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中华人民共和国国家赔偿法 Law of the People's Republic of China on State Compensation

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第二十三号主席令
(Adopted on May 12, 1994 at the Seventh Session of the Standing Committee of the Eighth National People's Congress and promulgated on the same day)
颁布日期:19940512  实施日期:19950101  颁布单位:全国人大常委会

  Chapter 1 General Principles

  Article 1 In conformity with the Constitution, this Law is enacted to protect citizens, legal persons and other organizations to enjoy the right to compensation by the state and to promote the state organs to exercise their functions and powers in accordance with law.

  Article 2 If a state organ or a member of its personnel, when exercising functions and powers in violation of the law, infringes upon the lawful rights and interests of a citizen, legal person or other organization and causes damages the aggrieved person shall have the right to recover damages from the state in accordance with this Law.

  The obligations of state compensation shall be performed by the organs under compensatory obligations stipulated by this Law.

  Chapter 2 Administrative Compensation

  Section 1: Scope of Compensation

  Article 3 The aggrieved person shall have the right to recover damages in one of the following circumstances where an administrative organ or its personnel infringes upon his personal rights when exercising functions and powers:

  (1) where there is unlawful detention or an unlawful compulsory administrative measure to restrict the personal freedom of a citizen;

  (2) where there is unlawful custody or otherwise unlawful deprivation of the personal freedom of a citizen;

  (3) where such violent act as battery or abetting others in battery causes bodily injury to or decease of a citizen;

  (4) where the use of weapon or police apparatus in violation of laws causes bodily injury to or decease of a citizen; or

  (5) other unlawful acts which cause bodily injury to or decease of a citizen.

  Article 4 The aggrieved person shall have the right to recover damages in one of the following circumstances where an administrative organ or its personnel infringes upon his property right when exercising its functions and powers:

  (1) imposing an administrative punishment in violation of the law, such as fining, revocation of a permit or license, order to suspend production or business operation or confiscation of property and article;

  (2) taking a compulsory administrative measure in violation of the law such as sealing up, distraining or freezing of property;

  (3) expropriating property and article or apportioning expenses in violation of rules and regulations of the state; or

  (4) other unlawful acts which cause damage to property.

  Article 5 The state shall not be liable for compensation in one of the following circumstances:

  (1) where the personal act by personnel of the state organ, which does not relate to his exercise of functions and powers;

  (2) where the act by a citizen, legal person or other organization itself causes damage; or

  (3) other situations as provided for by law.

  Section 2: Claimant for Compensation and Organs for compensatory Obligations

  Article 6 The aggrieved citizen, legal person or other organization shall have the right to claim compensation.

  Where the aggrieved citizen is deceased, his successor or other relatives with maintenance relation shall have the right to claim compensation.

  Where the aggrieved legal person or other organization has terminated, the legal person or other organization which succeeds its rights shall have the right to claim compensation.

  Article 7 Where an administrative organ and its personnel infringe upon the lawful rights and interests of a citizen, a legal person or other organization and cause damage when exercising its administrative functions and powers, the organ shall be responsible for fulfilling compensatory obligations.

  Two administrative organs or more which infringe upon the lawful rights and interests of a citizen, legal person or other organization and cause damage when exercising their joint administrative functions and powers, shall be the organs under joint compensatory obligations.

  An organization authorized by law which infringes upon the lawful rights and interests of a citizen, legal person or other organization and causes damage when exercising its authorized administrative powers, shall be the organ under compensatory obligations.

  An organization or individual entrusted by an administrative organ infringes upon the lawful rights and interests of a citizen, legal person or other organization and causes damage when exercising the entrusted administrative powers, shall be the organ under compensatory obligations.

  Where the organ for compensatory obligation has been abolished, the administrative organ that continues to exercise the abolished organ's functions and powers shall be the organ under compensatory obligation; where there is no such a continued administrative organ, the administrative organ that did the abolishment shall be the organ under compensatory obligations.

  Article 8 Where the case has been reconsidered by the organ under reconsideration, the administrative organ which caused the initial damage shall be the organ under compensatory obligations; where the reconsideration decision by the organ for reconsideration aggravates the damage, the organ for reconsideration shall be liable for the damage resulting from the aggravation part.

  Section 3: Procedure of Compensation

  Article 9 The organ for compensatory obligations shall pay compensation in one

  of the circumstances as provided for in Article 3 and Article 4 of this Law once confirmed in accordance with law.

  A claimant shall, first, file a claim for compensation with an organ under compensatory obligations and may, in the meantime, file a claim when applying for an administrative reconsideration and instituting an administrative procedure.

  Article 10 A claimant may claim compensation from any one of the organs under joint compensatory obligations and the said organ under compensatory obligations shall pay compensation first.

  Article 11 The claimant may, depending on different injuries suffered, file several claims for compensation.

  Article 12 The claim for compensation shall be filed by presenting an application, which shall contain the following contents:

  (1) name, sex, age, employer and address of the claimant, name and address of the legal person or other organization and name and post of its legal representative or main person in charge;

  (2) the specific claim, factual basis and reasons; and

  (3) the date of application.

  Where the claimant has difficulty in writing the application, the claimant may entrust it with other persons or file a verbal application, which shall be recorded in writing by the organ under compensatory obligations.

  Article 13 The organ under compensatory obligations shall, within 2 months from the date of receipt of the application, pay compensation in accordance with the provisions of Chapter 4 of this Law; in case of failure by it to pay compensation within the specific period, or where the claimant is not satisfied with the amount of compensation, the claimant may, within 3 months from the date of expiration of the period, bring an action in a people's court.

  Article 14 After paying compensation, the organ under compensatory obligations shall instruct its personnel or the entrusted organization or person who has committed intentional or grave mistake in the case to bear part or all of the expenses for damage.

  The competent authorities shall, in accordance with law, impose administrative sanctions on those responsible persons who have committed intentional or grave mistakes in the case; If the case constitutes a crime, the criminal responsibility shall be investigated according to law.

  Chapter 3 Criminal Compensation

  Section 1: Scope of Compensation

  Article 15 Where organs and their personnel which exercise the functions and powers of detection, prosecution, adjudication and administration of prison cause any of the following infringements upon personal rights when exercising their functions and powers, the aggrieved person shall have the right to recover damages:

  (1) a wrong detention of a person without criminal facts or without facts evidencing the person with gross criminal suspicion;

  (2) a wrong arrest of a person without criminal facts;

  (3) an adjudication of innocence is given to change an original sentence in the retrial according to the procedure for trial supervision, and the original sentence of penalty has been executed;

  (4) bodily injury to or death of a citizen caused by torture arrangement or such violent acts as battery or abetting others in battery;

  (5) the bodily injury to or decease of a citizen caused by unlawful use of weapon or police apparatus.

  Article 16 Organs and their personnel which exercise the functions and powers of detection, prosecution, adjudication and administration of prison cause one of the following infringements upon property rights when exercising their functions and powers, the aggrieved person shall have the right to recover damages:

  (1) where there is a measure, such as sealing up, distraint, freezing or recovery of property in violation of law; or

  (2) where an adjudication of innocence is given to change an original sentence in the retrial in accordance with the procedure for retrial supervision, and the original court supervision of fine or confiscation of property has been executed.

  Article 17 The state shall not be responsible for compensation in any of the following circumstances:

  (1) where a citizen was put into custody or was sentenced criminal penalty because of his intentionally false confession or falsification of other evidence of guilt;

  (2) where a person, who shall not bear criminal responsibility in accordance with Article 14 and Article 15 of the Criminal Law, was put into custody;

  (3) where a person, who shall not be prosecuted for criminal responsibility in accordance with Article 11 of the Criminal procedure Law, was put into custody;

  (4) personal act by the personnel of the organs that exercise the functions and powers of detection, prosecution,

  adjudication and administration of prison, which does not relate to his exercise of the said functions and powers;

  (5) where the damage was caused by such intentional acts as self-injuring or self-disabling; or

  (6) other situations as provided for by law.

  Section 2: Claimant for Compensation and Organ for Compensatory Obligations

  Article 18 The claimant for compensation shall be determined in accordance with Article 6 of this Law.

  Article 19 Where organs and their personnel which exercise the functions and powers of detection, prosecution, adjudication and administration of prison infringe upon the lawful rights and interests of a citizen, legal person or other organization when exercising their functions and powers, the organs shall be responsible for fulfilling compensatory obligations.

  The organ which makes a wrong decision to detain a person without criminal facts or a person without facts evidencing gross criminal suspicion shall be the organ for compensatory obligations.

  The organ which makes a wrong decision to arrest a person without criminal facts shall be the organ for compensatory obligations.

  Where a sentence is given to change an original judgment in the retrial, the people's court which made the original effective judgment shall be the organ for compensatory obligations. Where an adjudication of innocence is given to change an original judgment in the second instance, the people's court which made the judgment of first instance and the organ which made the decision of arrest shall be the organ for compensatory obligations.

  Section 3: Procedures of Compensation

  Article 20 The organ for compensatory obligations shall pay compensation in any of the circumstances as provided for in Article 15 and Article 16 of this Law when confirmed in accordance with law.

  Where the claimant for compensation demands the confirmation of one of the circumstances as provided for in Article 15 and Article 16 of this Law and the demanded organ refuses to make the confirmation, the claimant shall have the right to lodge a complaint.

  Where the claimant claims compensation, the claim shall, first, be lodged to the organ for compensatory obligations.

  The procedures of compensation shall apply to the provisions of Article 10, Article 11 and Article 12 of this Law.

  Article 21 The organ for compensatory obligations shall, within 2 months from the date of receipt of the application, pay compensation in accordance with the provisions of Chapter 4 of this Law; in case of failure by it to pay compensation within the period specified or where the claimant is not satisfied with the amount of compensation, the claimant may, within 30 days from the date of expiration of the time limit, apply for reconsideration by an organ at the next higher level.

  Where the organ under compensatory obligations is a people's court, the claimant for compensation may, pursuant to the provisions of preceding paragraph, apply to the compensation commission of the people's court at the next higher level for a decision of compensation.

  Article 22 The organ for reconsideration shall, within 2 months from the date of receipt of the application, make a decision.

  Where the claimant for compensation is not satisfied with the reconsideration decision, he or she may, within 30 days from the date of receipt of reconsideration decision, apply for a decision of compensation to the compensation commission of the people's court at the same level at the place where the organ for reconsideration is located; Failure by the organ for reconsideration to make a decision within the period specified, the claimant for compensation may, within 30 days from the date of expiration of the time period, apply for a decision of compensation to the compensation commission of the people's court at the same level at the place where the organ for reconsideration is located.

  Article 23 An intermediate people's court or the people's court above the intermediate level shall set up a compensation commission, which shall consist of 3 to 7 judges.

  The compensation commission shall make a decision of compensation on the principle of the minority subordinate to the majority.

  Where the decision of compensation by the compensation commission is of validity of law, it must be executed.

  Article 24 Having paid compensation, the organ under compensatory obligations shall recover part or all of the damages from its personnel in any of the following circumstances:

  (1) the circumstances as provided for in Article 15 (4), (5) of this Law; or

  (2) where its personnel embezzle or take bribery and embezzlement or act wrongly out of personal considerations or commit fraudulent act or bring in judgment by perverting the law.

  The competent authorities shall, in accordance with law, impose administrative sanctions on those responsible persons who fall in one of the circumstances as provided for in (1) and (2) of the proceeding paragraph; If the case constitute a crime, the criminal responsibility shall be investigated in accordance with law.

  Chapter 4 Methods of Compensation and Calculation Standards

  Article 25 The main method of state compensation shall be the payment of damages.

  Where the property can be returned or can be restored to the original state, it shall be returned or made restoration to the original state.

  Article 26 Where the personal rights of a citizen are infringed upon, the amount of money for compensation per day shall be calculated according to the average salary per day of the staff of the state in the preceding year.

  Article 27 Where the rights of life and health of a citizen are infringed upon, the amount of money for compensation per day shall be calculated according to the following provisions:

  (1) Where bodily injury is caused, medical expenses and compensation for losses of income for absence from work shall be paid. The amount of money for compensation per day for losses of income shall be calculated according to the average salary per day of the staff of the state in the preceding year. The maximum amount shall be five times as much as the annual average salary of the staff of the state in the preceding year.

  (2) Where partial or total loss of the ability to work is caused, medical expenses and compensation money for disablement shall be paid. The amount of money for compensation for disablement shall be calculated according to the seriousness of loss of the ability to work. The maximum amount of compensation money for partial loss of ability to work shall be ten times as much as the annual average salary of the staff of the state in the preceding year. The maximum amount of compensation money for total loss of ability to work shall be twenty times as much as the annual average salary of the staff of the state in the preceding year. In case of total loss of ability to work, living expenses shall be paid to the person who is maintained by the aggrieved and without ability to work. and

  (3) Where decease is caused, compensation money and funeral expenses shall be paid, the total amount of which shall be twenty times as much as the annual average salary of the staff of the state in the preceding year.

  Living expenses shall be paid to the person who is maintained by the aggrieved before his or her decease and without ability to work.

  The granting of living expenses mentioned in (2) and (3) of the preceding paragraph shall be made in light of the relevant provisions concerning subsistence relief promulgated by the local civil administration department. Should the person maintained be a juvenile, the living expenses shall be paid until the juvenile reaches the age of 18; Should the person be of no ability to work, the living expenses shall be paid until his decease.

  Article 28 Where the property rights of a citizen, legal person or other organization are infringed upon and damage is caused, it shall be dealt with according to the following provisions:

  (1) in case of imposition of a fine or penalty, recovery or confiscation of property, or expropriation of property and article, or appointment of expenses in violation of the provisions of the state, the property shall be returned;

  (2) in case of sealing up, distraint and freezing of property and causing damage or destruction to the property, compensation shall be paid according to the provisions of (3) and (4) of this Article;

  (3) in case of damage to the property which should be returned, the original state shall be restored if it can be done. If the original state can not be restored, corresponding compensation money shall be paid according to the seriousness of the damage;

  (4) in case of destruction of the property which should be returned, corresponding compensation money shall be paid;

  (5) in case the property has been auctioned, proceeds from the auction shall be paid;

  (6) in case of rescission of a permit or license, order to suspend production or business operation, compensation shall be paid to cover the necessary current expenses incurred during the suspension period; or

  (7) in case of other damages caused to the property, compensation shall be made in light of direct loss of the property.

  Article 29 The expenses for compensation shall be listed in the fiscal budget of governments at all levels, the detailed rules of which shall be formulated by the State Council.

  Chapter 5 Other Provisions

  Article 30 Where any of the circumstances as provided for in Article 3 (1) and (2) and Article 15 (1), (2) and (3) of this Law, is confirmed according to law and causes infringement upon the rights of reputation and honor of the aggrieved person, the organ compensatory obligations shall eliminate the bad effect, rehabilitate the reputation of and make an apology to the aggrieved person to the extent of the infringing acts affected.

  Article 31 Where a people's court, in the course of a civil or administrative procedure, illegally undertakes compulsory measures against impairment of action, preservative measures or wrongfully executes the judgment or award or other legal effective documents and which causes damages, the procedure for the claim of compensation by the claimant shall apply to the provisions of this Law concerning the procedures of criminal compensation.

  Article 32 The prescription of claim for state compensation by the claimant shall be 2 years, which shall be calculated from the day on which the act of exercising the functions and powers by the State organ and its personnel was confirmed unlawful according to law, but the period of custody shall be excluded from the limitation of time.

  Where the claimant for compensation can not exercise his or her right of claim due to force majeure or other obstacles during the last 6 months of the prescription of claim for compensation, the limitation of time shall be suspended. The time of prescription of claim for compensation shall resume from the day when the grounds for the suspension are eliminated.

  Article 33 This Law shall be applicable to such cases as claiming by a foreigner, foreign enterprise or organization in the territory of the People's Republic of China upon the People's Republic of China for state compensation.

  If the mother state of a foreigner, foreign enterprise or organization does not protect or imposes restrictions upon the right of claiming for state compensation from that state by a Chinese citizen, legal entity or other organization, the People's Republic of China shall follow the principle of reciprocity with regard to such mother state of the said foreigner, foreign enterprise or organization.

  Chapter 6 Supplementary Provisions

  Article 34 Where the claimant claims for state compensation, the organ under compensatory obligations, the organ for reconsideration and the people's court shall not charge anything to the claimant.

  Taxes shall not be levied upon the compensation money obtained by claimant for compensation.

  Article 35 This Law shall enter into force as of January 1, 1995.

  Appendix: Related Articles of Laws

  1. Criminal Law of the People's Republic of China

  Article 14 Any person who has reached the age of 16 and who commits a crime shall bear criminal responsibility.

  Any person who has reached the age of 14 but not the age of 16 and who commits a homicide, inflicting serious bodily injury, robbery, arson, habitual theft or any other crime seriously undermining social order shall bear criminal responsibility.

  Any person who has reached the age of 14 but not the age of 18 and who commits a crime shall be given a lighter or mitigated punishment.

  If a person is not punished because he has not reached the age of 16, the head of his or her family or his or her guardian shall be ordered to discipline and educate him or her. When necessary, he or she may also be taken in by the government for reeducation.

  Article 15 If a mental patient causes dangerous consequences at a time when he or she is unable to recognize or control his or her own conduct, he or she shall not bear criminal responsibility, however, his or her family or guardian shall be ordered to make him or her under strict custody and give medical treatment.

  Any person whose mental illness is of an intermittent nature shall bear criminal responsibility if he or she commits a crime when he or she is in a normal mental state.

  Any intoxicated person who commits a crime shall bear criminal responsibility.

  2. Criminal Procedure Law of the People's Republic of China

  Article 11 In any of the following circumstances, no criminal responsibility shall be investigated; if investigation has already been undertaken, the case shall be dismissed, or prosecution shall not be initiated, or innocence shall be declared:

  (1) if an act is obviously of minor importance, causing no serious harm, and is therefore not deemed as a crime;

  (2) if the limitation period for criminal prosecution has expired;

  (3) if an exemption of criminal punishment has been granted in a special amnesty decree;

  (4) if the crime is to be handled only upon complaint according to the Criminal Law, but there has been no complaint or the complaint has been withdrawn;

  (5) if the defendant is deceased; or

  (6) if other laws or decrees provide an exemption from investigation of criminal responsibility.

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