The Responsibility of State Compensation when Social Welfare Accepting Organization Requested Private to Manage — Discussing about Institutional Care

• Main Authors: Jing-Syuan Jian, 簡敬軒
• Other Authors: Wun-Sheng Siao
• Format: Others
• Language: zh-TW
• Published: 2010
• Online Access: http://ndltd.ncl.edu.tw/handle/81429814945221345554

碩士 === 國立中正大學 === 法律所 === 98 === The paper discuss the Question about the country’s responsibility of compensation by the state-run institutional care which is requested private agency to manage. In usual, the domain of social welfare is classified the “Administration of Paying”. Because of its nature of Paying, and acts without compulsory and order, we usually thought it’s not belong the administration which needs “Public Power”. In addition, the State could take any form to finish the mission if it’s appropriate. It’s called “the Right of the Form- choosing”. But the question is, if the service caused the damage (provided by the private agency which was requested by state), can we request any compensation from state? We have to suit for the rule about State Compensation Law, Article 2, “the Public Power”, but the difficulty is that the domain of social welfare acts without “Public Power”, and the State can give its right of management to the private agency, then retreat from it. So, Can we tolerance “the Retreating of the State” or “Escaping from the State compensation”? Moreover, State Compensation Law, Article 3, “The State shall be liable for damage to any person''s life, body, or property resulting from a defect in the installation or management of any government-owned public facility.” Can we distinguish the organization that is belong to the State or just private agency by its outward appearance? Is it work? There are many disputes in this subject. In fact, the State cannot abandon its administrative mission even thought it has the “right of Form-choosing”. The State have to guarantee the administrative mission finished appropriately. In other words, the role played by the State needs change from “Provider” to “Guarantee.” The people who live in the institutional care need more protection when they are in damage, because they cannot express their rights appropriately. The State need take care about it completely, but is not escape from the responsibility of the administrative mission. The State is a Guarantee. Although State Compensation Law will be modified, it’s not enough actually. We cannot only depend on the State Compensation Law merely. We still need other coordinated measures in order to protect the people who live in the state-run institutional care which is requested private agency to manage.