China Youth Daily Zhongqing Online reporter noticed that these cases have brought the controversy that has been existing in the state compensation system back to the public view: how to determine the compensation for mental damage? Should indirect property losses be compensated? Whether and how to pay the appeal fee? Is it reasonable to "cover up" other than statutory compensation? The reporter interviewed relevant lawyers and scholars.
Difficult to quantify "compensation for mental damage"
Shi Likang, a lawyer of Beijing Shi Jing Law Firm, told the reporter that Gao Chao, one of the defendants in the case of Yuan Jiacheng, a former criminal gang in Liaoning, was acquitted by Yingkou Intermediate People's Court of Liaoning at 20 1 1 in October. Gao Chao, who was detained for 73 1 day, finally received state compensation of10.8 million yuan, including personal freedom compensation of10.7 million yuan.
Shi Likang said that in June this year, Gao Chao applied to the next higher court to increase the mental damages to177,000 yuan. "After being locked up for 73 1 day, he got only100000 yuan in mental damage compensation, accounting for 5.6% of personal freedom compensation." This ratio is considered too low by lawyers. According to the relevant judicial interpretation, compensation for mental damage does not exceed 35% of compensation for personal freedom in principle. However, this ratio has repeatedly broken through in recent years-49% cases, 69% cases of Uncle Zhang and 86% cases of Nian Bin.
Many lawyers said that if there is no specific compensation standard for mental damage, not only the applicant may be at a loss because of the lack of clear guidelines, but also the organ liable for compensation may have no evidence to follow.
Zhang Jianwei, a professor at Tsinghua University Law School, believes that the length of the defendant's detention, whether the parties and their families insist on appealing, and the difference in local economic development level may all affect the level of compensation for mental damage. Wang Jingbo, a professor at the Institute of Government under the Rule of Law of China University of Political Science and Law, believes that in some cases, "improper factors", such as leaders' concern and public opinion, have to be over-considered.
Wang Jingbo suggested that we should consider the personal freedom and life and health status of the parties concerned, the detention period, the impact of the case on the family and society, and the reasons for innocence.
Some places have already tried water. For example, on 20 1 1, the Guangdong Provincial Public Security Bureau jointly issued the Summary of the Symposium on Several Issues Concerning the Application of Mental Damage Relief by State Compensation, which made a clear quantitative standard for the amount of mental damage relief-based on the length of personal freedom, it was divided into 20 days, two months, three months, 1 year and three years. The lowest grade is limited to 1000 yuan for 20 days, and the consequences of mental damage are particularly serious. The highest grade is limited to 10 for more than 200,000 yuan, and the consequences of mental damage are particularly serious.
Zhang, a professor at the Law School of Minzu University of China, believes that every case is different and it is necessary to give judges discretion. However, the court can learn from Guangdong's practice, formulate specific discretionary benchmarks, and make them public, so as to restrain discretionary power and improve compensation standards.
How to define indirect loss of property? Should I pay?
Fujian businessman Jiang invested and founded a clubhouse in 2009. 20 12 was detained on suspicion of affray due to a lease dispute. Five days later, the clubhouse was declared closed. After being sent back for retrial, appeal, etc. , 20 15 1 1, Xiamen Intermediate People's Court finally found Jiang innocent.
Jiang's family filed an application for state compensation of 230 million yuan, of which the loss caused by the closure of enterprises reached 225 million yuan. Jiang's wife told reporters that if they are not detained, they can use other property under their names to deal with lease disputes. Once Jiang was detained, the original partner came to you, and Jiang Lai didn't handle it, so this enterprise was undoubtedly in jeopardy.
In fact, the Jiang family is trying to challenge the curse of "indirect loss" in state compensation. Ding Zhaozeng, an associate professor at the Law School of Fujian Normal University, said that it is generally believed that direct loss is the loss of acquired property, and indirect loss is the loss of available benefits, that is, the benefits that should be obtained are not obtained due to infringement. In this case, strictly speaking, many property losses of Jiangxian Road may be considered as "indirect losses", while some property losses auctioned or sold are caused by the original creditor-debtor relationship and may not be within the scope of state compensation.
The court held that the premise of compensation for property losses is that the property rights of citizens, legal persons and other organizations have been violated and damage has been caused. The detention in this case is aimed at personal rights, so the enterprise losses claimed by family members are not caused by detention, and the claim for compensation is not supported.
Ding Zhaozeng told reporters that it is an indisputable fact that Jiang's personal freedom was damaged and the economic loss was caused by the functions and powers of state organs. However, the current law cannot reasonably compensate his economic losses, which is contrary to the legislative spirit of state compensation. "Legislators should make relevant amendments to the State Compensation Law, implement' punitive damages', and give economic compensation to victims for direct and indirect losses."
Ma Huaide, vice president of China University of Political Science and Law, who participated in the legislation of the State Compensation Law, said that one of the main points of state compensation is "direct loss compensation", that is, "damage to property rights is compensated according to direct loss, and indirect loss is not compensated, even if it is inevitable loss of interests". "Indirect losses are like, for example, if you deduct a car from me, my car may go out to pull goods, and maybe you can earn tens of thousands in three years. This kind of loss is uncertain, because commercial investment is risky and it is impossible to make a stable profit, so it is not easy to calculate the amount of loss. "
Chen Chunlong, former vice president of the Beijing Higher People's Court and director of the State Compensation Commission, told the reporter that the State Compensation Law should further expand the scope of criminal compensation, and adjust the current "solatium standard" to "compensation standard", which is not limited to statutory compensation, but should be based on the actual damage and make up for the losses suffered by the victims in the process of infringement by state organs as much as possible.
Whether and how to pay the appeal fee?
The reporter noted that many people who were rehabilitated lodged complaints about accommodation, transportation, printing and attorney fees when applying for state compensation. However, judging from some major cases of public concern, almost none of these requests were supported.
Can the legal fees be supported? Provincial courts have different approaches to this. Professor Ma Huaide believes that the main problem is that the state compensation law adopts the principle of statutory compensation, that is, the damages stipulated by law are paid according to the standards, methods and amounts stipulated by law. "Although some damages have indeed occurred, such as legal fees, legal fees, etc., they are not included in the standard of legal compensation. Some courts strictly enforce the provisions of the State Compensation Law and it is impossible to pay him this compensation. "
At the same time, another principle of the state compensation law, "direct loss", is not clearly defined. "This left room for the judge to explain. Some judges include legal fees and legal fees in direct losses, while others do not, resulting in differences in actual operation. "
Can these losses be compensated? Should they be compensated? Ma Huaide said that compensation should be paid, but there is no clear legal basis. "Therefore, we have been calling for the next revision of the State Compensation Law to change the scope of compensation from statutory compensation and direct damage compensation to reasonable compensation. As long as it is a reasonable loss, it should be compensated, not limited to direct losses. "
Someone tried to change. 20 15 Zhejiang higher people's court made it clear in article 12 of "answers to some questions about current state compensation work (1)" that "article 36 (8) of the state compensation law stipulates that if other damage is caused to property rights, compensation shall be made according to direct losses. What is direct loss? The Supreme Court has not made any judicial interpretation and relevant provisions. In practice, compensation claimants often demand compensation for attorney fees, transportation fees and accommodation fees paid for petitions over the years, which is reasonable. "
The Zhejiang Higher People's Court believes that the court can determine the appropriate amount of compensation through consultation according to the specific circumstances of the case, and include it in the scope of compensation in the name of other direct losses, so as to urge the victims to claim their interests.
Ma Huaide suggested that standards and scales should be unified. "Through legal means, at least through judicial interpretation, further clarify the scope and standards of compensation and point out the specific costs."
Fuzzy "extra-legal compensation"
In fact, in addition to state compensation, some places will "secretly" pay "extra-legal compensation" to some rehabilitated persons.
Many rehabilitated persons and their state compensation attorneys confirmed this phenomenon to China Youth Daily and Zhongqing Online reporter. The amount of "extra-legal compensation" can account for half of the "legal compensation", and preferential treatment in housing, social security and resettlement fees has also appeared in the negotiation of "extra-legal compensation". It is also said that the premise of obtaining "extra-legal compensation" is to promise that the other party will not be held accountable and the amount of compensation will be kept confidential.
In the eyes of legal scholars, the soothing principle and direct loss compensation principle of state compensation law lead to low property rights and personal rights in practice. Therefore, the advantage of "extra-legal compensation" is that it can increase the amount of compensation obtained by the applicant, make the rights more complete and sufficient, and promote the settlement of disputes. But the disadvantages are also obvious.
"The exercise of public power must comply with the law." Zhang Hong, vice president of the School of Law of Beijing Normal University, believes that if the extrajudicial compensation is acquiesced, similar cases may have different requirements for compensation applicants and different compensation amounts. "From the result, this is unfair." At the same time, "extra-legal compensation" is also an integral part of public funds. If left unchecked, it may reflect that some local governments have loopholes in the expenditure and management of public funds.
Ma Huaide also believes that "extra-legal compensation" should be avoided if it can be avoided. "If the purpose is to calm things down, I don't think it is appropriate to lose something that should not be lost." He suggested that the victim's loss can be compensated by increasing the amount of compensation for spiritual comfort, but in principle, compensation should still be made within the statutory standards and scope in accordance with the provisions of the State Compensation Law. "After all, it is state treasury funds, and compensation should be reasonable and legal."
Some scholars believe that in the future, local governments may be allowed to make some modifications to the so-called "extra-legal compensation" on the premise of affordable financial resources, such as setting a minimum value, but not capping it. The government with strong financial resources can pay more, and those with weak financial resources can pay compensation according to the minimum amount. The court can also provide appropriate judicial assistance to help the applicant obtain compensation and avoid going through extra-legal channels. However, the most fundamental way is to improve the state compensation system.