Comparison of the National Compensation Law

Author: Pi Chunxie He Shousheng
Publisher:
Publish Date: 1998-09-01
Features:
1. Narrow Sense
Narrow sense can be divided into two situations:
1. In some countries, the state compensation law only regulates the liability for administrative torts, while wrongful convictions are handled separately by special laws. Therefore, scholars in these countries believe that state compensation refers only to state administrative compensation. Japanese administrative law scholar Nan Houbang①, for instance, defines "state compensation as the compensation for damages caused by administrative violations of law by the state or public bodies." Some scholars explore the narrow sense of state compensation from aspects such as the principle of liability. Not only does it exclude all compensation for damages in the private sphere caused by the state, but it also excludes damages caused by the state's no-fault (or lawful) actions in the public sphere from the scope of state compensation. In other countries, such as France, state compensation issues may arise from legislative, administrative, and judicial actions of the state. Therefore, in these countries, state compensation refers to the compensation provided by the state in accordance with laws or precedents for damages caused by state official activities. This includes legislative, administrative, and judicial compensation. In China, the narrow sense of state compensation refers to the compensation provided by the state in accordance with the State Compensation Law, through legally designated compensation authorities, for damages caused by the illegal exercise of power by state organs and their staff that infringes upon the legitimate rights and interests of citizens, legal persons, and other organizations. This includes compensation for damages caused by administrative organs and their staff when exercising their powers to infringe upon the legitimate rights and interests of citizens, legal persons, and other organizations; compensation for damages caused by organs and their staff exercising powers such as inspection, adjudication, and prison management to infringe upon the legitimate rights and interests of citizens, legal persons, and other organizations; as well as compensation for damages caused by the People's Courts in the process of civil or administrative litigation by illegally adopting compulsory measures or preservation measures that obstruct litigation, or by executing judgments, rulings, or other effective legal documents incorrectly, thereby infringing upon the legitimate rights and interests of citizens, legal persons, and other organizations.
2. In some countries, state compensation refers to the compensation provided by the state for damages caused by the exercise of state power by state organs and their staff. The scope of this state compensation includes two aspects: First, compensation for damages caused by the state's fault or illegal exercise of power by state organs and their staff; second, compensation for damages caused by the state's no-fault or lawful exercise of public power by state organs and their staff. However, it excludes compensation for damages caused by the exercise of private power by state organs and their staff from the scope of state compensation. They believe that in the private power sphere, especially in the private economic sphere, the activities of the state should be equivalent to those of ordinary citizens, legal persons, or other social organizations and should fall under the scope of private law compensation. Moreover, in the private power sphere, especially in the private economic sphere, these organs have sufficient capacity to compensate for damages, and it should not be a burden on the state treasury.
2. Broad Sense
Broadly speaking, state compensation refers to tort damage compensation with the state as the subject of compensation. Alternatively, any compensation made using state treasury revenue or state property can be referred to as state compensation. Depending on the basis of compensation, broad state compensation can be divided into the following categories:
1. International Law State Compensation. This refers to compensation provided by one country to another under international treaties or agreements. The compensation made by defeated countries to victorious countries is a typical example.
2. Constitutional State Compensation. In some countries, such as the United States, when a citizen's constitutional rights are violated by state officials, the victim can directly bring a lawsuit based on the constitution to request state compensation.
3. Civil Law State Compensation. This refers to compensation provided by the state as a special civil subject in economic and other civil activities to citizens, legal persons, and other organizations. In this type of compensation, the state is a civil subject with equal status to citizens, legal persons, and other organizations, and does not involve the exercise of state power. It bears compensation liability for damages in the same conditions, scope, and degree, and in the same manner as other civil subjects, in accordance with civil law provisions. This includes state compensation arising from contracts in civil and economic activities, as well as state compensation arising from torts.