The form of state compensation is different from that of civil compensation

In China, state compensation is also a self-contained legal system independent of civil compensation, which is very different from civil compensation, which is manifested in the following aspects: 1. The subject of compensation is different. The subject of state compensation is the state, that is, the state is the bearer of the liability for compensation, but the specific compensation obligation is performed by the statutory compensation obligation organ, the subject of civil compensation is the civil subject, and the subject of compensation is the same as the compensation obligor.

2 The basis on which the two types of compensation occur is different. State compensation occurs in the course of the action of state power and is caused by a tort by the state; Civil compensation, on the other hand, is caused by the tort of the accident and occurs in civil activities, and has nothing to do with the actions of public power. 3 The principles of attribution of liability are different between the two types of compensation.

China's State Compensation Law stipulates that if a state organ or its functionaries illegally exercise their powers and infringe upon the legitimate rights and interests of citizens, legal persons and other organizations and cause damages, the victim shall have the right to obtain state compensation in accordance with this law. That is, the state compensation is premised on the illegal conduct of the state organs and their employees. The principle of attribution of civil compensation is mainly the principle of fault, that is, the subjective fault of the actor is the basic premise for bearing civil liability for compensation.

In addition, the principle of no-fault and the principle of equitable liability have been established in civil compensation as a supplement to the principle of fault. 4 The procedures for the two types of compensation are different. The procedure of state compensation is more complex, divided into administrative compensation procedure and criminal compensation and procedure, which is significantly different from the civil compensation procedure:

First of all, before initiating a lawsuit for state compensation, except for incidental compensation in an administrative lawsuit, the claimant should first submit a claim for compensation to the organ with the obligation to compensate, that is, the principle of pre-decision of the organ implementing the obligation to compensate, and the court will not accept it without going through the decision procedure. In civil compensation, the victim can directly file a claim for compensation with the court without going through any pre-procedure. Second, the rules of evidence are different, and the rule of "preliminary proof" is generally applied to state compensation, that is, the claimant for compensation must first prove that the damage has occurred and that the damage was caused by the illegal acts of the state organs and their staff, and then the burden of proof is shifted to the defendant, who is the state organ to prove that the act that caused the damage was lawful or that the act was never carried out. In civil compensation litigation, the evidentiary rule of "who asserts and who presents evidence" is applied.

5 The scope of compensation is different between the two. State compensation is mainly limited to compensation for material damages, and moral damages are not compensated in principle; Compensation for material damage is limited to direct losses and excludes indirect losses. Civil compensation includes both material damage and moral damage, and compensation for material damage is not limited to direct losses, but also includes indirect losses.

6 The two have different forms of compensation. State compensation is mainly based on the payment of compensation; Civil compensation can be in the form of monetary compensation or restitution.

What is the difference between state compensation and civil compensation, and is the subject of the two the same?

The difference between state compensation and civil compensation: the subject of compensation is different, and the basis for compensation is different. State compensation refers to the fact that where state organs and state functionaries illegally exercise their powers and infringe upon the lawful rights and interests of citizens, legal persons, and other organizations, causing damages, the state shall bear economic compensation in accordance with law.

Civil compensation refers to the civil legal consequences that the person obligated to compensate for damages shall bear in accordance with the law if it causes damage to the property or body of others due to violation of law or breach of contract.

State compensation has evolved from civil compensation, so the two have much in common. However, state compensation is a self-contained legal system independent of civil compensation, and the differences between the two can be summarized as follows: 1 The reasons for compensation are different.

State compensation is caused by a violation by the State; Civil damages, on the other hand, arise from civil torts. (The general principles of the Civil Law stipulate that the tort of official service is related to the exercise of public power of the state, and the civil liability for tort of official duty is actually governed by the provisions of the State Compensation Law.) 2 The subject of compensation is different.

The subject of state compensation is the abstract state, and the specific compensation obligation is performed by the organ with the obligation to pay compensation as stipulated in the state compensation law. The subject of compensation and the person obligated to pay compensation are separated from each other. However, the subject of civil compensation is usually a specific civil offender, and the subject of compensation is the same as the person obligated to compensate.

3 The principle of attribution of compensation is different. The principle of attribution of state compensation is the principle of illegality, while the system of attribution principle of civil compensation consists of the principle of fault liability, the principle of no-fault liability and the principle of equitable liability. 4 The compensation procedure is different.

The procedure of state compensation is more complicated than that of civil compensation, and the difference is that: first, before initiating a state compensation lawsuit, in addition to filing compensation together with the administrative lawsuit, the claimant should first submit a claim for compensation to the organ with the obligation to compensate, that is, the principle of pre-decision of the organ with the obligation to compensate is implemented, and the court will not accept it without going through the decision procedure, while in the civil compensation procedure, the victim can directly file a claim for compensation with the court without going through the pre-procedure. Second, the rules of evidence are different.

State compensation generally applies the rule of "preliminary proof", that is, the claimant must first prove that the damage has occurred and that the damage was caused by the illegal acts of the state organ and its functionaries, and then the burden of proof is shifted to the defendant, while in civil compensation proceedings, the evidentiary rule of "who asserts and who presents evidence" is applied.

(1) Monetary compensation: refers to the method of compensation that gives a certain amount of money to the victim in the form of monetary payment after calculating or estimating the extent of the victim's damage. The application of monetary compensation should generally be premised on the impossibility of restitution of property or restitution.

Specifically, it is mainly applicable to the following situations:

1) Infringing on citizens' rights to personal liberty and their rights to life and health;

2) The victim's property rights have been violated, and the property has been destroyed or auctioned, and it is impossible to restore the property to its original state or return the property.

3) Infringing on the victim's property rights, and the victim's property has been damaged and cannot be restored to its original state, or there are major difficulties in restoration;

4) The return of property or restoration to its original state is in conflict with legal norms.

2) Restitution: It can only be applied under the condition that the state organ with the obligation to compensate restores the victim's property or rights to its original state in accordance with the victim's wishes and requirements. It is generally used in the following situations:

1) The property that should be returned is damaged and can be restored to its original state;

2) Where assets are sealed, seized, or frozen, the sealing, seizure, or freezing shall be lifted;

3) Restoring the original state does not violate other legal provisions.

In addition, the scope of application of restitution in state compensation is broader than that in civil compensation, and in addition to the restitution of property, it also includes restitution of rights, such as restoration of household registration in the original place of residence and restoration of rank.

3) Return of property: refers to the method of compensation in which the organ with the obligation to compensate returns the property that has been taken out of the control of the victim due to the infringement of the infringement and returns the property to the victim who has the right to own and occupy the property. The applicable conditions for the return of property are as follows:

1) the existence of the original;

2) It is more convenient than monetary compensation. If the original has been shipped to another place or its whereabouts need to be traced, it is not as convenient as monetary compensation.

3) It does not affect official business. If the original item has been used for official activities, monetary compensation shall be applied if the return will affect official activities.

State compensation shall be made mainly through the payment of compensation, and where the property can be returned or restored to its original state, the property shall be returned or restored to its original state.

State compensation is mainly based on the payment of compensation. Where the property can be returned or restored to its original state, the property is to be returned or restored to its original state.

State compensation refers to the compensation that should be given in accordance with law by state organs and their functionaries for damage to the personal rights or property rights of citizens, legal persons and other organizations due to the exercise of their powers. State compensation shall be performed by the infringing state organs. According to the State Compensation Law of the People's Republic of China, which came into force on 1 January 1995, State compensation generally includes administrative, criminal and judicial compensation.

Methods: Monetary compensation (main), Restitution of property, Restitution of status quo ante Other: Elimination of impact, Restoration of reputation, Formal apology (not moral compensation, only for seven types of detention):

1) Illegal administrative detention;

2) Administrative organs illegally employ administrative compulsory measures restricting personal freedom;

3) Wrongful detention in the course of criminal investigation;

4) Wrongful arrest in the course of criminal investigation;

5) Where the verdict is changed to not guilty in a retrial in accordance with the trial supervision procedures, and the original sentence has already been enforced;

6) Judicial detention is erroneous in civil proceedings;

7) Judicial detention is erroneous in administrative proceedings (erroneous judicial detention in criminal proceedings).

To put it simply: state compensation is because the state organ has caused certain losses to the parties in the process of law enforcement (personal freedom, economy, reputation and other rights are counted). Civil compensation is the liability of the "subject" in civil law for causing losses to the parties due to their individual acts (acts that do not represent the will of the state).