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我国《国家赔偿法》确立的国家赔偿归责原则是违法原则,即国家机关及其工作人员违法行使职权,给公民、法人或者其他组织造成损害的,国家承担赔偿责任。理论界和实践界普遍认为,确立违法原则,有利于实践操作,有利于保护公民、法人或者其他组织的合法权益,是我国《国家赔偿法》的重大进步。但在对违法原则的阐述和探讨过程中,多数观点对“违法”的认识局限于“违反法律、法规规定”的层面,没有深入揭示违法行为的特点,并提出具有内在联系的认定标准,因而也不能正确把握违法行为与主观过错的关系。不少同志误认为,既然确立了违法原则,舍而不用过错原则和过错违法双重原则,那么,违法行为同主观过错也就摆脱了关系了。然而,从法理上说,“违法”是“有法定责任能力的个人或组织违反法律规定,危害社会的、有过错的行为”。违法行为包含主观过错在内;没有主观过错,即使造成了一定的危害后果,也不是违法行为。就国家赔偿而言,在确定国家是否承担赔偿责
The principle of state compensation as established in the “State Compensation Law” of our country is the principle of illegality. That is, the state organs and their staff members exercise their powers illegally and cause damage to citizens, legal persons or other organizations, and the state bears the responsibility for compensation. It is generally agreed by theorists and practitioners that the establishment of the principle of breaking the law is conducive to putting it into practice and protecting the legitimate rights and interests of citizens, legal persons and other organizations. This is a major step forward in the “State Compensation Law” of our country. However, during the process of elaborating and discussing the principle of illegality, most of the views on the “illegal” are confined to the level of “violating the provisions of laws and regulations”, failing to reveal the characteristics of the illegal acts in depth and putting forward the standards of identification that are intrinsically linked Nor can we correctly grasp the relationship between the illegal act and the subjective fault. Many comrades mistakenly believe that since the principle of illegality, the principle of fault and the principle of fault and the principle of fault and breach of the law have been established, then the illegal act is also freed from the subjective fault. However, from the legal point of view, “illegal” is “a person or organization legally responsible for breaching the law, endangering the society and having fault in the law”. Illegality includes subjective fault; without subjective fault, even if it has caused some harmful consequences, it is not illegal. In the case of State compensation, it is in determining whether the State is liable for compensation