5 Abstract: There have been diversified discussions among academic circles on whether one could recover damages by public facilities from the state. While Article 126 of The General Principles of the Civil Law of P.R.C., which goes as,is commonly applied in judicial practice to resolve such issues. However, in-depth study into this stipulation lead us to the conclusion that this stipulation has much limit and is not able to cover liabilities caused by public facilities. Also, this stipulation employs the doctrine of presumption of fault, which is less efficient for the victim to realize his rights, and at times may also cause difficulty for relating parties to identify the subject of liabilities for compensation. This thesis elaborates that nature of the compensation for damages caused by public facilities is administrative compensation, and the state shall be the subject of liabilities for compensation. This thesis also stresses the mechanism for state compensation for damages caused by public facilities. This thesis consisits of 4 parts. Part One deals with the basic theories of compensation for damages caused by public facilities, defines the content, classification and boundaries of public facilities, nature of cause of action, and reason for inclusion of such issues in state compensation. Part Two introduces the legislative examples and object lessons of compensation for damages caused by public facilities in various countries, compares the similarities and differences of such legislative examples, and reach the conclusion that it is reasonable and necessary to include such compensation in state compensation. Part Three studies the current status of China s compensation for damages caused by public facilities, including evolution of law regarding
6 this issue, judicial practice, and aspects to be improved in this field. Part IV illustrates the concept of a general legal struction for China s state compensation for damages caused by public facilities, including principle of liability fixation, elements of liability fixation, defense, and final burden of liability. Key words: public;facilities;state compensation
9 Contents Foreword... 1 Chapter 1 The basement theory of the compensation for damages caused by public facilities... 2 Subchapter 1 The concept of public facilities... 2 Section 1 The concept... 2 Section 2 The defination... 3 Section 3 The classification... 3 Subchapter 2 The nature of harms caused by public facilities... 5 Section 1 The existing form of administrative power and functions, i.e the ownership of public administractive power... 5 Section 2 The use of administrative power, i.e the exertion of public administractive power... 6 Section 3 The existing form of consequence of administrative action, i.e the setup of public tenure power... 6 Subchapter 3 The origin theory of the compensation for damages caused by public facilities... 7 Section 1 The liability of danger theory... 7 Section 2 The public burden theory... 8 Chapter 2 The legislation examples and object lessons of the compensation for harms caused by public facilities of the other countries(regions) Subchapter 1 The reference of legislation examples of UK-US genealogy of law... 10
10 Section 1 UK Section 2 The United States Subchapter 2 The reference of legislation examples of Civil law countries ( regions ) Section 1 The French Section 2 Germany Section 3 Japan Section 4 South Korea Section 5 China's Taiwan region Subchapter 3 The analysis and contrast Chapter 3 The status of the compensation for harms caused by public facilities in China Subchapter 1 The transition of legislation in China Subchapter 2 The judicial practice Subchapter 3 The problems need to be solved Subchapter 4 The reasons for why the damages caused by public facilities is apply to national compensation Chapter 4 The lstructure of national compensation for damages caused by public facilities Subchapter 1 China should adopt the principle of zero fault Subchapter 2 The national compensation elements Section 1 The damages must caused by public facilities Section 2 There must be defect on the public facility Section 3 It must cause actual harm Section 4 The defect on public facilitiy and the damage must have a casual relationship Subchapter 3 The defenses and final responsibility... 30
11 Section 1 The defenses Section 1 Final responsibility Conclusion Reference Postscript... 37
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