国家赔偿归责原则的实证分析

A Positive Analysis of the Criterion of State Compensatory Liability

从侵权法的角度考察,我国国家赔偿制度中的违法归责原则属"主观违法",这一认识可以克服违法归责原则的局限性:将违法视为行政机关对各类为其设置注意义务的法规范的违反,从而扩大了违法归责原则的适用范围,但该原则仍然存有无法克服的局限。在分析法学的"主客观法律秩序理论"的分析框架下,过错归责原则意味着对主、客观法律秩序的双重违反,而无过错归责原则仅仅是对客观法律秩序的违反。完善我国国家赔偿归责原则的根本出路,在于以过错归责原则取代目前的违法归责原则,并将无过错原则确立为辅助性的原则。

From the perspective of tort law, the transgression criterion of liability of China's state compensatory system pertains to ″subjective transgression″. This cognition of taking transgression as administrative agency's violation of various legal norms by which the attention duty is set up may serve to overcome the limitation of transgression criterion as well as to broaden the scope on which the transgression criterion of liability is applied, although the criterion is still faulted with insuperable limitations. In present legal system, the transgression by this criterion is only considered as violating the laws, statutes and regulation enacted by various legislatures, which seriously restricts the applying scope of the criterion and weakens the function of protecting human rights in China's state compensatory system. In view of the current development in the research on criterion of liability of China's state compensatory system, it is necessary to analyze the internal logic of the criterion of liability of state compensatory law from an academic perspective, so as to reiterate a kind of normative criterion of liability of state compensatory system which is linked to the relatively mature criterion of liability of civil tort law. In the analytical framework of the theory of subjective and objective legal order of analytical positive jurisprudence, the fault criterion liability involves the violation of both the subjective legal order and the objective legal order, and the non-fault criterion only relates violation of the objective order. The ultimate approach to improve the criterion of liability of China's state compensatory system rests with that, the present transgression criterion of liability should be replaced by the fault criterion of liability and the non-fault criterion of liability should be established only as a supplementary criterion.