case and does not belong to the state compensation exemption.
Five, damage caused by citizens' self-injury, self-injury intentional behavior.
This is the situation stipulated in Item (5) of Article 17 of the State Compensation Law. Self-injury and self-injury are caused by the actor himself, which has nothing to do with others and the functions and powers of state organs and their staff. The liability for damage should be borne by the actor himself. The state has no responsibility and does not belong to the exemption of state compensation.
Other circumstances stipulated by law are not detailed here.
From the above analysis, it can be seen that the fifth item of Article 17 of the State Compensation Law (not to mention the sixth item) involves the situation that some countries are not liable originally, and some countries are liable but should be exempted from liability for compensation, and the situation is more complicated.
Cases of national immunity include: 1. Citizens are detained or sentenced to punishment for deliberately making false statements or forging other evidence of guilt. 2. The behavior of mental patients causes harmful results. 3, in accordance with the criminal law to deal with the crime, did not inform or withdraw the notification.
Cases in which the state is not responsible are: 1, and the age of no criminal responsibility. 2. Intermittent mental patients commit crimes when they are mentally normal, and intermittent mental patients commit crimes when they are mentally normal. 3. If the circumstances are obviously minor and harmless, it is not considered a crime. 4, the crime has passed the limitation period. 5. Freedom from punishment due to amnesty. 6, personal behavior has nothing to do with the exercise of authority. 7. If the defendant dies, the situation is similar to telling the case. 7, self-injury, self-injury intentional behavior caused damage.
Article 17 of the State Compensation Law has two kinds of matters: the state has no responsibility and is exempted from responsibility. Therefore, this article cannot be simply regarded as a national exemption clause. We should return to the written expression of this article, which should be regarded as the scope of the state's liability for compensation. It is necessary to make it clear that "the state is not liable for compensation" is a kind of identification of the consequences of liability, but there is no hint from the reason. We can't see the reason why the state is not liable for compensation, whether it is born irresponsible or responsible but should be exempted from liability. Article 17 of the State Compensation Law stipulates that the state shall not be liable for compensation, which includes not only the state exemption, but also the state itself.