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This situation has changed since 1989, when the national legislature enacted the Administrative Litigation Law (ALL).
The ALL, for the first time in PRC history, established a system of judicial review over agency actions. Under the ALL, citizens and legal entities may challenge agency actions in the courts. It also provided that if a government agency or officials thereof infringed upon individuals’ rights and interests, the individuals shall have the right to claim compensation in judicial review proceedings. The ALL made a giant step forward in institutionalizing the idea of state compensation.
After the ALL, The National People’s Congress enacted the State Compensation Law (SCL) in 1994.
The SCL is a systematic effort to further develop the state compensation system by (1) defining the scope of state compensation, (2) the criteria for identifying state liability, principles and scope of sovereign immunity, and (3) precise procedures for claiming compensation against state organs.
The General Principles of Civil Law, together with the ALL and the SCL, are major statuary sources for claiming compensation against the state in China. Traditionally, the Chinese legal system received heavy influence from the continental jurisdiction, and always emphasized a distinction between public law and private law. As a result, the current legal system classifies state compensation into two types, which are different substantively as well as procedurally: state compensation under private law liability and state compensation under public law liability. Under private law, the state may undertake liability for its activities like any private party. Under public law, however, this is not the case.
Generally speaking, although individuals can sue the state under civil law as a matter of theory and practice, individuals will most likely challenge the state under public law, particularly under the ALL and the SCL. In the past ten years, the implementation of the ALL and the SCL has created a forum for individuals and legal entities to challenge the state and to claim compensation against the state. While the Chinese practice of suing the state is still developing, it has revealed individuals’ joys and pains, and governmental ambivalence, to which we now turn.
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