(Adopted by the Seventh Session of the Standing Committee of the Eighth National People's Congress on May 12, 1994, and promulgated by Order No.23 of the President of the People's Republic of China on May 12, 1994)
Contents
Chapter I General Proviions
Chapter II Administrative Compensation
Section 1 Limits on Compensation
Section 2 Compensation Claimant and Compensating Organ
Section 3 Compensation Procedures
Chapter III Criminal Compensation
Section 1 Limits on Compensation
Section 2 Compensation Claimant and Compensating Organ
Section 3 Compensation Procedures
Chapter IV Form of Compensation and Basis of Calculation
Chapter V Other Provisions
Chapter VI Supplementary Provisions
Appendix: Relevant Articles of Laws
Chapter I General Provisions
Article 1
This Law is formulated in accordance with the Constitution in order to ensure that citizens, legal entities and other organizations enjoy the right to obtain compensation from the state according to law, and to urge state organs to exercise their functions and powers according to law.
Article 2
In the event a state organ or its functionary exercises its functions and powers illegally, infringes upon the lawful rights and interests of a citizen, legal entity or any other organization and causes loss or damage as a result, the injured party has the right to obtain compensation from the state in accordance with this Law.
In regard to the state compensation, the compensating organ as provided by this Law is to honor the obligation of compensation.
Chapter II Administrative Compensation
Section 1 Limits on Compensation
Article 3
Where, in exercising the administrative functions and powers, an administrative organ or its functionary is under one of the following circumstances of infringing upon the right of the person, the injured party has the right to obtain compensation:
1. illegally detaining or resorting to compulsory administrative measures to restrict a citizen's freedom of the person;
2. unlawful detention or deprivation of a citizen's freedom of the person by other means;
3. causing a citizen's bodily injury or death by resorting to violence acts such as battery or by instigating others to resort to violence acts such as battery;
4. illegally using weapons and police appliances and causing a citizen's bodily injury or death as a result; or
5. other illegal acts which cause a citizen's bodily injury or death.
Article 4
Where, in exercising the administrative functions and powers,
an administrative organ or its functionary is under one of the following circumstances of property violation, the injured party has the right to obtain compensation:
1. illegally imposing such administrative penalties as fines, revocation of permits and licenses, mandate of suspension of production and suspension of business or confiscation of property and goods;
2. illegally taking such compulsory administrative measures as sealing up, distraining or freezing property;
3. collecting property and goods or apportioning expenses in violation of state regulations; or
4. other illegal acts which cause loss or damage to property.
Article 5
The state oughtn't to assume liability of making compensation under one of the following circumstances:
1. personal acts of functionaries of administrative organs which are not relevant to the exercise of their functions and powers of office;
2. losses or damages suffered due to their own acts of citizens, legal entities and other organizations; or
3. other circumstances as provided by laws.
Section 2 Compensation Claimant and Compensating Organ
Article 6
An injured citizen, legal entity or any other organization has the right to sue for redress.
In case an injured citizen is deceased, his or her heir and other relatives having fostering relations has the right to sue for redress.
If case an injured legal entity or any other organization ceases to exist, the legal entity or any other organization which receives its rights has the right to sue for redress.
Article 7
Where, in exercising the administrative functions and powers, an administrative organ and its functionary infringe upon the lawful rights and interests of a citizen, legal entity or any other organization and causes loss or damage as a result, the said administrative organ is the compensating organ.
Where two or more administrative organs, in exercising jointly the administrative functions and powers, infringe upon the lawful rights and interests of a citizen, legal entity or any other organization and cause loss or damage as a result, the administrative organs which jointly exercise the administrative functions and powers are the joint compensating organ.
Where an organization as empowered by laws and regulations, in exercising its administrative powers empowered, infringes upon the lawful rights and interests of a citizen, legal entity or any other organization and causes loss or damage as a result, the said organization empowered is the compensating organ.
Where an organization or individual that is mandated by an administrative organ, in exercising its administrative powers mandated, infringes upon the lawful rights and interests of a citizen, legal entity or any other organization and causes loss or damage as a result, the mandating administrative organ is the compensating organ.
In the event a compensating organ is ceased to exist, the administrative organ which continues to exercise the functions and powers of the ceased compensating organ is the compensating organ; In case there is no such an administrative organ which continues to exercise the functions and powers of the ceased compensating organ, the administrative organ which ceases the ceased compensating organ is the compensating organ.
Article 8
Where a reconsideration has been made by a reconsideration organ, the administrative organ which committed the act of infringement first is the compensating organ, if a reconsideration decision of a reconsideration organ worsens loss or damage, however, the reconsideration organ ought to assume liability of making compensation for the heavier loss or damage.
Section 3 Compensation Procedures
Article 9
In the event one of the circumstances listed in Article 3 and Article 4 of this Law is affirmed to exist according to law, the compensating organ shall make compensation.
In claim compensation, the compensation claimant shall file with the compensating organ first and also may file such claim together with its application for administrative reconsideration or its institution of administrative proceedings.
Article 10
A compensation claimant may sue for redress from any of the joint compensating organs, the compensating organ sued shall make compensation first.
Article 11
A compensation claimant may, according to the extent of loss or damage suffered, make several claims for compensation at one time.
Article 12
In claim compensation, an application form shall be submitted, which shall contain the following contents:
1. the name, sex, age, work unit and domicile of the injured party, the name and domicile of the legal entity or any other organization, and the name and position of the legal representative or the principal head;
2. concrete claim(s), grounds of facts and causes; and
3. day, month and year of the application.
A compensation claimant that has difficulty in writing an application form may entrust others to write and also may apply orally to the compensating organ which shall make a written record of it.
Article 13
The compensating organ shall, within two months from the date of receiving the application, make compensation in accordance with the provisions of Chapter IV of this Law; if the organ fails to make compensation within the set time limit or the compensation claimant does not agree with the amount of compensation, the compensation claimant may, within three months after the expiration of the set time limit, bring a lawsuit to the people's court.
Article 14
After making compensation for loss or damage, the compensating organ shall order the functionary having intentional or serious negligence or the organization or individual mandated to hold the compensatory payment partially or completely.
Relevant organs shall, according to law, mete out administrative penalties to those persons who have committed intentional or serious negligence; if a crime is constituted, criminal responsibility shall be investigated according to law.
Chapter III Criminal Compensation
Section 1 Limits on Compensation
Article 15
Where an organ exercising functions and powers in investigation, prosecution, adjudication or prison management, or its functionary, in exercising its functions and powers, is under one of the following circumstances of infringing upon the right of the person, the injured party has the right to obtain compensation:
1. wrongly detaining a person without facts of crimes or without factual proof to be suspect of a crime;
2. wrongly arresting a person without facts of crimes;
3. where, in accordance with the procedure of trial supervision, a retrial rules it as innocent of a crime, however, and the original sentence has commenced to be executed;
4. extorting a confession by torture or resorting to violences such as battery or instigating others to resort to violences such as battery and causing a citizen's bodily injury or death; or
5. illegally using weapons or police appliances and causing a citizen's bodily injury or death as a result.
Article 16
Where an organ exercising functions and powers in investigation, prosecution, adjudication or prison management, or its functionary, in exercising its functions and powers, is under one of the following circumstances of property violation, the injured party has the right to obtain compensation:
1. illegally taking measures such as sealing up, distraining, freezing or additionally seizing property; and
2. where a retrial, in accordance with the procedure of trial supervision, rules it as innocent of a crime, however, the original fine or confiscation of property has been executed.
Article 17
The state oughtn't to assume liability of making compensation under one of the following circumstances:
1. being in custody or sentenced due to the false statement intentionally or other falsified evidence of guilt made by the citizen itself;
2. taking in custody the person who is not liable for criminal responsibility in accordance with the provisions of Article 14 and Article 15 of the Criminal Law;
3. taking in custody the person whose criminal responsibility is not to be investigated in accordance with the provisions of Article 11 of the Criminal Procedure Law;
4. personal acts of functionaries of the organs which exercise functions and powers in investigation, prosecuration, adjudication and prison management, which are not relevant to their exercise of functions and powers;
5. the occurrence of injury or damage is due to the citizen's intentional acts such as self-wounding and self-disabling; and
6. other circumstances as provided by laws.
Section 2 Compensation Claimant and Compensating Organ
Article 18
The determination of compensation claimant is in accordance with the provisions of Article 6 of this Law.
Article 19
Where an organ exercising functions and powers in investigation, prosecuration, adjudication or prison management, or its functionary, in exercising its functions and powers, infringes upon the lawful rights and interests of a citizen, legal entity or any other organization and causes loss or damage as a result, the said organ is the compensating organ.
Where a person without facts of a crime or without factual proof to be suspect of a crime is wrongly detained, the organ which has made the decision of detention is the compensating organ.
Where a person who does not have a crime is wrongly arrested, the organ which has made the decision of arrest is the compensating organ.
Where a retrial rules it as innocent of a crime, the people's court which has made the original effective judgment is the compensating organ. If the second instance rules it as innocent of a crime, the people's court which made the first instance and the organ which made the decision of arrest is the joint compensating organs.
Section 3 Compensation Procedures
Article 20
In the event one of the circumstances listed in Article 15 and Article 16 of this Law is affirmed to exist according to law, the compensating organ shall make compensation.
Where a compensation claimant requests to be affirmed as having one of the circumstances listed in Article 15 and Article 16 of this Law and the requested organ fails to affirm, the compensation claimant is entitled to appeal.
In claim compensation, the claimant shall file with the compensating organ first.
The provisions of Articles 10, 11 and 12 of this Law are applicable to the compensation procedures.
Article 21
The compensating organ shall, within two months from date of receiving the application, make compensation according to Chapter IV of this Law; in case the organ fails to make compensation within the set time limit or the claimant does not agree with the amount of compensation, the compensation claimant may, within 30 days upon the expiration of the set time limit, apply for a reconsideration to the organ of its next higher level.
Where the compensating organ is a people's court, the compensation claimant may, in accordance with the provisions of the preceding paragraph, apply to the compensation committee of the people's court at its next higher level for making a decision of compensation.
Article 22
The reconsideration organ shall, within two months from the date of receiving the application, make a decision.
The compensation claimant who does not agree with the reconsideration decision may, within 30 days from the date of receiving the reconsideration decision, apply to the compensation committee of the people's court of the same level in the place where the reconsideration organ is located for making a decision of compensation; in case the reconsideration organ fails to make a decision at the expiration of the set time limit, the compensation claimant may, within 30 days from the expiration of the set time limit, apply for making a decision of compensation to the compensation committee of the people's court of the same level in the place where the reconsideration organ is located.
Article 23
People's courts at or above the intermediate level shall establish the compensation committee which is composed of three to seven judicial officers of the people court.
In making decisions on compensation, the compensation committee adopts the principle of subordinating the minority to the majority.
A decision of compensation made by the compensation committee is a legally effective decision and must be executed.
Article 24
After making compensation, the compensating organ shall retrieve, partially or completely, the compensation payment from the functionaries who are under one of the following circumstances:
1. having a circumstance as provided in Items 4 and 5 of Article 15 of this Law; and
2. committing an act of embezzlement and accepting bribes, engaging in malpractice for personal advantage or perverting the law in making a judgment during the process of case hearing.
Relevant organs shall, according to law, mete out administrative penalties to the person(s) responsible who is under the circumstances as provided in Items 1 and 2 of the preceding paragraph; if a crime is constituted, criminal responsibility shall be investigated according to law.
Chapter IV Form of Compensation and Basis of Calculation
Article 25
State compensation takes the pecuniary compensation as its main form.
Where the property could be returned or a re-conversion could be made, the property shall be returned or the re-conversion to the original shall be made.
Article 26
If a citizen's freedom of the person is infringed upon, the daily amount of compensation is calculated in accordance with the daily average wages of employees of the state in the preceding year.
Article 27
If a citizen's right of life and health is infringed upon, the amount of compensation is calculated according to the following provisions:
1. If a bodily injury is caused, medical expenses shall be paid and the decrement of income resulted from the absence from work shall be compensated. The daily amount of compensation for the income decrement resulted from the absence from work is calculated according to the daily average wages of employees of the state in the preceding year, the maximum amount is five times the annually average wages of employees of the state in the preceding year;
2. If a partial or complete loss of working ability is caused, medical expenses and compensation for disability shall be paid, the compensation for disability is determined in accordance with the extent of loss of working ability, the maximum amount for the partial loss of working ability is 10 times the annually average wages of employees of the state in the preceding year, and the maximum amount for the complete loss of working ability is 20 times the annually average wages of employees of the state in the preceding year. Where a complete loss of working ability is caused, living allowances shall be paid to the person(s) without working ability supported by the injured party.
3. If a death is caused, the compensation for death and funeral expenses shall be paid, and the aggregate amount is 20 times the annually average wages of employees of the state in the preceding year. Living allowances shall also be paid to the person(s) without working ability supported by the deceased prior to the death.
The payment standard of living allowances as provided in Items 2 and 3 of the preceding paragraph shall be handled in reference to the relevant regulations on living relief by local civil administration departments. If the dependent(s) is a minor, the living allowances shall be paid until the 18th birthday of the dependent(s); the living allowances for other persons without working ability shall be paid until their death.
Article 28
In the event an infringement upon the right of property of a citizen, legal entity and any other organization causes the loss or damage, it shall be handled in accordance with the following provisions:
1. where fines, amercement, additional seizure or confiscation of property was imposed, or in violation of state regulations, the property was collected or charges was apportioned, the property shall be returned;
2. where the property is sealed up, distrained or frozen, the seizure, distraint or freeze over the property is lifted, if the property is caused damages or loss, the compensation is made in accordance with the provisions of Items 3 and 4 of this Article;
3. where the property which should be returned sustained the damage, a re-conversion to the original shall be made if the re-conversion is possible, and if the re-conversion is impossible, the appropriate compensation is paid according to the extent of the damage;
4. where the property which should be returned sustained the loss, the appropriate compensation is paid;
5. where the property has been auctioned off, proceeds from the auction is paid;
6. where a permit or license is revoked or production or business is ordered to be suspended, necessary routine expenses during the period of production or business suspension are compensated; and
7. where other loss or damage is caused to the right of property, the compensation is made according to the direct loss or damage.
Article 29
Compensation expenses shall be covered by fiscal budget at various levels and the State Council is to devise the concrete measures.
Chapter V Other Provisions
Article 30
In the event one of the circumstances listed in Items 1 and 2 of Article 3 and Items 1, 2 and 3 of Article 15 of this Law is affirmed to exist according to law, and simultaneously causes a damage to the right of reputation and honor of the injured party, the compensating organ shall, within the domain of influence by the infringement act, eliminate the influence and rehabilitate the reputation for the injured party, and offer an apology.
Article 31
Where, during the process of a civil or administrative proceedings, a people's court takes, in violation of law, compulsory measures and preservative measures that hinder the proceedings, or has mistakes in executing a judgment, order or other effective legal documents, and causes loss or damage as a result, the provisions on the procedures of criminal compensation of this Law are applicable to the procedures on which the compensation claimant claims for compensation.
Article 32
The limitation period for a compensation claimant applying for state compensation is two years, counted from the date on which the act of the state organ and its functionary in executing their functions and powers is affirmed according to law as unlawful, but the period of custody may not be counted into the limitation period.
In case a compensation claimant, within the last six months of the limitation period for application of compensation, can not exercise his or her right of application due to force majeure or other obstacles, the limitation period suspends. Starting from the date on which the cause for the suspension of limitation period is eliminated, the limitation period for application shall continue to be counted.
Article 33
This Law is applicable to foreigners, foreign enterprises and organizations that claim for state compensation from the People's Republic of China within its territory.
If a country to which a foreigner, foreign enterprise or organization belongs does not protect or restricts the rights of the citizen, legal entity or any other organization of the People's Republic of China in claiming state compensation from the said country, the People's Republic of China adopts the principle of reciprocity to the country to which the foreigner, foreign enterprise or organization belongs.
Chapter VI Supplementary Provisions
Article 34
In the event compensation claimants claim for state compensation, compensating organs, reconsideration organs and people's courts may not collect any charges or fees from the compensation claimants.
The compensations obtained by compensation claimants are exempted from taxes.
Article 35
This Law shall enter into effect on January 1, 1995.
Appendix: Relevant Articles of Laws
I. Criminal Law:
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 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 or she 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; but his or her family members or guardian shall be ordered to keep him or her under strict surveillance and arrange for his or her medical treatment.
Any person whose mental illness is of an intermittent nature shall bear criminal responsibility if he or she commits a crime at a time when he or she is in a normal mental state.
Any intoxicated person who commits a crime shall bear the criminal responsibility.
II. Criminal Procedure Law
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.
