对无过错违法使用警械、武器的民警刑事追偿质疑——一例国家赔偿案引发的刑事追偿条件反思

现行国家赔偿法对违法使用警械、武器职权行为的刑事追偿条件失之于宽,缺乏主观过错要件。国家赔偿法中的违法与通常所称的违法不同,并不包含有主观过错条件。而追偿是对主观过错的惩戒,对无过错违法使用警械、武器的公安民警进行刑事追偿,则违背了立法的初衷,也与行政追偿的主观过错要件相矛盾,显然是一种立法疏漏。国家赔偿法应增设主观过错要件,将此情形排除在刑事追偿范围之外。

Doubts about Demanding Criminal Compensation from Police Who Use Apparatuses and Weapons Illegally but without Faults——To Mull over Conditions of Demanding Criminal Compensation from a Case of State Compensation

The current state compensation law is not strict with conditions of demanding criminal compensation for police's illegally using apparatuses and weapons and exercising their powers,and it lacks the important condition of objective offence.The illegal conducts in state compensation law are different from the usual ones because they don't include the important condition of objective offence.Nevertheless,compensation is to give a punishment to objective offence,if a criminal compensation is exerted upon a policeman who uses his apparatuses and weapons illegally but without faults,it would be against the initial intent of legislation,and also conflicts with the important condition of objective offence of administrative compensation,so it is obviously a negligence in legislation.Therefore,the important condition of objective offence should be added into the state compensation law to eliminate this circumstance outside the range of criminal compensation.