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State Compensation Law needs punitive items
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By Li Kejie

The current State Compensation Law has been criticized for high threshold, low standard, limited coverage and disorderly procedures, making it imperative to amend the law. The modification has been covered in a legislative plan, feasibility studies being underway to collect public views, as reported by Legal Daily on February 15, 2008.

Many discussions revolving around revising the law have taken place in recent years, accompanied by heated debates. The Standing Committee of the Tenth National People’s Congress placed the revisions in a legislative plan five years ago. But the work has progressed very slowly.

Of course progress should be prudent, with carefully planned demonstrations and a collection of public opinions in order to unify these ideas. They will have a direct impact on the quality and effect of the legislation. The main task now is to design a careful and comprehensive system that would guarantee appropriate compensation and resolve other related problems.

The amendment would expand the scope of liabilities, adding a spiritual damages compensation clause. It would also raise compensation standards and improve procedures. The new provisions have been proposed based on the problems in the current version, and the new version would cover more damages, increase compensation and provide easier access for claimants.

In fact, a guiding philosophy is still needed because the new provisions would not solve all the issues. The amendment still has a long way to go to catch up with other compensation laws.

In my opinion, the State Compensation Law involves national responsibilities; the nation wields public power, entrusted by the people. Public power is easily abused and should be strictly controlled. So the State Compensation Law must include more stringent items as compared to other laws in order to avoid any civil rights infringements by government departments or officials. Rigorous responsibilities should be highlighted in the law, and any wrongdoing by government departments causing damages should generate administrative compensation.

The state compensation should cover both material damage compensation and spiritual damage compensation. Material damages include direct losses and expectable indirect losses. In addition the state should also be responsible for punitive compensation, which conforms to the modern rules of law.

In fact, these rigorous responsibilities are in line with the Constitution. Citizens who have suffered losses through infringement of their civil rights by any state organ or functionary have the right to compensation in accordance with the provision stipulated in Article 41 of the Constitution. This means those having infringements of civil rights caused by any improper doing can claim compensation from the state, regarding both legal and illegal activities.

The current law version was worked out in 1994. It has limited liabilities and low levels of compensation, decided upon by the level of understanding, legal administration, economic development and real compensation abilities at that time. Modification work should consider the internal unity and coordination of the administration of law, and impose more restrictions on exercising public power and strengthen civil rights protection. It is necessary to grasp the spirit of the Constitution and change the current mindset in order to perfect the compensation law.

The author is an associate professor of law at the Shandong Institute of Political Science and Law

(China.org.cn translated by Yang Xi, March 3, 2008)

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