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Amendment urged to protect civil rights
By Meng Yan (China Daily)
Updated: 2004-07-06 01:16

Amendment of the decade-old State Compensation Law has been listed on the five-year legislative agenda of the country's top legislature.

Experts said legislators should change the principle of State culpability for compensation, expand the coverage of compensation, increase compensation levels and improve compensation procedures so that the victims receive adequate and prompt redress.

The State Compensation Law was enacted in May 1994 and took effect at the beginning of 1995. State compensation includes both compensation for administrative error and criminal action.

The courts across the country handled 15,867 cases involving compensation by the State by the end of last year, according to figures from the Supreme People's Court.

The Supreme People's Procuratorate has paid nearly 50 million yuan (US$6 million) in State compensation in the past decade.

The law says individuals, corporations and other organizations have the right to claim compensation from the State when their legal rights and interests have been infringed upon by administrative or judicial agencies that have violated the law in exercising their functions and powers.

Under this principle of culpability, State compensation is not applicable when the administrative or judicial officials have not violated the law, even though they may have caused damage to individuals, corporations or other organizations, said Yu An, a professor of administrative law with the School of Public Policy and Management at Tsinghua University.

For example, Yu said, police officers are not liable for the injury of a criminal suspect if he or she falls out of the police wagon when the back door suddenly opens of itself on a bumpy countryside road. The police officers have not violated any law in this process, although they should have made sure that the door is safely locked.

Yu said if the principle of liability for wrongs is applied, the police authority would have to compensate the victim for injury in this case. Using the principle of violation of law has greatly reduced the amount of compensation the State would otherwise have to pay.

Yu said determining when State compensation is applicable is the core issue of the legislation and will be a major challenge for the legislators.

Yuan Shuhong, a professor of law with the National School of Administration, said the current principle of culpability should be expanded to include manifest injustice, actions that are obviously unjust.

Yuan also suggested that the future amendment expand the the range of things for which compensation will be paid to include damage caused by public facilities and violation of individuals' right to work and receive education. Currently the State only pays compensation for damage of personal rights and property rights.

Ying Songnian, professor and director of the Division of Law of the National School of Administration, said the amount of compensation should be raised, as the country has achieved tremendous economic growth in the past decade.

Yuan said the compensation should cover indirect loss victims might suffer.

Ma Huaide, a professor of law with China University of Political Science and Law, said the compensation level is not high enough to keep the administrative and judicial bodies vigilant and that mental injury does not, but should, qualify for compensation.

Ma said existing compensation is directed at consoling the injured rather than punishing the perpetrators.

Ma said the current way of compensating for mental injury by apologizing, providing rehabilitation and eliminating ill effects is not practical and does not sufficiently compensate victims.

All experts agreed that the procedures for determining when the State must pay compensation should be open to the public. And both parties, the victims and government departments, should be given equal chances to participate.

Wang Shengming, deputy director of the Legislative Affairs Commission under the Standing Committee of the National People's Congress, said the legislators will also pay much attention to co-ordination between the legislation on State compensation and the laws on administrative procedures, administrative review, administrative licensing and the Criminal Code, given the close links between these two areas of legislation.

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