Keywords: war of aggression against China; War reparations; Government compensation; Civil compensation; State compensation law
1On September 22nd, 1999, the Tokyo District Court made the first judgment dismissing the claim of China victims of the war of aggression against China, which aroused widespread concern. Although the Japanese judicial department explained in detail the "reasons" for its decision to dismiss the lawsuit, from the perspective of international law, its so-called "reasons" are untenable. This paper will analyze this from the perspective of international law as follows:
I the nature of the war of aggression against China and the scope of compensation for war damage
On the one hand, the Japanese court acknowledged the historical fact that Japan caused great harm to the people of China in the war of aggression against China and the tragic experience of the plaintiff; On the other hand, they think that the personal injury caused by war should be solved through peace treaties between countries and other diplomatic channels, and even say that the lawsuit filed by the victims after the conclusion of the peace treaty will disturb the friendly relations established by the peace treaty. In order to prevent the two countries from returning to the state of war, it is reasonable to deny the individual litigation right. On the surface, the above-mentioned reasons in the judgment made by the Tokyo judicial department seem reasonable, but from the perspective of international law, these reasons are obviously untenable, and it is an abuse of law and unfair to reject the individual claims of China victims. The nature of the war of aggression against humanity launched by the Japanese government has long been conclusive. Even in the above-mentioned judgment dismissing the lawsuit of China victims, we have to admit that "the Japanese war against the people of China has no excuse, but can only be aggression based on imperialism and colonial intentions." ②
International law and practice have long recognized that a country must bear state responsibility for invading other countries in violation of international law and committing inhuman atrocities against other countries in violation of the laws of war. According to modern international law, the main forms of national responsibility of a country that has committed a war of aggression are to punish war criminals, restrict national sovereignty, compensate and apologize. In addition to severely punishing war criminals in accordance with international law, the countries to which they belong should also pay war compensation to the injured countries and their nationals. The scope of war compensation includes two parts: first, compensation for damage to state sovereignty, army, state-owned property and historical relics, that is, government compensation; The second is the compensation for personal injury and property loss suffered by the nationals of the injured country because of the indiscriminate killing of the enemy during the war, that is, civil compensation. The scope of war compensation is divided into two parts: government compensation and civil compensation, which is an indisputable norm in international law. As a country that launched a war of aggression, it should compensate not only the government of the injured country, but also the nationals of the injured country.
1On September 29th, 972, the Chinese and Japanese governments issued a joint statement, which stipulated: "The Japanese government deeply reflected on its responsibility for the great damage caused to the Japanese people by the past wars; People's Republic of China (PRC) announced that it will give up its claim for war compensation against Japan for the friendship between the Chinese and Japanese peoples. " China countries have made an in-depth explanation and elaboration on the statement in the Sino-Japanese Joint Statement that the Japanese government gave up war compensation. 1992 former the State Council deputy prime minister Wu publicly stated that civil compensation and government compensation are not the same thing, and it is completely justified for the people of China who have suffered from war to file claims through normal channels. 1In March 1995, Japanese Deputy Prime Minister Qian Qichen once again clarified the solemn position of the Japanese government at the National People's Congress: "The Sino-Japanese Joint Declaration did not give up the right of the Japanese people to claim compensation from the Japanese government in their own name." (3) Therefore, the so-called abandonment of war compensation means that the China government has given up war compensation, excluding the claims of China civilian victims for the damage caused by the Japanese government's atrocities of aggression against China. In a word, the government of China has made it clear that the scope of giving up war compensation does not include damages for private victims.
Second, the legal way to solve the civil war compensation
As mentioned above, the scope of Japan's war compensation against China includes two parts, namely, government damage compensation and civil damage compensation. In the Sino-Japanese Joint Statement, China only promised that "the Japanese government will give up war compensation", which obviously does not include giving up civil damages. As a victim, China's private individuals have the right to claim compensation from the Japanese government. However, civil recourse is different from national recourse. As a subject of international law, a country can claim compensation from other countries through political and diplomatic channels such as negotiation between the claimant country and the respondent country, mediation and mediation by a third country, international investigation and mediation, and legal methods to solve problems, such as international arbitration or bringing a lawsuit to the International Court of Justice. However, private individuals use different ways to demand compensation for the damage caused by war, mainly because private individuals do not have the subject qualification of international law. The international court of justice only accepts disputes between governments and has no right to accept lawsuits in which one party is the government and the other party is an individual. The claims of civil victims can only be filed with the courts of the requested country and handled in accordance with the domestic law of the requested country, that is, the State Compensation Law.
There is a view in the legal circle that when a civil victim brings a lawsuit to the court of the requested country, the civil legal norms of the requested country should be applied instead of the state compensation law. In fact, whether the law applicable to prosecution is Japanese civil regulations or state compensation law depends on the specific situation. If there is a specific defendant and the defendant's infringement is not authorized by the government (that is, public power), in this case, the plaintiff can only pursue the defendant's civil liability for compensation according to the civil laws and regulations of the jurisdiction. However, Japanese private individuals are not prosecuted by natural persons or corporate legal persons, but by acts authorized by the Japanese government, and China has established a state compensation system. Therefore, the plaintiff should solve the case through administrative litigation in accordance with Japan's State Compensation Law.
In essence, there is no reason for a country's state compensation law or administrative litigation law to deprive foreign nationals of the right to sue for damages caused by their exercise of state public power. According to international practice, the lawsuit brought by the requested country against foreign injured nationals according to its state compensation law should be handled in accordance with the principle of national treatment.
-I hope I can help you. Don't forget to click to accept the answer and give it a click. -