In civil litigation, administrative proceedings, the people's Court of infringement of personal right of parties, the parties may apply for non criminal judicial compensation, but the compensation to property damage compensation, the compensation for spiritual damages are applicable, the law does not expressly.
This situation will soon change.
In September 7th, the highest law issued "the Supreme People's Court on Several Issues concerning the application of law in civil and administrative litigation in judicial compensation cases of interpretation" (hereinafter referred to as judicial interpretation), make unified norms for the applicable law of the relevant criminal judicial compensation cases, mental damage and the introduction of violation of human rights for the first time compensation. The judicial interpretation will come into effect on October 1, 2016.
Compensation for mental damage will be applied to non criminal judicial compensation
The judicial interpretation of the provisions, the criminal judicial compensation cases, the people's court and its staff of violation of personal rights caused by mental damage, should be in accordance with the provisions of article thirty-fifth of the state compensation law, in violation of the impact, eliminate the influence for the victim, to restore the reputation of apology; causing serious consequences, shall also be pay for the damage to the spirit of solatium.
“ non criminal judicial compensation in the case of property damage, but the people's court and its staff in the civil and administrative proceedings, the infringement of the personal rights of citizens, should also be compensation for personal injury. ” the highest compensation law office responsible person, according to the relevant laws and regulations, compensation for spiritual damages for administrative compensation and criminal compensation in violation of human rights has caused serious consequences, but not expressly applicable to non criminal judicial compensation.
The responsible person said, the people's court and its staff in civil and administrative proceedings in the implementation of the illegal detention, beatings, abuse and other acts of violation of personal rights, the damage caused by the consequences may not be less than the administrative compensation and criminal compensation in damages. “ if the exclusion of non criminal judicial compensation scope in terms of the compensation for mental damage, will deviate from the original intention of legislation of state compensation law respecting and safeguarding human rights. ”
“ non criminal judicial compensation to exhaustion of other means of relief as the premise of the state compensation liability occurs, that is the last procedure of national compensation relief program. Usually only after the proceedings or the implementation of the end of the program, in order to determine the final judicial action is illegal, whether the results of damage, etc.. ” the highest compensation law office responsible for that, such as proceedings or execution procedures did not end application for state compensation, will cause the procedure or execution procedure and the procedure of national compensation coexist, the court cannot make final examination.
At the same time, the judicial interpretation also lists five exceptions to the claimant may apply for compensation in the proceedings or execution of the program before the end of the.
To prevent the replacement of civil liability in the state compensation liability
Surging news noted that the release of the judicial interpretation also stipulates that the State shall not be liable for compensation and reduce the state liability, including the personnel of a people's court and exercise powers independent individual behavior, due to force majeure, justifiable defence and emergency and cause harm consequences etc..
“ the correct application of the provisions of the State shall not be liable for compensation, to prevent the replacement of civil liability in the state compensation liability. ” the highest compensation law office responsible person said, the people's court in civil and administrative proceedings, the referee at the center position, the original debt relationship between the court in the process of exercising their due to illegal infringement arising compensation obligations and the parties are two different legal relationship, the two can not be replaced the people's court, not because of the illegal infringement of the original creditor relationship to invisible to all taxpayers' money for individual civil subject “ bill ”.
He also said that in the application for the preservation of error, execution after losing, the enforcement applicant provides the implementation of the subject matter of errors, custodian of infringement cases, there are still people's court and its staff illegal or fault Powers Act, bear the responsibility of national compensation corresponding people's court for their illegal or fault tort not because of, for the preservation and application execution, the application executor and the keeper shall bear civil liability and escape the state compensation liability shall bear the.
As for the loss of state compensation liability clause, the responsible person pointed out, due to a number of reasons or negligent damage, state compensation is limited to the people's court itself illegal infringement damage, the civil liability and is not a substitute for the parties and the third party, the outsider and other responsible person. In addition, the losses have been legal procedures to obtain compensation, compensation, the people's court for the part of the loss does not bear the responsibility of state compensation.