State tort concept of "double structure"

Keywords:: state compensation / damage / rights are infringed / loss of interest

Summary: In the state Compensation Law Theoretically speaking, the definition of the concept of tort or understanding, there is a "right invasion" and "damage the interests of" indiscriminate methods. The method in the interpretation of the interpretation of the state compensation is limited to personal rights, property damage point of view, the specification of the extension of the need through the legislative reform will be all right to damage are to the state compensation claims, resulting in conceptual errors, bad magic, and amended the Law. to ordinary tort Law damages theory is Kam, the state should establish the concept of tort damages, including "the right to involvement" and "damage the interests of" two meanings of the structure, which in the spirit of state compensation Law amendment will be included in the scope of compensation after the damage, through the interpretation of, you can protect more legal rights.



First, a description of the rights and interests, regardless of method of
Infringement of the fact that the existence of the State, the country constitutes one of the elements of liability. Legal basis, is China <"State Compensation Law"> Article 2 provides that "State organs and state organs exercise of powers violations of civil law, persons and other organizations harm the legitimate interests of victims in accordance with this Law, the right to compensation by the state. "However, in what state tort damages, or damages on the state compensation law as elements of the issue of how to understand, learn and reasonable often explain the "right invasion" and "interests of the damage" without distinction. This method does not distinguish between the specific description can be embodied in three categories.

First, the tort is described as "right" to be undermined. For example, "China's State Compensation Law in Chapter 2, Section 1 of the broad range of tort damages into two, one personal rights, and second, property rights. ... ... When The above rights by state organs and their staff damage, the state should be responsible for compensation. "[1]
Second, in describing the tort damage to legitimate rights and interests cover a broad concept of the rights and interests. Damage to the object is the "legitimate interests", meaning "all legally valid according to the interests", including personal rights, property rights, political rights, social rights, cultural rights, equal rights, etc., but our current state compensation law protects the legal rights limited to personal rights and property rights. [2]
Third, although the conceptual distinction between rights and interests, but that recognized the legitimate rights and interests of the damage, whether the rights should not be concerned about the damage, but should identify and protect the interests of national recognition is impaired. "Legitimate rights and interests in the concept, contains two types of objects protected by law: First, rights, second, Lee. to Quan is concerned, the law expressly given, or the recognition of the main provisions of the rights, such as personal rights, property rights, Education and so on. to benefit in terms of is not necessarily out of the law or regulations explicitly given the content. Lee are two cases: one is born because of the right of the profits. ... ... The second benefit is not derived from the right or out of the breed, but a species of the fact that state. "" In the practice of state compensation for damage to the legitimate rights and interests of the identification, not necessarily to determine whether the damage suffered by victims of the law conferring rights on the damage, but the object need to determine whether the damage illegal profits. As long as the illegal profits, that is, the interests of national recognition, should be protected by law, shall bear the responsibility of state compensation. "[3] Click here to view on the rights, interests have no meaningful distinction. commentators more concerned about the damage interest is legal or illegal, whether the rights are violated can be negligible in practice.

All the above description, although the different characteristics, but in defining and describing elements of the State has a tort in common, that is not strictly asked whether the State is the object of tort rights, interests or rights and interests of both. This paper argues that an academic of the passage of the "fuzzy" approach, the formation of the relevant provisions of the state compensation law and norms of interpretation of some common views, but in theory the one hand, these views did not accurately sort out the rights and interests of invasion by The relationship between loss, on the other hand is not conducive to the State Compensation Law of the legislation and implementation. Thus, the need to draw on common elements of tort damages on the theory of building a national tort concept of "double structure" in order for the legislation and Shi Diqing real understanding of the fog.

Second, interpretation of and norms and the Predicament of the pass that
<"State Compensation Law"> Article 2 which provides that the State victim compensation is a prerequisite for the legitimate rights and interests are violated and there is damage results, however, not clear which country should be determined by the scope of the damages. Thus, an academic elements of national interpretation of tort, which tend to hit and damage the legitimate rights and interests are violated, the State should bear the compensation responsibility. this issue, respectively, from the academic has been explained on the theory and norms provide the answer. and the rights and interests of not distinguish between the "fuzzy" approach is also reflected in these seemingly reasonable answer is the existence of defects.

In the interpretation of level, Stone said that while the legitimate rights and interests, including personal rights, property rights, political rights, social rights, cultural rights and so on all the legal rights to be recognized, but the existing <"State Compensation Law"> protection of the "legitimate rights and interests "is limited to personal rights and property, the former has limited the right to life, health, freedom, honor, reputation. [4] to explain the basic path is on the order <" State Compensation Law "> other relevant legal provisions (including section 3 , Article 4, Article 15, Article 16) [5] based on the provisions of Article 2 of "legitimate interests" concept as a limit or restrict the meaning of shrinkage.

On the normative level, the vast majority of scholars have recognized the current <"State Compensation Law"> to develop the beginning of the financial position of state legislators for more consideration of the legitimate rights and interests will be limited to "personal rights", "property rights . "Therefore, these restrictions are gradually relaxed, and be lifted." essence of state compensation for, any violation of the public authority may Zaoshou payment methods and can remedy the legitimate property rights belong to the scope of protection of the State Compensation Law. "[ 6] As the civil rights and expanding the coverage to improve the national finances, it should be "gradual expansion of scope of damage, up to and including the national rights violations of all types may cause damage." [7]
Standardization of these explanations on the theory and popular opinion seems to be no obvious mistakes. However, the small increase wondering, there is the question.

To interpretative theory, the Yi <"State Compensation Law"> only provides the relevant provisions of the personal and property rights grounds, identified damage to legitimate rights and interests means the personal and property rights violations, not including other rights have been violated, is founded in logic an explanation. But this is only used very strict literal interpretation, the system interpretation to derive an interpretation of the conclusion does not mean that it is the only proper explanation. In fact, it is not conducive to practice in accordance with the the purpose of interpretation, in a timely manner to increase the legal protection of civil rights and protection. Moreover, this interpretation and conclusions, to a certain extent, out of touch with the judicial practice, in conflict with the relevant laws.

For example, citizens the right to Education is violated due to administrative proceedings brought by, is commonplace. Assuming the property interests of citizens suffered losses and therefore, [8] So, according to <<Administrative Procedure Law>> 67 [9 ] victims should receive compensation. However, if the above explanation, the victim can not be infringed because the right to Education and claims for state compensation. This creates an obvious paradox. Perhaps there will be a point of view: this time the citizens by the loss of property interests, it means that their property rights infringement, the State Compensation Law is the scope of damage, there is no contradiction in interpretation. However, in this case, is actually a direct violation of the right to Education non-property rights, loss of property interests by denying or limiting the right to Education and the formation of the consequences. Moreover, if the basis of this view, all property other than the right (and even personal rights) violations, and economic losses, are understood as only property damage, then, the real right has been violated will be covered up the fact.

On the Standardization of terms, most scholars advocate should be the rights of all possible types of damage are included in the damage to the country should be within the context of compensation. This view appears to strengthen and civil rights in the trend of increasing consistent and easy to reach an attractive conclusion: Where rights are infringed, must and should be state compensation. However, some rights have been violated violations of state organs, such as the right to vote is denied for no reason, does not necessarily lead to loss of property or legal interests of compensable loss of non-property interests. Even if these illegal violations should be corrected or reprimanded, or loss of interest may not require specific liability by the state. Standardization of the idea is obviously not appropriate legal reform proposals.

Third, the general elements of tort damages jurisprudence
State Compensation Law is actually a special kind of tort law, principles and rules in many, and general tort law is common. The concept of national tort for what should be understood, you can learn from ordinary tort appropriate legal knowledge.

"Damage" the word, popular terms, can be understood as loss and damage. However, the interpretation of this circular, can not form a strict academic definition. Because it does not clearly answer two questions: first, the loss and injury What is the object? Second, the meaning of loss and injury to themselves, what is?
Regarding the first issue, the general tort law there are three main recognized: (1) damage, including damage to property and non-property damage, property damage is damage to be calculated to money, such as medical expenses, maintenance expenses, and operating income is reduced, the value of the impairment of repair costs or material, non-property damage is not measured in monetary mental or physical pain, [10] (2) bodily injury or property refers to aspects of adverse consequences, including the reduction of property, loss of interest, reputation damage, mental anguish, loss of life, physical damage, health damage, injury free, intellectual property damages, etc., [11] (3) refers to a certain degree of damage The conduct resulted in the subject of rights personal rights, property rights and other interests have been infringed, and caused property interests and the interests of non-reduced or loss of property, the objective facts. [12]
Awareness (1) whether the damage can be measured or calculated as the standard of money, the damage is divided into non-property damage and property damage, the main purpose is clear, and property damage compensation in general can be obtained according to the law, rather than damage to property Only there are special provisions in the law, the victim can request monetary compensation. [13] awareness (2) at least not in the formulation strictly according to the understanding of (1) standard classification of damage, seems to be under the prevailing civil law the division of rights infringement, the damage located in the personal property of the negative and adverse. awareness (3) is argued that the fact that two elements constitute harm, one right has been violated, and second, the right to the interest caused by the infringement damage to the objective results. [14]
From this, the question of what damages, roughly, "interest", "rights" and "rights + interest" in the know. In fact, holding awareness (1) of the scholars, usually recognized by the "infringement of rights" and "To Students damage "as the two sub-elements of the tort liability Elements theory. The reason is no longer dealt with at the expense of the right elements, but only dealt with the interests of (non-property interests and property interests), because the right has been infringed be treated as the other constituent elements. [15] only from this point, awareness (1), awareness (3) there is no substantial difference. because, holding awareness (3) of the scholars in general will be "against the right" and " resulting in damage to "Elements of tort liability in the synthesis of an element, that element of damage. As awareness (2), and scholars to discuss the specific type of damage, when will unconsciously biased in favor of" rights + interest "in the presentation. For example, , "refers to the victim because of property damage or personal property caused by the infringement of the economic loss." [16] shows that the object is to damage the rights and interests of the split into two categories, depending on Elements of tort liability held theory is Which.

The second issue concerns how to interpret the "damage" the original meaning. By <<Analytical Dictionary of Characters>>, "loss, reduced also," "harm, hurt it." Therefore, "damage" is to reduce the original meaning, is "beneficial "(increase) relative," harm "is the destruction of the original meaning, is" profit "(benefits) relative. Thus, in general, can be simply understood as damage to the interests or benefits reduced or lost.

However, if in accordance with the understanding (3), damage covers damage to the rights and interests of the two levels of involvement, then the violation of the rights, harm should not be simply equated with the reduction or loss of rights. "Rights" theoretical definition of the term is always is divergent, it is useless in this excessive entanglement. If you choose a common understanding of "rights" as rights holders can make or not make a certain behavior, and ask others to make or not make certain the appropriate capacity to act or qualification, then the violation of the rights, harm more points to achieve this capability or qualification by some or all of the restrictions, but not the capability or qualifications of their reduced or lost. For example, possession of a B cup is not for no reason Also, against the B on the ownership of the cup. B did not reduce its ownership of the cup or lose, in other words, it is still entitled to the ownership of the cup may be because the cup Beijia possession, ownership includes the possession, use, profit from and dispose such power can not be achieved.

In view of this, "damage" to the right, when the means to achieve the exercise of rights or restrictions or obstacles, "damage" to the specific interest, means a benefit or advantage can be reduced or lost. In order to define the elements of damage note, that damages were not complicated to the rights and interests of the differences, were taken in the rhetoric of "abuse" corresponding "right", "damage" corresponds to "benefit" of the strategy. Therefore, in general tort law , if the "rights violations" and "resulting in damage" as two separate elements to be treated, then damage should be understood as the victim's legal rights have been violated, their property interests and the interests of non-property thus reduced or lost adverse consequences.

Fourth, the state tort concept of "double structure"
Lessons from an ordinary tort jurisprudence, as the State Crime Theory of liability has also adopted the passage of the "four essential conditions" (ie, subject to infringement, tort, damage fact, causality [17]), therefore, the state tort definition, also can be understood or interpreted to have two meanings: one is the official representative of the State to exercise powers illegal violations of civil organizations, corporations and other organizations of the legal rights, and the second is caused by the infringement of property interests and the reduction of non-property interests or loss.

The meaning of the first level, the focus that the legal rights have been violated, regardless of the legitimate rights of personal rights, property rights or legal recognition and protection of other rights. Although the personal and property rights violations is the most common object, but in practice, not the right to exclude others is not appropriate for other personal rights, property rights covered by the possibility of the infringement. [18] in order to proceed from the purpose of protection of rights, conform to the trend to interpret the <"State Compensation Law"> Article 2 of the "legitimate interests "in order to coincide with the development of the Administrative Procedure Law, but also to the interpretation of all legal rights that is clearly on the State Compensation Law are protected, without demanding legislative reform.

Of course, as mentioned above, means that rights have been violated by the exercise of rights or restrict or hinder the implementation, but the right itself does not indicate a reduction or loss. The consequences of the infringement, it could lead to specific benefits or reduce benefits or lose, it may not. For example, the executive no legal reason to limit the publication of a book would infringe on civil of speech, freedom of the press, but also bring to the citizens of the loss of property. violation of civil law the executive the right to vote , the behavior of the right to education does not necessarily lead to the loss of civil property interests, even if there will be some of the spirit of interests, but in many countries, should be moral damage compensation from the legislative or judicial precedents are to be limited , not all affected by psychological and emotional frustration unhappy, depressed, all belong to the state mental injury compensable. Thus, the meaning of the first level of damage to any legal rights, while recognizing there may be violated, but violations of their rights State liability does not necessarily lead to the production.

The second level of meaning, focused legal rights have been violated and property interests arising from the loss of non-property interests. This means that, regardless of what rights have been violated, if indeed this violation caused the loss of property or legal interest should be State Compensation loss of non-property interests, then the State can not exempt the contrary, no matter what the rights are violated, if not cause any loss of property or legal interests of the State Compensation for the loss of non-property interests, then, the state no need to assume liability. reposted elsewhere in the Research Papers Download http://www.hi138.com where "the loss of property interests" and "the loss of non-property interests" is mentioned before the de jure common property damage tort and non-property damage points. [19] regardless of the rights violations of personal rights, property or other rights, there are potential property damage or property damage. For example, victims of assault and battery resulting in bodily injury, both health care costs will lead to , wage income and reduction of property damage, can also cause physical pain of the victim (non-property damage.) victims of violations of property rights resulting in loss of ancestral ink stone, not only that the victim's property was damaged, will also cause the mental torture (non-property damage). violations of other rights are made. Qi Yuling case of the second instance court decision, believes that "the appellee violated the right of Qi Yuling's name and the right to education, to the spirit of serious injury, should be in accordance with the Higher People's Court in Shandong Province under the highest standards of moral damage compensation, compensation for moral damage to the ling and the fee. "However, the experience of any violation of the rights, rights of people are likely to be some sort of claim against the spirit, therefore, for non-property damages, the general should be based on the provisions of law in particular. [20]
This interpretation and to build national tort concept of "double structure", there are two aspects of positive significance. The one hand, national compensation practice experience to avoid personal rights, property rights have been violated outside the hesitant, hesitant and uncertain position, you can both recognize the State Compensation Law on the protection of any right, again focused on whether violations of the rights or property damage caused should be compensation and legal issues of non-property damage. On the other hand, to avoid a "subject to any rights violations of both state compensation should be "point of view, can be avoided on this basis, the rights will be generated blindly into within the State for damages regardless of whether the result of interest arising from damage to the legislative reform proposals. <" State Compensation Law "> Amendment process, has revealed damage to the spirit of the Information included in the scope of state compensation. It is in fact damage to property other than the introduction of non-statutory compensation for property damage should be, that is, to further improve the "double structure" in the interests of the damage types .




Notes:
[1] Ying Songnian editor: <"State Compensation Law Research">, Law Press, 1995, p. 85. Describe the state compensation law of such is the prevailing theory, the vast majority of works used, this does not enumerate.

[2] See Gao Wei was: <"State Compensation Law">, the Commercial Press 2005, p. 118-119.

[3] Yang Xiaojun was: <"State Compensation Legal Issues Research">, Beijing University Press, 2005, the first 272,276 pages.

[4] See Gao Wei was: <"State Compensation Law">, p. 118-119. See also the editor should be loose on: <"State Compensation Law Research">, p. 85, Paper pure Association, Feng Editor: << Explanation of the State Compensation Law> "(as amended), China Legal Press, 1996, p. 83. Some scholars believe that the State Compensation Law does not" protect "reputation or honor. See Zhouyou Jun, Ma Liang Jin: << State Compensation Law Guide>>, China Renmin University Press, 2008, p. 79. In fact, according to <"State Compensation Law"> Article 30, reputation, honor protected by the Act, but does not protect the way of monetary compensation , but to eliminate the effects of rehabilitation, an apology.

[5] Article 3, Section 4 on the scope of executive compensation, Article 15, Article 16 provisions on the scope of criminal compensation, are just the wording that "personal rights", "property rights" violations of the situation.

[6] Gao Wei was: <"State Compensation Law">, p. 119.

[7] Hu Jinguang, Yu Lingyun editor: <"State Compensation Law">, the Chinese People's University Press, 2008, p. 56.

[8] concluded in 2001, once known as "the first case of the Chinese Constitution," the Qi Yuling v. Chen Xiaoqi and other violations of the right name, right to education, damages case (hereinafter referred to as "Qi Yuling case"), in fact, with the applicable provisions of the Constitution of civil cases. However, in this case, and Chen Xiaoqi Chen Kezheng the same as the defendant well (Chen Xiaoqi father), Shandong Province, Jining Business School, Middle School eighth Tengzhou City, Shandong Province, Shandong Province, Tengzhou City Board of Education. Shandong Province High People Court upheld that "Chen Xiaoqi false school, the appellee Board of Education to help Chen Kezheng Tengzhou forged medical examination table, eight Tengzhou term reviews to help Chen Kezheng false statement, violation of Jining Business School file management a way to get Chen Xiaoqi own files provided to Chen Kezheng the opportunity to replace the archival material, resulting in Chen Xiaoqi school not only false, but false to work, so that violations continue. the infringement by Chen Xiaoqi, Chen Kezheng, Teng eight states, the Proton and the state Board of Education of the willful negligence of Jining's business school. the performance of such acts as violations of ling from the form of the name right, its essence is a violation of ling and enjoy under the Constitution the fundamental rights of citizens to education. The appellee, the consequences of the infringement shall bear civil liability. " In fact, among the defendants, at least Tengzhou Board of Education is in the performance of administrative functions together with the other defendants violated ling and the name rights, education, compensation for such public service areas into the national tort is the law on evidence. again of Shandong Provincial High Court's decision, "because the appellee violated the right of the appellant Qi Yuling's name and the right to education, which makes the ling and the other to receive higher education further repetition, agriculture accounts for the accounts to pay into non-agricultural City accommodation fees, legal fees for litigation expenses. These charges are the violations of the rights to education suffered direct economic losses, should appellee Chen Xiaoqi, Chen Kezheng compensation, other appellee liable for compensation. ... ... to punish illegal infringement, Appellee Chen Xiaoqi a vested interest in the infringement during the period (ie, receive the name of the appellant ling wages, deductions Chen Xiaoqi necessary living expenses) should be Pangui ling of all, by Chen Xiaoqi, Chen Kezheng compensation, the other appeal jointly and severally liable. "visible acts of civil violations of the right to education is recognized as a result of the power of property interests, not just a hypothesis. ling case referenced in this article the first trial, second trial, are from the" Qi Yuling v. Chen Xiaoqi and so the name infringement a means of violating the right to constitutionally protected basic rights of citizens to education disputes ", in Beijing University Law Information Network: http://vip.chinalawinfo.com/case/displaycontent.asp?gid=117507462, last access time: 2 2010 12.

[9] which states: "Citizens, legal persons or other organizations of the legitimate rights and interests of the executive or administrative organs of the specific administrative act of infringement to cause damage, the right to request compensation."
[10] See has longxing with: <<Detailed Compensation Law "> China Politics and Law University Press, 2003, p. 55, Wang Zejian with: <<Tort Law: Basic theory of general tort>> China Politics and Law University Press, 2001, Volume 1, 184.

[11] See Zhang Bao with: <<Principles of Tort Law>>, China Renmin University Press, 2005, p. 53.

[12] See Yang Lixin editor: <<Tort Law ">, Fudan University Press, 2007, p. 99.

[13] See has longxing with: <<Detailed Compensation Law ">, p. 55, Wang Zejian with: <<Tort Law: Basic theory of general tort>>, 184.

[14] See Yang Lixin editor: <<Tort Law ">, p. 99-100.

[15] See has longxing with: <<Detailed Compensation Law ">, p. 50, Wang Zejian with: <<Tort Law: Basic theory of general tort>>, p. 87.

[16] See Zhang Bao with: <<Principles of Tort Law>>, p. 55.

[17] See Xiao Xun was: <<Republic of China on State Compensation Theory and Practical Guide>>, China's democracy and the legal Publishing 1994, pages 107-120. See the skin of pure Co, Feng Editor: <"State Explanation of Compensation> "(Revised), p. 83. The first 78-86 pages, Xue Gangling editor: <" State Compensation Law Guide>> China Politics and Law University Press, 1997, pages 54-66, the Housing Shaokun Ding Yue Chao, Sheng-Ming Miao was: <"State Compensation Law, Principles and Practice>>, Beijing University Press, 1998, p. 68-86 pages, Jiang Mingan editor: <<Administrative Law and Administrative Procedure Law>" (third edition) , Beijing University Publishing House, 2007, p. 659-663 pages.

[18] mentioned earlier, "Qi Yuling case" verdict that "the plaintiff Qi Yuling's right to education advocates, area general personality right of citizens." This kind of understanding that not only does not match with the theory and pass nor a clear legal basis, court of second instance it did not receive support. second instance not explicitly overturn the final decision, but stressed that "the performance of such acts as violations of ling from the form of the name right, its essence is a violation of ling and the citizens enjoy under the Constitution's basic education rights. "This is exactly the personal rights, property rights other than the instance of infringement.

[19] Some scholars of damage on the Tort Liability Act is divided into: property damage (direct and indirect losses), personal injury (death, disability) and non-property damage (mental damage, reduced social evaluation). In fact, personal damage, such as death, disability who usually only result in the loss of property (such as medical expenses, funeral expenses, etc.), but also cause mental or physical pain (I or a relative), so, personal injury and property damage, non-property damage not in the same classification criteria above. As for the lower social evaluation is individually and mental damage as a parallel of such damage, it is worth discussion. See Zhang Bao with: <<Principles of Tort Law>>, the first 54-59 pages.

[20] See Wang Zejian with: <<Tort Law: Basic theory of general tort>>, p. 184. Links http://www.hi138.com Research Papers Download