Content

CHAPTER I GENERAL PROVISIONS

CHAPTER II ADMINISTRATIVE COMPENSATION

SECTION 1 SCOPE OF COMPENSATION

SECTION 2 CLAIMANTS TO COMPENSATION AND ORGANS LIABLE FOR COMPENSATION

SECTION 3 COMPENSATORY PROCEDURE

CHAPTER III CRIMINAL COMPENSATION

SECTION 1 SCOPE OF COMPENSATION

SECTION 2 CLAIMANTS TO COMPENSATION AND ORGANS LIABLE FOR COMPENSATION

SECTION 3 COMPENSATORY PROCEDURE

CHAPTER IV FORMS AND ASSESSMENT OF COMPENSATION

CHAPTER V OTHER PROVISIONS

CHAPTER VI SUPPLEMENTARY PROVISIONS

CHAPTER I GENERAL PROVISIONS

Article 1 This Law is formulated in accordance with the Constitution with a view to safeguarding the right of citizens, legal persons and other organizations to State compensation according to law, and promoting the exercise by State organs of their functions and powers according to law.

Article 2 Where, in performing its/his functions, any state organ or state functionary commits any infringement upon the legitimate rights and interests of a citizen, a legal person or any other organization as prescribed in this Law, causing any damage, the victim shall be entitled to state compensation in accordance with this Law.

An organ obligated to make compensation as prescribed in this Law shall perform the obligation of compensation in a timely manner in accordance with this Law.

CHAPTER II ADMINISTRATIVE COMPENSATION

SECTION 1 SCOPE OF COMPENSATION

Article 3 The victim shall have the right to compensation if an administrative organ or its functionaries, in exercising their administrative functions and powers, commit any of the following acts infringing upon the right of the person of a citizen:

(1) Detaining a citizen in violation of the law or unlawfully taking compulsory administrative measures in restraint of his personal freedom;

(2) Unlawfully taking a citizen into custody or depriving him of his right of the person by other unlawful means;

(3) causing bodily injury or death to a citizen by battery, maltreatment, etc. or by instigating or conniving at battery, maltreatment, etc. by another person;

(4) Unlawfully using weapons or police restraint implements, thereby causing bodily injury or death to a citizen; or

(5) Other unlawful acts causing bodily injury or death to a citizen.

Article 4 The victim shall have the right to compensation if an administrative organ or its functionaries, in exercising their functions and powers, commit any of the following acts infringing upon property right:

(1) Illegally inflicting administrative sanctions such as imposition of fines, revocation of certificates and licences, ordering suspension of production and business, or confiscation of property;

(2) Illegally implementing compulsory administrative measures such as sealing up, distraining or freezing property;

(3) illegally expropriating or requisitioning property; or

(4) Other illegal acts causing damage to property.

Article 5 The State shall not be liable for compensation in any of the following circumstances:

(1) Individual acts of a functionary of an administrative organ, which have nothing to do with the exercise of his functions and powers;

(2) Damage arisen from acts done by citizens, legal persons or other organizations themselves; or

(3) Other circumstances provided by law.

SECTION 2 CLAIMANTS TO COMPENSATION AND ORGANS LIABLE FOR COMPENSATION

Article 6 Victimized citizens, legal persons or other organizations shall have the right to demand compensation.

In case of death of a victim, his heirs or other relatives in maintenance relationship with him shall have the right to demand compensation.

Where the grieved legal person or any other organization is terminated, the successor to the rights thereof shall be entitled to claim compensation.

Article 7 Where an administrative organ and its functionaries, in exercising their administrative powers, infringe upon the lawful rights and interests of a citizen, a legal person or other organizations, thereby causing damage to them, the administrative organ shall be the organ liable for compensation.

Where two or more than two administrative organs in jointly exercising their administrative functions and powers infringe upon the lawful rights and interests of a citizen or a legal person or other organizations, thereby causing damage to them, the administrative organs jointly exercising their administrative functions and powers shall be the organs jointly liable for compensation.

Where an organization in exercising the administrative powers conferred on it by law, rules and regulations infringe upon the lawful rights and interests of a citizen or a legal person or other organizations, thereby causing damage to them, the empowered organization shall be the organization liable for compensation.

Where an organization or an individual, in exercising the administrative powers entrusted to it or him by an administrative organ, infringes upon the lawful rights and interests of a citizen or a legal person or other organizations, thereby causing damage to them, the administrative organ that did the entrustment shall be the organ liable for compensation.

Where an organ liable for compensation has been abolished, the administrative organ that continues to exercise the former’s functions and powers shall be the organ liable for compensation; if there is no administrative organ that continues to exercise the former’s functions and powers, the administrative organ that abolished the former organ shall be the organ liable for compensation.

Article 8 If reconsideration of a case has been made, the administrative organ that first did the tortious act shall be the organ liable for compensation; however, if the outcome of the reconsideration aggravates the damage, the organ undertaking the reconsideration of the case shall carry out its compensatory obligations as regards the increased portion of damages.

SECTION 3 COMPENSATORY PROCEDURE

Article 9 Where an organ obligated to make compensation falls under any of the circumstances as prescribed in Articles 3 and 4 of this Law, it shall make compensation.

A compensation claimant shall firstly apply for compensation to the organ obligated to make compensation, and may also file a claim for compensation along with other claims when applying for administrative reconsideration or bringing an administrative lawsuit.

Article 10 A claimant to compensation may demand compensation from any of the organs jointly liable for it, and the organ approached by him for the purpose shall first make the compensation.

Article 11 A claimant to compensation may, in light of the difference in nature of the damage suffered, make separate claims simultaneously for compensation of the damages.

Article 12 For the purpose of claiming damages, an application in writing shall be made, giving the following particulars:

(1) Name, sex, age, work unit and address of the victim; if the victim is a legal person or other organization, its name and address as well as the name and post of its legal representative or of the person chiefly responsible for the entity;

(2) Concrete statement of the claim, factual grounds and reasons; and

(3) Date, month and year of the application.

If the claimant has true difficulty in writing an application, he may entrust another person with its writing, or may make the application orally, which shall be transcribed and put into the record by the organ liable for compensation.

Where the compensation claimant is not the victim, it/he shall show its/his relationship with the victim and provide a corresponding certification.

Where a compensation claimant files an application in person, the organ obligated to make compensation shall issue on the spot a written certificate to which the special seal of the administrative organ is affixed and on which the date of receipt is indicated. If the application materials are incomplete, the organ obligated to make compensation shall, on the spot or within five days, notify the compensation claimant of all necessary supplements and corrections at one time.

Article 13 An organ obligated to make compensation shall, within two months upon receipt of an application, make a decision on whether to make compensation. When deciding whether to make compensation, the organ obligated to make compensation shall fully hear the opinion of the compensation claimant, and may, in accordance with Chapter IV of this Law, consult with the compensation claimant about the manner, items and amount of compensation.

If the organ obligated to make compensation decides to make compensation, it shall prepare a written decision on compensation, and serve it on the compensation claimant within 10 days from the day on which the decision is made.

If the organ obligated to make compensation decides not to make compensation, it shall notify the compensation claimant in writing of the decision within 10 days from the day on which the decision is made as well as the reasons for making the decision.

Article 14 Where an organ obligated to make compensation fails to make a decision on whether to make compensation within the prescribed time limit, the compensation claimant may, within three months upon the expiration of the time limit, bring a lawsuit in the people’s court.

Where the compensation claimant raises any objection to the manner, items or amount of compensation or if the organ obligated to make compensation decides not to make compensation, the compensation claimant may, within three months from the day on which the organ obligated to make compensation decides to make compensation or not to make compensation, bring a lawsuit in the people’s court.

Article 15 When a people’s court hears a case of administrative compensation, the compensation claimant and the organ obligated to make compensation shall provide evidence on their respective claims.

If, during the period when the organ obligated to make compensation implements administrative detention or any other compulsory measure restricting personal freedom, the person whose personal freedom is restricted dies or loses his civil conduct capacity, the organ obligated to make compensation shall provide evidence on whether there is a causation between its action and the death or loss of civil conduct capacity of the person whose personal freedom is restricted.

Article 16 The organ liable for compensation shall, after making the compensation, charge its functionaries, entrusted organizations or individuals who have been intentional or grossly negligent in the matter, to bear part or the whole of the compensatory expenses.

The relevant organ shall take a disciplinary action against a liable person with intent or gross negligence in accordance with law; and if a crime is constituted, shall bring the offender to justice according to law.

CHAPTER III CRIMINAL COMPENSATION

SECTION 1 SCOPE OF COMPENSATION

Article 17 Where an organ performing the criminal investigation, prosecution or trial functions, a detention center or prison administrative organ or any of its functionaries commits any of the following infringements upon the personal rights in performing its/his functions, the victim shall be entitled to compensation:

(1) the measure of detention is taken against a citizen in violation of the Criminal Procedure Law, or although the measure of detention is taken in accordance with the conditions and procedures as prescribed in the Criminal Procedure Law, the period of detention has exceeded the time limit as prescribed in the Criminal Procedure Law and a decision to withdraw the case or not to prosecute or a judgment of acquittal is made later to terminate the criminal procedure;

(2) after the measure of arrest is taken against a citizen, a decision to withdraw the case or not to prosecute or a judgment of acquittal is made to terminate the criminal procedure;

(3) a judgment of acquittal is made in a retrial held under the trial supervision procedure, but the original sentence has already been served;

(4) a bodily injury or death is caused to a citizen by extorting a confession by torture, by battery or maltreatment or by instigating or conniving at battery or maltreatment by another person; or

(5) a bodily injury or death is caused to a citizen by the illegal use of a weapon or police instrument.

Article 18 Where an organ performing the criminal investigation, prosecution or trial functions, a detention center or prison administrative organ or any of its functionaries commits any of the following infringements upon the property rights in performing its/his functions, the victim shall be entitled to compensation:

(1) the measure of sealing up, seizure, freezing, recovery, etc. is illegally taken against property; or

(2) a judgment of acquittal is made in a retrial held under the trial supervision procedure, but the fine or confiscation of property determined in the original sentence has already been executed.

Article 19 The State shall not be liable for compensation in any of the following circumstances:

(1) The taking into custody or sentencing being due to a citizen’s own intentionally made false statements or fabricated evidence of guilt;

(2) The person taken into custody being one not liable for criminal responsibility in accordance with Articles 17 and 18 of the Criminal Law;

(3) a person who shall not be subject to criminal liability in accordance with Article 15 and paragraph 2 of Article 142 of the Criminal Procedure Law is taken into custody; or

(4) a personal conduct of a functionary of an organ performing the criminal investigation, prosecution or trial functions or a detention center or prison administration organ, which is irrelevant to the performance of his functions.

(5) Damage being caused by intentional acts of a citizen such as self-wounding and self-mutilation; or

(6) Other circumstances as stipulated by law.

SECTION 2 CLAIMANTS TO COMPENSATION AND ORGANS LIABLE FOR COMPENSATION

Article 20 Claimants to compensation shall be determined in accordance with the provisions of Article 6 of this Law.

Article 21 Where an organ performing the criminal investigation, prosecution or trial functions, a detention center or prison administrative organ or any of its functionaries infringes upon any of the legitimate rights and interests of a citizen, a legal person or any other organization in performing its/his functions, causing any damage, such an organ shall be the organ obligated to make compensation.

If the measure of detention is taken against a citizen and state compensation shall be made in accordance with this Law, the organ making the detention decision shall be the organ obligated to make compensation.

If, after the measure of arrest is taken against a citizen, a decision to withdraw the case or not to prosecute or a judgment of acquittal is made, the organ making the arrest decision shall be the organ obligated to make compensation.

If a judgment of acquittal is made in a retrial, the people’s court rendering the original effective sentence shall be the organ obligated to make compensation. If a judgment of acquittal is made by the court of the second instance or the accused is deemed not guilty after the case is remanded by the court of the second instance for retrial, the people’s court of the first instance rendering the guilty sentence shall be the organ obligated to make compensation.

SECTION 3 COMPENSATORY PROCEDURE

Article 22 An organ obligated to make compensation shall make compensation under any of the circumstances as prescribed in Articles 17 and 18 of this Law.

To claim compensation, the compensation claimant shall firstly apply to the organ obligated to make compensation.

A claim for compensation shall be filed by a compensation claimant in accordance with Articles 11 and 12 of this Law.

Article 23 An organ obligated to make compensation shall, within two months upon receipt of an application, make a decision on whether to make compensation. When deciding whether to make compensation, the organ obligated to make compensation shall fully hear the opinion of the compensation claimant, and may, in accordance with Chapter IV of this Law, consult with the compensation claimant about the manner, items and amount of compensation.

If the organ obligated to make compensation decides to make compensation, it shall prepare a written decision on compensation, and serve it on the compensation claimant within 10 days from the day on which the decision is made.

If the organ obligated to make compensation decides not to make compensation, it shall notify the compensation claimant in writing of the decision within 10 days from the day on which the decision is made as well as the reasons for making the decision.

Article 24 Where an organ obligated to make compensation fails to make a decision on whether to make compensation within the prescribed time limit, the compensation claimant may, within thirty days upon the expiration of the time limit, apply for reconsideration to the organ at the next higher level above the organ obligated to make compensation.

Where the compensation claimant raises any objection to the manner, items or amount of the compensation or the organ obligated to make compensation decides not to make compensation, the compensation claimant may, within thirty days from the day on which the organ obligated to make compensation decides to make compensation or not to make compensation, apply for reconsideration to the organ at the next higher level above the organ obligated to make compensation.

Where the organ obligated to make compensation is a people’s court, the compensation claimant may, in accordance with this Article, apply for a compensation decision to the compensation committee of the people’s court at the next higher level.

Article 25 An organ undertaking the reconsideration shall decide the matter within two months from the date of receiving the application.

If a compensation claimant refuses to accept the reconsideration decision, he may, within thirty days upon receipt of the reconsideration decision, apply for a compensation decision to the compensation committee of the people’s court at the same level at the place where the reconsideration organ is located. If the reconsideration organ fails to make a decision within the prescribed time limit, the compensation claimant may, within thirty days upon the expiration of the time limit, apply for a compensation decision to the compensation committee of the people’s court at the same level at the place where the reconsideration organ is located.

Article 26 When the compensation committee of a people’s court handles a claim for compensation, the compensation claimant and the organ obligated to make compensation shall provide evidence for their respective claims.

If a person in custody dies or loses his civil conduct capacity during the period of custody, the organ obligated to make compensation shall provide evidence on whether there is a causation between its action and the death or loss of civil conduct capacity of the person in custody.

Article 27The compensation committee of a people’s court shall handle a claim for compensation in the manner of documentary review. Where necessary, it may make investigation and gather evidence from the relevant entities and personnel. If there are disputes between the compensation claimant and the organ obligated to make compensation over the facts of damage and causation, the compensation committee may hear the statements and arguments of the compensation claimant and the organ obligated to make compensation and conduct cross-examination.

Article 28 The compensation committee of a people’s court shall make a decision within three months upon receipt of an application for compensation. If the case is a difficult, complicated or important one, the time limit may be extended for three months upon approval of the president of the court.

Article 29 A people’s court at or above the intermediate level shall establish a compensation committee comprising three or more of its judges in an odd number.

In making decisions on compensations, compensation commissions shall implement the principle of the minority subordinating to the majority.

Decisions made by a compensation commission are legally effective, and must be implemented.

Article 30 Where a compensation claimant or an organ obligated to make compensation considers that the decision of a compensation committee is wrong for sure, it may appeal to the compensation committee of the people’s court at the next higher level.

If it is found that an effective compensation decision made by a compensation committee violates this Law, the compensation committee may, upon the decision of the president of the court or the order of the people’s court at the higher level, conduct a reexamination and make a decision according to law within two months, and the compensation committee of the people’s court at the next higher level may directly conduct an examination and make a decision.

If the Supreme People’s Procuratorate finds that a decision made by the compensation committee of a people’s court at any level violates this Law or a people’s procuratorate at a higher level finds that a decision made by the compensation committee of a people’s court at a lower level violates this Law, it shall put forward an opinion to the compensation committee of the people’s court at the same level which shall conduct a reexamination and make a decision according to law within two months.

Article 31 An organ liable for compensation shall, after compensating the damage, recover part, or the whole of the compensation expenses from its functionaries who are involved in any of the following circumstances:

(1) Circumstances stated in Items 4 and 5 of Article 17 of this Law; or

(2) Embezzlement and bribe-taking, malpractice for personal ends, or twisting the law in the handling of cases.

The relevant organ shall take a disciplinary action in accordance with law against a liable person under any of the circumstances as prescribed in the preceding paragraph; and if a crime is constituted, the liable person shall be subject to criminal liability in accordance with law.

CHAPTER IV FORMS AND ASSESSMENT OF COMPENSATION

Article 32 State compensation shall take the form of payment of damages in the main.

If the property is able to be returned or its original condition is able to be restored, the property shall be returned or its original condition restored.

Article 33 If freedom of the person of a citizen is infringed, compensatory payment for each day shall be assessed in accordance with the State average daily pay of staff and workers in the previous year.

Article 34 If a citizen’s right to life and health is infringed upon, compensatory payment shall be assessed in accordance with the following provisions:

(1) for any bodily injury, medical treatment expenses, nursing fees and compensation for lost wages shall be paid. The daily compensation for lost wages shall be calculated according to the state average daily wages of workers in the previous year, and the maximum amount shall be five times the state average yearly wages of workers in the previous year.

(2) For the partial or total loss of working capability, medical treatment expenses, nursing fees, costs of disability assistance equipment for living, expenses for rehabilitation, other necessary expenditures due to disability and necessary expenses for continuing treatment, and disability compensation shall be paid. The disability compensation shall be determined in light of the degree of loss of working capability and in line with the disability grade set out by the state, and the maximum amount shall not exceed twenty times the state average yearly wages of workers in the previous year. For the total loss of working capability, living expenses for the victim’s dependents without working capability shall also be paid.

(3) If death results, compensation for death and funeral expenses shall be paid, the total amount shall be twenty times the State average yearly pay of staff and workers in the previous year. Living expenses shall too be paid to those who have no working capability and have been supported by the deceased in his lifetime.

The standards for payment of living expenses as prescribed in items 2 and 3 of the preceding paragraph shall be governed analogically by the local minimum subsistence standards. If a dependent of the victim is a minor, living expenses shall be paid for the minor until the age of 18. For other dependents without working capability, living expenses shall be paid until death.

Article 35 Where any infringement as mentioned in Articles 3 and 17 of this Law inflicts any mental distress on the victim, the infringing organ shall, within the extent of effects of the infringement, eliminate the effects of infringement for the victim, restore the victim’s reputation and make an apology. If serious subsequences are caused, the infringing organ shall pay a proper amount of consolation money for the mental distress.

Article 36 Infringement of property right of a citizen, a legal person, or other organizations, resulting in damage being caused, shall be dealt with in accordance with the following provisions:

(1) If a fine or recovery or confiscation of property has been imposed or any property has been illegally expropriated or requisitioned, such property shall be returned;

(2) If properties have been sealed up, distrained or frozen, the restraints shall be lifted; for properties thus damaged or missing, compensation shall be paid in accordance with the provisions of Items 3 and 4 of this Article;

(3) If the property to be returned is damaged, it shall be restored to its original condition if such restoration can be done; if not, corresponding compensation shall be paid in accordance with the extent of damage;

(4) If the property to be returned is missing, corresponding compensation shall be paid;

(5) If any property has been auctioned or otherwise sold, the income from the auction or sale shall be paid to the victim. If the income from the sale is obviously lower than the value of the property, a corresponding compensation shall be paid;

(6) If the certificate and licence have been revoked and suspension of production and business has been ordered, compensation shall be paid for necessary overhead expenses for the period of such suspension;

(7) If a paid fine or recovered or confiscated money is refunded or the freeze on deposit or remittance is lifted, interest calculated at the bank deposit rate over the same period shall be paid; or

(8) If other damage is done to property rights, compensation shall be paid for the direct losses.

Article 37 Compensation fees shall be included in the public finance budgets at various levels.

A compensation claimant shall apply for payment of compensation to the organ obligated to make compensation upon the strength of an effective court judgment, written reconsideration decision, written compensation decision or court mediation record.

The organ obligated to make compensation shall, within seven days upon receipt of an application for payment of compensation, apply for payment to the relevant public finance department according to the powers of budget management. The public finance department shall, within 15 days upon receipt of the application for payment, pay the compensation.

The specific measures for the management of budget and payment of compensation fees shall be formulated by the State Council.

CHAPTER V OTHER PROVISIONS

Article 38 If a people’s court, in violation of the law, adopts in civil or administrative proceedings compulsory measures or preservative measures in impairment of the proceedings, or wrongly utes a judgment or a ruling or other effective legal documents, thereby resulting in damage being done, the criminal compensation procedures of this Law shall be applicable to the procedure for making claims for compensation by the claimant.

Article 39 The time limitation for a compensation claimant to request state compensation shall be two years, which shall be computed from the day on which the compensation claimant knows or should have known that the action taken by a state organ or any of its functionaries in performing its/his functions has infringed upon the personal or property right of the compensation claimant, excluding the period of restriction of personal freedom such as custody. Where a compensation claimant files a claim for compensation along with other claims when applying for administrative reconsideration or bringing an administrative lawsuit, the provisions on time limitation of the Administrative Reconsideration Law or the Administrative Litigation Law shall apply.

The limitation of action for claims for State compensation shall be suspended if during its last six months, the claimant is unable to exercise his rights due to force majeure or other obstacles. The limitation shall resume from the day the grounds for suspension are eliminated.

Article 40 If a foreigner, a foreign enterprise, or a foreign organization within the territory of the People’s Republic of China demands compensation to be made by the People’s Republic of China, this Law shall apply.

If a State to which a foreigner, a foreign enterprise, or a foreign organization belongs gives no protection to or limits the right of a citizen, a legal person, or other organizations of the People’s Republic of China to claim compensation by that State, the People’s Republic of China shall implement the principle of reciprocity with the State to which the foreigner, the foreign enterprise, or the foreign organization belongs.

CHAPTER VI SUPPLEMENTARY PROVISIONS

Article 41 No organs liable for compensation or undertaking the reconsideration of a case, or the people’s courts may collect any expenses from a claimant to State compensation.

No tax shall be levied as regards the compensation a claimant has obtained.