The law in China should be changed to allow for punitive damages against the police and other State officials for illegal actions that harm others, argue legal experts in China.
"The standards set for compensation are too low and are basically compensative instead of punitive," said Ma Huaide, law professor with the Beijing-based China University of Political Science and Law.
Ma and other experts have called for the amendment of the nine-year-old Law on State Compensation to guarantee that victims of State infringement actions will be reimbursed for losses.
The law, adopted in 1994 and taking effect the following year, only compensates for direct losses, including medical fees and loss of earnings during a certain period of time for victims.
When a death occurs due to illegal activities of a State department, the victim can be compensated a maximum of 20 times the annual average State salary.
Insiders told China Daily that lawmakers were not sure how much money would be needed for the payment of compensation claims a decade ago. They worried the expense would be too much of a burden on national coffers.
Ma said it is now widely accepted that "direct losses" should include all unavoidable losses of forecast profits.
Yuan Shuhong, professor with the National School of Administration, said it is important the law has clauses that judicial departments, such as the police, should pay punitive compensation for losses caused by their intentional or major malfeasance.
"State compensation should on the one hand provide a judicial remedy to victims so their rights are protected and on the other hand stop administrative and law enforcement departments from abusing power and engaging in illegal actions," said Yuan.
Courts across the country handled nearly 9,400 cases of State compensation in the five years between 1996 and 2002, statistics from the Supreme People's Court reveal. Victims of 36 per cent of these cases won compensation.
"Actually an infringement by a State department leaves deeper and more lasting damage on the minds of victims than infringements by any individual," Ma said, calling for the inclusion of compensation for psychological damage into the law.
It is only in recent years that Chinese legislators and courts have started to consider compensation for mental damage. The Supreme People's Court issued a judicial interpretation in 2001, saying courts can support victims in demanding money for mental damage.
But Ma said a law for compensation cases that are divided into two categories of criminal and administrative still did not exist.
According to the current law, mental damage can only be compensated through apology, restoration of reputation and clearing up of negative effects, noted Ma.
The issue of mental damage in State compensation cases was hotly debated two years ago when Ma Dandan, a beauty salon worker in Northwest China's Shaanxi Province, was illegally interrogated for 23 hours and then wrongly detained for 15 days on charges of prostitution and asked for compensation of 5 million yuan (US$60,000). She was turned down by a local court and received a tiny compensation of only 74.66 yuan (US$9).
"There is an obvious increase in the awareness of this channel of judicial remedy among the public," noted Ma. "But if the victims do not get the compensation to which they are entitled, their confidence in the system will be harmed."
(China Daily June 23, 2003)
