(Adopted at the Seventh Meeting of the Standing Committee of the Eighth National People's Congress of the People's Republic of China on May 12, 1994; Amendment made in accordance with the Decision of the Standing Committee of the National People's Congress on Revising the "State Compensation Law of the People's Republic of China" adopted at the 14th session of the Standing Committee of the 11th National People's Congress on April 29, 2010)
Contents
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 Procedures
Chapter III Criminal Compensation
Section 1 Scope of Compensation
Section 2 Claimants to Compensation and Organs Liable for Compensation
Section 3 Compensatory Procedures
Chapter IV Forms and Assessment of Compensation
Chapter V Other Provisions
Chapter VI Supplementary Provisions
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 Procedures
Chapter III Criminal Compensation
Section 1 Scope of Compensation
Section 2 Claimants to Compensation and Organs Liable for Compensation
Section 3 Compensatory Procedures
Chapter IV Forms and Assessment of Compensation
Chapter V Other Provisions
Chapter VI Supplementary Provisions
（1994年5月12日第八屆全國人民代表大會常務(wù)委員會第七次會議通過 根據(jù)2010年4月29日第十一屆全國人民代表大會常務(wù)委員會第十四次會議《關(guān)于修改〈中華人民共和國國家賠償法〉的決定》修正）
目錄
第一章 總則
第二章 行政賠償
第一節(jié) 賠償范圍
第二節(jié) 賠償請求人和賠償義務(wù)機(jī)關(guān)
第三節(jié) 賠償程序
第三章 刑事賠償
第一節(jié) 賠償范圍
第二節(jié) 賠償請求人和賠償義務(wù)機(jī)關(guān)
第三節(jié) 賠償程序
第四章 賠償方式和計(jì)算標(biāo)準(zhǔn)
第五章 其他規(guī)定
第六章 附則
Chapter I: General Provisions
第一章 總則
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.
第一條 為保障公民、法人和其他組織享有依法取得國家賠償?shù)臋?quán)利,促進(jìn)國家機(jī)關(guān)依法行使職權(quán),根據(jù)憲法,制定本法。
Article 2 Where State organs or State functionaries, in exercising their functions and powers, have infringed upon the legitimate rights and interests of 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 by this Law shall perform the obligation of compensation in accordance with this Law in a timely manner.
The organs liable for compensation as stipulated by this Law shall perform the obligation of compensation in accordance with this Law in a timely manner.
Chapter II: Administrative Compensation
Section 1: Scope of Compensation
Section 1: Scope of Compensation
第二條 國家機(jī)關(guān)和國家機(jī)關(guān)工作人員行使職權(quán)，有本法規(guī)定的侵犯公民、法人和其他組織合法權(quán)益的情形，造成損害的，受害人有依照本法取得國家賠償?shù)臋?quán)利。
本法規(guī)定的賠償義務(wù)機(jī)關(guān)，應(yīng)當(dāng)依照本法及時(shí)履行賠償義務(wù)。
第二章 行政賠償
第一節(jié) 賠償范圍
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 allowing another to use ways such as beating one up or 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.
(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 allowing another to use ways such as beating one up or 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.
第三條 行政機(jī)關(guān)及其工作人員在行使行政職權(quán)時(shí)有下列侵犯人身權(quán)情形之一的,受害人有取得賠償?shù)臋?quán)利:
(一)違法拘留或者違法采取限制公民人身自由的行政強(qiáng)制措施的;
(二)非法拘禁或者以其他方法非法剝奪公民人身自由的;
(三)以毆打、虐待等行為或者唆使、放縱他人以毆打、虐待等行為造成公民身體傷害或者死亡的;
(四)違法使用武器、警械造成公民身體傷害或者死亡的;
(五)造成公民身體傷害或者死亡的其他違法行為。
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 licences, 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 expropriating or appropriating property; or
(4) Other illegal acts causing damage to property.
(1) Illegally inflicting administrative sanctions such as imposition of fines, revocation of certificates and licences, 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 expropriating or appropriating property; or
(4) Other illegal acts causing damage to property.
第四條 行政機(jī)關(guān)及其工作人員在行使行政職權(quán)時(shí)有下列侵犯財(cái)產(chǎn)權(quán)情形之一的,受害人有取得賠償?shù)臋?quán)利:
(一)違法實(shí)施罰款、吊銷許可證和執(zhí)照、責(zé)令停產(chǎn)停業(yè)、沒收財(cái)物等行政處罰的;
(二)違法對財(cái)產(chǎn)采取查封、扣押、凍結(jié)等行政強(qiáng)制措施的;
(三)違法征收、征用財(cái)產(chǎn)的;
(四)造成財(cái)產(chǎn)損害的其他違法行為。
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.
(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
第五條 屬于下列情形之一的，國家不承擔(dān)賠償責(zé)任:
（一）行政機(jī)關(guān)工作人員與行使職權(quán)無關(guān)的個(gè)人行為;
（二）因公民、法人和其他組織自己的行為致使損害發(fā)生的;
（三）法律規(guī)定的其他情形。
第二節(jié) 賠償請求人和賠償義務(wù)機(jī)關(guān)
Article 6 Victimized citizens, legal persons or other organizations shall have the right to demand compensation.
In the case of death of a victim, his heirs or other relatives in maintenance relationship with him shall have the right to demand compensation.
In the case of termination of a victimized legal person or other organization, the party that succeeds to the former's rights shall have the right to demand compensation.
In the case of death of a victim, his heirs or other relatives in maintenance relationship with him shall have the right to demand compensation.
In the case of termination of a victimized legal person or other organization, the party that succeeds to the former's rights shall have the right to demand compensation.
第六條 受害的公民、法人和其他組織有權(quán)要求賠償。
受害的公民死亡,其繼承人和其他有扶養(yǎng)關(guān)系的親屬有權(quán)要求賠償。
受害的法人或者其他組織終止的,其權(quán)利承受人有權(quán)要求賠償。
Article 7 Where an administrative organ and its functionaries, in exercising their administrative powers, infringe upon the legitimate 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 legitimate 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 legitimate 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 legitimate 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.
Where two or more than two administrative organs in jointly exercising their administrative functions and powers infringe upon the legitimate 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 legitimate 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 legitimate 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.
第七條 行政機(jī)關(guān)及其工作人員行使行政職權(quán)侵犯公民、法人和其他組織的合法權(quán)益造成損害的,該行政機(jī)關(guān)為賠償義務(wù)機(jī)關(guān)。
兩個(gè)以上行政機(jī)關(guān)共同行使行政職權(quán)時(shí)侵犯公民、法人和其他組織的合法權(quán)益造成損害的,共同行使行政職權(quán)的行政機(jī)關(guān)為共同賠償義務(wù)機(jī)關(guān)。
法律、法規(guī)授權(quán)的組織在行使授予的行政權(quán)力時(shí)侵犯公民、法人和其他組織的合法權(quán)益造成損害的,被授權(quán)的組織為賠償義務(wù)機(jī)關(guān)。
受行政機(jī)關(guān)委托的組織或者個(gè)人在行使受委托的行政權(quán)力時(shí)侵犯公民、法人和其他組織的合法權(quán)益造成損害的,委托的行政機(jī)關(guān)為賠償義務(wù)機(jī)關(guān)。
賠償義務(wù)機(jī)關(guān)被撤銷的,繼續(xù)行使其職權(quán)的行政機(jī)關(guān)為賠償義務(wù)機(jī)關(guān);沒有繼續(xù)行使其職權(quán)的行政機(jī)關(guān)的,撤銷該賠償義務(wù)機(jī)關(guān)的行政機(jī)關(guān)為賠償義務(wù)機(jī)關(guān)。
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 Procedures
第八條 經(jīng)復(fù)議機(jī)關(guān)復(fù)議的，最初造成侵權(quán)行為的行政機(jī)關(guān)為賠償義務(wù)機(jī)關(guān)，但復(fù)議機(jī)關(guān)的復(fù)議決定加重?fù)p害的，復(fù)議機(jī)關(guān)對加重的部分履行賠償義務(wù)。
第三節(jié) 賠償程序
Article 9 An organ liable for compensation shall make the compensation with respect to any of the circumstances stipulated in Articles 3 and 4 of this Law.
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.
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.
第九條 賠償義務(wù)機(jī)關(guān)有本法第三條、第四條規(guī)定情形之一的,應(yīng)當(dāng)給予賠償。
賠償請求人要求賠償,應(yīng)當(dāng)先向賠償義務(wù)機(jī)關(guān)提出,也可以在申請行政復(fù)議或者提起行政訴訟時(shí)一并提出。
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.
第十條 賠償請求人可以向共同賠償義務(wù)機(jī)關(guān)中的任何一個(gè)賠償義務(wù)機(jī)關(guān)要求賠償,該賠償義務(wù)機(jī)關(guān)應(yīng)當(dāng)先予賠償。
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.
第十一條 賠償請求人根據(jù)受到的不同損害,可以同時(shí)提出數(shù)項(xiàng)賠償要求。
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 himself, he shall explain his relationship with the victim and furnish corresponding evidence."
A new paragraph is added as Paragraph 4 of Article 12: "If a claimant submits an application in person, the organ liable for compensation shall issue a written proof on site which is affixed with its administrative organ special-purpose seal and indicated with the date of receipt. If the application materials are incomplete, the organ liable for compensation shall, either on site or within five days, inform the claimant in a single notice of all the contents to be supplemented or corrected.
(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 himself, he shall explain his relationship with the victim and furnish corresponding evidence."
A new paragraph is added as Paragraph 4 of Article 12: "If a claimant submits an application in person, the organ liable for compensation shall issue a written proof on site which is affixed with its administrative organ special-purpose seal and indicated with the date of receipt. If the application materials are incomplete, the organ liable for compensation shall, either on site or within five days, inform the claimant in a single notice of all the contents to be supplemented or corrected.
第十二條 要求賠償應(yīng)當(dāng)遞交申請書,申請書應(yīng)當(dāng)載明下列事項(xiàng):
(一)受害人的姓名、性別、年齡、工作單位和住所,法人或者其他組織的名稱、住所和法定代表人或者主要負(fù)責(zé)人的姓名、職務(wù);
(二)具體的要求、事實(shí)根據(jù)和理由;(三)申請的年、月、日。
賠償請求人書寫申請書確有困難的,可以委托他人代書;也可以口頭申請,由賠償義務(wù)機(jī)關(guān)記入筆錄。
賠償請求人不是受害人本人的,應(yīng)當(dāng)說明與受害人的關(guān)系,并提供相應(yīng)證明。
賠償請求人當(dāng)面遞交申請書的,賠償義務(wù)機(jī)關(guān)應(yīng)當(dāng)當(dāng)場出具加蓋本行政機(jī)關(guān)專用印章并注明收訖日期的書面憑證。申請材料不齊全的,賠償義務(wù)機(jī)關(guān)應(yīng)當(dāng)當(dāng)場或者在五日內(nèi)一次性告知賠償請求人需要補(bǔ)正的全部內(nèi)容。
Article 13 The organ liable for compensation shall, within two months from the date of receiving the application, make a decision on whether or not to make compensation. To make such a decision, the organ liable for compensation shall listen to the opinions of the claimant and negotiate with him in accordance with the provisions of Chapter IV of this Law regarding form of compensation, items to be compensated, and amount of compensation.
Where an organ liable for compensation decides to make compensation, it shall prepare a written compensation decision and deliver the same to the claimant within ten days after the decision is made.
Where the organ liable for compensation decides to reject the compensation claim, it shall notify the claimant in writing within ten days after the decision is made and explain thereto the reasons.
Where an organ liable for compensation decides to make compensation, it shall prepare a written compensation decision and deliver the same to the claimant within ten days after the decision is made.
Where the organ liable for compensation decides to reject the compensation claim, it shall notify the claimant in writing within ten days after the decision is made and explain thereto the reasons.
第十三條 賠償義務(wù)機(jī)關(guān)應(yīng)當(dāng)自收到申請之日起兩個(gè)月內(nèi),作出是否賠償?shù)臎Q定。賠償義務(wù)機(jī)關(guān)作出賠償決定,應(yīng)當(dāng)充分聽取賠償請求人的意見,并可以與賠償請求人就賠償方式、賠償項(xiàng)目和賠償數(shù)額依照本法第四章的規(guī)定進(jìn)行協(xié)商。
賠償義務(wù)機(jī)關(guān)決定賠償?shù)?應(yīng)當(dāng)制作賠償決定書,并自作出決定之日起十日內(nèi)送達(dá)賠償請求人。
賠償義務(wù)機(jī)關(guān)決定不予賠償?shù)?應(yīng)當(dāng)自作出決定之日起十日內(nèi)書面通知賠償請求人,并說明不予賠償?shù)睦碛伞?
Article 14 If the organ liable for compensation fails to make a decision on whether or not to make compensation within the prescribed time limit, the claimant can bring a suit in a people's court within three months from the date of expiration of the period.
If the claimant raises an opposition against the form, item, or amount of compensation, or the organ liable for compensation makes a decision on rejecting the compensation claim, the claimant can bring a suit in a people's court within three months from the date when the decision is made.
If the claimant raises an opposition against the form, item, or amount of compensation, or the organ liable for compensation makes a decision on rejecting the compensation claim, the claimant can bring a suit in a people's court within three months from the date when the decision is made.
第十四條 賠償義務(wù)機(jī)關(guān)在規(guī)定期限內(nèi)未作出是否賠償?shù)臎Q定,賠償請求人可以自期限屆滿之日起三個(gè)月內(nèi),向人民法院提起訴訟。
賠償請求人對賠償?shù)姆绞健㈨?xiàng)目、數(shù)額有異議的,或者賠償義務(wù)機(jī)關(guān)作出不予賠償決定的,賠償請求人可以自賠償義務(wù)機(jī)關(guān)作出賠償或者不予賠償決定之日起三個(gè)月內(nèi),向人民法院提起訴訟。
Article 15 Where a people's court tries an administrative compensation case, the claimant and organ liable for compensation shall furnish evidence for the allegations they have proposed.
During the period when the organ liable for compensation adopts administrative detainment or other compulsory measures involving the restriction of freedom of person, and the person subject to restriction of freedom dies or loses the capacity of conduct, the organ liable for compensation shall furnish evidence proving whether or not there exists a cause-effect relationship between the act of the organ and the said person's death or loss of capacity of conduct.
During the period when the organ liable for compensation adopts administrative detainment or other compulsory measures involving the restriction of freedom of person, and the person subject to restriction of freedom dies or loses the capacity of conduct, the organ liable for compensation shall furnish evidence proving whether or not there exists a cause-effect relationship between the act of the organ and the said person's death or loss of capacity of conduct.
第十五條 人民法院審理行政賠償案件,賠償請求人和賠償義務(wù)機(jī)關(guān)對自己提出的主張,應(yīng)當(dāng)提供證據(jù)。
賠償義務(wù)機(jī)關(guān)采取行政拘留或者限制人身自由的強(qiáng)制措施期間,被限制人身自由的人死亡或者喪失行為能力的,賠償義務(wù)機(jī)關(guān)的行為與被限制人身自由的人的死亡或者喪失行為能力是否存在因果關(guān)系,賠償義務(wù)機(jī)關(guān)應(yīng)當(dāng)提供證據(jù)。
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 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.
Those who are responsible for the matter and have been intentional or grossly negligent shall be given 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
Section 1: Scope of Compensation
第十六條 賠償義務(wù)機(jī)關(guān)賠償損失后，應(yīng)當(dāng)責(zé)令有故意或者重大過失的工作人員或者受委托的組織或者個(gè)人承擔(dān)部分或者全部賠償費(fèi)用。
對有故意或者重大過失的責(zé)任人員，有關(guān)機(jī)關(guān)應(yīng)當(dāng)依法給予處分;構(gòu)成犯罪的，應(yīng)當(dāng)依法追究刑事責(zé)任。
第三章 刑事賠償
第一節(jié) 賠償范圍
Article 17 The victim shall have the right to compensation if an organ in charge of investigatory, procuratorial and judicial duties and powers or an organ in charge of detention house or prison administration work, or its functionaries, infringe upon the rights 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 provisions of the Criminal Procedure Law or, detaining a citizen in accordance with the conditions and procedures stipulated by the Criminal Procedure Law, but for a period longer than the time limit prescribed by the Criminal Procedure Law and then making a decision on withdrawing the case, waiving the suit or making a judgment declaring the citizen innocent and terminating the pursuance of legal liabilities;
(2) After arresting a citizen, making a decision to withdraw the case, waive the suit or make a judgment declaring the citizen innocent and terminating the pursuance of legal liabilities;
(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 and allowing another to use 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.
(1) Detaining a citizen in violation of the provisions of the Criminal Procedure Law or, detaining a citizen in accordance with the conditions and procedures stipulated by the Criminal Procedure Law, but for a period longer than the time limit prescribed by the Criminal Procedure Law and then making a decision on withdrawing the case, waiving the suit or making a judgment declaring the citizen innocent and terminating the pursuance of legal liabilities;
(2) After arresting a citizen, making a decision to withdraw the case, waive the suit or make a judgment declaring the citizen innocent and terminating the pursuance of legal liabilities;
(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 and allowing another to use 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.
第十七條 行使偵查、檢察、審判職權(quán)的機(jī)關(guān)以及看守所、監(jiān)獄管理機(jī)關(guān)及其工作人員在行使職權(quán)時(shí)有下列侵犯人身權(quán)情形之一的,受害人有取得賠償?shù)臋?quán)利:
(一)違反刑事訴訟法的規(guī)定對公民采取拘留措施的,或者依照刑事訴訟法規(guī)定的條件和程序?qū)癫扇【辛舸胧?但是拘留時(shí)間超過刑事訴訟法規(guī)定的時(shí)限,其后決定撤銷案件、不起訴或者判決宣告無罪終止追究刑事責(zé)任的;
(二)對公民采取逮捕措施后,決定撤銷案件、不起訴或者判決宣告無罪終止追究刑事責(zé)任的;
(三)依照審判監(jiān)督程序再審改判無罪,原判刑罰已經(jīng)執(zhí)行的;
(四)刑訊逼供或者以毆打、虐待等行為或者唆使、放縱他人以毆打、虐待等行為造成公民身體傷害或者死亡的;
(五)違法使用武器、警械造成公民身體傷害或者死亡的。
Article 18 The victim shall have the right to compensation if an organ in charge of investigatory, procuratorial and judicial duties and powers or an organ in charge of detention house or prison administration work, 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 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.
(1) Unlawfully taking measures such as sealing up, distraining, freezing or recovering 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.
第十八條 行使偵查、檢察、審判職權(quán)的機(jī)關(guān)以及看守所、監(jiān)獄管理機(jī)關(guān)及其工作人員在行使職權(quán)時(shí)有下列侵犯財(cái)產(chǎn)權(quán)情形之一的,受害人有取得賠償?shù)臋?quán)利:
(一)違法對財(cái)產(chǎn)采取查封、扣押、凍結(jié)、追繳等措施的;
(二)依照審判監(jiān)督程序再審改判無罪,原判罰金、沒收財(cái)產(chǎn)已經(jīng)執(zhí)行的。
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 14 and 15 of the Criminal Law;
(3) "(3) The person taken into custody being one who shall not be investigated for criminal responsibility in accordance with Article 15 and Paragraph 2 of Article 142 of the Criminal Procedure Law;
(4) Individual acts of functionaries of organs in charge of investigatory, procuratorial and judicial duties and powers or organs in charge of detention house or prison administration work, 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.
(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 14 and 15 of the Criminal Law;
(3) "(3) The person taken into custody being one who shall not be investigated for criminal responsibility in accordance with Article 15 and Paragraph 2 of Article 142 of the Criminal Procedure Law;
(4) Individual acts of functionaries of organs in charge of investigatory, procuratorial and judicial duties and powers or organs in charge of detention house or prison administration work, 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
第十九條 屬于下列情形之一的，國家不承擔(dān)賠償責(zé)任:
（一）因公民自己故意作虛偽供述，或者偽造其他有罪證據(jù)被羈押或者被判處刑罰的;
（二）依照刑法第十七條、第十八條規(guī)定不負(fù)刑事責(zé)任的人被羈押的;
（三）依照刑事訴訟法第十五條、第一百四十二條第二款規(guī)定不追究刑事責(zé)任的人被羈押的;
（四）行使偵查、檢察、審判職權(quán)的機(jī)關(guān)以及看守所、監(jiān)獄管理機(jī)關(guān)的工作人員與行使職權(quán)無關(guān)的個(gè)人行為;
（五）因公民自傷、自殘等故意行為致使損害發(fā)生的;
（六）法律規(guī)定的其他情形。
第二節(jié) 賠償請求人和賠償義務(wù)機(jī)關(guān)
Article 20 Claimants to compensation shall be determined in accordance with the provisions of Article 6 of this Law.
第二十條 賠償請求人的確定依照本法第六條的規(guī)定。
Article 21 If an organ in charge of investigatory, procuratorial and judicial duties and powers or an organ in charge of detention house or prison administration work, 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 State compensation shall be made to a person for being detained in accordance with the provisions of this Law, the organ deciding on the detention shall be the organ liable for compensation.
After a citizen is arrested, a decision is made to withdraw the case or waive the suit, or a judgment is made to declare the citizen innocent, the organ deciding on the arrest shall be the organ liable for compensation.
If a person 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 person is adjudged not guilty by a court of the second instance, or adjudged not guilty after the second instance case is remanded for retrial, the court passing the original first-instance sentence shall be the organ liable for compensation.
If State compensation shall be made to a person for being detained in accordance with the provisions of this Law, the organ deciding on the detention shall be the organ liable for compensation.
After a citizen is arrested, a decision is made to withdraw the case or waive the suit, or a judgment is made to declare the citizen innocent, the organ deciding on the arrest shall be the organ liable for compensation.
If a person 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 person is adjudged not guilty by a court of the second instance, or adjudged not guilty after the second instance case is remanded for retrial, the court passing the original first-instance sentence shall be the organ liable for compensation.
Section 3: Compensatory Procedure
第二十一條 行使偵查、檢察、審判職權(quán)的機(jī)關(guān)以及看守所、監(jiān)獄管理機(jī)關(guān)及其工作人員在行使職權(quán)時(shí)侵犯公民、法人和其他組織的合法權(quán)益造成損害的，該機(jī)關(guān)為賠償義務(wù)機(jī)關(guān)。
對公民采取拘留措施，依照本法的規(guī)定應(yīng)當(dāng)給予國家賠償?shù)模鞒鼍辛魶Q定的機(jī)關(guān)為賠償義務(wù)機(jī)關(guān)。
對公民采取逮捕措施后決定撤銷案件、不起訴或者判決宣告無罪的，作出逮捕決定的機(jī)關(guān)為賠償義務(wù)機(jī)關(guān)。
再審改判無罪的，作出原生效判決的人民法院為賠償義務(wù)機(jī)關(guān)。二審改判無罪，以及二審發(fā)回重審后作無罪處理的，作出一審有罪判決的人民法院為賠償義務(wù)機(jī)關(guān)。
第三節(jié) 賠償程序
Article 22 An organ liable for compensation shall pay the compensation if it is involved in any of the circumstances stipulated in the provisions of Articles 17 and 18 of this Law.
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 of this Law shall be applicable to the compensation claim filed by a claimant.
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 of this Law shall be applicable to the compensation claim filed by a claimant.
第二十二條 賠償義務(wù)機(jī)關(guān)有本法第十七條、第十八條規(guī)定情形之一的,應(yīng)當(dāng)給予賠償。
賠償請求人要求賠償,應(yīng)當(dāng)先向賠償義務(wù)機(jī)關(guān)提出。
賠償請求人提出賠償請求,適用本法第十一條、第十二條的規(guī)定。
Article 23 The organ liable for compensation shall, within two months from the date of receiving the application, make a decision on whether or not to make compensation. To make such a decision, the organ liable for compensation shall listen to the opinions of the claimant and negotiate with him in accordance with the provisions of Chapter IV of this Law regarding the form of compensation, items of compensation and amount of compensation.
Where an organ liable for compensation decides to make compensation, it shall prepare a written compensation decision and deliver the same to the claimant within ten days after the decision is made.
Where the organ liable for compensation decides to reject the compensation claim, it shall notify the claimant in writing within ten days after the decision is made and explain thereto the reasons.
Where an organ liable for compensation decides to make compensation, it shall prepare a written compensation decision and deliver the same to the claimant within ten days after the decision is made.
Where the organ liable for compensation decides to reject the compensation claim, it shall notify the claimant in writing within ten days after the decision is made and explain thereto the reasons.
第二十三條 賠償義務(wù)機(jī)關(guān)應(yīng)當(dāng)自收到申請之日起兩個(gè)月內(nèi),作出是否賠償?shù)臎Q定。賠償義務(wù)機(jī)關(guān)作出賠償決定,應(yīng)當(dāng)充分聽取賠償請求人的意見,并可以與賠償請求人就賠償方式、賠償項(xiàng)目和賠償數(shù)額依照本法第四章的規(guī)定進(jìn)行協(xié)商。
賠償義務(wù)機(jī)關(guān)決定賠償?shù)?應(yīng)當(dāng)制作賠償決定書,并自作出決定之日起十日內(nèi)送達(dá)賠償請求人。
賠償義務(wù)機(jī)關(guān)決定不予賠償?shù)?應(yīng)當(dāng)自作出決定之日起十日內(nèi)書面通知賠償請求人,并說明不予賠償?shù)睦碛伞?
Article 24 If the organ liable for compensation fails to make a decision on whether or not to make compensation within the prescribed time limit, the claimant can 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 raises an opposition against the form, item, or amount of compensation, or the organ liable for compensation makes a decision on rejecting the compensation claim, the claimant can apply for reconsideration to an organ at the next higher level within thirty days from the date when the decision is made.
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.
If the claimant raises an opposition against the form, item, or amount of compensation, or the organ liable for compensation makes a decision on rejecting the compensation claim, the claimant can apply for reconsideration to an organ at the next higher level within thirty days from the date when the decision is made.
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.
第二十四條 賠償義務(wù)機(jī)關(guān)在規(guī)定期限內(nèi)未作出是否賠償?shù)臎Q定,賠償請求人可以自期限屆滿之日起三十日內(nèi)向賠償義務(wù)機(jī)關(guān)的上一級機(jī)關(guān)申請復(fù)議。
賠償請求人對賠償?shù)姆绞健㈨?xiàng)目、數(shù)額有異議的,或者賠償義務(wù)機(jī)關(guān)作出不予賠償決定的,賠償請求人可以自賠償義務(wù)機(jī)關(guān)作出賠償或者不予賠償決定之日起三十日內(nèi),向賠償義務(wù)機(jī)關(guān)的上一級機(jī)關(guān)申請復(fù)議。
賠償義務(wù)機(jī)關(guān)是人民法院的,賠償請求人可以依照本條規(guī)定向其上一級人民法院賠償委員會申請作出賠償決定。
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.
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.
第二十五條 復(fù)議機(jī)關(guān)應(yīng)當(dāng)自收到申請之日起兩個(gè)月內(nèi)作出決定。
賠償請求人不服復(fù)議決定的,可以在收到復(fù)議決定之日起三十日內(nèi)向復(fù)議機(jī)關(guān)所在地的同級人民法院賠償委員會申請作出賠償決定;復(fù)議機(jī)關(guān)逾期不作決定的,賠償請求人可以自期限屆滿之日起三十日內(nèi)向復(fù)議機(jī)關(guān)所在地的同級人民法院賠償委員會申請作出賠償決定。
Article 26 Where the compensation commission of the people's court handles a compensation claim, the claimant and organ liable for compensation shall furnish evidence proving the allegations they have proposed.
Where the detainee dies or loses capacity during the period of detainment, the organ liable for compensation shall furnish evidence proving whether or not there exists a cause-effect relationship between the acts of the organ and the said person's death or loss of capacity.
Where the detainee dies or loses capacity during the period of detainment, the organ liable for compensation shall furnish evidence proving whether or not there exists a cause-effect relationship between the acts of the organ and the said person's death or loss of capacity.
第二十六條 人民法院賠償委員會處理賠償請求,賠償請求人和賠償義務(wù)機(jī)關(guān)對自己提出的主張,應(yīng)當(dāng)提供證據(jù)。
被羈押人在羈押期間死亡或者喪失行為能力的,賠償義務(wù)機(jī)關(guān)的行為與被羈押人的死亡或者喪失行為能力是否存在因果關(guān)系,賠償義務(wù)機(jī)關(guān)應(yīng)當(dāng)提供證據(jù)。
Article 27 The compensation commission of the people's court shall adopt by way of written examination to handle a compensation claim. When necessary, it may conduct investigation and collect evidence with the relevant entities and persons. If there is any disagreement between the claimant and the organ liable for compensation regarding the facts of damage and the cause-effect relationship, the compensation commission may listen to the statements and arguments made by both the claimant and the organ liable for compensation, and may also conduct cross-examination.
第二十七條 人民法院賠償委員會處理賠償請求,采取書面審查的辦法。必要時(shí),可以向有關(guān)單位和人員調(diào)查情況、收集證據(jù)。賠償請求人與賠償義務(wù)機(jī)關(guān)對損害事實(shí)及因果關(guān)系有爭議的,賠償委員會可以聽取賠償請求人和賠償義務(wù)機(jī)關(guān)的陳述和申辯,并可以進(jìn)行質(zhì)證。
Article 28 The compensation commission of the people's court shall make a decision within three months after receiving the application for compensation. If the case is of a difficult or complex nature or major significance, subject to the approval of the president of the concerned court, an extension of three months shall be allowed.
第二十八條 人民法院賠償委員會應(yīng)當(dāng)自收到賠償申請之日起三個(gè)月內(nèi)作出決定;屬于疑難、復(fù)雜、重大案件的,經(jīng)本院院長批準(zhǔn),可以延長三個(gè)月。
Article 29 People's courts at or above the intermediate level shall establish compensation commission composed of an odd number of their judges and the number shall be no smaller than three.
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.
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.
第二十九條 中級以上的人民法院設(shè)立賠償委員會,由人民法院三名以上審判員組成,組成人員的人數(shù)應(yīng)當(dāng)為單數(shù)。
賠償委員會作賠償決定,實(shí)行少數(shù)服從多數(shù)的原則。
賠償委員會作出的賠償決定,是發(fā)生法律效力的決定,必須執(zhí)行。
Article 30 If the claimant or organ liable for compensation believes that a decision made by the compensation commission is indeed erroneous, the claimant or the organ may file a petition with the compensation commission of the people's court at the next higher level.
After the compensation decision made by the compensation commission has become effective, if the commission discovers that the compensation decision violates the provisions of this Law, subject to a decision of the president of the court or the instructions given by the people's court at a higher level, the commission shall conduct examination anew within two months and make a decision in accordance with the law, or the compensation commission of the people's court at the next higher level can directly make examination and make a decision.
If the Supreme People's Procuratorate discovers that any decision made by the compensation commission of the people's court at all levels violates this Law, or the people's procuratorate discovers such a violation in the decision made by the compensation commission of its subordinate people's court, the procuratorial organ shall raise opinions to the compensation commission of the people's court at the same level, which shall conduct examination anew within two months and make a decision.
After the compensation decision made by the compensation commission has become effective, if the commission discovers that the compensation decision violates the provisions of this Law, subject to a decision of the president of the court or the instructions given by the people's court at a higher level, the commission shall conduct examination anew within two months and make a decision in accordance with the law, or the compensation commission of the people's court at the next higher level can directly make examination and make a decision.
If the Supreme People's Procuratorate discovers that any decision made by the compensation commission of the people's court at all levels violates this Law, or the people's procuratorate discovers such a violation in the decision made by the compensation commission of its subordinate people's court, the procuratorial organ shall raise opinions to the compensation commission of the people's court at the same level, which shall conduct examination anew within two months and make a decision.
第三十條 賠償請求人或者賠償義務(wù)機(jī)關(guān)對賠償委員會作出的決定,認(rèn)為確有錯(cuò)誤的,可以向上一級人民法院賠償委員會提出申訴。
賠償委員會作出的賠償決定生效后,如發(fā)現(xiàn)賠償決定違反本法規(guī)定的,經(jīng)本院院長決定或者上級人民法院指令,賠償委員會應(yīng)當(dāng)在兩個(gè)月內(nèi)重新審查并依法作出決定,上一級人民法院賠償委員會也可以直接審查并作出決定。
最高人民檢察院對各級人民法院賠償委員會作出的決定,上級人民檢察院對下級人民法院賠償委員會作出的決定,發(fā)現(xiàn)違反本法規(guī)定的,應(yīng)當(dāng)向同級人民法院賠償委員會提出意見,同級人民法院賠償委員會應(yīng)當(dāng)在兩個(gè)月內(nèi)重新審查并依法作出決定。
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 Items 4 and 5 of Article 15 of this Law; 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 paragraph shall be given sanctions by the relevant organ according to law; if a crime is constituted, criminal responsibility shall be investigated according to law.
(1) Circumstances stated in Items 4 and 5 of Article 15 of this Law; 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 paragraph shall be given 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
第三十一條 賠償義務(wù)機(jī)關(guān)賠償后，應(yīng)當(dāng)向有下列情形之一的工作人員追償部分或者全部賠償費(fèi)用:
（一）有本法第十七條第四項(xiàng)、第五項(xiàng)規(guī)定情形的;
（二）在處理案件中有貪污受賄，徇私舞弊，枉法裁判行為的。
對有前款規(guī)定情形的責(zé)任人員，有關(guān)機(jī)關(guān)應(yīng)當(dāng)依法給予處分;構(gòu)成犯罪的，應(yīng)當(dāng)依法追究刑事責(zé)任。
第四章 賠償方式和計(jì)算標(biāo)準(zhǔn)
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.
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.
第三十二條 國家賠償以支付賠償金為主要方式。
能夠返還財(cái)產(chǎn)或者恢復(fù)原狀的,予以返還財(cái)產(chǎn)或者恢復(fù)原狀。
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.
第三十三條 侵犯公民人身自由的,每日賠償金按照國家上年度職工日平均工資計(jì)算。
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, nursing expenses as well as compensation for loss of income due to missed working time shall be paid. Daily compensation for the loss of 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 the loss of part or the whole of working capability, medical expenses, nursing expenses, fees for ancillary equipment for the disabled, rehabilitation fee, necessary expenses caused due to disability and the expenses required for continued treatment, and disability compensation shall be paid. The disability compensation shall be determined in accordance with the degree of working capability lost and the national level of injury or disability, with the maximum amount of compensation no more than twenty times the State average yearly pay of staff and workers in the previous year. With regard to persons who suffer from complete loss of working capability, living expenses shall be paid to those who have been supported by them; 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 Items (2) and (3) in the preceding paragraph shall be handled by using, for reference the minimum living security standards of the local area. If the persons supported 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.
(1) In the case of bodily injury, medical expenses, nursing expenses as well as compensation for loss of income due to missed working time shall be paid. Daily compensation for the loss of 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 the loss of part or the whole of working capability, medical expenses, nursing expenses, fees for ancillary equipment for the disabled, rehabilitation fee, necessary expenses caused due to disability and the expenses required for continued treatment, and disability compensation shall be paid. The disability compensation shall be determined in accordance with the degree of working capability lost and the national level of injury or disability, with the maximum amount of compensation no more than twenty times the State average yearly pay of staff and workers in the previous year. With regard to persons who suffer from complete loss of working capability, living expenses shall be paid to those who have been supported by them; 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 Items (2) and (3) in the preceding paragraph shall be handled by using, for reference the minimum living security standards of the local area. If the persons supported 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.
第三十四條 侵犯公民生命健康權(quán)的,賠償金按照下列規(guī)定計(jì)算:
(一)造成身體傷害的,應(yīng)當(dāng)支付醫(yī)療費(fèi)、護(hù)理費(fèi),以及賠償因誤工減少的收入。減少的收入每日的賠償金按照國家上年度職工日平均工資計(jì)算,最高額為國家上年度職工年平均工資的五倍;
(二)造成部分或者全部喪失勞動能力的,應(yīng)當(dāng)支付醫(yī)療費(fèi)、護(hù)理費(fèi)、殘疾生活輔助具費(fèi)、康復(fù)費(fèi)等因殘疾而增加的必要支出和繼續(xù)治療所必需的費(fèi)用,以及殘疾賠償金。殘疾賠償金根據(jù)喪失勞動能力的程度,按照國家規(guī)定的傷殘等級確定,最高不超過國家上年度職工年平均工資的二十倍。造成全部喪失勞動能力的,對其扶養(yǎng)的無勞動能力的人,還應(yīng)當(dāng)支付生活費(fèi);
(三)造成死亡的,應(yīng)當(dāng)支付死亡賠償金、喪葬費(fèi),總額為國家上年度職工年平均工資的二十倍。對死者生前扶養(yǎng)的無勞動能力的人,還應(yīng)當(dāng)支付生活費(fèi)。
前款第二項(xiàng)、第三項(xiàng)規(guī)定的生活費(fèi)的發(fā)放標(biāo)準(zhǔn),參照當(dāng)?shù)刈畹蜕畋Ｕ蠘?biāo)準(zhǔn)執(zhí)行。被扶養(yǎng)的人是未成年人的,生活費(fèi)給付至十八周歲止;其他無勞動能力的人,生活費(fèi)給付至死亡時(shí)止。
Article 35 Under any one of the circumstances stipulated in Article 3 or Article 17 of this Law, which has caused mental harm to the victim, the organ liable for compensation shall, within the scope of influence of the tortious act, eliminate the ill effects for the victim, rehabilitate his reputation, and extend an apology. If serious consequences are caused, a corresponding amount of mental injury relief fee shall be paid.
第三十五條 有本法第三條或者第十七條規(guī)定情形之一,致人精神損害的,應(yīng)當(dāng)在侵權(quán)行為影響的范圍內(nèi),為受害人消除影響,恢復(fù)名譽(yù),賠禮道歉;造成嚴(yán)重后果的,應(yīng)當(dāng)支付相應(yīng)的精神損害撫慰金。
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 properties have been expropriated and appropriated in violation of the law, such 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 Items 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 missing, corresponding compensation shall be paid;
(5) If the property has been sold or has been sold by auction, the proceeds of the auction or sale shall be paid; if the proceeds of the sale is obviously lower than the value of the property, a corresponding amount of compensation shall be made;
(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; and
(7) In the case of returning the fines that have been executed or money that has been recovered or confiscated, or in the case of unfreezing the deposits or remittance that have been frozen, an interest shall be paid according to the corresponding interest rate for bank deposit; and
(8) If other damage is done to property rights, compensation shall be paid for the direct losses.
(1) If fines, recovery or confiscation of property have been ordered, or properties have been expropriated and appropriated in violation of the law, such 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 Items 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 missing, corresponding compensation shall be paid;
(5) If the property has been sold or has been sold by auction, the proceeds of the auction or sale shall be paid; if the proceeds of the sale is obviously lower than the value of the property, a corresponding amount of compensation shall be made;
(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; and
(7) In the case of returning the fines that have been executed or money that has been recovered or confiscated, or in the case of unfreezing the deposits or remittance that have been frozen, an interest shall be paid according to the corresponding interest rate for bank deposit; and
(8) If other damage is done to property rights, compensation shall be paid for the direct losses.
第三十六條 侵犯公民、法人和其他組織的財(cái)產(chǎn)權(quán)造成損害的,按照下列規(guī)定處理:
(一)處罰款、罰金、追繳、沒收財(cái)產(chǎn)或者違法征收、征用財(cái)產(chǎn)的,返還財(cái)產(chǎn);
(二)查封、扣押、凍結(jié)財(cái)產(chǎn)的,解除對財(cái)產(chǎn)的查封、扣押、凍結(jié),造成財(cái)產(chǎn)損壞或者滅失的,依照本條第三項(xiàng)、第四項(xiàng)的規(guī)定賠償;
(三)應(yīng)當(dāng)返還的財(cái)產(chǎn)損壞的,能夠恢復(fù)原狀的恢復(fù)原狀,不能恢復(fù)原狀的,按照損害程度給付相應(yīng)的賠償金;
(四)應(yīng)當(dāng)返還的財(cái)產(chǎn)滅失的,給付相應(yīng)的賠償金;
(五)財(cái)產(chǎn)已經(jīng)拍賣或者變賣的,給付拍賣或者變賣所得的價(jià)款;變賣的價(jià)款明顯低于財(cái)產(chǎn)價(jià)值的,應(yīng)當(dāng)支付相應(yīng)的賠償金;
(六)吊銷許可證和執(zhí)照、責(zé)令停產(chǎn)停業(yè)的,賠償停產(chǎn)停業(yè)期間必要的經(jīng)常性費(fèi)用開支;
(七)返還執(zhí)行的罰款或者罰金、追繳或者沒收的金錢,解除凍結(jié)的存款或者匯款的,應(yīng)當(dāng)支付銀行同期存款利息;
(八)對財(cái)產(chǎn)權(quán)造成其他損害的,按照直接損失給予賠償。
Article 37 The compensation expenses shall be entered in the financial budget at various levels.
The claimant shall, by presenting effective written verdict, written reconsideration decision, written compensation decision or mediation statement; request the payment of compensation from the organ liable for compensation.
The organ liable for compensation shall file an application for payment with the relevant financial department according to its budgetary management power and authority within seven days after receiving the request for the payment of compensation. The financial department shall make the payment of the compensation within 15 days after receiving such an application.
The specific measures for the administration of budget and payment of compensation expenses are to be provided by the State Council.
The claimant shall, by presenting effective written verdict, written reconsideration decision, written compensation decision or mediation statement; request the payment of compensation from the organ liable for compensation.
The organ liable for compensation shall file an application for payment with the relevant financial department according to its budgetary management power and authority within seven days after receiving the request for the payment of compensation. The financial department shall make the payment of the compensation within 15 days after receiving such an application.
The specific measures for the administration of budget and payment of compensation expenses are to be provided by the State Council.
Chapter V: Other Provisions
第三十七條 賠償費(fèi)用列入各級財(cái)政預(yù)算。
賠償請求人憑生效的判決書、復(fù)議決定書、賠償決定書或者調(diào)解書，向賠償義務(wù)機(jī)關(guān)申請支付賠償金。
賠償義務(wù)機(jī)關(guān)應(yīng)當(dāng)自收到支付賠償金申請之日起七日內(nèi)，依照預(yù)算管理權(quán)限向有關(guān)的財(cái)政部門提出支付申請。財(cái)政部門應(yīng)當(dāng)自收到支付申請之日起十五日內(nèi)支付賠償金。
賠償費(fèi)用預(yù)算與支付管理的具體辦法由國務(wù)院規(guī)定。
第五章 其他規(guī)定
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 of this Law shall be applicable to the procedure for making claims for compensation by the claimant.
第三十八條 人民法院在民事訴訟、行政訴訟過程中,違法采取對妨害訴訟的強(qiáng)制措施、保全措施或者對判決、裁定及其他生效法律文書執(zhí)行錯(cuò)誤,造成損害的,賠償請求人要求賠償?shù)某绦?適用本法刑事賠償程序的規(guī)定。
Article 39 The effective term for claims for State compensation are two years, to be counted from the day when the claimant is aware or should be aware of the fact that the exercise of the functions and powers by a State organ and its functionaries has violated his rights to the person or property rights, but the period of detention of the victim shall not be counted. If the compensation claim is filed when applying for administrative reconsideration or filing for administrative action, the relevant provisions on the effective term in the Administrative Reconsideration Law and the Administrative Procedure Law shall apply.
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.
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.
第三十九條 賠償請求人請求國家賠償?shù)臅r(shí)效為兩年,自其知道或者應(yīng)當(dāng)知道國家機(jī)關(guān)及其工作人員行使職權(quán)時(shí)的行為侵犯其人身權(quán)、財(cái)產(chǎn)權(quán)之日起計(jì)算,但被羈押等限制人身自由期間不計(jì)算在內(nèi)。在申請行政復(fù)議或者提起行政訴訟時(shí)一并提出賠償請求的,適用行政復(fù)議法、行政訴訟法有關(guān)時(shí)效的規(guī)定。
賠償請求人在賠償請求時(shí)效的最后六個(gè)月內(nèi),因不可抗力或者其他障礙不能行使請求權(quán)的,時(shí)效中止。從中止時(shí)效的原因消除之日起,賠償請求時(shí)效期間繼續(xù)計(jì)算。
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, 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.
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
第四十條 外國人、外國企業(yè)和組織在中華人民共和國領(lǐng)域內(nèi)要求中華人民共和國國家賠償?shù)模m用本法。
外國人、外國企業(yè)和組織的所屬國對中華人民共和國公民、法人和其他組織要求該國國家賠償?shù)臋?quán)利不予保護(hù)或者限制的，中華人民共和國與該外國人、外國企業(yè)和組織的所屬國實(shí)行對等原則。
第六章 附則
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.
No tax shall be levied as regards the compensation a claimant has obtained.
第四十一條 賠償請求人要求國家賠償?shù)?賠償義務(wù)機(jī)關(guān)、復(fù)議機(jī)關(guān)和人民法院不得向賠償請求人收取任何費(fèi)用。
對賠償請求人取得的賠償金不予征稅。
Article 42 This Law shall go into effect as of January 1,1995.
第四十二條 本法自1995年1月1日起施行。
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