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| Category | PROTECTION OF CITIZENS' RIGHTS AND INTERESTS | Organ of Promulgation | The Standing Committee of the National People's Congress | Status of Effect | In Force |
| Date of Promulgation | 1994-05-12 | Effective Date | 1995-01-01 |
|
State Indemnity Law of the People's Republic of China |
|---|
Article 1 This Law is formulated, in accordance
with the Constitution, for the purpose of ensuring
citizens, legal persons and other organizations the
right to obtain the state indemnity according to law,
and promoting the government agencies to perform
their functions according to law.
Article 2 Where a government agency or its
personnel invade illegally the legitimate rights and
interests of a citizen, legal person or other
organization resulting in injury while performing
their functions, the sufferer shall be entitled to
obtain the state indemnity according to this Law.
The state indemnity obligation shall be Section 1 Scope of Indemnity Article 3 Where an administrative agency or (1) to make a detention illegally or take (2) to make a constraint illegally or deprive (3) to cause bodily injury or death by taking (4) to use illegally arms, police weapons and (5) other offenses against law causing bodily Article 4 Where an administrative agency or its (1) to impose illegally an administrative (2) to adopt illegally administrative compulsory (3) to collect properties, or apportion the (4) other offenses against law causing damages Article 5 Under any of the following circumstances, (1) the individual behavior of the administrative (2) the injury is caused due to his/its own (3) other circumstances prescribed by law. Section 2 Indemnity Claimant and Indemnity Article 6 The injured citizens, legal persons Where the injured citizen has died, his heirs and Where the injured legal person or other Article 7 Where an administrative agency or its Where two or more administrative agencies or Where an organization with power authorized by Where an organization or individual delegated Where the indemnity obligatory agency Article 8 In case of reconsideration by Section 3 Indemnity Procedure Article 9 The indemnity obligatory agency The indemnity claimant shall claim the indemnity Article 10 The indemnity claimant may claim the Article 11 The indemnity claimant may, according Article 12 In claiming the indemnity, one shall (1) the name, sex, age, working unit and (2) concrete claim, facts and reasons; and (3) the date on which the application is made. Where it is difficult for the indemnity claimant Article 13 The indemnity obligatory agency Article 14 The indemnity obligatory agency The agency concerned shall impose an Section 1 Scope of indemnity Article 15 Where the agencies with the functions (1) to detain wrongly a person with no criminal (2) to arrest wrongly a person with no criminal (3) the retrial amends a judgment to be (4) to cause bodily injury or death by taking (5) to use illegally arms, police weapons and Article 16 Where the agencies with the functions (1) to give illegally a measure to a property (2) the retrial amends a judgment to be innocence Article 17 Under any of the following (1) a citizen is in custody or given a criminal (2) a person who shall not be responsible for criminal (3) a person who shall not be investigated for (4) the infringement is an individual behavior (5) the injury is caused due to the self-hurt, (6) other circumstances prescribed by law. Section 2 Indemnity Claimant and Indemnity Article 18 The indemnity claimant shall be Article 19 Where agencies with the functions of Where a person has been wrongly detained with no Where a person has been wrongly arrested with no Where the retrial amends a judgment to be innocence, Section 3 Indemnity Procedure Article 20 The indemnity obligatory agency Where the required agency refuses to affirm any For the purpose of claiming the indemnity, the indemnity claimant The provisions of Article 10, 11 and 12 of this Article 21 The indemnity obligatory agency Where the indemnity obligatory agency is Article 22 The reconsideration authority shall If the indemnity claimant disagrees with the Article 23 The people's courts at the mediate In making indemnity decisions, the indemnity The indemnity decision made by an indemnity Article 24 Upon the completion of the indemnity, (1) being involved in the circumstances (2) while handling the case, committing The authority concerned shall impose Article 25 The state indemnity shall take the If possible, return of property or restoration of original Article 26 Where the personal freedom of a Article 27 Where the life and health right of a (1) in case of bodily injury, the medical (2) in case of full or part loss of the labour (3) in case of death, the compensation for death The standard of the living expenses mentioned in Article 28 Where the property rights of a (1) in case of monetary penalty, fine, pursuing (2) in case of seal, detention or freeze of (3) in case of damage of the property which (4) in case of extinction of the property which (5) where the property has been auctioned, the (6) in case of revocation of a license or (7) in case of other damage to the property, an Article 29 The indemnity expenses, shall be Article 30 Where it has been affirmed according to Article 31 The procedure for claiming the Article 32 The time limit for the indemnity The time limit of claim shall be suspended during Article 33 This Law shall be applicable to If any country fails to protect or restricts the Article 34 The indemnity obligatory agency, No tax shall be levied on the indemnity payment Article 35 This Law shall come into force as of Article 14 Any person who has reached the age of 16 and who Any person who has reached the age of 14 but not the age of Any person who has reached the age of 14 but not the age of If a person is not punished because he has not reached the Article 15 If a mental patient causes dangerous consequences at Any person whose mental illness is of an intermittent nature shall Any intoxicated person who commits a crime shall bear criminal Article 11 In any of the following circumstances, no criminal (1) if an act is obviously of minor importance, causing no (2) if the limitation period for criminal prosecution has expired; (3) if an exemption of criminal punishment has been granted in a (4) if the crime is to be handled only upon complaint according to (5) if the defendant is deceased; or (6) if other laws or decrees provide an exemption from investigation
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performed by the indemnity obligatory agency as
prescribed in this Law.
Chapter II Administrative Indemnity
its personnel commit any of the following
infringements upon the personal rights while
performing its administrative functions, the
sufferer shall have the right to obtain the
indemnity:
administrative compulsory measures illegally to
restrict the right of personal freedom of a citizen;
illegally the personal freedom of a citizen with
other measures;
such acts of violence as assault or instigating
others to assault a citizen;
cause bodily injury or death of a citizen; or
injury or death of a citizen.
personnel commit any of the following infringements
upon the property rights while performing its
administrative functions, the sufferer shall have
the right to obtain the indemnity:
punishment such as a fine, revoking a license and
certificate, ordering to stop its business operation,
or confiscating the properties;
measures to a property such as to seal, detain or
freeze the property;
expenses against the state regulations; or
to property.
the state shall not undertake any indemnity obligation:
agency personnel which has nothing to do with the
performance of the administrative functions;
behavior of the citizen, legal person or other
organization; or
Obligatory Agency
and other organizations shall have the right to claim
the indemnity.
other relatives who supported or were supported by
the decedent shall have the right to claim the
indemnity.
organization has terminated, the legal person or other
organization which undertakes rights of the former
shall have the right to claim the indemnity.
personnel invade the legitimate rights and interests of
a citizen, legal person or other organization
resulting in injury while performing their
administrative functions, this administrative agency
shall be the indemnity obligatory agency.
their personnel invade the legitimate rights and
interests of a citizen, legal person or other
organization resulting in injury while performing
their administrative functions together, those
administrative agencies shall be the joint indemnity
obligatory agencies.
law or regulations invades the legitimate rights and
interests of a citizen, legal person or other
organization resulting in injury while exercising
its administrative power authorized, that authorized
organization shall be the indemnity obligatory
agency.
by an administrative agency invades the legitimate rights
and interests of a citizen, legal person or other
organization resulting in injury while executing its
delegated administrative power, that delegating
administrative agency shall be the indemnity
obligatory agency.
has been revoked, the agency continuing to perform
the former agency's functions shall be the indemnity
obligatory agency; if no agency continues to perform
the functions of the revoked agency, the
administrative authority which revoked the
indemnity obligatory agency shall be the
indemnity obligatory agency.
an reconsideration authority, the administrative
agency originally committing the infringement
shall be the indemnity obligatory agency.
Where the reconsideration decision of the
reconsideration authority enlarges the injury, the
reconsideration authority shall perform the indemnity
obligation for the enlarged part.
shall give indemnity when any
circumstances prescribed in Article 3 and Article 4
of this Law is affirmed in accordance with law.
first to the indemnity obligatory agency. He may
also claim the indemnity when applying for
administrative reconsideration or bringing an
administrative lawsuit.
indemnity to any one of the joint indemnity obligatory
agencies, and the indemnity obligatory agency
being claimed shall give indemnity first.
to the different injury, put forward more than one
claims at one time.
submit an application in which the following
particulars shall be indicated clearly:
address of the sufferer, the name, address of the
legal person or other organization and the name,
position of the legal representative or the principal
executive person;
to write the application, he may delegate others to
write on his behalf; he may also make an oral
application, which shall be made a written record by
the indemnity obligatory agency.
shall give the indemnity according to
the provisions of Chapter IV of this Law within two
months after receiving the application; if no
indemnity has been given within the time limit or the
indemnity claimant disagrees with the indemnity
amount, the indemnity claimant may bring a lawsuit
before the people's court within three months of the
expiration of the time limit.
shall, after the indemnity has been
given, order the personnel or the delegated
organization or individual with intention or major
negligence to be burdened with all or part of the
indemnity expenses.
administrative sanction to the responsible personnel
with intention or major negligence; if the violations
constitute a crime, the criminal responsibilities
shall be investigated according to law.
Chapter III Criminal Indemnity
of investigation, prosecution, trial jurisdiction or
prison administration, or their personnel commit any
of the following infringements upon the personal rights
while performing their functions, the sufferer shall
have the right to obtain the indemnity:
facts or no facts proved to be a major suspect;
facts;
innocence according to the procedure for trial
supervision, but the original criminal penalty has
been executed;
such acts of violence as extorting a confession by
torture or assaulting or instigating others to
assault a citizen; or
cause bodily injury or death of a citizen.
of investigation, prosecution, trial jurisdiction or
prison administration, or their personnel commit any
of the following infringements upon the property
rights while performing their functions, the sufferer
shall have the right to obtain the indemnity:
such as to seal, detain, freeze, pursue the
property; or
according to the procedure for trial supervision, but
the original judgment of fine or confiscation of
property has been executed.
circumstances, the state shall not undertake
the indemnity obligation:
punishment because he has provided a false statement
intentionally, or forged other evidence guilty;
responsibility according to the provisions of Article 14
and 15 of the Criminal Law is put in custody;
criminal responsibility according to the provisions
of Article 11 of the Criminal Procedure Law is put
in custody;
which has nothing to do with the performance of the
functions of the personnel of the agencies with the
functions of investigation, prosecution, trial
jurisdiction or prison administration;
self-deformation or other intentional behaviors of
the citizen; or
Obligatory Agency
affirmed in accordance with the provisions of
Article 6 of this Law.
investigation, prosecution, trial jurisdiction or
prison administration or their personnel invade the
legitimate rights and interests of a citizen, legal
person or other organization resulting in injury
while performing their functions, those agencies
shall be the indemnity obligatory agency.
criminal facts or no facts proved to be a major
suspect, the agency which made the decision of
detention shall be the indemnity obligatory agency.
criminal facts, the agency which made the decision of
arrest shall be the indemnity obligatory agency.
the people's court which made the original effective
judgment shall be the indemnity obligatory agency.
Where the trial of second instance amends a judgment
to be innocence, the people's court
which made the judgment of first instance and the
agency which made the decision of arrest shall be the
joint indemnity obligatory agencies.
shall give indemnity when any circumstances
prescribed in Article 15 and 16 of this
Law are affirmed according to law.
one of the circumstances prescribed in Article 15 and
16 of this Law as required by the indemnity claimant,
the indemnity claimant shall have the right to complain.
shall apply first to the indemnity obligatory agency.
Law shall be applied in respect of the indemnity procedure.
shall give the indemnity in accordance
with the provisions of Chapter IV of this Law within
two months after receiving the application; if no
indemnity has been given within the time limit or the
indemnity claimant disagrees with the indemnity
amount, the indemnity claimant may apply for
reconsideration to the agency at a higher level
within 30 days of the expiration of time limit.
the people's court, the indemnity claimant may apply
to the indemnity committee of the people's court at a
higher level to make the indemnity decision.
make a decision within two months after receiving the
application.
reconsideration decision, he may, within 30 days of
receipt of the notice of the reconsideration decision,
apply to the indemnity committee of the people's
court at the same level in the area where the
reconsideration authority is located to make an
indemnity decision; if the reconsideration authority
fails to make a decision within the time limit, the
indemnity claimant may, within 30 days of the
expiration of the time limit, apply to the indemnity
committee of the people's court at the same level in
the area where the reconsideration authority is
located to make an indemnity decision.
level and above shall each establish an indemnity
committee, which shall be composed of three to seven
judges of the people's court.
committee shall adopt the principle of the
minority yielding to the majority.
committee shall be an effective decision, which must be
executed.
the indemnity obligatory agency shall recover
all or part of the indemnity expenses from the
personnel falling under the following circumstances:
prescribed in item (4) and (5) of Article 15 of this
Law; or
embezzlement, accepting bribes, doing malpractice
for personal benefits, or perverting the law in
adjudication of the case.
an administrative sanction to the responsible
personnel falling under the circumstances prescribed by
item (1) and (2) of the preceding paragraph; if the
violations constitute a crime, the criminal
responsibilities shall be investigated according to law.
Chapter IV Methods of Indemnity and Standards of Calculation
payment of compensation as the main method.
condition of the property shall be conducted.
citizen is violated, the daily indemnity payment
shall be calculated according to the average daily salary of
the employees of the state in the last year.
citizen is violated, the indemnity payment shall be
calculated according to the following provisions:
expenses shall be paid and the income deduction
because of loss of working time shall be
compensated. The daily indemnity payment for the
income deduction shall be calculated according to
the average daily salary of the employees of the state
in the last year, provided the total payment
shall not exceed 5 times of the average annual salary
of the employees of the state in the last year;
ability, the medical expenses and compensation for
disability shall be paid. The compensation for
disability shall be determined according to the
degree of the loss of labour ability, and the total
payment for part loss of labour ability shall not
exceed 10 times of the average annual salary of the
employees of the state in the last year, while the
total payment for full loss of labour ability shall
not exceed 20 times of the average annual salary of
the employees of the state in the last year. In case of
full loss of labour ability, the living expenses
shall in addition be paid to the persons who have
no labour ability and must be maintained and
supported by the sufferer; and
and the funeral expenses shall be paid, the total of
which shall be 20 times of the average annual salary
of the employees of the state in the last year. The
living expenses shall in addition be paid to the
persons who have no labour ability and were
supported by the decedent.
item (2) and (3) of the preceding paragraph shall be
determined with reference to the provisions
concerning living relief of the local civil
administration. Where the supported person is under
age, the living expenses shall be given till he is
at the age of full 18; in other cases, the living
expenses shall be given till his death.
citizen, legal person, or other organization are
inviolated and thus injury has been caused, it shall
be handled according to the following provisions:
or confiscation of property, or collection of property
or apportion of expenses in violation of provisions
of the state, the property shall be returned;
property, the seal, detention or freeze shall be
released; in the case of damage or extinction of the
property, the compensation shall be paid according
to the provisions of Item (3) and (4) of this article;
shall be returned, if possible, the original
condition of the property shall be restored; if the
restoration of original condition is not possible,
a compensation shall be paid according to the degree
of damage;
shall be returned, an appropriate compensation shall
be paid;
price amount from the auction shall be paid;
certificate, and of an order to stop business
operation, the running expenses necessary for the
out-of-business period shall be compensated; and
compensation shall be paid according to the direct
loss.
listed in the fiscal budget at various levels, the
detailed measures of which shall be formulated by
the State Council.
Chapter V Other Provisions
law that any one of the circumstances prescribed in
item (1) and (2) of Article 3 and item (1),(2) and
(3) of Article 15 of this Law is existed, and that the right to
reputation or honour of the sufferer is damaged, the
indemnity obligatory agency shall, within
the influenced scope of the infringement, eliminate
the ill effects, rehabilitate the reputation of the
sufferer, and make an apology.
indemnity for injury caused by compulsory measures
against obstruction of proceedings or preservative
measures illegally adopted or by wrong execution of
judgment, order or other legal documents by the
people's court in civil or administrative proceedings
shall apply the provisions relating to the criminal
indemnity procedure of this Law.
claimant to claim the state indemnity shall be two
years, counting from the date of affirmation of
the illegal acts of the government agency or its
personnel in performing their functions, and
excluding the period of being in custody.
the last six months of the limit if the indemnity
claimant cannot exercise his claim right
due to force majeure or other obstacles. The
limitation shall resume on the day when the grounds
for the suspension are eliminated.
foreign citizens, enterprises and organizations who
claim the state indemnity to the People's Republic
of China within the territory of the People's
Republic of China.
right to claim indemnity from the its government of
citizens, enterprises and other organization of the
People's Republic of China, the People's Republic of
China shall apply the principle of reciprocity in
respect of that country.
Chapter VI Supplementary Provisions
reconsideration authority and the people's court
shall not charge any fees from the indemnity
claimant.
obtained by the indemnity claimant.
January 1, 1995.
Appendix: The relevant provisions of law
I the Criminal Law
commits a crime shall bear criminal responsibility.
16 and who commits homicide, inflicting serious bodily injury,
robbery, arson, habitual theft or any other crime seriously
undermining social order shall bear criminal responsibility.
18 and who commits a crime shall be given a lighter or mitigated
punishment .
age of 16, the head of his family or his guardian shall be ordered
to discipline and educate him. When necessary, he may also be taken
in by the government for reeducation.
a time when he is unable to recognize or control his own conduct, he
shall not bear criminal responsibility, but his family members or
guardian shall be ordered to keep him under strict surveillance and
arrange for his medical treatment.
bear criminal responsibility if he commits a crime when he is in a
normal mental state.
responsibility.
II the Criminal Procedure Law
responsibility shall be investigated; if investigation has already
been undertaken, the case shall be dismissed, or prosecution shall
not be initiated, or innocence shall be declared:
serious harm, and is therefore not deemed a crime;
special amnesty decree;
the Criminal Law, but there has been no complaint or the complaint has
been withdrawn;
of criminal responsibility.
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