LAW
OF THE PEOPLE'S REPUBLIC OF CHINA ON STATE COMPENSATION
(Adopted at the Seventh Meeting of the Standing Committee of
the Eighth
National People's Congress on May 12, 1994, promulgated by
Order No. 23
of the President of the People's Republic of China on May
12, 1994, and
effective as of January 1, 1995)
CONTENTS
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 State organs or State functionaries, in
violation of the
law, abuse their functions and powers infringing upon the
lawful rights
and interests of the citizens, legal persons and other
organizations,
thereby causing damage to them, the victims shall have the
right to
State compensation in accordance with this Law.
Compensation by the State shall be carried out by the organs
liable for
compensation as stipulated by 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) Using or instigating violence such as beating one up,
thereby
causing bodily injury or death to a citizen;
(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) Expropriating property or apportioning expenses in
violation of the
provisions of the State; 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.
In case of termination of a victimized legal person or other
organization, the legal person or other organization that
succeeds to
the former's rights shall have the right to demand
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 An organ liable for compensation shall, after
confirmation
according to law of its involvement in any of the
circumstances
stipulated in Articles 3 and 4 of this Law, make the
compensation.
A claimant who demands compensation shall first apply to the
organ
liable for the compensation, or may make demands for it
simultaneously
when applying for administrative reconsideration of the case
or when
bringing an administrative action.
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.
Article 13 The organ liable for compensation shall, within
two months
from the date of receiving the application, pay the
compensation in
accordance with the provisions of Chapter IV of this Law. If
payment has
not been made within this period, or if the claimant is not
satisfied
with the amount of compensation, he may bring a suit in a
people's court
within three months from the date of expiration of the
period.
Article 14 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.
Those who are responsible for the matter and have been
intentional or
grossly negligent shall be given administrative sanctions by
the
relevant organ in accordance with law; if a crime has been
constituted,
they shall, according to law, be investigated for criminal
responsibility.
CHAPTER III CRIMINAL COMPENSATION
SECTION 1 SCOPE OF COMPENSATION
Article 15 The victim shall have the right to compensation
if an organ
in charge of investigatory, procuratorial, judicial or
prison
administration work, or its functionaries, infringe upon his
right of
the person in the exercise of its functions and powers in
any of the
following circumstances:
(1) Wrong detention of a person without incriminating facts
or proof
substantiating a strong suspicion of the commission of a
crime;
(2) Wrong arrest of a person without incriminating facts;
(3) Innocence is found in a retrial held in accordance with
the
procedure of trial supervision, but the original sentence
has already
been executed;
(4) Extortion of a confession by torture or causing bodily
injury or
death to a citizen by using or instigating the use of
violence such as
beating one up; or
(5) Causing bodily injury or death to a citizen by the
unlawful use of
weapons or police restraint implements.
Article 16 The victim shall have the right to compensation
if an organ
in charge of investigatory, procuratorial, judicial or
prison
administration work, or its functionaries, infringe upon
property rights
in any of the following circumstances:
(1) Unlawfully taking measures such as sealing up,
distraining, freezing
or recovering a property; or
(2) Innocence is found in a retrial held in accordance with
the
procedure of trial supervision, but the fine or confiscation
of property
in the original sentence has already been executed.
Article 17 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 14 and 15 of the
Criminal
Law;
(3) The person taken into custody being one who shall not be
investigated for criminal responsibility in accordance with
Article 11
of the Criminal Procedure Law;
(4) Individual acts of functionaries of organs in charge of
investigatory, procuratorial, judicial or prison
administration work of
the State, which have nothing to do with the exercise of
their functions
and powers;
(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 18 Claimants to compensation shall be determined in
accordance
with the provisions of Article 6 of this Law.
Article 19 If an organ in charge of investigatory,
procuratorial,
judicial or prison administration work, or its
functionaries, infringe
upon the rights and interests of a citizen, a legal person,
or other
organizations, in the exercise of its functions and powers,
thereby
causing damage to the victims, that organ shall be the organ
liable for
compensation.
If a person is wrongly detained without incriminating facts
nor proof
substantiating a strong suspicion of the commission of a
crime, the
organ deciding on the detention shall be the organ liable
for
compensation.
If a person is wrongly arrested without incriminating facts,
the organ
deciding on the arrest shall be the organ liable for
compensation.
If a person is adjudged not guilty in a retrial, the
people's court
passing the originally effective sentence shall be the organ
liable for
compensation. If a person is adjudged not guilty by a court
of the
second instance, the lower court passing the original
sentence and the
organ deciding on the arrest shall be the organs jointly
liable for
compensation.
SECTION 3 COMPENSATORY PROCEDURE
Article 20 An organ liable for compensation shall pay the
compensation
if its involvement in any of the circumstance stipulated in
the
provisions of Articles 15 and 16 of this Law has been
lawfully
confirmed.
If a demand for confirmation of the presence of one of the
circumstances
stipulated in the provisions of Articles 15 and 16 of this
Law has been
made by a claimant to compensation and is not satisfied by
the organ to
which the demand was made, the claimant to compensation
shall have the
right to bring an appeal.
A claimant to compensation shall first apply to the organ
liable for
compensation in making a demand for it.
The provisions of Articles 10, 11 and 12 of this Law shall
be applicable
to the compensatory procedure.
Article 21 An organ liable for compensation shall pay
compensation in
accordance with the provisions of Chapter IV of this Law
within two
months from the date of receiving the application; if
payment is not
made within the period, or if the claimant to compensation
is not
satisfied with the sum of compensation, he may apply for
reconsideration
to an organ at the next higher level within thirty days from
the date of
expiration of the period.
If the organ liable for compensation is a people's court,
the claimant
to compensation may, in accordance with the provisions of
the preceding
paragraph, apply to the compensation commission of a
people's court at
the next higher level for a decision on compensation.
Article 22 An organ undertaking the reconsideration shall
decide the
matter within two months from the date of receiving the
application.
A claimant to compensation who refuses to accept the outcome
of the
reconsideration, may, within thirty days from the date of
receiving the
decision, apply for a decision on compensation to the
compensation
commission of the people's court at the same level in the
locality where
the organ that attended to the reconsideration is situated;
if the
latter organ has made no decision within the period
prescribed, the
claimant to compensation may, within thirty days from the
expiration of
the period, apply for a decision to the compensation
commission of the
people's court at the same level in the locality where the
organ
undertaking the reconsideration is situated.
Article 23 People's courts at or above the intermediate
level shall
establish compensation commission composed of three to seven
of their
judges.
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 24 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 15 of
this Law; or
(2) Embezzlement and bribe-taking, malpractice for personal
ends, or
twisting the law in the handling of cases. Persons
responsible for their
involvement in the circumstances as stated in Items 1 and 2
of the
preceding paragraph shall be given administrative sanctions
by the
relevant organ according to law; if a crime is constituted,
criminal
responsibility shall be investigated according to law.
CHAPTER IV FORMS AND ASSESSMENT OF COMPENSATION
Article 25 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 26 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 27 If a citizen's right to life and health is
infringed upon,
compensatory payment shall be assessed in accordance with
the following
provisions:
(1) In the case of bodily injury, medical expenses as well
as
compensation for loss in income due to missed working time
shall be
paid. Daily compensation for the loss in income shall be
assessed in
accordance with the State average daily pay of staff and
workers in the
previous year, the maximum shall be five times the State
average yearly
pay of staff and workers in the previous year;
(2) In the case of loss of part or the whole of working
capability,
medical expenses and disability compensation shall be paid,
the latter
to be determined in accordance with the degree of working
capability
lost. Maximum amount of compensation for partial loss of
working
capability shall be ten times the State average yearly pay
of staff and
workers in the previous year, and that for total loss,
twenty times, in
which case living expenses shall too be paid to persons who
have no
working capability and have been supported by the disabled;
or
(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 standard for payment of living expenses provided in
Items 2 and 3 in
the preceding paragraph shall be handled by using for
reference relevant
provisions for relief of the local departments of civil
affairs. If the
persons supported by the deceased are minors, their living
expenses
shall be paid until they reach the age of 18; as to the
others who have
no working capability, living expenses shall be paid until
their death.
Article 28 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 fines, recovery or confiscation of property have been
ordered, or
monies and chattels have been expropriated and expenses
apportioned in
violation of the provisions of the State, the properties
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 the property has been sold by auction, the proceeds
of the
auction shall be returned;
(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; and
(7) If other damage is done to property rights, compensation
shall be
paid for the direct losses.
Article 29 Compensation expenses shall be entered in the
financial
budget at various levels, specific measures therefor are to
be provided
by the State Council.
CHAPTER V OTHER PROVISIONS
Article 30 If the presence of any one of the circumstances
stipulated in
Items 1 and 2 of Article 3 and Items 1, 2 and 3 of Article
15 of this
Law has been lawfully confirmed and found injurious to the
victim's
reputation and honour, the organ liable for compensation
shall, within
the scope of influence of the tortious act, eliminate the
evil effects
for the victim, rehabilitate his reputation, and extend an
apology.
Article 31 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
executes 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 32 The limitation of action for claims for State
compensation
shall be two years, to be counted from the day the exercise
of the
functions and powers by a State organ and its functionaries
is lawfully
confirmed to be in violation of law, but the period of
detention of the
victim shall not be counted.
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 33 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 34 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.
Article 35 This Law shall go into effect as of January 1,
1995. |