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Law of the People’s Republic of China on State Compensation (Revised in 2010)
Promulgation Date:2010-04-29  Promulgation Number:Order of the President of the People’s Republic of ChinaNo.29  Promulgation Department:The Standing Committee of the National People's Congress

Order of the President of the People’s Republic of China

No.29

 

The Decision of the Standing Committee of the National People’s Congress on Revision of the Law of the People’s Republic of China on State Compensation, which was adopted at the 14th meeting of the Standing Committee of the 11th National People’s Congress of the People’s Republic of China on April 29, 2010, is hereby promulgated. It shall enter into force on December 1, 2010.

President of People’s Republic of China  Hu Jintao

April 29, 2010

 

Law of the People’s Republic of China on State Compensation (Revised in 2010)

 

(Adopted at the 7th meeting of the Standing Committee of the 8th National People’s Congress on May 12, 1994 and revised in accordance with the Decision on Revision of the Law of the People’s Republic of China on State Compensation at the 14th meeting of the Standing Committee of the 11th National People’s Congress on April 29, 2010)

 

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 This Law is formulated in accordance with the Constitution with a view to safeguarding the right of citizens, legal persons and other organizations to State compensation according to law, and promoting the exercise by State organs of their functions and powers according to law.

Article 2 Where State organs or State functionaries, in exercising their functions and powers, infringe upon the lawful 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 this Law.

  The organs liable for compensation as stipulated herein shall discharge their duties of compensation in a timely manner according to this 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 exercising 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 exercising 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 If 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.

  If the claimant is not the victim, he shall state his relationship with the victim and produce corresponding certificates.

  If the claimant submits its/his application in person, the organ liable for compensation shall issue a written voucher with its special seal and the date of receipt on the spot. If the application materials are incomplete, the organ liable for compensation shall notify the claimant of all materials that shall be supplemented on the spot or within five days in one time.

Article 13 The organ liable for compensation shall, within two months from the date of receiving the application, make a decision on whether to make compensation. When making the compensation decision, the organ liable for compensation shall take full consideration of the opinions of the claimant and may confer with the claimant on forms, items and amounts of compensation in accordance with Chapter IV herein.

  If the organ liable for compensation decides to make compensation, it shall prepare the written decision of compensation and send it to the claimant within 10 days upon decision.

  If the organ liable for compensation decides to make no compensation, it shall notify the claimant within 10 days upon decision in writing and explain the reasons for non-compensation.

Article 14 Where the organ liable for compensation fails to make a decision on whether to make compensation within the time limit, a claimant may bring a suit in a people’s court within three months from the date of expiration of the period.

  If the claimant is not satisfied with the forms, items and amounts of compensation, or the organ liable for compensation has made a decision on non-compensation, the claimant may bring a suit in a people’s court within three months from the date when the organ liable for compensation makes the compensation or the decision on non-compensation.

Article 15 In trail of a case of administrative compensation by a people’s court, the claimant and the organ liable for compensation shall provide evidences for their claims.

  During the period when the organ liable for compensation administratively detains a citizen or takes compulsory administrative measures in restraint of his personal freedom, if the citizen dies or loses his capacity, the organ liable for compensation shall produce evidences proving whether there is any causal relationship between its act and the death or loss of capacity of the citizen.

Article 16 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 17 The victim shall have the right to compensation if an organ in charge of investigatory, procuratorial and judicial work or a watch house or prison administration 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)     Detaining a citizen in violation of the Criminal Procedure Law, or detaining a citizen in light of the conditions and procedures of the Criminal Procedure Law, but the time of detention exceeds the time limit as stipulated in the Criminal Procedure Law and later a decision on cancellation of the case or non-suit is made or the citizen is adjudged innocent and the prosecution of his criminal responsibility shall be terminated;

(2)     After taking detention measures against a citizen, deciding to cancel the case or not bringing a suit or the citizen is adjudged innocent and the prosecution of his criminal responsibility shall be terminated;

(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 or divulging the use of violence such as beating one up or abuse; or

(5)     Causing bodily injury or death to a citizen by the unlawful use of weapons or police restraint implements.

Article 18 The victim shall have the right to compensation if an organ in charge of investigatory, procuratorial, judicial work or a watch house or prison administration, 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 19 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 17 and 18 of the Criminal Law;

(3)    The person taken into custody being one who shall not be investigated for criminal responsibility in accordance with Article 15 and 142 (2) of the Criminal Procedure Law;

(4)    Individual acts of functionaries of organs in charge of investigatory, procuratorial, judicial work or watch houses or prison administrations, 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 20 Claimants to compensation shall be determined in accordance with the provisions of Article 6 herein.

Article 21 If an organ in charge of investigatory, procuratorial, judicial work or a watch house or prison administration, 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 citizen is detained and shall be given state compensation in accordance with the provisions herein, the organ deciding on the detention shall be the organ liable for compensation.

  If a citizen is arrested and then the decision on cancellation of the case or non-suit is made or the citizen is adjudged innocent, the organ deciding on the arrest shall be the organ liable for compensation.

  If a citizen 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 citizen is adjudged not guilty by a court of the second instance, or is found not guilty after retrial of the original court, the court passing the original sentence shall be the organ liable for compensation.

Section 3 Compensatory Procedure

Article 22 An organ liable for compensation shall pay the compensation if its involvement in any of the circumstances stipulated in the provisions of Articles 17 and 18 herein.

  A claimant to compensation shall first apply to the organ liable for compensation in making a demand for it.

  The provisions of Articles 11 and 12 herein shall be applicable when a claimant making a demand for compensation.

Article 23 The organ liable for compensation shall, within two months from the date of receiving the application, make a decision on whether to make compensation. When making the compensation decision, the organ liable for compensation shall take full consideration of the opinions of the claimant and may confer with the claimant on forms, items and amounts of compensation in accordance with Chapter IV herein.

  If the organ liable for compensation decides to make compensation, it shall prepare the written decision of compensation and send it to the claimant within 10 days upon decision.

  If the organ liable for compensation decides to make no compensation, it shall notify the claimant within 10 days upon decision in writing and explain the reasons for non-compensation.

Article 24 Where the organ liable for compensation fails to make a decision on whether to make compensation within the time limit, a claimant 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 claimant is not satisfied with the forms, items and amounts of compensation, or the organ liable for compensation has made a decision on non-compensation, the claimant may apply for reconsideration to an organ at the next higher level within thirty days from the date when the organ liable for compensation makes the compensation or the decision on non-compensation.

  If the organ liable for compensation is a people’s court, the claimant to compensation may, in accordance with the provisions of this article, apply to the compensation commission of a people’s court at the next higher level for a decision on compensation.

Article 25 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 26 In handling of a compensation demand by the compensation commission of a people’s court, the claimant and the organ liable for compensation shall provide evidences for their claims.

  If a citizen dies or loses his capacity during his detention, the organ liable for compensation shall produce evidences proving whether there is any causal relationship between its act and the death or loss of capacity of the citizen.

Article 27 The compensation commission of a people’s court shall review written materials when handling a compensation demand and may make investigations on and collect evidences from the relevant units and individuals if necessary. If the claimant and the organ liable for compensation have any dissent on the facts of damage and the casual relationship, the compensation commission may hear the statements and averments of the claimant and the organ liable for compensation and take cross-examination.

Article 28 The compensation commission of a people’s court shall decide the matter within three months from the date of receiving the compensation application. If the case is difficult, complex or material, the period for making a decision may extended three months upon approval of the president of the court.

Article 29 People’s courts at or above the intermediate level shall establish a compensation commission composed of more than three their judges, and the member number shall be singular.

  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 30 A claimant or an organ liable for compensation that holds the decision of a compensation commission is really wrong may apply to the compensation commission of a people’s court at a higher level for appeal.

  After the compensation decision of a compensation commission comes into effect, if the decision is found in violation of the provisions herein, the compensation commission shall conduct a reexamination and make a new decision within two months upon decision of the president of the court or the order of the people’s court at a higher level, and the people’s court at a higher level may directly conduct an examination and make a decision.

  If the Supreme People’s Procuratorate and people’s procuratorates at a higher level respectively find any decision of the compensation commissions of people’s courts at all levels and of the compensation commissions of people’s courts at a lower level violates the provisions herein, they may give opinions to the compensation commission of the people’s court at the same level and the latter shall conduct a reexamination and make a new decision within two months.

Article 31 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 Paragraph 4 and 5 of Article 17 herein; 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 the preceding paragraphs 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 32 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 33 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 34 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 and nursing costs 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, nursing costs, costs of aiding devices for the disable and necessary expenses increased due to disability and for continuous curing including rehabilitation expenses as well as disability compensation shall be paid. The disability compensation shall be determined in accordance with the disability levels stipulated by the State according to degree of working capability lost, and the maximum amount of compensation shall be no higher than the amount twenty times the State average yearly pay of staff and workers in the previous year. For those who lose whole working capability, living expenses shall 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 the preceding Paragraph 2 and 3 shall be handled by reference to the local minimum living standard. 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 35 In any of the circumstances stipulated in Article 3 and 17 herein, if mental injury of a victim is caused, the organ liable for compensation shall, within the scope of influence of the tortious act, eliminate the evil effects for the victim, rehabilitate his reputation, and extend an apology; if a serious result is caused, the corresponding consolation money for mental injury shall be paid.

Article 36 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 property have been illegally requisitioned or expropriated, 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 Paragraph 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 lost, corresponding compensation shall be paid;

(5)    If the property has been auctioned or sold, the proceeds of the auction or sale shall be returned; if the selling price is obviously lower than the value of the property, the corresponding compensation shall be paid;

(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;

(7)    If the fines or recovered or confiscated money are returned, or the frozen deposits or remittance are released, the bank interests on deposits at the same period shall be paid; and

(8)    If other damage is done to property rights, compensation shall be paid for the direct losses.

Article 37 Compensation expenses shall be entered in the financial budget at all levels.

  A claimant shall apply for payment of his compensation to the organ liable for compensation on the strength of the effective judgment, the written decision on reconsideration, the written decision on compensation or the mediation paper.

  The organ liable for compensation shall, according to its jurisdiction for budget administration, apply to the relevant fiscal department for payment within seven days after receiving the application for payment of compensation. The fiscal department shall pay the compensation within fifteen days after receiving the application for payment.

  The compensation budget and specific measures for payment administration shall be provided by the State Council.

Chapter V Other Provisions

Article 38 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 herein shall be applicable to the procedure for making claims for compensation by the claimant.

Article 39 The limitation of action for claims for State compensation shall be two years, counted from the day the claimant knows or ought to know the exercise of the functions and powers by a State organ and its functionaries infringes upon his personal right or property right, but the period when he is detained or his freedom is restricted shall not be counted. If the claimant applies for compensation simultaneously when applying for administrative reconsideration or bringing an administrative action, the provisions of the administrative reconsideration law and the administrative procedure law on time limitation shall be applicable.

  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 40 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 of China, 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 41 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 42 This Law shall go into effect on January 1, 1995.

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