Provisions of the Supreme People's Court on Several Issues concerning the trial of administrative compensation cases

   Method (1997) No. 10

    In order to correctly judge the cases of administrative compensation, according to the "Regulations of the people's Republic of China" and the "State Compensation Law of the people's Republic of China Administrative Procedure Law", some problems of judging the cases of administrative compensation for the following provisions:

    One, the scope of accepting cases

    Article 1"The people's Republic of China National Compensation Law" article third, the provisions of the fourth other illegal acts, including the specific administrative act and administrative organs and their staff to exercise the administrative power related, cause damages to the citizen, legal person or other organization, in violation of the administrative duties behavior.

    Article secondThe compensation claimant to the administrative authority to confirm the specific administrative act as illegal but decides not to make compensation, or any administrative compensation procedure to determine the amount of compensation, the people's court shall accept the case.

    Article thirdThe compensation claimant that administrative organs and their staff the implementation of the state compensation law article third (three), (four), (five) and article fourth (four) provision of non specific administrative acts infringe upon their personal rights, property rights and the losses, the organ liable for compensation refused to confirm the damage caused by the action is illegal, the claimant may bring an administrative lawsuit to the people's court.

    Article fourthCitizens, legal persons or other organizations in administrative litigation request for administrative compensation, the people's court shall be accepted.

    The compensation claimant lodge an administrative compensation lawsuit alone, shall be the organ liable for compensation deal first as the premise. The claimant shall have the objection or the organ liable for compensation if no compensation on the amount of compensation to determine the organ liable for compensation, the claimant shall have the right to file an administrative lawsuit to the people's court.

    Article fifthThe law by the specific administrative acts of the final decision, is to make the final decision of the administrative organ for confirmation, the claimant for compensation to the organ liable for compensation shall pay without compensation or no compensation or overdue objection filed litigation of administrative compensation in the amount of compensation, the people's court shall accept the case according to law.

    Article SixthCitizens, legal persons or other organizations to conduct national defense, diplomatic or administrative authority issued administrative regulations, rules or universally binding decisions, orders to infringe upon their legitimate rights and interests by damage, administrative compensation lawsuit to the people's court, the people's court shall not accept the.

    Two, under the jurisdiction of

    Article seventhCitizens, legal persons or other organizations in administrative litigation request for administrative compensation, the people's court pursuant to the administrative procedure law, article seventeenth, article eighteenth, article twentieth jurisdiction.

    Article eighthWhere the claimant for compensation for administrative compensation litigation request relating to immovable property, the immovable estate is located under the jurisdiction of the people's court.

    Article ninthCases of administrative compensation lawsuit filed separately governed by the grassroots people's court at the domicile of the defendant.

    The intermediate people's Court of first instance shall be under the jurisdiction of the administrative compensation cases:

    (1) the defendant to the customs, the patent administrative authorities;

    (2) the defendant to the various departments of the State Council or of the provinces, autonomous regions, municipalities directly under the central government;

    (3) other major impact in this area and the complexity of the administrative compensation cases.

    The higher people's Court of jurisdiction in this area have great influence and complicated first instance administrative compensation cases.

    The Supreme People's court jurisdiction over the nationally influential and complicated first instance administrative compensation cases.

    Article tenthWhere the claimant for compensation due to the fact that the same administrative compensation litigation to administrative organs of more than two, to the people's court any administrative organ of the place of domicile filed. Where the claimant for compensation to two or more administrative compensation litigation to the people's court has jurisdiction, under the jurisdiction of the people's court by the first filed.

    Article eleventhAgainst the citizens of the restriction of personal freedom of the administrative compulsory measures, the administrative organ or the same fact based on the same party to make a specific administrative act of restriction of freedom of person and take coercive measures on the property may, in the administrative litigation and administrative compensation together with the request, under the jurisdiction of the people's court accepts the administrative cases; separately claiming administrative compensation litigation, the defendant has his domicile or the plaintiff's domicile or not under the jurisdiction of the people's Court Estate is located.

    Article twelfthThe people's court finds that a case it has accepted is not under its jurisdiction, it shall transfer the case to the people's court having jurisdiction; the people's court shall not be re transferred.

    Article thirteenthThe people's court to dispute the jurisdiction, by the parties to the dispute resolved through consultation, the consultation fails, it shall be reported to their common superior people's court for the designation of jurisdiction. If the two sides for the provinces, autonomous regions, municipalities directly under the central government, the people's court, the Supreme People's court consultation fails, by the Supreme People's court to designate the jurisdiction.

    In accordance with the provisions of the preceding paragraph shall be reported to the people's court at a higher level shall designate jurisdiction, step by step.

    Three, a litigant

    Article fourteenthAnd the administrative compensation is legally interested in the outcome of the case of the other citizens, legal persons or other organizations have the right to participate in the litigation of administrative compensation as third people.

    Article fifteenthA victim, his heirs or other support without labor ability of relatives of the deceased and who have the right to bring administrative compensation litigation.

    Article sixteenthAn enterprise as a legal person or any other organization by administrative organs, change, cancellation, revocation of mergers, autonomy in management are infringed, administrative compensation lawsuit in accordance with law, the original enterprise legal persons or other organizations, or to the right of the legal person or other organization shall have the qualification of the plaintiff.

    Article seventeenthThe administrative organs of two or more joint tort, the compensation claimant on one or several tort organ for administrative compensation litigation, if the lawsuit systems can be divided into action, the one or several tort authority as a defendant; if the claim is not divided into action, a people's court shall add other tort organ as a joint defendant.

    Article eighteenthThe organ for reconsideration reconsideration aggravates the damage, the claimant for compensation only for administrative compensation litigation made the original decision of the administrative organs, which made the original decision of the administrative authority for the defendant; the claimant only administrative compensation litigation on the reconsideration organ, the organ for reconsideration to the defendant.

    Article nineteenthAdministrative organs in accordance with the provisions of article sixty-sixth of the administrative procedure law of the people's court for enforcement of specific administrative act, because according to the enforcement according to the error and the occurrence of administrative compensation litigation, seeking to enforce the administrative organ for the defendant.

    Article twentiethThe people's court to judge the cases of administrative compensation, need to change the defendant and the plaintiff does not agree to the change, the court rejected the prosecution.

    Four, prosecution and acceptance

    Article twenty-firstThe compensation claimant lodge an administrative compensation lawsuit alone, shall meet the following conditions:

    (1) the plaintiff qualification with the request;

    (2) a definite defendant;

    (3) a specific request for compensation and damage the facts;

    (4) harm behavior for the specific administrative act, the act has been recognized as illegal;

    (5) the organ liable for compensation has been the first treatment or exceeding the prescribed time limit shall not be dealt with;

    (6) belonging to the people's court administrative compensation litigation and be subject to the jurisdiction of the people's Court of appeal;

    (7) in accordance with the law prosecution deadline.

    Article twenty-secondThe compensation claimant lodge an administrative compensation lawsuit alone, can be in two months to submit the application for compensation to the organ liable for compensation after the expiry date of the three months.

    Article twenty-thirdCitizens, legal persons or other organizations in administrative litigation request for administrative compensation, the provisions of the administrative proceedings prosecution deadline for prosecution under the implementation of the deadline.

    Administrative case the plaintiff can end in the administrative litigation to the people's Court of first instance court, claim the administrative compensation.

    Article twenty-fourthThe organ liable for compensation compensation is made, did not inform the claimant's right of appeal or the prosecution, resulting in the claimant fails to a lawsuit to the people's court, the prosecution deadline from the compensation claimant actually know right of appeal or the prosecution, but the overdue period since the compensation claimant shall not exceed one year received the compensation decision, play.

    Article twenty-fifthThe aggrieved citizen, its successors and dependency relationship about the administrative compensation procedure, shall provide the citizens the death certificate and the claimant and prove the relationship between citizens of death.

    Article twenty-sixthThe party has been taken to restrict personal freedom of administrative coercive measures and criminal detention and other compulsory measures, by compulsory measures are recognized as illegal and claim for compensation, the people's court according to the behavior properties are suitable for administrative compensation and criminal compensation procedure of registration and acceptance.

    Article twenty-seventhThe people's court received the plaintiff bring a separate administrative compensation lawsuit, shall review and filing, or make inadmissible ruling within seven days.

    The people's court to administrative compensation indictment, in seven days can not determine the admissibility, shall first to accept. Trial found that do not meet the conditions of admissibility, the court rejected the prosecution.

    The party refuses to accept or reject the decision to prosecute, can be in ten days to a higher people's Court of appeal from the receipt of the order book.

    Five, trial and sentencing

    Article twenty-eighthThe parties also claim the administrative compensation in administrative litigation. At the same time, or for a specific administrative act and the exercise of administrative powers and other acts of infringement damage claim the administrative compensation together with the people's court shall register, respectively, according to the specific circumstances can be tried in combination, can also be a separate trial.

    Article twenty-ninthThe people's court to judge the cases of administrative compensation, tried and adjudicated on administrative compensation disputes between the parties.

    Article thirtiethThe people's court to judge the cases of administrative compensation in upholding the legitimate, the voluntary premise, can the scope of compensation, compensation and the amount of compensation for mediation. Mediation is established, shall make a written conciliation of administrative compensation.

    Article thirty-firstThe defendant to reach a compensation agreement in a trial before the plaintiff, the plaintiff applies for the withdrawal of the suit, the people's court shall review and decide whether to grant.

    Article thirty-secondThe plaintiff shall bear the burden of proof for his opinions on administrative compensation litigation. The defendant has the right to offer no compensation or reduce the amount of compensation evidence.

    Article thirty-thirdA specific administrative act of the defendant's illegal but not for the legitimate rights and interests of the damage, or the plaintiff's claim is not based on facts or legal basis, the people's court shall reject the plaintiff's claim for compensation.

    Article thirty-fourthThe people's court for the claimant without confirmation procedure and administrative compensation litigation cases, the decision shall be the organ liable for compensation shall confirm whether the damage caused by the illegal behavior.

    Article thirty-fifthName of legal documents of the people's court shall make a judgment on the separate administrative compensation cases of administrative compensation judgments, administrative compensation ruling or conciliation document.

    Six, during the execution and

    Article thirty-sixthA legally effective judgment, ruling or administrative compensation settlement agreement, the parties must perform. If a party refuses to do so, the other party may apply to the people's Court of first instance for execution.

    For the implementation of the time limit, the applicant is a citizen of one year, the applicant is a legal person or other organization for six months.

    Article thirty-seventhIndividual acceptance of first instance administrative compensation cases for a period of three months, the second of two months; also accepts the request for administrative compensation cases and time limit of the administrative cases in the same period. As a result of special circumstances can not be closed, the need to extend the time limit, shall be in accordance with the relevant provisions of the administrative litigation law for approval.

    Seven, other

    Article thirty-eighthThe people's court to judge the cases of administrative compensation, except in accordance with the provisions of the State Compensation Law of administrative compensation procedure, no provision of this regulation, in does not conflict with the state compensation law case, can use the relevant provisions of administrative litigation.

    Article thirty-ninthWhere the claimant for compensation for damage caused by the people's Court confirmed illegal relates to identification, inspection, audit fees in advance, by the applicant, the last shall be borne by the losing party.

Article fortiethInconsistent with the Supreme People's court before the relevant judicial interpretations of the provisions, in accordance with the provisions of.

 

        April 29, 1997