On Relief, The Administrative Omission

The issue of Administrative Omission is producing great impact on administrative law circle and administrative litigation law circle. It has theoretical and practical significance to do systematic and depth research on it. So the author attempts to make a study on remedy for administrative omission in the present paper. The thesis is composed of five chapters that respectively discussing the basic conception, the theory of remedy, the litigation system, the action of performance and the state compensation for it. The first chapter is research on the basic conception of administrative omission. The concept of administrative omission is connected with the idea of negative act in philosophy and the notion of negative crime in criminal law. On making list of the current options, the author makes a conclusion of the administrative omission, which is the administrative agency do not execute the statutory (no illegal), particular (no abstract) duty in legal time limit and have no clear meaning in administrative procedure. According to this conception, the author infers to that the express objection act should be exempt from the scope of administrative omission and that the administrative omission has the character of illegality. The conception involves five key factors: the first is that the administrative agency has to performance definite duty; the second is that the definite duty should be specific, particular and statutory obligation; the third is that the administrative agency should be qualified for performance the definite duty; the fourth is that the administrative agency exists situation of the non-performance; the fifth is that in administrative process, it shows negative act. The dominant structural element of administrative omission is the foundation of commission duty. The administrative omission has five classifies. The second chapter focuses on the theory of remedy for administrative omission. The theory contains three parts. The first part is the initiation of social right (living right) .Social right is contrary to liberal right that is no-realistic, unreal and illusory right. Social right is the mark of the contemporary ages, So social right is bound to replace liberal right that marks the old times?rights of man. Social right emphases the actual and concrete right, which the people can enjoy and obtain from the government to maintain one抯 living conditions. The second part is the development of Given Administration. In the country of liberal legal system, the administrative agency just can passively and inactively exercises their authorities; but in the country of social legal system, the ?? administrative agency can positively and actively their authorities, to satisi~ the needs of people. So in the times of social legal system, the theory of remedy for administrative omission can be approved certainly. The third part is the flourishing of citizen抯 rights. The theory of citizen抯 rights goes through such a long process: the Gerber times?theory, the Otto Mayer times?theory, the modem times?theory. To make a long story short, the citizen抯 rights are towards the goal of extending actual rights and strength advanced judicial safeguard. In our country, the circumstance of remedy for administrative omission is gradually mature. It is determined by the following factors: the perfection of the people抯 rights, the equipment of the right on sue, the litigation system of administrative omission, the Given Administration抯 character of state program, th...