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Suing the Sovereign Observed from the ChinesePerspective:The

作者:王锡锌   点击量:32932



I.Introduction

Unlike in the United States and otherwestern democratic societies, separation of powers as a fundamental principleof setting up the structure of state powers has not been adopted by the ChineseConstitution of 1982. Instead, the Chinese Constitution embraces the NationalPeople's Congress System, which to some extend looks like the Britishparliamentary system. Under the people's congress system, people's congressesat national level and sub-national levels are sources of state powers, whichmeans both the executive power and the judicial power derive from people'scongress at corresponding levels and are subject to its control.

As a result of the people's congresssystem, there does not exist such constitutional provision to guaranteejudicial independence as Article III of the US Constitution. Although theChinese Constitution declares that the courts shall be independent of anyperson or any organization and government agency, thefact is that the courts lack independence due to political, legal, personnel,institutional and financial reasons. For example, all judges of courts must beselected or approved, and shall be subject to remove for cause, by the people'scongress or its standing committee at corresponding level. In addition, thelocal courts are designated based on administrative regional divisions and arefinanced by local people's governments. Subsequently, local courts are subjectto financial and political control by local governments. All theseinstitutional arrangements have resulted in serious problems in terms ofjudicial independence, particularly in the context of suing the government.

Structurally, the Chinese courts aredivided into two categories, namely, courts of general jurisdiction and courtsof special jurisdiction. Courts of general jurisdiction are established at fourlevels. The courts at lowest level are at county level, and each county has acourt. Therefore, there are more than 2,200 county courts across the country.The next higher courts are intermediate courts, which are established at everymajor city. The high courts are established at provincial level, and there are32 high courts. The Supreme People's Court is the highest judicial organ in thecountry. Courts of special jurisdiction include the Military Court, Maritimecourt and Railway court, all of which are subordinate to the Supreme Court. Inthe year of 2001, statistics show that there are over 300,000 judges (includingassistant judges and law clerks) in the court system.

II.Suing the Government: An Overview

Since 1949, when the People's Republic ofChina was founded, China had witnessed four Constitutions made in 1954, 1975,1978, and 1982 respectively. All these Constitutions embraced the politicaldoctrine of "people's sovereign", declaring that all state powersbelong to the people. Under this doctrine, it is logically reasonable thatpeople shall have the right to challenge the government. As a matter of law,the current Constitution of 1982 does provide that individuals shall have rightto charge against any state organs and government officials thereof if theyinfringe upon their rights or lawful interests. In particular, the Constitutionarticulates that if governmental and official infringements have caused loss ofindividuals' lawful interests, compensation must be made.However, since the Chinese Constitution is too inspirational rather thaninstitutional, constitutional rights are not automatically enforceable by thecourts, unless there are statutes that clearly mandate the courts to do sounder given circumstances.

As a matter of fact, citizen'sconstitutional rights to state compensation had not been feasible until theyear of 1986, when the General Principles of Civil Law was enacted by theNational People's Congress. The General Principles of Civil Law, also deemed asa framework of Chinese civil code, basically deals with private rights such asproperty and contract rights and duties among private parties. However, Article121 of this law expressly provides that if state organs and governmentofficials thereof infringe individual's rights and interests, individuals mayclaim for compensation by bring an action of tort in the courts.Under this law, government organs are deemed as ordinary legal persons, andclaims against them for compensation are processed through civil procedures.While the law made a great progress in providing citizens with a legal forum tochallenge government agency, individuals' experiences of suing the governmentunder this law had been proved exhausting and painful, because criteria foridentifying the state liability are not clearly addressed.

This situation has been changed since 1989,when the Administrative Litigation Law (the ALL) was enacted by the nationallegislature. The ALL forthe first time established the system of judicial review over agency actions inthe PRC history. Under the Administrative Litigation Law, citizens and legalentities may challenge agency actions in the courts. In addition, it alsoprovided that if individuals' rights and interests are infringed upon bygovernment agency or officials thereof, they shall have the right to claim forcompensation in the judicial review proceedings. In this sense, the ALL made agiant step forward in institutionalizing the idea of state compensation.

After the ALL, the State Compensation Law(the SCL) was enacted by the National People's Congress in 1994.The SCL can be seen as systematic efforts in further developing the statecompensation system by defining the scope of state compensation, the criteriafor identifying state liability, principles and scope of sovereign immunity,and precise procedures for claiming compensation against state organs.

The General Principles of Civil Law,together with the Administrative Litigation Law and the State Compensation Law,are major statuary sources for claiming compensation against the state inChina. Traditionally, the Chinese legal system received heavy influence fromthe continental jurisdiction, and distinction of public law and private law hasbeen always emphasized. As a result, It can be found that in the current legalsystem, state compensation is classified into two types, namely, statecompensation under private law liability and state compensation under publiclaw liability, which are different in substantive nature as well as procedures.In private law, the state may undertake its liability for its activities simplylike any private party. In public law, however, state liability is defined andundertook in terms that are different from those prescribed in civil laws.

Generally speaking, although the state canbe sued under civil law as a matter of theory and practice, it is most likelybe challenged under public law, particularly under the ALL and the SCL. In thepast 10 years, the implementation of the ALL and the SCL has created a forumfor individuals and legal entities to challenge the state and to claimcompensation against the state. While the Chinese practice of suing the stateis still in an emerging process, it has revealed joys and pains of individualsand ambivalence of the government, to which we now turn.

III.Suing the Government under the State Compensation System

The 1994 State Compensation Law establishedthe state compensation system under which the state is required to compensatefor damages caused by state organs, including administrative agency andjudicial organs, resulted from infringements upon individuals' rights andinterests. Article 2 of this law expressly provides that "citizens, legalentities or other organizations have the right to seek compensation from thestate if state organs and officers thereof abuse their power and infringe upontheir legal rights and interests and have caused damages thereof".This provision makes the constitutional promise of state compensation moreprecise and practical, and lays down the cornerstone of the state compensationsystem, the major contents of which can be summarized as following.

A.Types of state compensation: Administrative vs. Criminal

The State Compensation Law specifies twokinds of compensation, namely, administrative compensation and criminalcompensation. Administrative compensation deals with damages caused byadministrative agencies or their officers in performing public functions. Thestate should assume the responsibility of compensation if government agenciesor their staff abuse their power and infringe upon legal rights and interestsof citizens, legal entities or other organizations and have caused damagesthereof. Criminal compensation, sometimes called judicial compensation, dealswith damages or wrongdoings resulted from activities taken by the police,prosecutor, or the courts in criminal proceedings. For example, unlawful detainof citizens or torture by the police may resulted in criminal compensation. Inpractice, administrative compensation is the primary component of statecompensation, this is partly because infringements of rights are more likelycaused by administrative actions due to the broad functions of administrativepower, and partly because people believe that to seek criminal compensation istoo difficult, if not impossible.For relevance of the topic, we will discuss administrative compensation only.

B.Scope of Administrative Compensation

Not all administrative actions may resultin state liability and compensation. In general, only when "concreteadministrative actions"have caused damages to liberty or property of individuals can the aggrievedparty claim compensation against the state. Individuals can not challengeagency rules and claim compensation under the state compensation system.Articles 3 and 4 of the State Compensation Law specify the scope ofcompensation. According to the law, following actions shall fall within thescope of state compensation:
a. Administrative actions involving restriction or deprivation ofcitizen's liberty, or physical injuries to citizens. In particular, thoseactions include (1) to unlawfully detain citizens or adopt unlawfuladministrative, forceful measures to restrict citizens' liberty; (2) tounlawfully incarcerate citizens or adopt other measures depriving citizens oftheir corporal freedom; (3) to use violent means such as battering or induceothers to use violent means such as battering that has caused physical injuriesor death to citizens; (4) to abuse weapons or police devices and cause physicalinjuries or death to citizens, and (5) other unlawful acts that have causedphysical injuries or death to citizens.
b. Administrative actions involving punishment imposed on citizens orlegal entities, such as imposing fines, revoking licenses or permits, orderingsuspension of business or confiscation of property.
c. Administrative compulsory measures involving infringement ofproperty, such as sequestrating, freezing or expropriating of property andother unlawful actions that have caused damages to property.

The SCL also specifies a number ofsituations where the state does not assume the liability of compensation, whichincludes: (1) personal acts by government employees unrelated to the exerciseof official duties; (2) damages caused by acts committed by citizens, legalpersons or other organizations themselves; and (3) other situations asprescribed by law.

C.Procedures for Claiming Damages

The procedures for claiming damages causedby administrative actions usually include three components. First, to identifythe compensating body; secondly, to claim damage through administrativeprocedure, and thirdly, if the claimant is not satisfied with theadministrative decision, to file a case with the courts.

a. Identifying thecompensating body. The SCL provides following waysfor identifying responsible agency for compensation: (1) If damage is done byan agency or its staff, then the agency shall assume the responsibility forcompensation; (2) If damage is done by more than two agencies, then all theagencies involved shall jointly assume the responsibility for compensation; (3)If damage is done by organizations or individuals authorized by a governmentagency, then the authorizing agency shall assume the responsibility forcompensation; and (4) If the government body responsible for compensation nolonger exists, then its succeeding body shall assume the responsibility forcompensation; if no such succeeding body exists, then the administrative bodythat eliminates the body responsible for compensation shall assume thatresponsibility.
b. Exhausting administrative procedure. As soon as the responsible body is determined, claimants ofadministrative compensation should first file their claim with theadministrative body liable for compensation. The organ liable for compensationshall, within 2 months from the date of receiving the application, pay thecompensation in accordance with the law. Generally, for administrativecompensation, claimants should not directly file cases with the courts withoutfirst going through administrative procedure.
c. Claiming damage in the courts. If compensation has not been made within the period required bythe administrative procedure as described above, or if the claimant is notsatisfied with the amount of compensation, he may bring a suit in a people'scourt within 3 months from the date of expiration of the period. The courtsshall handle compensation cases according the Administrative Litigation Law.

D.Liabilities of Agency Officers

Under the state compensation system, inmost cases, agency officers are immune from personal liability forcompensation. However, in some cases they may be required to undertakeliabilities. The SCL provides that agency liable for compensation shall, aftermaking compensation, charge its functionaries, entrusted organizations orindividuals who have been intentional or grossly negligent in the matter, toundertake part or the whole of the compensatory expenses, and to be givenadministrative sanctions in accordance with law. Moreover, if a crime has beenconstituted, they shall be investigated for criminal responsibility inaccordance with relevant laws.

E.Calculation of Damage

State compensation is paid in monetaryform. Whenever possible, recovery or reinstatement of property should beimplemented. State compensation is calculated in the following ways:
a. For citizens whose personal liberty has been infringed upon, theamount of daily compensation is calculated on the basis of average daily wagefor workers in the preceding year;
b. For citizens whose life and health rights have been infringed upon,the amount of compensation should be calculated in the following ways: (1) Forthose who sustained physical injuries, the compensatory body should pay theirmedical fees and loss of income caused by absence from work. Daily compensationfor the loss of income is calculated on the basis of the average daily wage forworkers in the preceding year, with the maximum being five times the averageannual wage for workers in the preceding year; (2) For those who lost partialor full working capabilities, the compensatory body should pay their medicalfee and a disability compensation, the amount of which depends on the degree ofthe disability. The maximum for partial disability should be 10 times theaverage annual wage for workers in the preceding year; (3) For those who lostall their working capabilities, the maximum should be 20 times and livingexpenses should be paid for their dependents who are unable to work and (4) Forthose who died, the compensatory body should pay death compensation and afuneral fee, with the maximum being 20 times the annual wage for workers in thepreceding year. In addition, it should also pay living expenses for dependentsof the victims;
c. Compensation for damages done to the property of citizens, legalpersons or other organizations should be paid in the following ways: (1) Returnof property in the case of imposition of fines, recovery or confiscation ofproperty, or expropriation of property or collection of fees in violation ofregulations; (2) Remove the sequestration, detention or freezing action on theproperty if it is wrongly sequestrated, detained or frozen; if property isdamaged or lost, restore it to original shape if possible; if not, compensatefor the damage; (3) If the property due to be returned is damaged, restore it toits original shape if possible; if not, compensate for the damage; (4) If theproperty due to be returned is lost, compensate for the loss; (5) If theproperty is already auctioned off, pay the claimant the proceeds from theauction; (6) If a business owner is wrongly revoked of his license or orderedto suspend his business, compensate for his current expenses incurred duringthe suspension of business, and (7) If other damages are done to anindividual's property, compensate for the direct losses arising thereof.

F.Time Limit for Claiming Compensation

Generally, the time limit for claimants toclaim state compensation is 2 years. The SCL provides that claimants shouldfile their claim for state compensation within 2 years beginning from the datewhen the actions of government bodies and their staff in performing theirduties are determined as unlawful, not including the days of detention.

G.State Compensation with Foreign-Related Elements

The state compensation system asestablished under the SCL also applies to foreign individuals, enterprises andorganizations within the territory of the People's Republic of China. However,if the home country of the foreign individual, enterprise or organization doesnot protect or restrains the rights to state compensation of Chineseindividuals, enterprises or organizations within that country, the People'sRepublic of China will reciprocate that policy toward individuals, enterprisesor organizations of that country.In the past years, state compensation involving foreign-related elements havebeen a significant part in the practice.


IV.Concluding Remarks: Crying for Future Reforms

The legal system of "suing thesovereign" in China as summarized above reveals the ambivalence of thegovernment and contending social-political values in the context ofstate-individual relationship in this country. It should be noted that thelegal reforms in the past two decades was initiated and manipulated by thegovernment, and the developing of state compensation system in no exception. Inthis context, the establishment and improvement of state compensation systemrevealed the desire and efforts of the government to adapt itself to thechanging social and political situations and to reinforce the legitimacy of itsgovernance. At the same time, the current state compensation system alsoreveals the hesitation and anxiety of the government, which can be perceivedthrough those substantial limits of individuals' right to state compensation,including the scope of the sate compensation, the unreasonably low standardsfor compensation, the problem of judicial independence and the like. If we canagree that the state compensation system must go beyond being symbolic, thoseproblems that are plaguing this system both in theory and in practice must betreated seriously.





*Xixin Wang, LL.B(1990), LL.M(1996),Ph.D.(1999), is Associate Professor of Law of Peking University Law School andResearch Fellow of Center for China Public Law Studies at Peking University.


Articles 2 and 62, the Constitutionof People's Republic of China(1982).

Article 126, the Constitution(1982).

Article 41, the Constitution1982.

Article 121, GeneralPrinciples of Civil Law.

The Administrative Litigation Law was enacted by the 8thNational People's Congress on April 4, 1989, and came into force as of October1, 1990. This law established the system of judicial review over administrativeactions.

The State Compensation Law was enacted by the 8thNational People's Congress on May 12, 1994, and came into force as of January1, 1995.

Article 2, the StateCompensation Law of 1994.

The criminal compensation involves judicial organs including thepolice, the national security bureaus, the procutorator and the courts incriminal proceedings. Due to lack of judicial independence, compensationinvolving such state organs is likely more difficult.

"Concrete administrative action" is a concept adopted inthe Administrative Litigation Law, which is to some extent similar to theconcept of adjudicative action in American administrative law, which isdifferent from legislative actions. For the distinctions between the twoconcepts, see, B. Schwartz, AdministrativeLaw, Little, Brown, and Company 1991, pp.211-213.

Articles 3 and 4, the StateCompensation Law of 1994.

This "catch-all" clause is too broad, and potentiallyleaves great discretion to lawmakers to limit the scope of state compensation.Since there is no effective constitutional review under the current legalsystem, such catch-all provision may substantially endanger citizen'sconstitutional rights to state compensation.

Article 7, The StateCompensation Law.

In emphasizing personal liability of agency staff in the statecompensation context, many administrative agencies have developed the"personal responsibility system", requiring agency officials toundertake personal responsibility under some circumstances. It has been notedthat while this system may increase agency official's awareness of legality inlaw enforcement contexts, it may also pose negative impact upon law enforcementin terms of administrative efficiency and morale of the administrativesystem.

Article 26, the StateCompensation Law.

Article 27, the StateCompensation Law.

Article 28, the State CompensationLaw.

Article 32, the StateCompensation Law.

Article 33, the StateCompensation Law.

Early this year (2002), a group composed of legal scholars waspointed by the Standing Committee of China's National people's Congress topropose solutions to problems of the state compensation system. According toProfessor Ying Songnian, the leading figure of this group, reforms of the StateCompensation Law will be taking place in the near future.