公共设施论文：公有公共设施致人损害的国家赔偿责任研究_百度文

1、公共设施论文：公有公共设施致人损害的国家赔偿责任研究【中文摘要】当前,我国的国家赔偿法中规定国家赔偿的范围不包括公有公共设施致害。然而伴随着经济社会的发展,我国的国情已经发生了重大变化,现代的行政模式也逐渐的从权力行政开始转向服务行政,行政活动呈现出多样性和复杂性,不仅包括行使权力的行政行为,也包括提供服务的行为和行政事实行为。而且事实上,公有公共设施的利用者与管理、设置者之间不是平等的民事合同关系,而是行政法律关系。对于公有公共设施在设置、管理方面存在瑕疵,致使利用者的人身或财产受到损失的,适用民法规定既不符合处理公法关系的原则,也不利于保护受害者的合法权益。因此,公有公共设施致害赔偿应纳入

2、国家赔偿。另外,从我国的经济、政治以及法律等几个方面来看,也存在着将公有公共设施致害赔偿纳入到国家赔偿范围当中的必要性。同时,公有公共设施致害赔偿纳入国家赔偿法在实际适用上还应注意关于区别公有公共设施的国家赔偿责任与公用企业的民事责任的问题、公有公共设施设置或管理瑕疵致害的免责事由问题和未设置公有公共设施的国家赔偿责任问题。本论文就是针对目前我国公有公共设施致人损害的国家赔偿责任展开研究,结合具体的理论基础,并参考借鉴国外的成熟经验,认为应该重点在制度完善和基金保障方面来建立国家赔偿模式,从而有效的保障公民的合法权益。【英文摘要】Our nation establishes many publ

3、ic 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 utilities

4、 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 compe

5、nsate. 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 soc

6、ial 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 sh

9、ould 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 t

10、he 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 dam

11、age, 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 pl

12、an 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 manageme

13、nt 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 s

14、ome 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 utili

15、ties, 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 “equ

16、ality 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 faul

18、t 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 compo

19、nents 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 pu

20、blic 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 specif

21、ic 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 f

22、or 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 Comp

24、ensation 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 public

25、 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