Laws of the People's Republic of China

The Standing Committee of the National People's Congress

Order of the President of the People's Republic of China

No.23

The State Indemnity Law of the People's Republic of China which has been adopted at the Seventh Meeting of the Standing Committee of the Eighth National People's Congress on May 12, 1994 is promulgated now, and shall enter into force as of January 1, 1995.

President of the People's Republic of China: Jiang Zemin

May 12, 1994

State Indemnity Law of the People's Republic of China ContentsChapter I General provisions

Chapter II Administrative Indemnity

Section 1 Scope of Indemnity

Section 2 Indemnity Claimant and Indemnity Obligatory Agency

Section 3 Indemnity Procedure

Chapter III Criminal Indemnity

Section 1 Scope of indemnity

Section 2 Indemnity Claimant and Indemnity Obligatory Agency

Section 3 Indemnity Procedure

Chapter IV Methods of Indemnity and Standards of Calculation

Chapter V Other Provisions

Chapter VI Supplementary Provisions

Chapter I General provisions

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 performed by the indemnity obligatory agency as prescribed in this Law.

Chapter II Administrative Indemnity

Section 1 Scope of Indemnity

Article 3

Where an administrative agency or 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:

(1)

to make a detention illegally or take administrative compulsory measures illegally to restrict the right of personal freedom of a citizen;

(2)

to make a constraint illegally or deprive illegally the personal freedom of a citizen with other measures;

(3)

to cause bodily injury or death by taking such acts of violence as assault or instigating others to assault a citizen;

(4)

to use illegally arms, police weapons and cause bodily injury or death of a citizen; or

(5)

other offenses against law causing bodily injury or death of a citizen.

Article 4

Where an administrative agency or its 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:

(1)

to impose illegally an administrative punishment such as a fine, revoking a license and certificate, ordering to stop its business operation, or confiscating the properties;

(2)

to adopt illegally administrative compulsory measures to a property such as to seal, detain or freeze the property;

(3)

to collect properties, or apportion the expenses against the state regulations; or

(4)

other offenses against law causing damages to property.

Article 5

Under any of the following circumstances, the state shall not undertake any indemnity obligation:

(1)

the individual behavior of the administrative agency personnel which has nothing to do with the performance of the administrative functions;

(2)

the injury is caused due to his/its own behavior of the citizen, legal person or other organization; or

(3)

other circumstances prescribed by law.

Section 2 Indemnity Claimant and Indemnity Obligatory Agency

Article 6

The injured citizens, legal persons and other organizations shall have the right to claim the indemnity.

Where the injured citizen has died, his heirs and other relatives who supported or were supported by the decedent shall have the right to claim the indemnity.

Where the injured legal person or other organization has terminated, the legal person or other organization which undertakes rights of the former shall have the right to claim the indemnity.

Article 7

Where an administrative agency or its 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.

Where two or more administrative agencies or 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.

Where an organization with power authorized by 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.

Where an organization or individual delegated 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.

Where 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.

Article 8

In case of reconsideration by 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.

Section 3 Indemnity Procedure

Article 9

The indemnity obligatory agency shall give indemnity when any circumstances prescribed in Article 3 and Article 4 of this Law is affirmed in accordance with law.

The indemnity claimant shall claim the indemnity first to the indemnity obligatory agency. He may also claim the indemnity when applying for administrative reconsideration or bringing an administrative lawsuit.

Article 10

The indemnity claimant may claim the indemnity to any one of the joint indemnity obligatory agencies, and the indemnity obligatory agency being claimed shall give indemnity first.

Article 11

The indemnity claimant may, according to the different injury, put forward more than one claims at one time.

Article 12

In claiming the indemnity, one shall submit an application in which the following particulars shall be indicated clearly:

(1)

the name, sex, age, working unit and 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;

(2)

concrete claim, facts and reasons; and

(3)

the date on which the application is made.

Where it is difficult for the indemnity claimant 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.

Article 13

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.

Article 14

The indemnity obligatory agency 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.

The agency concerned shall impose an 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

Section 1 Scope of indemnity

Article 15

Where the agencies with the functions 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:

(1)

to detain wrongly a person with no criminal facts or no facts proved to be a major suspect;

(2)

to arrest wrongly a person with no criminal facts;

(3)

the retrial amends a judgment to be innocence according to the procedure for trial supervision, but the original criminal penalty has been executed;

(4)

to cause bodily injury or death by taking such acts of violence as extorting a confession by torture or assaulting or instigating others to assault a citizen; or

(5)

to use illegally arms, police weapons and cause bodily injury or death of a citizen.

Article 16

Where the agencies with the functions 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:

(1)

to give illegally a measure to a property such as to seal, detain, freeze, pursue the property; or

(2)

the retrial amends a judgment to be innocence according to the procedure for trial supervision, but the original judgment of fine or confiscation of property has been executed.

Article 17

Under any of the following circumstances, the state shall not undertake the indemnity obligation:

(1)

a citizen is in custody or given a criminal punishment because he has provided a false statement intentionally, or forged other evidence guilty;

(2)

a person who shall not be responsible for criminal responsibility according to the provisions of Article 14 and 15 of the Criminal Law is put in custody;

(3)

a person who shall not be investigated for criminal responsibility according to the provisions of Article 11 of the Criminal Procedure Law is put in custody;

(4)

the infringement is an individual behavior 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;

(5)

the injury is caused due to the self-hurt, self-deformation or other intentional behaviors of the citizen; or

(6)

other circumstances prescribed by law.

Section 2 Indemnity Claimant and Indemnity Obligatory Agency

Article 18

The indemnity claimant shall be affirmed in accordance with the provisions of Article 6 of this Law.

Article 19

Where agencies with the functions of 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.

Where a person has been wrongly detained with no 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.

Where a person has been wrongly arrested with no criminal facts, the agency which made the decision of arrest shall be the indemnity obligatory agency.

Where the retrial amends a judgment to be innocence, 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.

Section 3 Indemnity Procedure

Article 20

The indemnity obligatory agency shall give indemnity when any circumstances prescribed in Article 15 and 16 of this Law are affirmed according to law.

Where the required agency refuses to affirm any 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.

For the purpose of claiming the indemnity, the indemnity claimant shall apply first to the indemnity obligatory agency.

The provisions of Article 10 , 11 and 12 of this Law shall be applied in respect of the indemnity procedure.

Article 21

The indemnity obligatory agency 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.

Where the indemnity obligatory agency is 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.

Article 22

The reconsideration authority shall make a decision within two months after receiving the application.

If the indemnity claimant disagrees with the 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.

Article 23

The people's courts at the mediate level and above shall each establish an indemnity committee, which shall be composed of three to seven judges of the people's court.

In making indemnity decisions, the indemnity committee shall adopt the principle of the minority yielding to the majority.

The indemnity decision made by an indemnity committee shall be an effective decision, which must be executed.

Article 24

Upon the completion of the indemnity, the indemnity obligatory agency shall recover all or part of the indemnity expenses from the personnel falling under the following circumstances:

(1)

being involved in the circumstances prescribed in item (4) and (5) of Article 15 of this Law; or

(2)

while handling the case, committing embezzlement, accepting bribes, doing malpractice for personal benefits, or perverting the law in adjudication of the case.

The authority concerned shall impose 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

Article 25

The state indemnity shall take the payment of compensation as the main method.

If possible, return of property or restoration of original condition of the property shall be conducted.

Article 26

Where the personal freedom of a 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.

Article 27

Where the life and health right of a citizen is violated, the indemnity payment shall be calculated according to the following provisions:

(1)

in case of bodily injury, the medical 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;

(2)

in case of full or part loss of the labour 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

(3)

in case of death, the compensation for death 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.

The standard of the living expenses mentioned in 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.

Article 28

Where the property rights of a citizen, legal person, or other organization are inviolated and thus injury has been caused, it shall be handled according to the following provisions:

(1)

in case of monetary penalty, fine, pursuing or confiscation of property, or collection of property or apportion of expenses in violation of provisions of the state, the property shall be returned;

(2)

in case of seal, detention or freeze of 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;

(3)

in case of damage of the property which 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;

(4)

in case of extinction of the property which shall be returned, an appropriate compensation shall be paid;

(5)

where the property has been auctioned, the price amount from the auction shall be paid;

(6)

in case of revocation of a license or certificate, and of an order to stop business operation, the running expenses necessary for the out-of-business period shall be compensated; and

(7)

in case of other damage to the property, an compensation shall be paid according to the direct loss.

Article 29

The indemnity expenses, shall be listed in the fiscal budget at various levels, the detailed measures of which shall be formulated by the State Council.

Chapter V Other Provisions

Article 30

Where it has been affirmed according to 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.

Article 31

The procedure for claiming the 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.

Article 32

The time limit for the indemnity 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 time limit of claim shall be suspended during 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.

Article 33

This Law shall be applicable to 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.

If any country fails to protect or restricts the 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

Article 34

The indemnity obligatory agency, reconsideration authority and the people's court shall not charge any fees from the indemnity claimant.

No tax shall be levied on the indemnity payment obtained by the indemnity claimant.

Article 35

This Law shall come into force as of January 1, 1995.

Appendix:The relevant provisions of law

I.

the Criminal Law Article 14 Any person who has reached the age of 16 and who commits a crime shall bear criminal responsibility.

Any person who has reached the age of 14 but not the age of 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.

Any person who has reached the age of 14 but not the age of 18 and who commits a crime shall be given a lighter or mitigated punishment .

If a person is not punished because he has not reached the 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. Article 15 If a mental patient causes dangerous consequences at 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.

Any person whose mental illness is of an intermittent nature shall bear criminal responsibility if he commits a crime when he is in a normal mental state.

Any intoxicated person who commits a crime shall bear criminal responsibility.

II.

the Criminal Procedure Law Article 11 In any of the following circumstances, no criminal 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:

(1)

if an act is obviously of minor importance, causing no serious harm, and is therefore not deemed a crime;

(2)

if the limitation period for criminal prosecution has expired;

(3)

if an exemption of criminal punishment has been granted in a special amnesty decree;

(4)

if the crime is to be handled only upon complaint according to the Criminal Law, but there has been no complaint or the complaint has been withdrawn;

(5)

if the defendant is deceased; or

(6)

if other laws or decrees provide an exemption from investigation of criminal responsibility.