公共設(shè)施論文：公有公共設(shè)施致人損害的國(guó)家賠償責(zé)任研究

1、 公共設(shè)施論文：公有公共設(shè)施致人損害的國(guó)家賠償責(zé)任研究【中文摘要】當(dāng)前,我國(guó)的國(guó)家賠償法中規(guī)定國(guó)家賠償?shù)姆秶话ü泄苍O(shè)施致害。然而伴隨著經(jīng)濟(jì)社會(huì)的發(fā)展,我國(guó)的國(guó)情已經(jīng)發(fā)生了重大變化,現(xiàn)代的行政模式也逐漸的從權(quán)力行政開始轉(zhuǎn)向服務(wù)行政,行政活動(dòng)呈現(xiàn)出多樣性和復(fù)雜性,不僅包括行使權(quán)力的行政行為,也包括提供服務(wù)的行為和行政事實(shí)行為。而且事實(shí)上,公有公共設(shè)施的利用者與管理、設(shè)置者之間不是平等的民事合同關(guān)系,而是行政法律關(guān)系。對(duì)于公有公共設(shè)施在設(shè)置、管理方面存在瑕疵,致使利用者的人身或財(cái)產(chǎn)受到損失的,適用民法規(guī)定既不符合處理公法關(guān)系的原則,也不利于保護(hù)受害者的合法權(quán)益。因此,公有公共設(shè)施致害賠償應(yīng)納

2、入國(guó)家賠償。另外,從我國(guó)的經(jīng)濟(jì)、政治以及法律等幾個(gè)方面來(lái)看,也存在著將公有公共設(shè)施致害賠償納入到國(guó)家賠償范圍當(dāng)中的必要性。同時(shí),公有公共設(shè)施致害賠償納入國(guó)家賠償法在實(shí)際適用上還應(yīng)注意關(guān)于區(qū)別公有公共設(shè)施的國(guó)家賠償責(zé)任與公用企業(yè)的民事責(zé)任的問題、公有公共設(shè)施設(shè)置或管理瑕疵致害的免責(zé)事由問題和未設(shè)置公有公共設(shè)施的國(guó)家賠償責(zé)任問題。本論文就是針對(duì)目前我國(guó)公有公共設(shè)施致人損害的國(guó)家賠償責(zé)任展開研究,結(jié)合具體的理論基礎(chǔ),并參考借鑒國(guó)外的成熟經(jīng)驗(yàn),認(rèn)為應(yīng)該重點(diǎn)在制度完善和基金保障方面來(lái)建立國(guó)家賠償模式,從而有效的保障公民的合法權(quán)益?！居⑽恼縊ur nation establishes many pub

3、lic utilities widely to improve the lives of people, but also along with damages. Because of the defects that lie in setting and management of public utilities, there are many and complicated damages. However, there are still no specific rules about the compensation problem caused by public utilitie

4、s in Chinas laws and regulations; meanwhile there are also few systematic studies on the compensation problem caused by public utilities. Once it happens, it is always settled by civil laws, as the managers of public utilities, enterprises and public institutions will take the responsibility to comp

5、ensate. This mode of process can not benefit victims rights as well as the establishment of countrys liability. Especially at this stage, according to the State Compensation Law, the scope of state compensation does not include the damage by public utilities. Nevertheless, with the development of so

6、cial economy, the fundamental realities of our country has been changed a lot, and modern administrative mode has been converted from power-oriented to service-oriented; administrative action shows its diversity and complexity, not only including the administrative actions of executing the authority

7、, and also the actions of providing service and administrative factual act. In fact, the relation between users and managers or setters is not the relation of administration and law, rather than the equal relation of civil contract. As for the defects that lie in the setting and management of public

8、 utilities, which cause the loss of userspersonal rights and property rights, the provisions of the Civil Code does not accord with the principle of disposing public law relations, and also go against the protection of victims legal rights. Thus, the compensation for the damage by public utilities s

9、hould be included in the state compensation. Besides, see from the economy, politics and laws in our country, it is necessary to bring the compensation for the damage by public utilities into the scope of state compensation. At the same time, in the practical process of putting the compensation for

10、the damage by public utilities into the scope of state compensation, we should pay much attention the difference between state liability for the damage by public utilities and civil liability of public enterprise. Because of the defects in the setting and management of public utilities that cause da

11、mage, it will raise a lot of disclaimer issues and the compensation problem of state liability. Damage by public utilities issues should be based on the principle of liability without fault; it also refers to that public utilities should protect the legal rights of victims, to seek for a preferred p

12、lan to solve the problem. This method can not only reduce the compensation fees for the damage by public utilities, also, it can simplify the process of litigation, to decrease the cost of litigation. The relevant legal provisions formulate that even if there is no mistake in the setting and managem

13、ent of public utilities, there is a certain link between the victim and the setting and management of public utilities, public utilities should take the responsibility and pay for the compensation fees in time. Based on the current state liability for the damage by public utilities, this paper does

14、some researches in it.In this paper, first of all, it gives an analysis on the basic feature of liability for compensation in the damage by public utilities, focusing on the definition of the damage by public utilities and the disputes on the subject in the compensation for the damage by public util

15、ities, as well as the rationality of state liability for damage by public utilities. A lot of related viewpoints in the field are listed for the subject in the compensation for the damage by public utilities, mainly including “the distrust to human nature”, “the legal personification theory” and “eq

16、uality of sharing burden”, etc. Then, this paper summarizes the imputation principle in the compensation for the damage by public utilities, it mainly involved in the selection of imputation principle in the compensation for the damage by public utilities and the theoretical basis for that he damage

17、 by public utilities is suitable for liability without fault, while its specific theories are including equality of sharing burden, theories of distributive justice and theories of the value conflicts as well as the state obligation of guarantee, indicates that the principle of liability without fau

18、lt can save the fees of proof and trial, which decreases the cost of trial for court. Meanwhile, objectively it decreases the cost of business and realizes the purpose of saving social resources. Then, this paper summarizes the key components and disclaimer issues, it thinks that there are four comp

19、onents for the compensation for the damage by public utilities, namely the hazard must be public utilities; there are defects in the setting and management of public utilities; there are realistic damages of body or property; there is cause and effect relation between the setting and management of p

20、ublic utilities and realistic damages of body or property. It also points out that the liability without fault contains three aspects of force majeure, victim mistake and the third party mistake and so on. Based on this, this paper benefit the successful results from abroad, combining with our speci

21、fic institutions, it figures out the key components of the compensation for the damage by public utilities, focusing on the conceptualization of establishing the state liability for the compensation for the damage by public utilities, actually there is a solid basis for the laws of the compensation

22、for the damage by public utilities, also, proofs can be found in the Constitution, the Administrative Procedure Law, the Civil Law and the Law of National Amends. Especially for the Constitution, as our body of basic laws, for all the damage by public utilities, it generally gives regulations in the

23、 article 41, paragraph3. In addition, the compensation of liability of damage by public utilities can enlighten our state liability of damage by public utilities, including The State Compensation Law of Japan that issued in 1947, The State Compensation Law that issued in 1967 by Korea, The State Com

24、pensation Law that issued by Germany in 1981, and the Federal Tort Claims Act that issued by America, etc, while in England and France there are case law that establish the distinct liability for damage. While the specific plans for establishing the compensation of state liability of damage by publi

25、c utilities lie in the following aspects:definition of the subject of responsibility, completion of the range of the cases, selection of the proper imputation principle, and establishment necessary supporting systems, especially for the supporting systems, it pays more attention on a serried of systems such as the administrative recoupment system, insurance system and the compensation system of the damage by publi