论有利于受害人原则在监察赔偿中的适用

On the Application of Victim-Friendly Principle in Supervision Compensation

在监察赔偿制度尚处于探索建立阶段,相关法律条文语意模糊、存在争议的背景下,应当通过确立有利于受害人原则解释监察赔偿的相关规定,破解监察赔偿制度存在的解释难题。有利于受害人原则可适用于持续性侵权的认定、赔偿义务机关的确立,以及政务处分损害救济等场域。监察留置及扣押措施应当被认定为持续性侵权;批准行为的上一级机关、派出监察机关及提出职务协助的监察机关应当作为赔偿义务机关;政务处分造成损害的,在一定条件下属于监察赔偿范围。有利于受害人原则的适用必须在法律未明确规定的前提下。

Against the background that the inspection compensation system is still at the stage of exploration and establishment,and the semantic meaning of the relevant legal provisions is ambiguous and controversial,the principle of favoring the victim should be established to interpret the relevant provisions of inspection compensation,so as to solve the interpretation difficulties of the inspection compensation system.The victim-friendly principle can be applied to the determination of continuous infringement,the establishment of the compensating authority,and the field of remedy for the damage of administrative discipline.The supervisory detention and seizure measures should be recognized as continuing infringement;the supervisory authority that approved the act,the supervisory authority that dispatched it,and the supervisory authority that offered assistance in its duties should be the compensating authority;and the damage caused by the administrative disciplinary measures should be covered by the supervisory compensation under certain conditions.It should be noted that the application of the principle of benefit to the victim must be grasped under the premise that the law does not explicitly provide for it.