A Study On The Legal Regulation For The Neglect Of Performing Administrative Duties

The Forth Plenary Session of the Eighteenth CPC Central Committee has clearly pointed out that: “overcoming the sloth and neglect of administrative duties” is a basic requirement to “further promote administration according to law,speed up the construction of a law-based government”.The neglect of performing administrative duties refers to the circumstance that administrations and their officials fail to perform,incompletely perform or delay to perform the administrative obligations which should be performed to the administrative counterparts according to law provided that they and their officials are able to perform.The neglect of performing administrative duties has some points to be consistent with administrative omission,however,these two terms are not different descriptions of a same concept.Administrative omission is a “rough” standard and a pure objective standard,however,the neglect of performing administrative duties is a more “detailed” subjective and objective evaluation criteria.In practice,there are many circumstances that belong to the neglect of performing administrative duties with a wider application scope,which has a higher degree of right relief than administrative omission.Administrative omission cannot be covered by "incomplete action".In order to bring incomplete action into administrative behavior or administrative duty evaluation system,it is necessary to introduce the concept of "neglects performing administrative duties".In order to judge a behavior is a form of "neglects performing administrative duties ",we should start from four aspects: the subject of action,the obligation of pre determination,the content of actions and the consequences of harm.The subjective fault state of the actor is not a criterion for judging whether or not it is performing administrative duties.In order to comprehensively understand the public satisfaction to the performance of government departments as well as the basic situation of administrations and their officials' “neglect of performing duties”,the author has carried out the thesis research through questionnaire survey.This questionnaire survey has issued 231 questionnaires to residents in Chongqing,Shanghai,Shenzhen,etc.,and withdrawn 228 effective questionnaires.Through the investigation,we find that:Firstly,the residents have a higher satisfaction to the performance of governments than that of the government officials,which seems strange,because the performance of governments is completed by the duties of government officials.Therefore,the satisfaction of these two subjects should be similar.Secondly,the “neglect of performing duties” has become a key negative factor to residents' satisfaction to governments.Thirdly,administrative counterparts cannot handle the “neglect of performing duties” well,where most interviewed administrative counterparts would “accept the bad luck” and “coordinate through acquaintances or relationships” rather than seek a relief through legal approaches when they face the “sloth and neglect of administrative duties”.Fourthly,when there is a laggardness of legislation or a lack of legal authorization,an enforcement agency may be deemed to make an administrative violation if it acts rashly;an enforcement agency may be deemed to make a “neglect of performing legal duties” by administrative counterparts if it acts strictly according to law;fifthly,when a legal provision is unconscionable or has a remarkable inclination of department benefit,the weak performance of that legal provision will also lead the administrative enforcement departments into the “neglect of performing legal duties”;sixthly,there are some terms in the legislation,such as “either” and “or”,which tends to cause an enforcement situation called as “duplicate law enforcement”,and there is a Chinese idiom that describes it,i.e.“nine dragons control the water”,which leaves a legal space of “buck passing” and “neglect of performing legal duties” for administration enforcement agencies.In order to reduce the neglect of performing duties in administrations,we should strengthen the legal regulation.As for the legislature,on the one hand,the responsibility investigation to administrations' neglect of performing duties by the state authority can be achieved by submitting bills and bills of addressing inquiries,etc.;on the other hand,the legislature can further limit the legal space of administrations' neglect of performing duties through perfecting the legislation.In practice,the administration with legislative power also plays an important role in the legal regulation for the neglect of performing administrative duties.There are four changes that should be achieved in the legislation value idea to perfect the legal regulation for the neglect of performing administrative duties,including “from interest to justice”,“from abstract to concretization”,“from response to leading” and “from power to responsibility”;it should be achieved by combining the regulation mode that combines central and local legislation and by combining the situation of China and the trend of neglect of performing administrative duties,and it should carry out the comprehensive legislation regulation;the legislation for the neglect of performing administrative duties should not over-pursue the comprehensiveness,but should adhere to “the legal regulation mode that combines focus and comprehensiveness” under perfecting the focus legislation for the neglect of performing administrative duties,to improve the legislative fineness and law feasibility;in the legislation,the responsibility concept should be established,to definite the responsibility judgment criteria for the neglect of performing administrative duties.Through a more definite legislation,the administrative duties can be divided in a manner that adopts the social reality;through the legislation mode,the mutual match between administrative authority and responsibility can be achieved;for the administrative enforcement power that needs centralization,it can be done in the legislation by authorizing such enforcement matters to a certain administration,to avoid repeated works and conflicts of powers and responsibilities under the “divisional enforcement control” by different departments.As an important component for administrative accountability system,the responsibility of the neglect of performing administrative duties is an inevitable requirement for the principle of equivalent fault and punishment.The administrative accountability system is not only an inevitable requirement for a modern law-based state but also an important method to establish responsible governments and prevent corruptions.In the meanwhile,it should establish a set of reasonable and feasible indicator system for the assessment at ordinary times of civil servants,to comprehensively implement the “assessment at ordinary times” in Civil Servant Law,comprehensively,objectively and justly assess the daily works of civil servants,urge civil servants to be diligent and responsible and improve the administrative efficacy.With the administrative public interest litigation that began to be implemented on July 1st,2017,the judicial control approach for the neglect of performing administrative duties has become two kinds: the ordinary neglect of performing administrative duties initiated by an interested party and the administrative public interest litigation initiated by the inspection agency.Perfecting the litigation for ordinary neglect of performing administrative duties and administrative public interest litigation is the proper justice to strengthen the judicial control of the neglect of performing administrative duties.The administrations bear specific duties to citizens,legal persons and other organizations according to law,and if they fail to do so and cause damages to legal rights and interests due to the neglect of performing administrative duties,they should bear the responsibility of compensation.Perfecting the social regulation for the neglect of performing duties is to strengthen the social supervision.Social supervision,is a kind of supervision and urgency behaviors implemented by social members,organizations and other non-power subjects to administrative subjects.By comparing with other supervision modes,the social supervision for the neglect of performing administrative duties has remarkable distinctions.The social supervision for the neglect of performing administrative duties is an important content to perfect the power supervision system,an embodiment to ensure the civil supervision right and a need to prevent the risk of abuse of power.At present,the social supervision for the neglect of performing administrative duties has initially formed a well functioned legal system with diversified types.However,there are some problems,such as imperfect legal provisions,defective objects and defective modes,etc.Its path optimization can perfect the institutional provision of the social supervision for the neglect of performing administrative duties,strengthen the institutional improvement of government information publicity,cultivate the legal culture of the social supervision for the neglect of performing administrative duties,etc.