(Chapter 65438 +0-3)
1. Multiple choice questions: 2 points for each blank, *** 10.
1、C
2. A.
3. A.
4、B
5. A.
Second, multiple-choice questions: 3 points for each blank, *** 15 points.
1, communication
2. Alkaline catalytic decomposition
3、ABCD
4、BD
5、ABCD
Three. Noun explanation: 5 points for each question, * * 25 points.
1, state compensation:
Broadly speaking, state compensation is the compensation for tort damages with the state as the main body of compensation. In other words, any compensation made with state income or state property can be called national love compensation.
In a narrow sense, state compensation refers to the compensation given by the state to state organs and their staff who infringe upon the legitimate rights and interests of citizens, legal persons and other organizations through the statutory organ liable for compensation in accordance with the provisions of the State Compensation Law.
2. Administrative compensation:
That is, the state administrative organs, state civil servants and other public service enforcement organs and personnel's tort damage or the state compensation for the damage caused by the objects of their management or supervision to others.
3. State Compensation Law:
State compensation law in a broad sense refers to the sum of various legal norms and precedents involving state compensation liability.
Generally speaking, the state compensation law refers to the state compensation code, that is, a legal document that systematically stipulates the principles, conditions, scope, standards, methods and procedures of state compensation liability in accordance with legislative procedures. It is the basic law of state compensation.
4. Official fault:
The so-called official negligence refers to the lack of normal norms in official activities.
5. Violation of duty:
The so-called duty violation refers to the illegal performance of duties.
4. Short answer questions: 10 for each question, * * * 30 points.
1, the basic characteristics of compensation?
First, this kind of recovery and compensation is a conscious behavior of human beings.
Second, this kind of restoration and compensation is aimed at others, who have caused damage to their rights and interests, and who have an interest in them according to the law and can or should bear the liability for compensation on their behalf.
Third, this kind of repair compensation has economic content, either to restore the victim's property, or to return the original to the victim and deliver other financial resources equivalent to the damaged original, or to pay the victim a sum of money.
2. What is the difference between state compensation and state compensation?
First, the cause of state compensation (the tort that causes state compensation responsibility) must be illegal or other reprehensible (such as fault or management defect); The cause and behavior of state compensation must be legal. In other words, state compensation is caused by illegal exercise of state power, while national love compensation is caused by legal exercise of state power.
Second, the scope of state compensation includes both damaged personal rights and damaged property rights, and state compensation is usually only for the loss of property rights;
Three, the object of state compensation is specific, and the object of state compensation is not specific in most cases, which is universal.
Four, the purpose of state compensation is to save the illegal consequences that have occurred, so that the legitimate rights and interests of the victims can be restored or compensated, while the purpose of state compensation is to enhance the interests of the public and create new legal relations. State compensation is positive, and the purpose of state compensation is negative.
Five, state compensation occurs after the damage, state compensation usually occurs before the damage; The amount of state compensation is limited to actual and direct damage, and state compensation is first determined according to legal provisions and compensation agreements reached between the parties.
Six, state compensation disputes can be resolved through litigation, state compensation disputes are generally not resolved through litigation.
3. What are the basic features of the State Compensation Law?
First, the state compensation law has a systematic code form, while the civil tort compensation law usually has no special code form, which is generally stipulated in the civil code;
Second, the substantive norms and procedural norms of the state compensation law are integrated, while the civil tort compensation law is the substantive norms;
Third, the object of adjustment of the State Compensation Law is the relationship of state duty tort compensation formed by state organs and their staff members who illegally exercise their functions and powers, which involves the balance and consideration of national interests and personal interests, while the object of adjustment of the Civil Tort Compensation Law is the relationship of tort compensation between equal subjects unrelated to the use of state power. When protecting the infringed, it is generally unnecessary to consider the coordination with the public interest and the normal exercise of state functions.
Verb (abbreviation of verb) composition: 20 points.
On the imputation principle of state compensation;
Key points of the answer:
1. Definition: The imputation principle of state compensation is the basis for determining the state compensation responsibility, the standard for identifying and investigating the state compensation responsibility, and reflects the value orientation of the state.
2. Main types: (1) The principle of illegal imputation refers to the principle of determining the state compensation liability based on the illegality of state organs and their staff in exercising their functions and powers. (2) The principle of fault liability refers to the fault of state organs and their staff when exercising their functions and powers as the imputation principle for determining the state compensation liability. (3) The principle of no-fault liability refers to the imputation principle of determining the state compensation liability by the fault omission of state organs and their staff when exercising their functions and powers. (4) The principle of fair liability refers to the principle that in the trial of infringement cases, the judge, based on the concept of fairness, orders the infringer to bear certain responsibility for the damage of the victim when neither the infringer nor the victim is at fault.
3. Choice of substantive law: According to Article 2 of the State Compensation Law, China's state compensation implements the principle of illegal liability, and whether the behavior of state organs and their staff in exercising their functions and powers is illegal is regarded as the standard of whether the state bears the liability for compensation.
4. Advantages of the principle of illegal imputation: (1) It is consistent with the principle of rule of law, the principle of administration according to law and the provisions of the Constitution, and it is also coordinated with the administrative litigation law. (2) Simple and clear, easy to accept and strong in operability. (3) It avoids the difficulty of identifying the principle of fault liability. (4) It is conducive to protecting the legitimate rights and interests of citizens, legal persons and other organizations, and is conducive to the victims' right to claim compensation from the state.
5. On the principle of imputation of illegality: (1) Illegality should be interpreted broadly. Violation of the law not only refers to violation of clear legal norms, but also includes violation of the general principles of the law and the obligation of legal reasonable care to specific people. (2) Other imputation principles should be supplemented. In the field of dangerous liability and risk liability, the principle of no-fault liability is adopted and the burden of proof is inverted; When the principles of illegal liability and no-fault liability are not applied, but the principle of fair liability is implemented, no compensation will be paid. (3) The scope of discretion should be limited. Abuse of discretion and obvious injustice shall be regarded as illegal and compensation shall also be made.
Exercise 2 of the State Compensation Law of TVU Paradise;
(Chapters 4-6)
1. Multiple choice questions: 2 points for each blank, * * 20 points.
1、A
2、B
3、C
4、B
5、B
6、B
7、D
8、D
9、B
10、B
Second, multiple-choice questions: 3 points for each blank, ***30 points.
1、BD
2、ACD
3. Advertising
4、ABD
5、ABC
6、ABCD
7、ABC
8、ABCD
9、ABCD
10, AD
Three. Definition of terms: 5 points for each blank, * * 25 points.
1. Discretionary behavior: refers to the administrative organ's free choice of the correct behavior that it thinks is suitable for administrative purposes within the scope prescribed by law.
2. The principle that administrative treatment precedes litigation settlement: Before bringing an administrative compensation lawsuit to the court, the claimant for administrative compensation shall first request compensation from the organ liable for administrative compensation, and the administrative organ shall handle it according to law.
3. Administrative recourse: refers to the legal system that the state orders civil servants, entrusted organizations and personnel who have intentionally or grossly neglected to bear part or all of the compensation expenses after paying the compensation expenses to the administrative compensation claimant.
4. Emergency avoidance: refers to the behavior that the administrative organ has to take to protect the public interest and the legitimate rights and interests of the relatively large counterpart from the real and urgent danger of damage, which damages the legitimate rights and interests of the relatively small third party. Because this kind of harmful behavior is permitted by law, it has the effect of preventing illegality.
5. Exemption from state responsibility: According to the constitutive requirements of state administrative compensation liability, the state should bear the liability for compensation, but for political and other considerations, it will not bear the liability for compensation. This situation is also called the exemption of national love responsibility.
4. Short answer questions: 6 points for each question, *** 12 points.
1. What are the exemption clauses in China's state compensation system?
Generally, it includes: administrative legislative behavior, state behavior, internal administrative behavior and discretionary behavior.
2. In China, what are the situations in which the state does not assume the liability for compensation?
First, the personal behavior of the staff of administrative organs has nothing to do with exercising their functions and powers.
Second, because the behavior of citizens, legal persons and other organizations is only damage.
Third, other circumstances stipulated by law.
Verb (abbreviation of verb) case analysis (13 points)
199665438+1October 18 in the afternoon 10, Xu Chenghai was hired to drive Fujian E35- 10803 liuzhou wuling minivan to Chiling Natural Village, Fengtou Village, Mapu Township, Yunxiao County. While waiting for the customer to return, the Mapu Township Police Station thought Xu Chenghai was suspicious and seized the car. 1 996165438+1October1,Xu Chenghai took back the detained vehicle according to the notice of the police station. However, during the impoundment of the vehicle, the Mapu Township Police Station used the vehicle, and a traffic accident occurred during the use, resulting in the vehicle being damaged by collision. The Mapu Town Police Station made minor repairs to the damaged vehicle and then notified it to be returned. Xu Chenghai applied for compensation to Yunxiao County Public Security Bureau on 1997 65438+ 10/7, but Yunxiao County Public Security Bureau failed to make a compensation decision within the statutory time limit. On May 3rd, 1997, Xu Chenghai filed an administrative compensation lawsuit with Yunxiao County People's Court, claiming that Yunxiao County illegally detained Xu Chenghai's vehicle and caused serious damage due to vehicle collision in a traffic accident, and requested Yunxiao County Public Security Bureau to compensate Xu Chenghai for vehicle loss and maintenance costs 13620 yuan, resulting in economic losses of 7,500 yuan and travel expenses of 3,500 yuan, totaling 24,620 yuan.
Yunxiao County People's Court held that the Mapu Township Police Station of Yunxiao County Public Security Bureau illegally seized the plaintiff's vehicle and used it, which caused damage to Xu Chenghai's vehicle and violated the law. According to Article 4 of the State Compensation Law of People's Republic of China (PRC), the administrative organs and their staff illegally take administrative compulsory measures such as sealing up, distraining and freezing property when exercising their administrative functions and powers, and the victims have the right to compensation. Paragraph 1 of Article 7 stipulates that "if an administrative organ and its staff infringe upon the legitimate rights and interests of citizens, legal persons and other organizations in exercising their administrative functions and powers, the administrative organ shall be the organ liable for compensation", and Yunxiao County Public Security Bureau shall bear the administrative compensation liability. After mediation by the people's court, the two parties reached an agreement: the defendant Yunxiao County Public Security Bureau paid the plaintiff Xu Chenghai compensation 10000 yuan on the day when the mediation reached an agreement. The agreement between the two parties was in compliance with the relevant provisions of the law, which was confirmed by the court, and a conciliation statement on administrative compensation was made on June 1997. The conciliation statement has legal effect after being signed by both parties.
1. Does the plaintiff have the right to claim compensation?
2. Who is responsible for administrative compensation?
3. Can the people's court preside over mediation in administrative compensation litigation?
The basic points of case analysis:
1. The plaintiff has the right to claim compensation because the police seized his car and caused damage. Article 4 of the State Compensation Law stipulates that if an administrative organ and its staff illegally take administrative compulsory measures such as sealing up, distraining and freezing property when exercising administrative functions and powers, the victim has the right to compensation. In this case, the plaintiff Xu Chenghai was hired to drive to Chiling Natural Village, Fengtou Village, Mapu Township, and the police station in Mapu Township thought that Xu Chenghai was suspicious and detained his vehicle. After the car was detained, the police station used the car, which was damaged by a traffic accident. It is illegal for the police to detain the car and use it. The plaintiff has the right to obtain compensation according to law for the losses caused by this behavior to the public security organs during the period of car seizure, the losses caused by vehicle damage and other losses. The defendant has confirmed that his agency seized the vehicle illegally and should make compensation, but it is correct for the plaintiff to claim compensation in excess of the legal provisions, so both parties have objections. The plaintiff filed a lawsuit and the people's court accepted it according to law.
2. The defendant's agency illegally seized the vehicle, causing damage to the plaintiff, and the administrative compensation liability shall be borne by the defendant. The first paragraph of Article 7 of the State Compensation Law stipulates: "If an administrative organ and its staff infringe upon the legitimate rights and interests of citizens, legal persons and other organizations and cause damage, the administrative organ shall be the organ liable for compensation." According to the case, who is the qualified defendant? That is to say, in this case, is the Mapu Township Police Station the organ liable for compensation, or the Yunxiao County Public Security Bureau, the agency dispatched by this organ, the organ liable for compensation? Some people think that the plaintiff's seizure and use of the vehicle in this case is the behavior of Mapu Township Public Security Police Station. According to the relevant laws, the police station can impose a warning and a fine of up to 50 yuan on the administrative counterpart in its own name. , it has the qualification of administrative subject, so this case can be regarded as the organ liable for compensation. The court held that the police station, as the dispatched office of the county public security bureau, although authorized by law to have certain administrative punishment power, can make administrative punishment in its own name. However, laws and regulations do not give the police dispatch office the power to detain transport vehicles and take other compulsory measures in this case. This behavior of the police agency should be regarded as the behavior of the agency-the Public Security Bureau. Therefore, the county public security bureau is the qualified defendant in this case, that is, the county public security bureau should be the organ liable for compensation and should bear administrative responsibility.
3, the people's court administrative compensation litigation can be presided over by mediation according to law, the parties reached a compensation agreement, can be resolved through mediation.
Paragraph 3 of Article 67 of the Administrative Procedure Law stipulates: "Mediation can be applied to compensation proceedings." After a public hearing, the court conducted mediation on the amount of compensation that the defendant should compensate the plaintiff on the basis of finding out the facts and distinguishing right from wrong. After mediation, the two parties reached a compensation agreement: the defendant Yunxiao County Public Security Bureau paid the plaintiff Xu Chenghai compensation 10000 yuan on the day when the mediation agreement was reached. The above agreement is in compliance with the law, confirmed by Yunxiao County People's Court, and a conciliation statement for administrative compensation has been made.
1. Who does Zhang Can demand compensation from? What is the legal basis?
A: Zhang Can asked the Industrial and Commercial Bureau and the Public Security Bureau for state compensation. The legal basis is that the behavior of the public security organs is in line with the illegal administrative act (1) that violates the personal rights stipulated in the State Compensation Law, illegally detaining or illegally taking administrative compulsory measures that restrict citizens' personal freedom. The behavior of the industrial and commercial bureau is in line with the administrative violations of property rights stipulated in the State Compensation Law. (2) illegal implementation of fines, revocation of permits and licenses, ordered to stop production and business, confiscation of property pending administrative punishment.
2. How should this case be handled? What is the legal basis?
A: The public security organs and the industrial and commercial bureau should make state compensation for the damage caused by their respective actions. The public security organ shall make compensation according to the number of days Zhang was detained, and the daily compensation shall be calculated according to the average daily salary of employees in the previous year. And should eliminate the influence, restore reputation and apologize for the victim within the scope of infringement. The industrial and commercial bureau shall compensate the necessary recurrent expenses during the period of suspension of production and business. Limit direct losses to a minimum-necessary recurrent expenses during the period of suspension of production and business.
TVU Paradise National Compensation Law Physical Examination Exercise 3;
(Chapter 7-12)
1. Multiple choice questions: 2 points for each blank, * * 20 points.
1、C
2、D .
3、D
4、D
5、C
6、C
7. A.
8. a
9、D
10、D
Second, multiple-choice questions: 3 points for each blank, ***30 points.
1、AD
2、ABC
3、D
4、ABCD
5. Alkaline catalytic decomposition
6. Alternating current
Three. Noun explanation: 5 points for each question, * * 25 points.
1. scope of criminal compensation: also known as the scope of unjust prison compensation, it refers to the scope that the state's criminal compensation responsibility should be defined.
2. Criminal compensation reconsideration procedure: refers to the activity that the organ liable for compensation refuses to pay compensation after the claimant makes a claim to the organ liable for compensation, or when the claimant disagrees with the amount of compensation, he applies for reconsideration to the organ at the next higher level of the organ liable for compensation, and the reconsideration organ makes a decision on the compensation dispute after examination.
3. Criminal compensation claimant: that is, the person who has the right to make a state compensation claim in accordance with the relevant provisions of the State Compensation Law because the organ exercising the functions and powers of investigation, prosecution, trial and prison management and its staff have infringed upon their personal rights and property rights in the exercise of their functions and powers, including natural persons (citizens), legal persons and other organizations.
4. Criminal damage compensation procedure: refers to the procedure that the state compensates the parties who have suffered damage because the judicial organs and their staff violate the law against citizens and organizations in the course of criminal proceedings.
5. The effectiveness of the State Compensation Law: that is, the scope of application of the State Compensation Law refers to where the State Compensation Law applies, to whom it applies, and when it takes legal effect, including spatial effect, personal effect and top ten effects.
4. Short answer questions: 8 points for each question, *** 16 points.
1, characteristics of state compensation application:
First, the applicable subjects of the state compensation law are the state judicial organs, the compensation applicants, the compensation obligation organs and their staff.
Second, the application of the State Compensation Law is mandatory.
Third, the application of the state compensation law, as far as its activity mode is concerned, is the activity that the state organs apply the legal norms of state compensation to specific facts, and it is an individual legal activity that uses state power.
Fourth, it is precisely because the application of the State Compensation Law has the characteristics of applying the general provisions of the State Compensation Law to specific facts that the organs and their staff who apply the State Compensation Law are required to take the initiative to create activities according to law, objectively and comprehensively analyze specific situations, and fully understand the legal norms of state compensation.
2, in our country, what matters the state does not bear criminal responsibility?
1. Citizens are detained or sentenced to punishment for deliberately making false statements or forging other evidence of guilt.
Second, in accordance with the provisions of Article 17 and Article 18 of the Criminal Law, people who are not criminally responsible shall be detained.
Three, in accordance with the provisions of article 15 of the Criminal Procedure Law, the person who does not pursue criminal responsibility shall be detained.
Four, constitute the national reconnaissance, procuratorial, judicial, prison management authority of the staff has nothing to do with the exercise of their functions and powers of personal behavior.
5. Damage caused by intentional acts such as self-injury and self-injury of citizens.
6. Other circumstances stipulated by law.
Five, case analysis (9 points)
Cao, male, 39 years old, Han nationality, lawyer of Gongzhuling Law Firm, the claimant Cao requested the People's Procuratorate of Gongzhuling City to compensate the claimant for the loss of 2.5 million yuan on the grounds that 1997 applied for criminal compensation, and rehabilitated the claimant and apologized to the claimant. Gongzhuling Municipal People's Procuratorate fails to make a decision within the time limit. Cao applied for reconsideration to Siping People's Procuratorate on June, 2005 1997 65438+ 10/5, and Siping People's Procuratorate failed to make a reconsideration decision within the time limit. The claimant filed an application for economic compensation with the Compensation Committee of Siping Intermediate People's Court on10.5 on the grounds of innocent arrest and imprisonment. 1998. The application items are: 1, unjust imprisonment 13 months, and actual expenditure13,000 yuan; 2. During the period of unfair supervision, the salary subsidy is 32,500 yuan; 3, unjust prison patients with various diseases treatment and food subsidies 129500 yuan; 4. Due to the impact of unjust imprisonment on lawyers' profession (75,000 yuan per year, 3 1 year), the loss was 2.325 million yuan, and the above requests totaled 2.5 million yuan. The Compensation Committee of Siping Intermediate People's Court found out that Cao, the claimant for compensation, was detained by Gongzhuling Public Security Bureau 1996 on June 5 and arrested by Gongzhuling People's Procuratorate 1996 on June 20. 1On July 3, 1997, the Gongzhuling City Procuratorate decided not to prosecute on the grounds that the conviction evidence was insufficient and did not meet the conditions for prosecution. He was released from the detention center of Gongzhuling Public Security Bureau on July 4th. 1997.
1. Does Cao have the right to claim criminal compensation?
2. Does Cao's request for criminal compensation comply with legal procedures?
3. How to calculate the compensation amount?
The basic points of case analysis:
1. The claimant Cao has the right to claim criminal compensation according to law. Article 15 of the State Compensation Law of People's Republic of China (PRC) stipulates: "If the organs and their staff who exercise the functions and powers of investigation, prosecution, trial and prison management infringe upon personal rights while exercising their functions and powers, the victims have the right to compensation: ……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………… Cao, the criminal compensation claimant in this case, was detained by Gongzhuling Public Security Bureau 1996 on June 20, and arrested by Gongzhuling People's Procuratorate 1996 on June 20. Because the conviction evidence was insufficient and did not meet the conditions for prosecution, the People's Procuratorate of Gongzhuling made a decision not to prosecute on July 3 1997, and was released by the detention center of Gongzhuling Public Security Bureau on July 4. Cao was wrongly arrested, his personal freedom was restricted for 394 days, and he was granted the right to claim compensation from the People's Procuratorate of Gongzhuling City according to law.
2. Cao's request for criminal compensation is in line with legal procedures. Cao, the claimant for compensation, was wrongly arrested and requested compensation from the People's Procuratorate of Gongzhuling City, the organ liable for compensation, on July 1997, but the organ liable for compensation failed to make a decision within the time limit; On June 5438+0997 and June 5438+1October 15, the people's procuratorate of Siping City applied for reconsideration according to law. If the reconsideration organ fails to make a decision within the time limit, he shall file a claim for compensation with the compensation committee of Siping Intermediate People's Court where the reconsideration organ is located. The compensation claimant Cao's behavior fully complies with the compensation procedures stipulated in Articles 20, 21 and 22 of the State Compensation Law of People's Republic of China (PRC).
3. Gongzhuling City People's Procuratorate wrongly arrested and illegally restricted Cao's personal freedom for 394 days. Accordingly, the Compensation Committee of Siping Intermediate People's Court ruled that the People's Procuratorate of Gongzhuling City, the organ liable for compensation, compensated Cao 10035. 18 yuan in accordance with the provisions of Articles 25 and 26 of the State Compensation Law of People's Republic of China (PRC), and refused to support other claims for compensation.
1. What law should Yang claim be based on?
Claims for compensation shall be made in accordance with the State Compensation Law.
2. Who should Yang claim compensation from?
Key points of the answer: If the second trial is innocent, the people's court that made the first-instance judgment and the organ that made the arrest decision are the same organ liable for compensation. Namely the District People's Procuratorate and the District People's Court.
Since 50 color TV sets have been auctioned, what should be done with the proceeds?
Answer point: If the property has been auctioned, the money from the auction should be paid.
4. How to calculate the compensation for Yang's wrongful detention?
Key points of the answer: monetary compensation is generally adopted. The daily compensation is calculated according to the average daily salary of employees in the previous year.
Physical examination exercise of state compensation law in TVU Paradise 4:
(comprehensive questions)
1. Indefinite multiple-choice questions: 3 points for each blank, * * 30 points.
1、ABC
2、ABCD
3、ABC
4、C
5. A.
6. A.
7. Alternating current
8. AD
9、ABCD
10、ABCD
Two. Term explanation: 5 points for each question, * * 25 points.
1, death compensation: also known as death pension. China's state compensation law does not specify the amount of death compensation, which needs to be summarized and explored in practice, and then improved by formulating corresponding implementation rules.
2. Restraint prevention function: refers to the function of state compensation to prevent and control the illegal and infringing acts of state organs and their staff, and to promote the internal supervision of state organs and the self-discipline of state staff.
3. Power relief function: refers to the function of state compensation to restore or make up for the infringed legitimate rights and interests of citizens and organizations when the reputation and legitimate rights and interests of the organization are illegally infringed and caused damage in the process of performing their duties.
4. Legislative compensation: that is, the compensation made by the state for the damage caused by the acts of the legislature in exercising its functions and powers.
3. Short answer questions: 8 points for each question, * * 32 points.
1. What are the main characteristics of the salary system in Britain and America?
First, the state and private individuals bear the same responsibilities in the same way under the same circumstances, that is, the principles of state compensation and civil compensation are exactly the same, and the particularity of state compensation is not recognized;
Second, the state compensation implements subjective fault liability;
Third, the scope of state responsibility immunity is still very large, and there are many exceptions to state compensation;
Fourth, although the conditions of state compensation are strict, the amount of compensation is often very large, which is in contrast to the French practice of wide range of state compensation but generally small amount.
2. What are the principles of national compensation standards?
The first is the punitive principle, that is, the standard of compensation amount should be punitive to the infringement.
The second is the principle of compensation, which refers to the amount of compensation to make up for the losses suffered by the victims.
The third is the principle of comfort. According to this principle, state compensation can't completely and fully relieve the actual loss of the victim. The nature and characteristics of state organs determine that state compensation can only be symbolic comfort, and the amount of compensation can only be limited to actual losses. Although compensation should be made as much as possible, it is not necessary to make full compensation.
3. What are the ways of state compensation in China?
One is monetary compensation; The second is to restore the original state; The third is to return property.
4. What are the management methods of compensation expenses abroad?
1. The central government shall formulate the overall compensation budget.
Two, governments at all levels should prepare compensation budgets, each responsible for the damage caused by their own organs.
Third, the state establishes a special fund, and the state and the organ liable for compensation jointly bear the compensation expenses. The characteristic of this model is that the compensation costs are generally borne by various government agencies, and only when the amount exceeds a certain amount is borne by the state.
Fourth, pay compensation fees through insurance channels.
Four, case analysis (13 points)
On the morning of 2001April 18, Wang and Chu set up a stall to sell breakfast by the provincial road. On their way to work, they were found by law enforcement members of a passing urban construction supervision brigade and asked to leave immediately after cleaning up. When the law enforcement team changed into uniforms and reappeared, Wang and Chu had not left, and the law enforcement team immediately said that they would deal with them. Wang and Chu refused, and there was a dispute between the two sides. At this time, a garbage truck (a special vehicle with hydraulic device, used to open the scraper) happened to drive over. The law enforcement team signaled the truck to pull over and asked the truck attendant to put Wang, the utensils used to store and sell breakfast and the leftover food in the back pocket of the garbage truck for destruction. When the sweeper loaded the chopping board used by Wang and Chu to make cakes into the garbage truck, Wang and Chu snatched the chopping board back from the garbage truck. Just when Wang and Chu grabbed the chopping board, the law enforcement team overturned the tricycle they used to sell breakfast. As a result, the sweeper threw the spilled pot cover, oil pan and cake into the car pocket. Wang Hechu desperately put his hand into the pocket of the garbage truck, trying to get his things back. Among them, when Chu was picking up the pot cover, his right arm was stuck by the scraper of the garbage truck that had been started, and he was diagnosed as "right humeral shaft fracture with radial nerve injury" by the doctor. Chu was hospitalized and spent nearly 4000 yuan on medical expenses. On may 2 1 day, Wang and Chu refused to accept the decision and filed an administrative reconsideration with the local municipal government according to law, demanding compensation of more than 40,000 yuan for medical expenses and lost time.
1. Is the behavior of the law enforcement team illegal?
2. Does Chu's arm crush injury fall within the scope of state compensation, and should medical expenses and lost time be compensated?
The basic points of case analysis:
1. This case is a typical uncivilized law enforcement case. There is no doubt that the law enforcement team broke the law.
2. Chu's arm was crushed and injured, which is not state compensation. Reasons: First, in this case, the law enforcement team members directly violated property rights rather than personal rights. According to the relevant provisions of the State Compensation Law of People's Republic of China (PRC), if an administrative organ and its staff infringe upon the property rights of the victim while exercising their administrative functions and powers, they shall compensate the victim for the property losses; if they infringe upon the personal rights of the victim and cause physical injuries, they shall compensate the victim for medical expenses and lost time. In this case, the law enforcement team instructed the non-law enforcement personnel to destroy the property of the executed person at will, but did not instruct the non-law enforcement personnel to press the executed person with the scraper of the garbage truck, which violated his property rights, not his personal rights. If compensation is required, it will only compensate the damaged property. Second, there is no necessary causal relationship between Chu's arm being crushed and law enforcement team members' illegal law enforcement. Indeed, if there were no illegal enforcement by law enforcement team members, that is, instructing non-law enforcement personnel to take away the utensils and food sold by Wang and Chu for breakfast with garbage trucks and destroy them, there would be no incident in which Wang and Chu took back their property, and there would be no scene in which Chu's arm was crushed. But it doesn't mean that as long as the law enforcement team members break the law, it will inevitably lead to the result that Chu's arm is crushed, and there is no necessary causal connection between the two. Because of the consequences of illegal law enforcement on law enforcement team members, law enforcers can seek various relief ways to solve them, such as applying to the relevant authorities for reconsideration; You can also bring an administrative lawsuit to the people's court and make state compensation for the damaged property. In this case, it is the most undesirable way for Wang and Chu to obstruct law enforcement by recovering property, and the consequences caused by their actions should also be borne by themselves. Third, the state will not compensate for the damage caused by the law enforcers' own actions. According to Item (2) of Article 5 of the State Compensation Law of People's Republic of China (PRC): "Damages caused by citizens, legal persons or other organizations' own actions" do not belong to state compensation cases, and no compensation will be made.