A Study On The Constitutive Elements Of Police Delinquency Of State Compensation

Chapter I studies on the definition of police delinquency, which is composed by two concepts: the public security organs and administrative delinquency. The first section defines two concepts: public security agency and administrative power. It introduces the concept, scope and power of public security organ and police, focuses on distinguishing criminal investigation and administration of public security organs, and then tries to extract the operable standards in order to distinguish them, to clearly define the concept, characteristics and scope of police administrative action. In practice, many police administrative actions evade judicial relief and state compensation in the name of criminal justice actions. Then it analyzes and summarizes the concept of omission in context of t jurisprudence, criminal law, civil law, administrative law, and distinguishes legal and illegal omission, non-compliance with statutory duties and with statutory obligations, pure and impure omission. On the basis of the disgussions above, this parper holds that the concept of administrative delinquency should substitute administrative omission. In addition, on the basis of analysing the extant researches on the features and forms of administrative delinquency and police administrative delinquency, it puts forwad the personalized features and manifestations of police administrative delinquency.Chapter II sets up a bridge between police administrative delinquency and the constitutive elements of police delinquency of state compensation. It mainly studies on the history of the theory and system of police delinquency of state compensation. In the welfare state era, private party has the right to claim the government to act. If the government does not fulfill obligations and his interests get harmed therefore, he has the right to claim compensation benefits. At the same time, the theories,such as popular sovereignty, negation of the reflected interests and discretionary contract, play a guiding role in establishing the system of state compensation. After we overview the macro-social context of the system of police delinquency of state compensation, attention should be paid to the present theory and system construction of administrative delinquency in China. This paper finds that the weakness and the related institutional barriers of China's constitutive elements of police delinquency of state compensation. So it is necessary to research on the constitutive elements of police delinquency of state compensation.Chapter III is to research on the subject element of the state compensation of police administrative delinquency. On the basis of distinguishing infringement subject from responsibility subject and responsibility subject from obligation subject of state compensation of police delinquency, this chapter holds that the infringement subjects of the state compensation of police delinquency are the subjects of police administration, including the public security organs and the authorized subjects, and that the responsibility subject of the state compensation of police delinquency is the State.The problems of defining the subject element of the state compensation of police administrative delinquency are to distinguish the individual action and the official conduct of the specific civil servants of the police administrative subject, define the administrative authorization, and identify the official conduct of the staffs out of police administrative subject. All these questions are discussed in section 2 of this chapter.Chapter IV is to research on the action element of the state compensation of police administrative delinquency. Police administrative delinquency means that police administrative subject who can implement the obligation, does not implement out of date. Therefore, administration obligation, non-implementation out of date and fault are the three core elements of defining administrative delinquency. Obligation of administrative act is an innovative concept, which is more accurate to cover the pluralistic sources of administrative delinquency in the practice of police enforcement. It focuses on the source and substance of administrative act obligation, and it also emphasizes the term, which can be typed into the legal, appointed, emergent, reasonable and commitment term. The fault is a subjective attitude, which means someone does not implement the obligation with full capability. The discussion of fault has two functions, one is to identify the actions of police administrative delinquency; the other is as the imputation principle of the state compensation. The criterion of fault, the relation between fault and illegality, the imputation principle of fault which play an unique role in defining the state compensation of police administrative delinquency, are the core contents in section 3.Chapter V is to research on the damage element of the state compensation of police administrative delinquency. Damage is caused by infringement. This chapter is composed by two sections. In section 1, the legal reference, theory basis and system support are studied. Then the features and scopes of police administrative delinquency infringement are put forward by comparing administrative action infringement and administrative delinquency infringement with civil omission infringement. Section 2 highlights the concept, features, types and calculating standard of damage, which partly refers to the researches of civil law.Chapter VI is to research on the causality element of the state compensation of police administrative delinquency. It focuses on the causality between the police administrative delinquency and damage, and the criterion to identify the causality. It applies substitution to identify the causality, and predictability to identify the proportion between the cause and the damage. If intervention factors can interrupt the causality between the administration infringement and the damage, the public security organs will not assume the responsibility of administration compensation. If not, the public security organs will assume it. This question is the most important and also most innovative point in this paper.