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If a state organ or a member of its personnel, when exercising functions and powers in violation of the law, infringes upon the lawful rights and interests of a citizen, legal person, or other organization, and causes damages the aggrieved person shall have the right to recover damages from the state in accordance with this law.
Thus, the imputative principle defined in China’s state compensation law is the fault liability. Although there is no legislative interpretation on what is violation of law, it can be seen from the relevant provisions of the Administrative Procedure Law that a violation means a violation of the constitution; administrative rules and regulations; local regulations; and international covenants, treaties and agreements that China has accepted. A violation of law includes erroneous application of the law or regulation, violation of legal procedure, exceeding authority, misfeasance, failure to perform, or delay in the performance of statutory duty.
Ingredient of Compensation Liability
According to the provisions of compensation law, there are four ingredients of compensation liability:
a) The subject of official action. The subject, according to compensation law, refers to the state organ and its personnel; namely state administrative agency, procuratorial organs and judicial organs to which personnel belong.
b) Infraction of law in exercising functions and powers. The unlawful acts exerted by a state organ or its personnel in performing their duties.
c) Harmful consequences. Damage that can cause liability of state compensation has been limited to the scope of damage to a personal or property right, subject to compensation law.
d) Causation. There must be a causal connection between unlawful functional action and damage.
Claimant for Compensation
According to compensation law, there are three kinds of persons who qualify as claimants for purposes of administrative and criminal compensation. Those eligible must be citizens, legal persons, or other organizations. Each category contains the specific qualifications subject to the relevant law.
(A) Citizen: Citizen refers to natural persons who are of the nationality of the People’s Republic of China. Citizens who are claimants for compensation are as follows:
a) Aggrieved citizen himself. According to the provisions of the General Principles of the Civil Law, a citizen aged 18 or over shall be treated as an adult. He shall have full capacity for civil conduct, may independently engage in civil activities, and shall be considered a person with full capacity for civil conduct. A citizen who has reached the age of 16, but not the age of 18, and whose main source of income is derived from his own labor, shall be regarded as a person with full capacity for civil conduct. Aggrieved citizens with full capacity for civil conduct can exercise a right of claim to recover damages from the state.
b) Guardian or legal agent of aggrieved citizen. When an aggrieved citizen cannot effectuate the right of claim, due to youth, or other causes, and is in a state of having limited or no capacity for civil conduct, that right of claim for compensation can be exerted by his guardian or legal agent. According to the provisions of the General Principles of the Civil Law:
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