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Provisional Measures of the Shenzhen Municipality
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on Administrative Compensation
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(Promulgated
by the Shenzhen People' s Government on April 9, 1995) |
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Article 1 In order to
enforce Law of the
People' s Republic of China on State Compensation
(hereinafter referred to as State
Compensation Law) and establish a working system to deal
with the requests for administrative compensation, these
provisional measures are hereby formulated. |
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Article 2 These
measures shall apply to the Shenzhen municipal administrative
organizations' acceptance and
adjudication of the requests for
administrative compensation. |
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Article 3 The
Shenzhen municipal working institutions to deal with
administrative compensation (hereinafter
referred to as the
working institutions) shall be the offices of the municipal,
district governments
and their various functional departments to
undertake administrative review and to respond to prosecution. |
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Article 4 The
main duties of the working institutions to deal with
administrative compensation shall be as
follows: |
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(1)
to accept and examine the requests for compensation; |
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(2)
to examine whether an administrative act considered as a
tort is legal, and express an opinion; |
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(3)
to express an opinion on whether to give compensation and
also on the way, standard, and amount of compensation,
report to
the municipal, district governments or functional departments
for making a decision; |
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(4)
to express an opinion on whether to make recovering from
those of the working personnel who have illegally performed
duties or from the entrusted organizations or individuals; |
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(5)
to express an opinion on whether to impose administrative
sanctions on those of the working personnel who have illegally
performed duties or from the entrusted individuals, and report
to the responsible departments for
making a decision; |
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(6)
to make a thorough job of administrative compensation
review or response to prosecution which has been entrusted
with
by a legal representative of an organization with compensating
obligation; |
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(7)
to find out, study the issues of universality in
administrative compensation, and suggest how to improve
administrative enforcement of law. |
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Article 5 In
dealing with the cases of administrative compensation, a working |
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institution
shall put into practice the following system of adjudication: |
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(1)
the working institution shall decide whether to accept a
case of administrative compensation, and, after accepting
the
case, assign a person handling cases to conduct a preliminary
trial; |
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(2)
the working institution shall organize a collegiate bench
for trial; |
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(3)
the outcome of a trial shall be reported to the head of
the office of administrative review for making a decision. |
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Article 6 A
withdrawal system shall be put into practice in dealing with the
cases |
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of
administrative compensation, if a person undertaking a case is
the close relative of the claimant
in the case or has other
relationship which might jeopardize an impartial settlement of
compensation
or conflict of interests with the case, the person
undertaking the case shall request to withdraw voluntarily. The
claimant shall have the right to challenge the person
undertaking the case. The head of the office
of administrative
review shall have the authority to decide whether the person
undertaking the
case should withdraw. |
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Article 7 A
request for administrative compensation shall meet the following
conditions to be accepted as
a case: |
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(1)
the claimants of compensation shall be a citizen, legal
person, or other organizations who think an administrative
act
has infringed upon their legal rights and interests and caused
personal injury, property damage,
their heirs and other
relatives who have the relationship of parental support with
them may be
claimants of compensation; the legal representatives
or other organizations under the infringement, the legal
representatives or other organizations who have inherited the
rights may also be claimants of compensation; |
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(2)
the request for compensation
shall have an organization with compensating obligation,
and this request for compensation shall be accepted by this
organization for adjudication; |
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if
the organization has no authority to accept the case, it shall
be promptly refer the case to
an organization which has the
authority to accept, or promptly notify the claimant of
compensation
to go to an organization having the authority to
accept the case to submit the request for compensation; |
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(3)
the request
for compensation shall be within the scope of compensation
prescribed in Articles 3, 4 of
State
Compensation Law; |
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(4)
the request for compensation shall be submitted in
writing, the application for compensation shall meet the
requirements listed in Article 12 of State
Compensation Law; |
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(5)
the request for compensation shall be submitted within
the time limit prescribed by law. |
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Article 8 The
cases of administrative compensation shall be handled in |
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accordance
with the following procedure: |
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(1)
the person receiving cases shall, after accepting a
request for compensation, examine it and put forward an opinion,
report to the head of the working institution to decide whether
to accept the case, and notify
the claimant in 7 days of whether
the case has been accepted; |
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(2)
the person undertaking a case shall investigate if the
facts are true, the reason for claim is legal in the accepted
case, and complete the following work in 40 days: put forward a
settlement opinion, write Report
on the Investigation and Settlement of the Case of
Administrative Compensation (hereinafter referred to as Investigation
and Settlement Report) after the trial of the collegiate
bench organized by the working institution, and submit the
report
signed by the head of the working institution and the
materials in the case to the head of the office of
administrative review for examination and decision; |
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(3)
the head of the office of administrative review shall
make a decision on settlement within 7 days from the date of
receiving Investigation
and Settlement Report; |
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(4)
the working institution shall, within 6 days from the
date of receiving the settlement decision of the head of the
office of administrative review, draw up and issue to the
claimant of compensation an award of
compensation or a notice on
denying the request for compensation. |
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Article 9 The
Shenzhen municipal office of administrative review and response
to |
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prosecution
shall uniformly work out the document forms for dealing with
administrative compensation. |
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Article 10 Administrative
compensation may be dealt with through mediation. |
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An organization with compensating obligation may directly
reach an agreement with a claimant of compensation through
consultation within the legal time limit for administrative
compensation. The agreement on compensation
shall be signed and
sealed by both the head of the working institution on behalf of
the legal representative
of the organization with compensating
obligation and the claimant of compensation to take effect. |
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The superior working institution of an organization with
compensating obligation may take charge of mediation for
administrative compensation at the request of the organization
with compensating obligation or
the claimant of compensation; in
case of reaching an agreement, the agreement shall be signed
according
to the rules referred to in the above section. |
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Article 11 In
case of infringing upon the right of life and health of a
citizen and resulting in the citizen'
s partial or total loss
of ability to work, the degree of disability shall be determined
in accordance
with the expert evaluation of the municipal
committee on medical and labor evaluation, and the amount of
compensation shall be determined in accordance with the degree
of disability. |
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Article 12 The
standards to provide living expenses prescribed in Items (2),
(3) of the first section of Article
27 of State
Compensation Law shall be implemented by referring to the
rules of the municipal department in charge of civil
administration
on relief for cost of living. |
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Article 13 Compensation
shall be made within 10 days from the effective date of the
award of compensation or
paid in installment; |
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Returning property, restoring the original state shall be
done within the time limit prescribed by the award of
compensation. |
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Article 14 If
two or more organizations with compensating obligation have
disagreement on how to share the
responsibility for
compensation, they shall solve the problem through consultation;
if consultation
cannot work, the working institution of the
superior office in charge of all the organizations with
compensating obligation shall be responsible for settlement. |
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Article 15 After
making compensation, an organization with compensating
obligation shall recover the const
of compensation from those of
the working personnel or entrusted organizations or individuals
who
have had active and serious negligence and performed duties
illegally, the specific standards for recovering shall
be as
follows: |
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(1)
to recover all the cost of compensation from the
entrusted organizations which have intentionally violated law; |
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(2)
to recover a half or two thirds of the cost of
compensation in accordance with the circumstances from the
entrusted organizations which have had serious negligence; |
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(3)
to recover one fifth up to the total of the cost of
compensation from those of the working personnel or entrusted
individuals, who have intentionally violated law, in accordance
with the nature of violation of
law, circumstances, amount of
compensation, and personal bearing capacity, but no more than
the
persons' total salary income of the year |
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(4)
to recover one third of the cost of compensation from
those of the working personnel or entrusted individuals, who
have had serious negligence, in accordance with the nature of
violation of law, circumstances,
amount of compensation, and
personal bearing capacity, but no more than a half of the
persons'
salary income of the year. |
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Article 16 If
those of the working personnel or entrusted individuals from
whom |
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the
cost of compensation has been recovered have refused to accept
the decision on recovering, they
may appeal to the office making
the decision on recovering. The office making the decision on
recovering
shall, after reviewing the case, make a decision in
writing on upholding or changing or repealing the original
decision. |
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Article 17 An
organization with compensating obligation may impose
administrative sanctions on those of the
working personnel or
entrusted individuals, who have had active and serious
negligence in performing
duties illegally, in accordance with
the authority of personnel management and the related rules. |
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Article 18 If
an organization with compensating obligation, after accepting a
request for compensation, has
failed to make a decision on
whether to make compensation after the time limit or a claimant
of
compensation has disagreed about the amount of compensation,
the claimant may take legal action at the people' s
court
within 3 month from the date when the time limit expires. |
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Article 19 These
measures shall take effect as of the date of promulgation. |
