论公共设施致害的赔偿规则——对国家赔偿法相关立法说明的考察

国家赔偿法立法说明的法律文本所表明的观点是:公共设施致害应适用民事赔偿规则,其赔偿责任主体为负责管理公共设施的企事业单位。但无论从公私法区分的法理上分析,还是民法通则126条的适用范围及权益救济上的局限性而言,进而从我们对世界潮流的关注上讲,应将公共设施致害赔偿纳入国家赔偿范围,即公共设施致害应适用国家赔偿规则。当然,对于有特别法规定的公用企业造成的损害应依特别法解决,国家不负担赔偿责任。

On the Compensation Rules for Inflictions Caused by Public Facilities——A Study of the Relevant Legislative Interpretation of the State Restitution Law

The version of the legislative interpretation of the State Restitution Law shows that inflictions caused by public facilities should be applied to civil compensation rules,and their subjects liable for compensation shall be the enterprise or the public institution in charge of the public facilities.But according to the legal analysis of the distinction between public law and private law,the scope of application of Article 126 in General Principles of Civil Law,the limitation of rights and interests assistance,as well as our concern for the world trend,the compensation for inflictions caused by public facilities belongs to the scope of the state restitution,that is,they should be applicable to the rules of the state restitution.The State surely should not be responsible for the damage caused by the public enterprise stipulated by the special law,which should be repaired in accordance with the special law.