Analysis according to law
Public security organs shoulder the obligation of maintaining social order, cracking down on criminal offences, and protecting the personal rights and property rights of citizens, legal persons and other organizations from illegal infringement. If the public security organ fails to perform its legal obligations and causes personal injury to citizens, it constitutes a negative violation of citizens' personal rights, which should belong to "other illegal acts that cause personal injury or death to citizens" in Item (5) of Article 3 of the State Compensation Law.
The Supreme People's Court's "Reply on whether public security organs should bear the administrative compensation responsibility when they fail to perform their statutory administrative duties" stipulates: "If the legitimate rights and interests of citizens, legal persons and other organizations are damaged due to the failure of public security organs to perform their statutory administrative duties, they should bear the administrative compensation responsibility. When determining the amount of compensation, factors such as the role played by the failure to perform legal obligations in the damage process and the damage result should be considered. "
This case belongs to the case of administrative omission. The so-called administrative omission refers to those cases in which the plaintiff should apply to the administrative organ for litigation or the administrative organ should take the initiative to act according to its functions and powers and the administrative organ fails to perform its duties. If the plaintiff wants to sue the administrative agency for inaction, he must prove that there is a legal interest between himself and the defendant's inaction and the fact that inaction exists. Mainly reflected in the following aspects:
1. The plaintiff shall first prove that he is a citizen, legal person or other organization with an interest in the alleged omission. In an administrative lawsuit against omission, the plaintiff should prove that he has a legal interest in the omission of the defendant in the administrative organ and bear the burden of proof. In addition, according to Article 4 1 of the Administrative Procedure Law, if the plaintiff believes that a specific administrative act infringes on his legitimate rights and interests and brings a lawsuit to the people's court, he shall bear the burden of proof for the existence of the specific administrative act. Only when the evidence adduced by the plaintiff can prove the existence of the specific administrative act being sued and meet other conditions for prosecution can the people's court accept it. If the evidence adduced by the plaintiff can't prove the existence of the specific administrative act being sued and meets other conditions for prosecution, the people's court will decide not to accept or reject the prosecution. Therefore, in an administrative litigation case where the plaintiff sues the defendant for inaction, the plaintiff should bear the burden of proof to prove that the defendant's administrative inaction exists. The plaintiff must provide evidence to prove that the application has been filed with the administrative organ, and the administrative organ has failed to perform its statutory duties within the statutory time limit.
2. Prove the fact that he applied to the defendant. Article 4, paragraph 2, of the Provisions on Evidence in Administrative Litigation clearly stipulates: "In the case of prosecuting the defendant's omission, the plaintiff shall provide the evidential materials he applied for in administrative litigation. However, the following circumstances are excluded: (1) the defendant shall voluntarily perform his statutory duties according to his functions and powers, and (2) because the defendant's application registration system is not perfect, the plaintiff cannot provide relevant evidence materials and can make a reasonable explanation. " This article clearly stipulates that in the case of suing the defendant for inaction, the plaintiff shall provide the evidential materials he applied for in the administrative procedure and bear the burden of proof. At the same time, it stipulates that the plaintiff is exempted from the burden of proof when filing an application.
3. Prove the fact that it suffered losses due to specific administrative omission in the litigation of requesting administrative compensation for rights damage caused by specific administrative omission. According to the provisions of the Administrative Procedure Law, administrative compensation litigation is a separate procedure, which is basically the same as the civil procedure. The trial of administrative compensation cases, whether it is a joint trial or a separate trial, should be based on the prior confirmation that the specific administrative act being sued is illegal. Therefore, no matter whether the plaintiffs file an administrative compensation lawsuit individually or jointly, they should bear the burden of proof for the fact that they have suffered losses due to the division of the specific administrative act being sued. Article 5 of the Provisions on Evidence in Administrative Litigation clearly stipulates: "In administrative compensation litigation, the plaintiff shall provide evidence for the fact that the defendant's specific administrative act has caused damage." If the defendant's administrative omission causes losses, he may bring an administrative compensation lawsuit according to law, but whether he brings an administrative compensation lawsuit alone or incidentally, he shall bear the burden of proof for the fact that the omission causes losses.
In this case, the police are responsible for fighting gangsters to protect the safety of citizens. After asking for help, Shen not only did not help, but fled the scene, which was an act of failing to fulfill his legal obligation to protect personal rights. The families of the victims have the right to claim compensation from the Public Security Bureau. How to deal with the police's violation of law and dereliction of duty shall be handled by the discipline inspection and supervision department of the public security organ and the cadre and personnel department in accordance with relevant regulations.
skill
How to calculate the amount of administrative compensation?
1. If a citizen's right to life and health is infringed, the compensation shall be calculated in accordance with the following provisions.
(1) If physical injury is caused, medical expenses shall be paid and the income reduced due to absenteeism shall be compensated. The daily compensation for income reduction is calculated according to the average daily salary of employees in the previous year, and the maximum is five times the average annual salary of employees in the previous year; The average daily wage of employees in the previous year is calculated by dividing the average annual wage of employees by the number of legal working days in the whole year. The average annual salary is based on the figures published by the National Bureau of Statistics.
(2) If a person is partially or completely incapacitated, he shall pay medical expenses and disability compensation. Disability compensation is determined according to the degree of disability. The maximum amount of partial loss of working ability is 10 times of the average annual salary of national employees in last year, and the total loss of working ability is 20 times of the average annual salary of national employees in last year. Those who have completely lost their ability to work shall also pay the living expenses of the disabled they support.
(3) If death is caused, death compensation and funeral expenses shall be paid, the total amount of which shall be 20 times of the average annual salary of employees in the previous year. Living expenses shall also be paid to those who were unable to work and were supported by the deceased before his death.
(two), (three) the payment standard of living expenses shall be handled with reference to the provisions of the local civil affairs department on living relief. If the dependent is a minor, the living expenses shall be paid to 18 years old; Other people who are unable to work are given living expenses until they die.
2. If the personal freedom of citizens is infringed, the daily compensation shall be calculated according to the average daily salary of employees in the previous year.
-Quoted from Yanbian People's Publishing House, Master of Law.