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III. Suing the Government under the State Compensation System
The 1994 SCL established the state compensation system, requiring the state to compensate for damages caused by state organs—including administrative agencies and judicial organs—which resulted from infringements upon individuals’ rights and interests. Article 2 of this law expressly provides that citizens, legal entities, or other organizations have the right to seek compensation from the state if state organs and officers abused their power, infringed upon their legal rights and interests, and caused damages.
This provision makes the constitutional promise of state compensation more precise and practical, and lays down the cornerstone of the state compensation system.
A. Types of State Compensation: Administrative vs. Criminal
The SCL specifies two kinds of compensation: administrative compensation and criminal compensation. Administrative compensation handles damages caused by administrative agencies or their officers in performing public functions. The state should assume responsibility if government agencies or their staff abuse their power and infringe upon legal rights and interests of citizens, legal entities, or other organizations. Criminal compensation, sometimes called “judicial compensation,” encompasses damages or wrongdoings, which resulted from activities by the police, prosecutor, or the courts in criminal proceedings. For example, unlawful detention of citizens or torture by the police may result in criminal compensation. In practice, administrative compensation is the primary component of state compensation. This is partly because administrative agencies have broad power, so administrators are more likely to infringe upon individuals’ rights and partly because individuals believe that seeking criminal compensation is too difficult, if not impossible.
B. Scope of Administrative Compensation
Not all administrative actions may result in state liability and compensation. In general, only when “concrete administrative actions”
have caused damages to liberty or property of individuals can the aggrieved party claim compensation against the state. Individuals cannot challenge agency rules and claim compensation under the state compensation system. Articles 3 and 4 of the SCL specify the scope of compensation. According to the law, the following actions shall fall within the scope of state compensation:
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