Watching the Watchdog: China's State Compensation Law as a Remedy for Procuratorial Misconduct

Abstract:     
In 1994, China enacted a comprehensive State Compensation Law (“SCL”). The SCL provides individuals and legal entities with the right to compensation in a limited number of situations in which they are harmed by illegal government acts. The purpose of the law is twofold: (1) to guarantee the rights of individuals and legal entities to obtain compensation and (2) to encourage state officials to exercise their powers lawfully. In theory, the SCL provides an important check on the conduct of procurators and other government officials. China's procurators serve dual roles as criminal prosecutors and as supervisors of the legal process. As supervisors of the legal process, procurators are largely responsible for policing themselves and preventing procuratorial misconduct. There are few external controls on procurators, and the controls that exist are weak and seldom applied in practice. This Comment examines the issue of whether the SCL will provide an adequate citizen-based check on procuratorial power. It argues that while the SCL should be considered a positive step towards promoting greater official accountability and protecting individual rights in China, limitations on the scope of the law, flaws in the procedures for state compensation, the limited liability of individual procurators for compensation expenses, and official resistance to the SCL's implementation severely limit the utility of the law as a remedy for procuratorial and other official misconduct.

Number of Pages in PDF File: 44

Keywords: China, State Compensation Law, government liability, government tort, constitutional law, procuratorate, wrongful conviction

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