The State Compensation Law of People's Republic of China (PRC) (hereinafter referred to as the State Compensation Law) came into force on June 20 1 1 year, 5438+0995 65438+ 10/day. The formulation of this law not only draws lessons from some experiences of foreign countries' compensation system, but also pays full attention to the combination with China's specific national conditions. It has its own characteristics, but it is the first time in China. This paper attempts to discuss the scope of state compensation liability that is not determined in the State Compensation Law.
The State Compensation Law stipulates: "In order to protect the rights of citizens, legal persons and other organizations to obtain state compensation according to law and promote the state organs to exercise their functions and powers according to law, this Law is formulated in accordance with the Constitution." If a state organ or its staff infringes upon the lawful rights and interests of citizens, legal persons and other organizations and causes damage, the victim has the right to obtain state compensation in accordance with this law. Thus, state compensation refers to the compensation that the state organ and its staff illegally exercise their functions and powers to infringe upon the lawful rights and interests of citizens, legal persons and other organizations and cause damage.
The scope of state compensation, from the perspective of the state, refers to which state organs and their staff are liable for compensation; From the perspective of citizens, it refers to the state's liability for compensation for the damage to citizens' rights. According to the provisions of the State Compensation Law, state compensation includes administrative compensation and judicial compensation, and judicial compensation is divided into criminal judicial compensation and non-criminal judicial compensation. The so-called administrative compensation refers to the compensation given by the administrative organ and its staff who illegally exercise their functions and powers and infringe upon the legitimate rights and interests of citizens, legal persons and other organizations; Criminal compensation refers to the compensation given by organs and their staff who exercise the functions and powers of investigation, prosecution, trial and prison management and violate the legitimate rights and interests of citizens, legal persons and other organizations by illegally exercising their functions and powers. Based on the legislative experience of foreign state compensation system and the reality of our country, the author thinks that the following acts should also be included in the scope of state compensation in our country.
Legislative compensation
Legislative compensation means that the state is responsible for the damage caused by the legislature's illegal exercise of its functions and powers. The internationally accepted practice is to exempt the legislature from damages caused by illegal acts. This is because the damage caused by legislative acts in many countries is universal. They think that the legislature is the executor of sovereignty, and the law comes from it, so there is no problem of breaking the law. Therefore, they adhere to the principle of sovereign immunity, and generally stipulate that the legislature will not bear the responsibility of state compensation. Therefore, these countries have no legislative compensation. It is generally believed that the people's congress is the legislature of our country, representing the people's will and making laws according to the people's will. Therefore, the legislature has no illegal acts and results, and I believe that the law itself cannot cause damage. Therefore, there is no legislative compensation in the State Compensation Law. However, the reality is that legislative actions may also harm citizens. With the vacillation of the theory of irresponsibility of sovereignty and the spread of concepts such as civil liability for official duties, some countries began to assume the liability for compensation for legislative functions. In France, Germany and other countries where the compensation system is relatively developed, the legislature should also be liable for the damage caused by the exercise of its functions and powers within a certain range. Article 5 of Germany's State Compensation Law 198 1 stipulates: "If the damage is caused by the lawmaker's illegal behavior, the liability for compensation will only occur if the law stipulates and within the prescribed scope." France's compensation law stipulates that specific people or a few people have suffered huge losses, and the state should bear the liability for compensation, but it is greatly restricted. Generally speaking, immoral interests are damaged by making laws, and the state will not compensate them; No compensation shall be paid for the damage caused by laws enacted by the state to protect the vital interests; Only when the state is not at fault and the damage caused by legislative acts reaches a considerable level, the state will bear the liability for compensation. Although the legislative compensation in these countries is limited to a very narrow range, after all, the state has begun to take responsibility for the damage caused by legislation to citizens. This is another great progress in democracy and the legal system, which embodies the concept of equality between the state and citizens and is worth learning.
Judging from China's specific situation and reality, laws, resolutions and orders formulated by the National People's Congress and its Standing Committee, laws and regulations formulated by local people's congresses at all levels, administrative regulations formulated by the State Council, and regulations formulated by ministries and local governments are all legislative acts. According to the provisions of Articles 62, 67, 99 and 104 of the Constitution of People's Republic of China (PRC), the National People's Congress has the power to revoke local laws and resolutions formulated by local state organs of provinces, autonomous regions and municipalities directly under the Central Government that are in conflict with the Constitution, laws and administrative regulations; The National People's Congress has the right to change or cancel inappropriate decisions of the NPC Standing Committee, and local people's congresses at or above the county level have the right to change or cancel inappropriate decisions of the Standing Committee of the people's congress at the corresponding level. These revoked "inappropriate" laws, regulations, resolutions and decisions that are in conflict with the Constitution, laws and administrative regulations may infringe upon the legitimate rights and interests of some citizens, legal persons and other organizations during the implementation process, causing losses to the parties concerned, which constitutes the state's liability for compensation, and the state shall compensate them. Therefore, the author believes that the state enjoys judicial immunity from the laws and regulations formulated by the National People's Congress, and the state is not responsible for the damage caused by the legislative acts of the National People's Congress. If the laws, regulations and decisions made by the organs of power in the National People's Congress Standing Committee (NPCSC), provinces, autonomous regions and municipalities directly under the Central Government and the organs of power at the next lower level are found to be in violation of the Constitution and relevant laws and regulations, and the legitimate rights and interests of some or specific citizens, legal persons or other organizations are damaged in the specific implementation process, the state shall be liable for compensation and compensate the victims; However, if general damage is caused, the state will not compensate, because this is in line with the principle of equal burden on the public.
Military compensation
At present, there are a large number of military compensation in practice, many of which should not be compensated or only a small amount, often because of the entanglement of the parties, they have to pay compensation or have to pay more compensation. In some cases, it even affected the normal military training, and the troops paid a heavy price for it. The main purpose of bringing military compensation into the scope of state compensation is not only to compensate the damage caused by illegal acts, but also to correct the unreasonable situation of excessive compensation, strengthen the needs of national defense construction and army building, coordinate the military-civilian and military-political relations, and safeguard national stability, unity and long-term stability.
Military compensation means that citizens, legal persons and other organizations are damaged by the illegal acts of the staff of the state military organs in performing their duties, and the victims have the right to request state compensation. The legal system of compensation system in Taiwan Province area of China includes Military Expropriation Law and Nuclear Damage Compensation Law, both of which are special laws concerning compensation for illegal acts of the army, and are worth learning from.
According to the provisions of the State Compensation Law and the spirit of relevant legislation, the author believes that military compensation should meet the following requirements:
Damage the existence of facts. Any compensation is for damage. Without damage, compensation is out of the question. Military liability is no exception. The first condition is the existence of damage, which must be of a certain nature in order to be compensated by the state. Not all damage can be compensated by the state. (1) Damage consequences have occurred and there is real damage, not uncertain damage that may occur in the future; The damage must be personal rights and property rights; (3) the damage must be the legitimate rights and interests protected by law, and the illegal interests will not be compensated. In other words, only when the legitimate rights and interests of citizens, legal persons and other organizations are damaged by military organs or soldiers will the state bear the responsibility for military compensation. The infringers who caused the damage were state military organs and soldiers or organizations and individuals entrusted by them. If non-military organs and their staff cause damage, military organs shall not be liable for military compensation.
The act of illegally exercising power. According to the provisions of the state compensation law, the state compensation liability must be caused by the illegal exercise of powers by state organs and their staff. The imputation principle of military compensation liability should also apply the principle of illegality. That is, military organs and soldiers illegally exercise their functions and powers, causing damage and causing military liability for compensation. Specifically: ① The behavior that causes damage must be the behavior of exercising military management power, such as the behavior of military organs or soldiers in civil activities and the personal behavior of soldiers, which has nothing to do with the exercise of military authority and does not constitute state infringement; (2) You must exercise your functions and powers illegally.
There is a causal relationship between illegal acts and damage consequences. Only when there is some objective connection between the tort of military organs and the fact of damage will military liability for compensation arise. The tort of military organs is the cause, and the damage suffered by the victims is the result. The existence of this causal relationship between them is a necessary condition for the establishment of military compensation liability. The cause of legal causality is limited to the cause directly related to the damage, that is, the behavior and result must be caused by some behavior rather than other behaviors. If there is no such close relationship between behavior and result, causality cannot exist.
In military compensation, we should distinguish between national defense behavior and military behavior. Because article 12 of China's Administrative Procedure Law stipulates that "national defense, foreign affairs and other state acts" do not belong to the scope of acceptance by the people's courts, it is necessary to distinguish between them to distinguish whether they have the right to appeal and whether they have the right to compensation. According to China's current laws, "national defense behavior" refers to the military activities and activities directly related to the military conducted by the NPC Standing Committee, the State Council and the Central Military Commission in order to defend national sovereignty, territorial integrity and security, resist foreign aggression, quell unrest and stop subversive activities. These activities mainly include declaring and conducting war, mobilizing and preparing for war, declaring and implementing martial law, conducting large-scale military exercises, building large-scale military facilities and bases, and conducting strategic weapons tests. Other activities that should not enjoy judicial immunity.
On the issue of trial jurisdiction of military compensation, the author thinks that it is more reasonable to be under the jurisdiction of military courts. Military compensation cases do not apply to the jurisdiction of local courts, because they involve the relationship between local authorities and troops and the confidentiality of military activities. If the trial is conducted by a local court, first of all, local protectionism is prevalent and has extended to the judicial department. Some protectionist phenomena in local courts make it difficult to deal with military compensation disputes in time and correctly, and some local people even pester them unreasonably, which leads to the difficulty or injustice in handling military compensation cases. Second, if local judicial personnel investigate or participate in the investigation of military compensation cases, it will inevitably involve some military secrets, which is obviously not conducive to military secrecy in many cases. If we want to do a good job of confidentiality, it will inevitably hinder the development of investigation and will inevitably lead to a dilemma in the trial work. These are not conducive to correctly and timely handling military compensation disputes and protecting national defense interests according to law. Therefore, in the presence of special military courts in the army, the jurisdiction of military courts is conducive to the trial of military compensation cases. However, if the illegal acts of military courts, military procuratorates and their staff cause damage to the legitimate rights and interests of citizens, legal persons and other social organizations, they should not be included in the scope of military compensation, but should be included in the scope of judicial compensation, and compensation should be made according to the nature, composition and procedures of judicial compensation. Although both military courts and military procuratorates belong to the military ranks, they are both led by the Supreme People's Court and the Supreme People's Procuratorate and belong to judicial organs. Therefore, cases of illegal infringement by military judicial organs should be included in the scope of judicial compensation, which is consistent with the provisions of our Constitution.
Compensation for mental damage
Whether mental damage is included in the scope of state compensation has always been a controversial issue. The first section of the second chapter of China's State Compensation Law summarizes the scope of administrative infringement damage as personal rights and property rights, but excludes the damage suffered by reputation rights and honor rights in personal rights in specific cases. Because it belongs to the scope of mental damage, it is difficult to calculate with money, so it is not compensated. Mental injury is an invisible injury, which is difficult to show partiality in money or in kind, but it can be truly felt. Therefore, with the development of the state compensation system, especially the existence of mental damage compensation in the field of civil relations, it is obviously unfair for the state not to bear the responsibility for mental damage compensation. The so-called mental damage refers to the mental pain caused to people, including mental sadness and disappointment, such as the infringement of the right of reputation, name and portrait, which infringes on people's reputation and feelings. Mental damage can occur alone or together with other damage. If the sacrifice of soldiers on the battlefield causes mental damage to their relatives, it can also happen at the same time as the damage to the victim's own right to health, personal freedom, personality and property rights. At present, some countries have begun to compensate for mental damage, and mental damage has gradually entered the scope of state compensation, but generally speaking, mental damage must reach a certain level before it can be compensated by the state. Article 4 of Japan's "State Compensation Law" stipulates that the state or public organization's liability for damages includes not only the special provisions on state compensation, but also the compensation for mental damages stipulated in the civil law. The provisions of the Swiss Civil Code on compensation for mental damage also apply to the state liability for compensation. At first, the French administrative court was not responsible for mental damage that could not be calculated by money, such as reputation and emotion. Later, the restriction was gradually lifted, and the administrative organ was sentenced to bear the responsibility of compensation for mental damage. At present, it has been gradually expanded to include compensation for damage to faith, beauty and reputation.
At present, China's civil law does not rule out compensation for mental damage, and there are many such cases in reality. Therefore, the state has no objection to compensation for mental damage, and only needs to consider the scope, methods and standards. Therefore, it is also necessary to bear the state compensation responsibility for such cases in the state compensation.