国家赔偿归责原则探讨——从执法责任追究机制的角度

A Probe into the Principle of Culpability for State Compensation——From the Angle of Law Enforcement Responsibility Pursuing Mechanism

当前的国家赔偿归责原则与执法责任追究之间存在某种紧张关系——国家赔偿实行违法归责原则,承担国家赔偿责任意味着存在违法,违法则要进行执法责任追究,因此对执法机关、对受害人、对落实国家赔偿制度都造成负面影响。为了既有利于规范国家机关及其公务人员的职权行为,又有利于消除归责原则与执法责任追究之间的紧张关系,重构国家赔偿归责原则,可以借鉴法国的国家赔偿法,建立以公务过错责任为主,以无过错责任为辅的归责原则体系。

There is some tension between the principle of culpability for state compensation and the law enforcement responsibility pursuing mechanism—— state compensation excising the principle of violations of law, that is to say state compensation liability means that the law enforcement action is unlawful, and that also means responsibility should be pursued. Therefore, it will put some negative impact on the law enforcement agencies, the victims, and the state compensation system itself. In order to regulate state organs and their officers, and eliminate the tension between the principle of culpability for state compensation and the law enforcement responsibility pursuing mechanism, the principle of culpability for state compensation should be reconstructed. We can learn from the French state compensation law, and establish a principle of culpability system with the principle of fault in official duties supplemented by the principle of strict responsibility.