중국 행정배상제도의 법률적 특색에 관한 약간의 고찰

Abstract

Even though the administrative reparation is a part of the administrative remedy system founded upon the ‘rule of law’, the administrative reparation system of China is similar to that of the Republic of Korea, but it also has distinctive Socialist features. Firstly, the Chinese administrative reparation system holds that the government is responsible for its acts only when it is unlawful (referred to as ‘responsibility of unlawfulness principle’). However, it has some exceptions, such as when government acts are based on the rule of law but is unjustified. These exceptions reflect the socialist legal system that regards the speedy resolution of the victim’s complaints to government acts and the minimization of social contradiction as the preservation of public order. Secondly, the Chinese State Tort Liability Act prescribes the detailed categories of unlawful acts of citizens, corporations and other organizations that infringe upon personal liberty and property rights, whereas the Korean administrative reparation law has brief regulations of unlawful acts. Yet, the Chinese State Tort Liability Act has an article defining unlawful government acts as ‘other acts’. Thus, the articles describing the unlawful acts are considered an instance clause. Hence, the clauses guiding the unlawful acts of both countries are similar. Thirdly, the Chinese State Tort Liability Act recommends that the administrative machinery or its agent shall be responsible for providing remedies and the administrative machinery and/or the defendant of the state tort liability action be liable for damages. By contrast, the Korean State Tort Liability Act, distinguishing administrative authorities from administrative machinery, rules that the state or the local autonomous entity, that is, the administrative authority, shall be the defendant of the state tort liability suit. Lastly, the most striking features of the Chinese administrative reparation system is when filing a lawsuit under the State Tort Liability Act, where the victim goes though the preliminary process held by the responsible administrative machinery and then claim damages after the confirmation of unlawful administrative acts. Under the Korean administrative reparation system, anyone who claims damages can file a suit without going through this preliminary process because the court will decide on the unlawful acts and order reparations. These two features stand in sharp contrast between the two countries. Article I, section 96 of the Korean State Tort Liability Act establishes that the extinctive prescription period for state liability claim is three years from when a claimant is aware of damage and a wrongdoer, or otherwise five years according to the article 1, section 96 of State Financial Act. In contrast, the Chinese State Tort Liability Act dictates that a plaintiff can claim damages within two years of when he is aware of unlawful government acts. This short extinctive prescription period can be construed as a reflection of the Socialist legal system. In addition, the Chinese State Tort Liability Act directs that the mediation process (Tiáo Jiě) can be used as a means to end the state liability litigation.