Comparative Research On The Administrative Obligation System Between Chinese And Foreign Countries

Administrative obligation is an important part of research in the field of administrative law, the "serving administrative" and "limited government" has become common goals pursued by the world's governments. Most of administrative obligation researchers are confined to building a national system, however few of them did a comprehensive study on the system of administrative obligation from the points of comparative law. Selecting three representative countries including France, Britain and the United States the writer analyses the administrative obligation system compared with our country's in order to discuss the similarities and differences between them. After studying the shortcomings of our country's system, I have learned from the foreign advantages and experiences in the building of administrative obligation system in order to supply some theoretical ideas of improving the construction of administrative obligation system. This thesis contains four parts concentrating on the administrative obligation system.The first part is about the study of the production and development of administrative obligation, and it analyzes administrative obligation from the cause, development to trends. The production of administrative obligation system comes into being with the development of democratic political ideas and institution gradually. During the early feudal autocracy there is not the concept of administrative obligation, because most countries considered them no responsibilities resulted from belief of" country without obligation" principle. The administrative obligation system came into being on the condition that the government and executive departments began to adjust their functions to catering the development of commodity economy and the establishment of democracy maintain interests of the bourgeoisie. From the beginning the system of administrative obligation has gone through three stages, that is, the establishment phase, improvement stage and deepen stage. In the establishment phase, the system of administrative obligation has displayed an initial size in western countries. However, in this period,administrative obligation only had a limited obligation, and most administrative obligations were burdened by the executive officers, not the governments or the executive's departments. In the improvement stage, the governments began to change functions trending to serving administration because of the continuous expansion of executive power. The converting of implementing administrative power made the obligation system developing in the trend of strictness, and the development of socio-economic and transformation of government functions have promoted the development and improvement of administrative obligation system. In the deepening stage, the governments and the executive authorities have born more social obligation, so administrative services has become the main content of governments in the whole world. The changes of administrative action made the administrative obligation system to further improvement. And accountability of the executive responsibilities tended to be more strictly and standardized. Strict obligation is the trends of administrative responsibility, and to expand the scope of administrative obligation, administrative legal responsibility and moral obligation will become the main directions of the administrative obligation development.The second part is an introduction of the administrative subject theories and a comparative analysis between two parties. In western countries, the theories of administrative subject are related to the administrative subject system, it is an explanation of some relevant contents of the system, and the administrative subject system is never separated from the administrative democratization or power distribution. As the subject of administrative, administrative department also emphasize the indepently legal personality of the administrative subject, and can independently take obligation. By comparative study I found that the administrative subject is the formal subject in our country: I the administrative departments do not have theirs interests. II the administrative departments are not embodies independent position. III the administrative departments do not independently take responsibility. Through analysis of comparative study, in this paper the main theoretical weaknesses and the flaws exposed in the administrative obligation subject theory. And then it puts ups sensible distribution standing on the ground of the administrative power. Furthermore, by learning from theory of executive subject we will have a further completion of the administrative obligation.The third part is an introduction of the administrative obligation criterion and a comparative analysis between two parties in our countries and foreign. Criterion of administrative responsibility is the core of the theory of administrative obligation and one important problems of the subject of administrative law. Firstly, this part illustrates the criterions of administrative obligation in these countries in which no-fault obligation principle, the principle of fault obligation, the risk of obligation and the principle of illegal are the main criterion of administrative responsibility adopted by all the countries. The author also revealed the characteristics of administrative obligation criterion by analyzing these criterions of administrative responsibility in these countries. In our countries, criterion of administrative responsibilities based on the principle of illegal, the principle of fault obligation, and the principle of presumption fault, lacking the regulation of no-fault obligation principle and risk of liability. As a result, the author advocates that in order to obtain a better construction of criterion of administrative obligations, the risk of obligation principles can be put into the scope of regulations on the condition of learning the advantages of French theory of public service fault.The fourth part is an introduction of the commitment form of administrative obligation and a comparative analysis between two parties. The commitments of administrative obligation are the final attribution and achievement. In the first, this part expresses the commitment form of administrative obligation. And then, this part continues analyzing the commitment form and reveals the characteristics of commitment forms in these countries. The administrative compensation and the executive compensation are the main commitment forms in these countries. Through comparative study, I found that there are still lots of disadvantages in our country's administrative compensation system. At last the author advocates that in order to protect the legal rights of the public and organizations we can put the responsibility of contract and return responsibility into the scope of commitment form for compensating the disadvantages of our administrative compensation system by learning from the rational advantages of the British commitment form of administrative responsibility.