Deputy Director Of The Supreme Law Office Of Compensation Claims That The Amendment Of State Compensation Law Highlights Five Highlights.

The decision of the Standing Committee of the National People's Congress on Revising the "State Compensation Law of the People's Republic of China" was put into effect in December 1, 2010.

There are 27 provisions in the revision decision. The 35 provisions of the original state compensation law have been comprehensively revised. These are highlighted in the following aspects: expanding the scope of compensation, clearing the channels for compensation, improving the compensation procedure, raising the standard of compensation, and improving the funding guarantee.

In order to accurately understand the applicable state compensation law, this article tries to elaborate on the above issues.

Expand the scope of compensation

First, by revising the preamending of the cancellation, the principle of final judicial adjudication shall be determined. The application for compensation must have the objective condition of confirming the illegal act of the duty of duty by the organ that compensates the obligation. It becomes a subjective condition that the claimant can consider that the infringing organ has infringing upon his or her lawful rights and interests in a certain condition, and can cause damages, and expand the scope of the infringement of jurisdiction.

For example, the ninth and twenty-second articles of the revised state compensation law have deleted the four words "confirm according to law" respectively. By removing the pre confirmation procedure and removing the claim of compensation, the "game rules" of the application for compensation have been changed, thus expanding the scope of the claim for compensation.

Two, by revising the principle of imputation, the single principle of illegal liability fixation should be revised into the multiple liability system, such as "illegal liability, result liability, fault attribution" and so on, which expands the scope of claim for compensation by the claimant.

For example, the second article of the revised state compensation law removes two words of "illegal". In accordance with the seventeenth provision of the revised state compensation law, "in accordance with the conditions and procedures stipulated in the criminal procedure law, the citizens take detention measures, but the detention time exceeds the time limit stipulated in the criminal procedure law. Subsequently, the decision to cancel the case, not to prosecute or to acquit the criminal from the judgment and to terminate the criminal responsibility" and "two cases of arresting the case, not prosecuting or verdict of acquittal and ending criminal responsibility" after the arrest measures are taken by the citizens, and the result is to be applied in the future.

The principle of "presumption of innocence" in criminal procedure law has been changed and the misunderstandings of "doubtful crime", "doubtful crime", "doubtful crime" and "doubtful crime have not been paid" have been corrected.

Three, by modifying the scope of tort actions and making clear the actions of partial omission, we should undertake the liability of compensation, amend the form of tort, standardize the collection of property and apportionment expenses as "expropriation and requisition of property", thus expanding the scope of acceptance of state compensation cases.

For example, third, third, seventeenth, fourth items of the State Compensation Law include the act of "indulging" others' beating and maltreatment into the scope of tort compensation, and modify the original "violence" tort to "beating, maltreatment and other acts", which not only defines the liability for compensation for acts of omission, but also puts "cold" acts such as "abuse" into the scope of compensation.

For example, the "fourth years and third provisions of the original state compensation law" shall be amended as "illegal collection and requisition of property" in violation of state regulations.

The four is the expansion of the scope of protection of infringing objects.

The former state compensation law did not include mental rights in the scope of protection, and no compensation for mental damage was provided.

The thirty-fifth provision of the revised state compensation law stipulates that one of the third or seventeenth provisions of this Law shall cause mental damage to the person. It shall remove the influence, restore reputation and apologize for the victim in the scope of the infringement act; and, if serious consequences are caused, the corresponding mental injury solatium shall be paid.

This provision has been pferred to the fourth chapter "the mode of compensation and the standard of calculation". Obviously, increasing the compensation for mental damage is a highlight of the amendment of this compensation law, and it is also an important embodiment of the expansion of the scope of compensation.

The five is the expansion of the scope of compensation for damage.

For example, the thirty-fourth amendment of the state compensation law increases the amount of nursing cost that causes physical injury, causes some or all of the disability's nursing expenses, disability life assistance, rehabilitation costs, continuing treatment fees, etc. thirty-sixth, the price of the property sold is significantly lower than the value of the property, and the corresponding compensation should be paid, and the fine, fines, money recovered or confiscated and the frozen deposits or remittance should be paid back. The interest of the bank should be paid in the same period.

These Provisions extend the scope of compensation.

Unimpeded claims channels

The state compensation law was amended. In order to change the situation of the victim's claim for state compensation, the legislature decided to cancel the prequalification procedure in the state compensation procedure, and accordingly deleted four words in the original ninth paragraphs 1 and twentieth of the first paragraph, and deleted twentieth second paragraphs related to the confirmation of the complaint.

The main considerations are as follows: first, the confirmation procedure and the procedure of compensation decision are separated, resulting in the waste of judicial resources.

The two is to confer the right to confirm an illegal act to the tort authority itself, violating the legal principles of "judge the case of one's own", resulting in abuse of the right to affirm, and the application confirmation is difficult to be effectively protected, and the victim is unable to start the compensation procedure.

Although the revised state compensation law has abolished the confirmation procedure, it does not mean that there will be no confirmation problem in the future state compensation cases.

Administrative compensation is the principle of illegal compensation. If the claimant solicit a claim for compensation, it shall be confirmed by the compensation organ when he makes the decision of compensation. If he or she makes a claim for compensation in the administrative reconsideration or administrative litigation, the reconsideration organ or the people's court shall examine and confirm the legality of the administrative act together with the people's court in the process of reconsideration or litigation.

In the criminal compensation cases, the result of the judgment is still limited by the prior confirmation result.

Only part of the state compensation cases should be implemented after December 1, 2010.

In addition to canceling the confirmation procedure, there are several changes in the specific operation and safeguard procedures.

1. convenient people.

That is, the application for compensation can be written or applied orally; it can be applied by itself or commissioned by others; the claimant is not limited to the victim himself.

2. responsible.

If the claimant submitting an application in person, the organ that compensates the obligation shall issue a receipt affixed with the special seal of the organ, and the application material is not complete, the organ that compensates the obligation shall inform the claimant in a single place or within five days of the contents of the compensation.

3. democracy.

That is, the compensation organ shall make full use of the opinions of the claimant and make consultation with the claimant on the way of compensation, the items of compensation and the amount of compensation.

4. constraint.

That is, the organ responsible for compensation shall make a decision whether or not to make compensation within two months from the date of receiving the application; whether it decides to make compensation or decide not to compensate, it shall make a decision on compensation and deliver it to the claimant within ten days from the date of the decision.

5. reason.

That is, the letter of indemnity shall give reasons and reach the claimant within ten days from the date of the decision.

6. relief.

That is, the claimant of administrative compensation shall bring a lawsuit to the people's court within three months' statutory time limit. The claimant of criminal compensation shall apply for reconsideration within the statutory time limit of thirty days, or apply for compensation decision to the people's court compensation committee.

Perfecting the compensation procedure

The abolition of the illegal recognition of the pre procedure (ninth, twentieth); two is to properly resolve disputes, reduce complaints appeals, increase the consultation procedure (thirteenth, twenty-third); three is to increase the burden of proof and the hearing of cross examination provisions (fifteenth, twenty-sixth, twenty-seventh); four is clear the time limit for the decision of compensation (thirteenth, thirteenth); it is perfect for the prosecution of the compensation case, reconsideration conditions (bar, bar); it is set up the people's court compensation commission to hear cases (time bar); the perfection of the compensation procedure is the key point in the revision of the state compensation law. There are seven major changes in the macro level: first, the channels for requesting State Compensation for unimpeded claims.

　　就人民法院賠償委員會的審理程序來講，有十個方面的新意：一是賦予賠償委員會對案件的最終司法審查決定權;二是明確賠償委員會是人民法院辦理司法賠償案件的內設機構;三是對賠償委員會的組成人數不再設定上限;四是明確賠償委員會的組成人員必須是審判員;五是確定賠償委員會辦案以書面審理為原則，只在必要時進行調查取證、聽取陳述申辯、組織質證;六是規定了司法賠償案件實行“誰主張誰舉證”的原則，只在特殊情況下由賠償義務機關負責舉證;七是明確了賠償委員會的辦案期限為三個月，只有疑難、復雜、重大的案件，經本院院長批準，可以延長三個月;八是賦予賠償請求人和賠償義務機關對生效賠償決定均有申訴權，改變了審判實踐中不承認賠償義務機關有申訴權的認識;九是規定了本院院長和上級法院對生效賠償決定的審判監督權，明確了上級

The supervision and guidance function of the people's court and Its Compensation Committee; ten, the supervision power of the procuratorial organ on the compensation decision of the people's court compensation committee.

Raise the standard of compensation

The thirty-fourth article of the revised state compensation law increases the amount of compensation for the infringement of the personal rights of citizens, especially the right to life and health. In addition to the compensation for medical expenses and the loss of working time, it increases the cost of care. In the case of physical injury and disability, the necessary expenses for disability and the necessary expenses for continuing treatment are increased.

In addition to paying compensation for death or disability, the person who is raised by a person who has lost his or her ability to work is also required to pay the living expenses for those who have no ability to work before the deceased. The standard of compensation for living expenses is modified to be carried out according to the local minimum living standard, which shows the improvement of the compensation standard.

The thirty-fifth provision of the revised state compensation law stipulates that the mental damage caused by the infringement of personal rights shall not only remove the influence, restore reputation and apologize for the victims in the scope of infringement, but also cause the serious consequences, and the corresponding mental injury solatium should be paid accordingly.

From the discussion of legal amendments and the investigation and study of judicial practice, mental injury solatium focuses on solace. We should consider comprehensively the nature, circumstances, consequences, the degree of fault of the actor, and the measures to remedy the aftermath.

It is undoubtedly an important progress to amend the State Compensation Law by explicitly using money to compensate for mental damage.

The thirty-sixth article of the revised state compensation law has increased the fine, fines, recovered or confiscated funds for the execution of property rights, and the interest of bank deposits in the same period of the frozen deposits or remittances.

If the price of the sold property is obviously lower than the value of the property, the corresponding compensation shall be paid accordingly.

This is also a great progress in legislation based on the comprehensive consideration of the existing national conditions.

Improving financial support

With regard to the payment guarantee for compensation costs, the thirty-seventh article of the revised state compensation law not only clearly defines the cost of compensation in all levels of the fiscal budget, but also adds that: "the compensation obligation organ shall, within seven days from the date of receiving the application for payment of compensation, submit an application for payment to the relevant financial department in accordance with the authority of budget administration.

The financial department shall pay the compensation within fifteen days from the date of receiving the payment application. "

This has completely changed the original payment mechanism of "organ advance payment and financial verification".

The direct payment of compensation by the financial department will enable the claimant to receive compensation, which is no longer restricted by his own administrative expenses of the organ liable for compensation.

In view of the clear basis of payment, clear procedure and definite time limit, theoretically, the compensation claimant can receive compensation within three weeks after the application is made under normal circumstances. This is obviously a major step forward in the revision of the law. There is a systematic guarantee for the cashing of the state compensation decision, and the predicament of "indemnity" will be changed.