國家賠償法上損害賠償問題之研究

文化大學機構典藏 CCUR > 法學院 > 法律學系暨法律學研究所 > 博碩士論文 > Item 987654321/51817

jsp.display-item.identifier=請使用永久網址來引用或連結此文件: https://irlib.pccu.edu.tw/handle/987654321/51817

题名:	國家賠償法上損害賠償問題之研究 The Study on the Problem of Damage Compensation of the State Compensation Law
作者:	簡鳳珠
贡献者:	法律學系碩士在職專班
关键词:	社會福利國家賠償民事訴訟公共設施及管理憲法第24條刑事補償法 Social Wefare State Compensation Civil Litigation Public Facilities and Management Article 24 of the Constitution Penalty Compensation Law
日期:	2022
上传时间:	2023-03-23 15:28:35 (UTC+8)
摘要:	論做本文真正的時間，係在民國106年間，為何會選這個題目，說起來，跟個人注意國是、關心民眾應該保護的權益、社會上缺乏公平正義、輕蔑弱勢一族、政府，乃至於地方自治制度下，並未實際關懷百姓身家性命，許多作為令人感嘆有關。身為升斗小民無能為力，坐看那些出入均美食、往來均豪華交通工具、居住所在亦不流俗，卻窮於去申請社會福利與濟助的人們，佔掉名額，領來補助款爽花，真正需要那些錢來糊口活人的家庭，絕對領不到、更遑論其他。　　此觀國家賠償部分的案件，即可得相當感慨，民眾因公共設施設置與管理不當而受有傷害導致損失時，可依法申請國家賠償，可笑的是，往往地方跟縣市政府在做較量，當民眾到鄉鎮市區公所去做國賠申請時，填完了一大堆表格後，受理機關會以非台端申請國賠損害之應負責機關為拒絕理由。當民眾跑去縣市政府辦理時，受理單位也是用前述理由為回絕，最後，鄉鎮市區公所會告訴被害人，可依民事訴訟法進行民法侵權行為受損還去求償？須知：進行民事訴訟，是必須先繳裁判費的，法院才會受理，如果沒有錢繳裁判費，就別說其他了！試想，一個上大夜班的人，再返家途中，因為行進時，地面上一個大洞，導致受傷，在受傷期間，無法工作，除了身體上的疼痛，還有來自於經濟的壓力，還要去負擔裁判費？再者，往往訴訟時間相當長，勝訴或敗訴，還都是未定數，這樣，對受傷的百姓，是公平的？在國家賠償法上清清楚楚地規定，民眾申請之國賠金額，經據實核定後，不足部分，可向直屬上級機關作申請，有誰願意受傷？真的不知道，這些相關的機關單位，為什麼總是要為難民眾？再者，民眾雖然有用路權，然而，相關的公共設施設置及管理，負責的全是政府機關，人民有用路權，卻無法掌控所使用的道路品質呀！政府、相關機關、單位，不必負責嗎？說到國家賠償的議題，順帶絕大多數都會提到刑事補償法相關的問題，國家賠償法是依憲法第24條所制定，當人民受有損害，係因為公務員違法侵害人民之權利或自由所致，該公務員除依法受懲戒外，應負刑事及民事責任，人民就其損害，並得依法律向國家請求賠償。請注意：國家賠償部分，一經聲請，係為三部分之請求，即為不法侵害人權權利及自由的公務員部分的刑事責任、民事責任及人民依國家賠償法所定的國賠法請求權！刑事補償法，以前稱冤獄賠償法，遇有受冤枉者，無端無故飽受牢獄之災，嗣後證明確係冤枉者，得請求冤獄賠償，另，再作筆錄至關押期間，受有難以忍受程度之痛苦者，，可依法向造成其痛苦之公務員，訴求其應負之民刑事責任，在此部的認定，冤獄者所求之依法律向國家請求損害賠償，於冤獄賠償金額中獲取滿足。然而，真的有人敢去涉案的違法公務員訴請其應負之刑事及民事任嗎？答案是聞所未聞！亦即是從來沒有人敢！如此，更遑論有涉嫌之公務員會受到公務員懲戒委員會開鍘祭旗了！憲法第24條前段二分之一處，實乃具文！再以數據做分析，冤獄賠償法，今稱刑事補償法，昔每日可聲請3000元，最高每日可聲請5000元，蘇建和案中，殺人者（即起訴後稱被害關押期間稱受刑人）蘇建和、劉秉郎、莊林勳等三人，在涉嫌汐止區吳銘漢、葉盈蘭夫妻命案關押11年後，竟然無罪釋放，又獲冤獄賠償近3000萬元？司法院在近期竟然調高刑事補償金，殺民眾3000元起跳，最高5000元，殺警察4000元起跳，最高5000元？看來，蘇建和等3人，當時聲請金額，經核定僅為1800元每日，實在是有點司法不公！行筆至此，最想說的一句話時”得民心者，得天下，失民心者，失天下＂！不論顏色，不論政黨，所有在朝者、在野者，應該要共同考慮的是：究竟要給下一代什麼樣的生存空間！ On the real time to write this article, it was in the 106th year of the Republic of China. Why did you choose this topic? Speaking of it, it is related to the individual's attention to the country's status, the concern for the rights and interests of the people, the lack of fairness and justice in the society, the contempt for the disadvantaged, the government, and even the local Under the autonomy system, there is no actual care for the lives of the people, and many of the actions are concerned. As a small citizen of Shengdou, there is nothing I can do to sit and watch those people who have good food in and out, luxurious transportation, and non-conventional living, but are poor in applying for social welfare and relief. They occupy the quota and receive subsidies and cool flowers. Really need them. Those families whose money comes to make ends meet will never receive, let alone other things. From this perspective, you can get a lot of emotion. People can apply for state compensation in accordance with the law when they are injured due to improper installation and management of public facilities. It is ridiculous that local governments often compete with county and city governments. When people go to township and city offices to apply for national compensation, after filling out a large number of forms, the accepting authority will use the agency responsible for non-stationary applications for national compensation as the reason for rejection. When the people went to the county and city government to handle the case, the accepting unit also rejected the aforementioned reasons. Finally, the township and urban district office would tell the victim that it could seek compensation in accordance with the Civil Procedure Law if the civil law infringement was damaged? Note: In civil litigation, you must first pay the judgment fee before the court will accept it. If you don't have the money to pay the judgment fee, let alone other! Imagine that a person on the night shift is on the way back home, because there is a big hole in the ground during the journey, causing injury. During the injury, he is unable to work. In addition to physical pain, there is also financial pressure. Pay the referee's fees? Moreover, the litigation time is often quite long, and the number of wins or losses is still uncertain. In this way, is it fair to the injured people? The National Compensation Law clearly stipulates that the amount of national compensation applied by the public can be applied to the directly higher authority for the insufficient amount after verification. Who is willing to be injured? I really don’t know why these related agencies always embarrass the people? Furthermore, although the people have the right of way, the government agencies are all responsible for the installation and management of related public facilities. The people have the right of way, but they cannot control the quality of the roads they use! Isn’t the government, relevant agencies, or units responsible? When it comes to the issue of state compensation, by the way, most of the issues related to the Criminal Compensation Law will be mentioned. The State Compensation Law is enacted in accordance with Article 24 of the Constitution. As a result, in addition to being punished in accordance with the law, the civil servant shall bear criminal and civil liabilities, and the people may request compensation from the state in accordance with the law for the damage. Please note: the state compensation part, once claimed, is a three-part request, that is, the criminal and civil liabilities of civil servants who illegally infringe on human rights and freedoms, and the people's right to claim in the state compensation law according to the National Compensation Law! The Criminal Compensation Law, formerly known as the Unjust Prison Compensation Law, in the event of a person who has been wronged and suffered from imprisonment for unprovoked reasons, and later proved to be unjustified, he may request compensation for the wronged prison. In addition, a transcript shall be made until the period of imprisonment is unbearable. Those who suffer from such suffering may be required by law to appeal to the civil servants who caused their suffering for their criminal responsibility. In this section, it is determined that what the unjust imprisoned seeks to request damages from the state in accordance with the law shall be satisfied in the amount of unjustified imprisonment compensation. However, do anyone really dare to go to the illegal civil servants involved in the case to appeal for their criminal and civil duties? The answer is unheard of! That is, no one has ever dared! In this way, let alone the suspected civil servants will be flagged by the Civil Service Disciplinary Committee! One-half of the first paragraph of Article 24 of the Constitution is really written! Based on the data analysis, the Unjust Prison Compensation Law, now called the Criminal Compensation Law, used to claim 3000 yuan per day, and the highest daily claim was 5000 yuan. In the Su Jianhe case, the murderer (that is, the victim is called the sentenced in prison after prosecution) People) Su Jianhe, Liu Binglang, and Zhuang Linxun were released without charge after 11 years of suspected homicide involving Wu Minghan and Ye Yinglan in Xizhi District, and received nearly 30 million yuan in unjust compensation? The Judicial Yuan has recently increased the criminal compensation, starting at 3,000 yuan for killing the people, up to 5,000 yuan, and 4,000 yuan for killing the police, up to 5,000 yuan? It seems that Su Jianhe and the other three people claimed that the amount of the petition was only 1,800 yuan per day, which is indeed a bit of judicial unfairness! So far, the most I want to say is "Those who win the hearts of the people, win the world, those who lose the hearts of the people, lose the world"! Regardless of the color, regardless of the political party, all those in the DPRK and the opposition should jointly consider: what kind of living space should be given to the next generation!
显示于类别:	[法律學系暨法律學研究所] 博碩士論文

文件中的档案:

档案	描述	大小	格式	浏览次数
index.html		0Kb	HTML	265	检视/开启

检视Licence

在CCUR中所有的数据项都受到原著作权保护.

数据加载中.....