Dialogue in the State Compensation Law, senior legislative discussion and trial expert interlocutors: CASS Institute of Law, Professor Chen Chunlong the reporter Du dialogue motivation: the ninth meeting of the Eleventh National People’s Congress has recently concluded, but the social media for this meeting is an important agenda for the draft amendment to Law on State Compensation — second consideration concerns not cool. Statistics show that 14 years ago, the state implement the amount of compensation is only 6.8 billion yuan, the number of applications approved for only one-third of cases. The draft amendment is considered, can be said that this law was enacted 14 years, the most important one since the change. For the Among them, the constraints of the law enforcement agencies, the initial spirit of the compensation involved, the introduction of burden of proof, are no doubt the law a sign of progressive forward. The Standing Committee meeting at the closing, the newspaper reporter interviewed had participated in discussions when the State Compensation Law and related legislation, a senior expert Chen Chunlong trial. Chen Chunlong served as vice president of the Beijing Municipal Higher People’s Court, director of the Compensation Committee, the State Compensation Law is very familiar with the legislative background and the process of amending, for the future direction of the State Compensation Law also has a unique perspective. □ Dialogue State Compensation Law who have been opposed to legislation at the beginning, when the view was expressed that damages laws, the State Compensation Law, whether born or modify many people are attracted attention. You have been involved in legislative discussions, the ability to recall the year of birth of the State Compensation Law? Chen Chunlong: State Compensation Law was first entered in 1991, the legislature’s vision. At that time, At that time, the NPC Standing Committee, organized a team drafting the Administrative Procedure Law, Administrative Procedure Law has been drafted in after the team not been disbanded, according to the relevant instructions to the drafting of the State Compensation Law. By 1992, when the drafting group took out a I was the identity of both legal experts and the democratic rule of law — China Democratic National Construction Association Central leader of the team, so I organized a number of experts discuss the state compensation law, the draft test. There was a general opinion is, In addition, there is a view that level is not high, but there is no need to engage the State Compensation Law. I had organized a number of experts drawn from the basic point is that people’s rights, capitalism and socialism that does not matter, we think the draft is a very good test, we hope to officially come out as soon as the State Compensation Law, to better ensure people’s rights. In 1993, the trial on the basis of the draft drawn up the draft law on state compensation; to 1994, the National People’s Congress passed the State Compensation Law; from January 1, 1995, the State Compensation Law into effect. This is when the background of the drafting of the State Compensation Law. Reporter: 14 years ago, the birth of the State Compensation Law, was an unprecedented praise, known as the democratic rule of law in the history of China as a 14 years, the State Compensation Law of the positive can not be denied, but it is understood, There is a widely cited extreme case is illustrative: In 2001, the 19-year-old girl Ma Dandan the Public Security Bureau in Shaanxi, Ma Dandan will be followed by Public Security Bureau to court, but have only been 74 yuan final state compensation. Chen Chunlong: Indeed, the State Compensation Law in the implementation process is inadequate in many places, such as providing too much too simple in principle, for a total on it dozens, specifically more difficult to implement. In addition, the compensation amount is small, low standard, the lack of spirit of the compensation is flawed. In my view, by contrast, the biggest flaw lies, if you want to be compensated first For example, a person arrested by public security organs, and criminal detention, but later found arrested the wrong, the wrong well who is it? This is a So, just who should According to the State Compensation Law, which catch you by the Public Security Bureau Public Security Bureau confirmed what. From common sense, even if people do wrong is a wrong, you want him to make self-criticism, apology is not easy, now a public security organ or other state authorities, to recognize their is more difficult. If there is no As required by law, only the victim took the authorities So, should lose a large number of cases, because those Although the State Compensation Law is a major success since its implementation, but the problem is persistent. Therefore, this 14 years from academia, industry views to the private sector has, so almost every year, Against the non-violation of the law clearly lose, is a big step forward, and improve the compensation principle; increase the spirit of the meaning of compensation is also very important, but should still be refined some, in order to facilitate implementation; punitive damages are not included, it is Unfortunately, a reporter: It should be said that the changes conform to public opinion, for the masses of the problems in made changes and additions. For example, the current state compensation law, only state agencies and staff the consequences of unlawful exercise of authority only when the compensation. The changes remove the This Chen Chunlong: It is the most academic opinion has long been a problem. State Compensation Law is one of So he created such a situation, according to criminal arrest people when the program is not wrong, but in the end pay or not pay is not easy to say. For example, a crime scene is dead, just the presence of someone, who has blood on the scene no one else, then this should be in accordance with the existing Code of Criminal Procedure to detain persons, because this person is the suspect, this is entirely correct. Subsequent investigation showed that this person is not the murderer, but in relation to the issue of compensation, the relevant departments also can argue that there is no fault. In this case, the court is often claims of losing, but in the end the law is not clear, difficult to implement. This involves a theoretical problem, namely whether the state compensation should adopt a In executive compensation,newplayer tips, if you adhere to the China’s State Compensation Law in the development of reason to establish the principle of liability law, mainly on account of But now it seems the scope of liability law is too narrow, the executive or judicial misconduct, while not illegal, but it’s apparent exclusion of liability is clearly not conducive to the protection of citizens, legal persons and other organizations the right to compensation. Judicial practice of extended detention, sentenced and other misdemeanor case without compensation, the parties entanglement, friction between the authorities, about the legal basis is not clear, a serious impact on the implementation of national legislation on compensation purposes. The state compensation law changes, the Reporter: In addition, compensation will be incorporated into the national spirit of the scope of compensation, can be regarded as a major highlight of this change. Chen Chunlong: State Compensation Law, compensation is not the spirit of injustice. In China there are still a civil damages in a spirit of compensation, that is, as the subject of equality between citizens, causing injury to one party against another spiritual damage should also be considered. Name of the state’s coercive power to impose state tort and its consequences than that between the equal civil violations, I do not know how many times more serious. Such as SHE, he asked more than four million yuan compensation for more than 300 million is in the spirit of compensation, but not the spirit of the law was a compensation for this,leather armor, but only to pay him more than 40 million. The revised law adds a spirit of compensation, very significant, but I think, should refine some, in order to facilitate implementation. Reporter: has been called for academic and non-punitive damages were not included in the modifications, which the public was disappointed. In this regard, how do you see? Chen Chunlong: State Compensation can be divided into three categories: one is the comfort of compensation, called compensatory damages, there is something called punitive damages. China in the development of state compensation law, the compensation standards have been lively discussions. One view is that tort law should be from a radical perspective, the compensation standards set too high a number, by paying high compensation to those illegal infringement of state organs and staff cautioned that the punitive standards; other One view is that this view is a good starting point, but state compensation to solve the main problem is to regulate the conduct of State organs, making it into the official conduct of regular track, rather than fully and completely give the victim for damages. At that time the state administrative organs and judicial organs of law enforcement and judicial level as a whole is not high, if the immediate use of punitive standards will feel unbearable and adapt, it is difficult to gradually increase the enforcement and judicial level of purpose. The compensatory standard, the national compensation system start-up period, lack of experience in all aspects, in tort damage recognition, measurement, and statistics on the specific operation there are certain difficulties. So, from reality, or the State Compensation at this stage to take comfort standards is appropriate. Finally, the legislation basically adopted the latter view. The difference between these three kinds of compensation is that if a person lost 10 million, pay compensation in accordance with soothing three to five million, according to the number of compensatory damages is to compensate the loss the amount of punitive damages is the loss of 10 million need to lose 15 yuan, 200,000 yuan or even 30 million is more than the loss to the purpose of tort law to punish the authorities remember this thing, to ensure he would not be repeated. I have been advocating appropriate increase in punitive damages, but to strictly. Because the State Compensation Law 14 years of trial practice that, individually state judicial dereliction of duty, corrupt, vile violation of civil rights, which, if not severely punished, to improve our level of law enforcement disadvantage. At the same time, punitive damages should be limited to very small extent, because of its special nature, from a strict examination and approval procedures to control the amount of punitive damages cases. From the present point of view, amending the law to increase the punitive damages to be very difficult, not be too hasty, but it should work as a direction. Bill on the confirmation, evidence, compensation and other spiritual people resent the changes and additions were made, should be affirmed. But the principle of compensation, reparation, compensation agency, recovery requirements, and many other problems to be solved not involve Reporters: Law on State Compensation changes you have any ideas? Chen Chunlong: There is a very significant change, you did not notice. The amendment (draft) include such a provision, authorities should provide evidence. Most people may not understand the fact that, for example, a person suspected of the crime, authorities said, he was arrested. Later,wow Arena, this person came out, a lame leg. In accordance with past practice, if the person claims, it would have to prove themselves crippled because the result of torture, but the fact that it is very difficult. In accordance with the provisions of the draft, should be relevant to prove the person was crippled and he is not related, if not prove, that is torture. This modification to curb torture of great significance. Why has the repeated acts of torture, it is because people hurt in the burden of proof is very difficult. Reporter: I found that many analysts have fully endorsed the State Compensation Law in the positive significance of changes, still expressed some regret. You have this feeling? Chen Chunlong: the amendment (draft) confirmed that the burden of proof, the spirit of compensation, payments, and other people resent the changes and additions were made, should be affirmed. But the principle of compensation, reparation, compensation agencies, to protect the right to appeal, recovery requirements, etc. related to the many legal and practical problems to be solved not involved. I had the privilege to participate in discussions when the State Compensation Law and the subsequent trial of the legislative practice of work, so want to make a few recommendations for the legislature is to teach reference and academic colleagues. One is in the State Compensation Law Amendment (Draft) Article 22 is added after: problems, but the most critical is how the legislation should establish a concept in order to effectively protect the rights of citizens to obtain effective relief after the damage. Based on this, the state compensation as state organs and their staff for their unlawful acts of the exercise of authority to review and remedy, should show the necessary measures and positive initiative. From another perspective, an offense against the victim, after being itself already in a So I suggest, the revised Law on State Compensation could change if the idea of compensation for the victims filed their own request, into the initiative by the state compensation authorities to give appropriate compensation for the victims. In addition, in order to strengthen the trial of state compensation cases, the proposed Office of the compensation to the state compensation tribunal. At present, the vast majority of compensation do not set up independently, usually anchored in the administrative court. In this way, someone independent to carry out the work required for compensation is difficult to achieve, in compensation for staff emotionally unstable, difficult to raise the level of business impact have been difficult to hear the normal work state compensation. Third, the proposed amendment (draft) Article 37 amended to read: receipt of payment within fifteen days from the date of application for payment of compensation. Finally looked the state compensation decisions, but still can not deliver a piece of paper, which hit the victim, the impact of building a harmonious society, it is difficult to measure. Therefore, solving the state decided to implement the difficult problem of compensation, should be extraordinary attention. Beijing, June 28 News

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