论警察枪械致害之国家责任

《人民警察使用警械和武器条例》规定了警察违法或合法使用武器造成人员伤亡、财产损失时应该承担的法律责任。由于相关规范抽象模糊,以致在司法实践中滋生不少亟待解决的问题,有必要重新探讨警察用枪行为的性质,构建警察枪械致害赔偿案件统一的救济模式。同时,警察用枪合法与否的判断有赖于一套科学、公正的枪案调查制度。经客观、专业的枪案调查,如若警察用枪行为合法则,警察机关应承担国家补偿责任,相应的补偿渠道和补偿标准值得探讨。

On State Responsibility due to the Injury Caused by the Use of Firearms by the Police

Regulations of the People's Republic of China on Use of Police Implements and Arms by the People's Police has prescribed the legal responsibility when the policemen use the firearms in a legal or illegal way .How-ever , the binary structure set by Law of the People's Republic of China on State Compensation and the tasks the po-lice should shoulder has caused some difficulties for the litigants when they claim for compensation .Therefore, it is necessary to redefine the use of firearms by police from administrative coercion perspective , and set up a unified re-lief mode for aggrieved persons .At the same time, a fair, scientific and complete investigation system applied to cases involving the use of firearms by the police needs to be set up , since there isn ’ t such one in the practice now . As for the compensation liability , due to the fact that the use of firearms by the police is a public behavior , the Civ-il litigation channel set by the article 121 in General Principles Of The Civil Law Of The People's Republic Of China should not be used;instead, the standard for civil tort liability should be accepted in order to recoup the innocent to the maximum.