权利救济权能的充分化与国家赔偿立法

The Sufficiency of Rights' Remedial Power of Request and Compensation Legislation of State

作为权利的三大基本权能之一,救济权能是保障和手段性权能,具体又包括获得侵权者救济权能和获得公力救助权能。权利和权利享有的进步历史,在很大程度上就是基本权利针对国家公权主体的救济权能获得充分法律确认的历史。其中一个重要方面是,法治国家逐步建立并完善了国家赔偿法律制度,使公民权利越来越充分地具有了针对国家公权主体的获得赔偿的救济权能。西方法治国家经过曲折过程,在战后较好地做到了此点。我国现行国家赔偿法对基本权利针对国家公权主体的获赔救济权能的确认存在明显不足。从基本权利针对公权主体的救济权能充分化的角度,分析国家赔偿法律制度的不足,应是一个富有理论建设性的视角。

As one of fights＇ three basic power of request, remedial power of request is power of request with safeguard and means character, specifically including the power of request acquiring intriguer＇ s remedies and the power of request acquiring public subject＇ s salvages. The progress of history of rights and rights being enjoyed, to a considerable degree, is the history that the remedial powers of request of fundamental rights to counter the subject of state public power had been acquired fully legal confirmation. One of the important aspects is that the legal states gradually established and perfected the system of the state compensation law, civil rights more and more fully with power of request of acquiring remedies of compensation which counter the subjects of state public power. Having gone through the tortuous process, the legal states of Western accomplished this point in Post-war. It is obviously inadequate that the remedial power of request of fundamental rights to acquire compensations of the subjects of state public power was confirmed in China＇ s current state compensation law. From the remedial power of request of basic rights to counter public power subjects being sufficient, to analysis the inadequate of the state compensation legal system will be an angle of view whose theory is very constructive.