She Xianglin kneels before his mother's tomb after being released on April 13, 2005. He served 11 years in prison for murdering his wife who was later proven to be still alive.

By Yin Hang

It was the flimsiest of evidence that convicted Xu Jingxiang, a Henan farmer and security guard, of a burglary he did not do. The Luyi county court sentenced him to 16 years in prison.

The next 13 years of Xu's life read like a bad country & western song: his house collapsed, his parents died and his wife divorced him. Diagnosed with chronic kidney disease, Xu had been a strong and healthy thirtysomething before he went to jail.

Xu's bad luck appeared to change on March 15, 2005 when he was acquitted of all charges and released. He filed an appeal for State compensation three months later.

More than three years have passed and Xu has received nothing.

"Xu's case is special," his attorney Tang Luming told the Global Times. "He was sentenced to jail by two effective judgments. We can't find a corresponding regulation in the law to solve his case.

"The law's weak practicality makes his application hard to try or settle."

It seemed Xu had a lifeline at last when a brand new amendment to the law was introduced at a standing committee of the National People's Congress (NPC) in October.

To obtain compensation, Xu only needed to verify the relevant judicial organs had infringed upon his legal rights in discharging their duty.

But Xu's luck ran out: the change didn't gain unanimous support. Instead, the controversial State compensation law was left in limbo after the top Chinese legislature body failed to reach a consensus on the third reading of its amendment as the bi-monthly session of the NPC closed at the end of last month.

In a press conference held later, He Shaoren, spokesman of the top legislative body and also the deputy director of the Information Office under the NPC Standing Committee, explained that the amendment might need more research and review before it is passed.

"Some committee members have expressed different opinions on some of its regulations, such as the principle of compensation and the procedure for seeking compensation, so the standing committee decided to carry out more research and revisions on the amendment," He said at the press conference.

A further probe into the disagreement among members of the standing committee confirmed that the discord over the amendment focused on three aspects: first, whether the new-added exemption clause should be pulled or not; second, whether to enlarge the scope of compensation or not; and third, the justice of the compensation recognition procedure, the Beijing-based Procuratorial Daily reported.

"I am proven innocent, finally," Sun Zhongjie tells the media in tears after the investigation team declares his innocence at a press conference on October 26, 2009. Photos: CFP

'Illegal circumstances'

Article 2 of the current law stipulates state compensation will only be paid under "illegal circumstances": meaning unless judicial organs are willing to admit they acted illegally, it's unlikely Xu will ever receive any state compensation.

The new amendment, however, reportedly abolishes the old "illegal practices" liability clause and adopts the consequential reliability principle, Ma Huaide, a law professor at China University of Political Science and Law told the Procuratorial Daily.

That would mean Xu gets the money.

Some professors reportedly doubted its effectiveness in dealing with emergency cases, claiming this principle may set barriers to police enforcement during situations such as so-called mass incidents or other incidents threatening to social stability.

To some of the professors in the standing committee, some articles in the amendment are not clearly defined. For example, article 19 of the amendment mentions "administrative punishment" in the clause while listing exemptions under "criminal punishment", which may cause contradictions, Yan Yixin, a standing committee member reportedly told the Procuratorial Daily.

"Administrative punishment and criminal punishment are enforced by different organs, so they should be treated differently. I'm afraid if we adopt the regulation, some organs might escape their due liabilities," Yan said.

llegal vs improper

Shanghai van driver Sun Zhongjie cut a piece of his little finger off his left hand to prove his innocence after he was seized allegedly conducting an "illegal taxi operation" by the city management authorities of Pudong district in Shanghai on October 14.

All he did was to pick up a pedestrian who asked for a lift, later confirmed as an entrapment conducted by the local transport supervisors during an investigation into illegal cab operations.

Chen Xiurong, a standing committee member, suggested the improper administrative executive practices should also be considered in the compensation law, enlarging the scope of liability from the current "illegal" to "improper" activities.

Li Qiaoming, 24, an inmate who died from what authorities initially claimed was "injuries sustained during a game of hide-and-seek", was later proven to have been beaten to death by three fellow "kingpins" in a detention center in Yunnan Province on February 8.

Li's death had pushed forward need for an amendment to compensation law as the case aroused nationwide concern, according to the Xinhua News Agency. The amendment incorporates the detention center as one of the liable bodies, along with police, court, procuratorate and prison stipulated in the second amendment.

This revision to the third amendment was also criticized by some committee members in the top legislative body. Wang Guisong, a professor at Renmin University of China in Beijing, told Xinhua that the revision is unnecessary as the detention center is a sub-branch of the police station and is therefore already covered by the current law.

The amendment also includes, for the first time, compensation for psychological injury. The latest version of the draft does not detail how such injuries and damages can be assessed, although several lawmakers suggested clearer definitions during previous readings according to Xinhua.

Hong Hu, vice-chairman of the NPC Law Committee, elaborated at the session on October 27 that as long as the law involves violations of personal freedom, life and property rights, cases would differ greatly and "we don't have enough experience yet to set a universal standard, so it would be better not to define it in detail in the law, but through judicial explanations based on future practice."

A reader thumbs the Law of the People's Republic of China on State Compensation at a Xinhua bookstore in Yunyang county, Chongqing on September 5. Photo: IC

How much

She Xianglin served 11 years in prison for murdering his wife who was later proven to be still alive. He was declared innocent and released after a retrial by Jingshan People's Court in Hubei Province on April 13, 2005.

His appeal demanded 4 million yuan in state compensation, but he eventually accepted 10 times less after three months of negotiations.

Not every appeal filed to the court will be compensated. Ma Huaide, a professor of China University of Political Science and Law, reportedly told China Youth Daily that the law requiring the liable body admit illegal conduct is like asking a tiger to peel off his own fur.

The amendment added more specific regulations this time by stipulating first, the compensation committee of the court may organize a testimony crossexamination between applicant and the liable body; second, a three-month prolonged term of dealing with complicated cases will be adopted; third, abolish the maximum number of judges on the compensation committee, and fourth, improve the justice supervision system in the court, according to Hong.

These revisions may better protect the right of the applicant believed Lü Wei, a standing committee member, who said supervision from corresponding level of procuratorates was necessary.

Jiang Xingchang, standing committee member, told People's Daily Online that he believed a special trial organ should be established in the court.

"It's a determination procedure that the compensation committee of the court is guided by in its operation instead of a judicial procedure, which leads to a three-pronged problem," Jiang said.

"First, the determination procedure is carried out in private, so it lacks public credibility. Second, without argument and counter-argument between the two sides, a just claim cannot be ensured for the applicant. Third, the determination procedure is made under a one-instance system, which blocks the effectiveness of any remedy procedure."

Current compensation law took effect in 1995, aiming to guarantee smoother channels and improve procedures for victims seeking compensation from state organs.

Statistics shows that overall 15,867 cases of state compensation appeals were accepted at all levels of courts in China by May 2004. State compensation was paid in 5,442 instances, about one-third of the accepted cases. By November 2004, 7,823 state compensation appeals were accepted by all levels of procuratorates in China. A total 3,167 cases earned a total 5.8 million yuan compensation.

Since the third amendment has not passed in this session, the date of putting into practice a new compensation law still hangs in the air. Applicants like Xu, who may depend on compensation for the rest of his life, will just have to wait a little longer.