Research On The Administrative Omission Litigation

The key lies in the rule of law according to law， and administrative law enforcementto achieve not only the needs of their own level， to improve the enforcement capacity ofthe executive authorities， and the need to establish a comprehensive， practicalsupervision system. Administrative litigation system is the judicial power of the executivepower of supervision reflects， by running this external oversight mechanisms can beimplemented to correct the illegal administrative act， the purpose of protecting the rightsof citizens. However， the diversity of the administrative field， determines the form ofadministrative violations of the diversity and complexity， both beyond abusing theirpowers， such as positive as the class of administrative violations， there will not reply，do not refuse to perform other negative as a class violations. Research in the field ofadministrative law， the researchers focused on the long-term will focus on the study of thebehavior of a class of violations， and for administrative omission is not illegal in-depthstudy. With the event of serious damage to civil rights and public interest in recent yearsdue to administrative omission arising frequently， such as2005’s major water pollutionincident and2008Sanlu milk powder incident，"administrative omission" This a problembegan to attract attention and attention.Studies on administrative omission， there are different entry points and directionsfrom different angles， such as from a management point of view on how to prevent andcontrol administrative omission study occurred， another example from the perspective ofeconomics， for administrative omission arising economic costs. Another example is thefield of law， administrative relative person should study how to protect their legitimaterights and interests through channels in administrative proceedings."Omission" and"action" the two opposing concepts in the context of administrative law， the offense as aclass is "Implementation of behavior should not be done" that the administrative body inviolation of the laws and regulations of the imperative， custodial beam provisions，implementation of laws and administrative acts and regulations are not allowed， which exhibit a positive illegal status; but " omission " is "It should be done and did not do"usually refers to the administrative body does not comply with the laws， regulationssetting requirements to fulfill their obligations， is a kind of negative administrativeviolations.Administrative omission litigation research is to rely on the administrative litigationsystem， due to administrative omission undermined civil rights protection system research.The contents of the study， one can strengthen and improve the basic theory ofadministrative litigation law administrative law， administrative acts as a kind ofadministrative acts and omissions class comprehensive research vision regardsadministrative law; hand with administrative omission dispute cases increased， judicialpractice also needs to further clarify the executive is not identified as a case of evidenceand legal standards applicable rules and other content.From the micro level， the researchadministrative omission standardize administrative litigation trial standards can achieve thepurpose of the court， from a macro perspective， the Court of Justice as one of theparticipants of social construction and social management， continuous improvementthrough the trial level administrative litigation system， improve， can achieve the effectof social management and promote social innovation.In our current legal system， not as against the interests of administrative remedies，there are two main ways， first administrative review， supervision and leadership throughthe relationship between the lower administrative organs to achieve administrativeomission of internal oversight; Second administrative proceedings， judicial review of theway through the completion of external oversight of the administrative omission.However， due to the "Administrative Procedure Law" on the scope of the case is not asaffected by litigation， prosecution body suit type， intensity and other content reviewregulations is not perfect， resulting in hearing such cases the judicial practice of thedifferent standards exist， the referee the results varied phenomenon. To solve the judicialpractice of administrative omission vague understanding of the problem， the standarduniform of the judicial review of such cases， the author from four aspects of the administrative proceedings were not as analysis and research.The first is an overview of the administrative omission of the proceedings， in thispart of the executive is not as clearly defined concept of litigation and administrativeproceedings combining the carrier type， analyzes the characteristics of administrativeomission litigation and administrative proceedings without a range of applications. On thisbasis， compared to the other two administrative omission way to resolve the dispute-thepetition for administrative review and relief， not as an analysis of the administrativelitigation in resolving the advantages and disadvantages of administrative omission class ofdisputes. To more clearly understand the connotation of litigation administrative omission，the author divided in three standard types of litigation administrative omission， throughthe administrative omission litigation type of study， the different manifestations of theexecutive is not classified as a lawsuit， which find their common ground to facilitateunified administrative omission of similar standard of review proceedings， improve theefficiency of similar administrative omission litigation lawsuits.In the second chapter， study on the administrative omission litigation causes andfunctions. In the beginning of the development of administrative litigation system， and noadministrative proceedings does not exist as a space， until the rise and widely usedpayment of administrative protection of the right of civil society， because theadministrative body lazy to fulfill its obligations as a dispute escalated， leading toadministrative omission generate litigation. We can say that the executive is not a lawsuit isto meet for the protection of their rights under the impetus of the needs of citizens andgradually generate development. And for the same reason as the class administrativeproceedings instituted administrative action， administrative omission litigation functionsmainly in three aspects， namely， the interests of the aggrieved person’s relief， theadministrative body for the supervision of the exercise of power， the rule of law on theother the public education and guidance. But administrative omission litigation functionalperformance in these three areas and there is a certain degree of particularity， its relieffunction is mainly reflected in the protection of the rights of civil society， its oversight function is mainly reflected in the payment of the administrative functions of thesupervisory body.In the third section， with the actual situation of China’s administrative trial work，compared to Germany， Japan and other countries in the administrative omission litigationexperience， both from the legislative and judicial point of view， not as an analysis of theproblems and shortcomings of administrative proceedings exist.Finally， my administration for the previously noted in the lack of action does notexist as the basis of a combination of administrative trial on a real case to a judgeperspective， from the legislative， judicial and external environment of the three angles ofa sound analysis of the executive is not as a concrete action plan， provide a reference forjudicial reform.