外交保护中受害人国家补偿制度研究

Research on the National Compensation System for Victims in Diplomatic Protection

当一国国民或公司的利益遭受他国非法侵害时,国籍国享有行使外交保护的权利,但并不负有外交保护的义务,这将导致受害人利益得不到救济的情形。外交保护权利理论、国际法人本化理论,以及国内法上外交保护义务理论皆因法益的缺失,使得国民的海外利益保护问题被搁置在国际法和国内法、实体法和程序法,以及义务及责任规范的边缘上。在国家宏观利益平衡理论及国家治理现代化理论下,构建以补偿责任行为认定、形式,以及履行为主的国家补偿责任制度,以保护国民的海外利益,是一种对完善国家责任体系、推动国家法治现代化具有现实意义的理论探索。

When the interests of a country’s citizens or companies are illegally infringed by other countries, the country of nationality has the right to exercise diplomatic protection, but does not have the obligation of diplomatic protection, which will lead to a situation where the interests of the victim can not be remedied. The theory of the right to diplomatic protection, the theory of the humanization of international law and the theory of the obligation of diplomatic protection in domestic law are all due to the lack of legal interests, so that the protection of the overseas interests of citizens is almost neglected in terms of international and domestic law, substantive and procedural law,as well as obligatory norms and responsibility norms. Under the balance theory of national macro interests and the theory of modernization of national governance, in order to protect the overseas interests of citizens, the construction of the national compensation system focusing on the determination of actions for compensation liability and the form and fulfilment of compensation liability is a theoretical exploration of practical significance for improving the national responsibility system and promoting the modernization of the national rule of law.