State Compensation Law of the PRC (Revised in 2010)
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Order of the President of the People's Republic of China No. 29
April 29, 2010
(Adopted at the 7th session of the Standing Committee of the 8th National People's Congress on May 12, 1994 and amended in accordance with the Decisions on Amendment to the State Compensation Law of the People's Republic of China at the 14th session of the Standing Committee of the 11th National People's Congress on April 29, 2010 and shall take effect as of December 1, 2010)
The new State Compensation Law includes mental injury in the scope of state compensation, providing that "in the case of mental injury, the state shall, to the extent of infringement, eliminate the effects of the infringement for the injured party, resume his or her reputation, make an apology and pay appropriate consolation money if the infringement causes serious subsequences".
In addition, the new State Compensation Law also prescribes provisions guaranteeing the payment of compensation. Applicants for compensation shall apply for the payment of compensation with the authorities obligated to pay compensation by producing the valid judgments, decisions on administrative review, and decisions on compensation or reconciliation agreements. The authorities obligate to pay compensation shall, within seven days after receiving such application, apply to the public financial authorities concerned for paying compensation according to the budget management competence, and the said public financial authorities shall make payment within fifteen days after receiving the payment application.
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 The State Compensation Law of the People's Republic of China (the Law) is formulated in accordance with the Constitution with the purposes of safeguarding the right of citizens, legal persons and other organizations entitled to State compensation in line with law, and promoting the execution by State organs of their functions and powers in line with law.
Article 2 Where State organs or State functionaries, in executing their functions and powers, infringe upon the legitimate 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 the Law. The organs liable for compensation as stipulated herein shall discharge their duties of compensation in a timely manner in accordance with the 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 executing 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 or indulging violence such as beating one up and abuse, 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 executing 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 licenses, 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 requisitioning or expropriating properties; 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 successor to the 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 Where 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 herein, 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 tortuous 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, 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.
(Source: LexisNexis)
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