Analysis On National Compensation Liability Due To Administrative Omission

Administrative omission is a kind of administrative act opposite to the administrative commission. Administrative omission could be either legal or illegal. Since legal administrative omission will not cause any occurrence, change or termination of any legal relationship, and will not lead to any national compensation liability, we will not discuss it in this article.In this article, we will only discuss the administrative omission that infringes legal rights and interests of and causes damages to citizens, legal entities or other organizations, and will lead to national compensation liability, i.e. illegal administrative omission. Illegal administrative omission (hereinafter referred to as "administrative omission") refers to the failure of an administrative authority or any employee of an administrative authority to take certain action, though taking such action is possible, in accordance with administrative procedure or within a required time period due to fault when such administrative authority or employee has the obligation to take such action, including obligations resulted from application and administrative power. Usually, administrative omission could be giving no response, delay in taking actions or ignoring any applications or requests. The PRC Administrative Review Law, Administrative Litigation Law, National Compensation Law and other relevant laws fail to give any specific provision on the national compensation liability for administrative omission. With no clear legal provision, scholars hold different opinions on this issue and judges have disputes in making verdicts. After exploring the resource and theoretical basis of national compensation liability for administrative omission, researching legal provisions of developed countries on this issue and analyzing arguments among scholars, I believe the state government shall assume compensation liability if any administrative omission infringes legal rights or interests of and causes damages to any citizen, legal entity or any other organization.On the basis of the above opinion that the state government shall be liable for any administrative omission, this article discusses the factors that constitute national compensation liability for administrative omission based on the features of administrative omission, i.e. (1) the administrative omission took place and was duly decided by relevant authority as illegal, (2) legal rights or interests of any citizen, legal entity or any other organization were infringed and damaged, and (3) the administrative omission is the cause of the damages and the damages are the consequence of the administrative omission from the legal point of view. The causes of those cases related to national compensation for administrative omission are negative acts, which are different from the causes of common cases related to national compensation for administrative infringement, which are positive. This article discusses in details the relationship between administrative omission and damages as cause and consequence, and separately discusses the relationship between administrative omission of obligations resulted from application and the damages and the relationship between administrative omission of obligations resulted from administrative power and the damages.Generally, if any administrative omission meets the above three factors, it shall cause national compensation. However, the national compensation liability may be decreased or exempted if the damages are caused not only by the administrative omission but also by the infringed person or entity itself, any infringement of a third party or natural disasters. Under these circumstances, the principle of exhausting compensation resources shall apply, i.e. the infringed person or entity may claim compensation from the state government only when it is impossible for the infringed person or entity to claim compensation from a third party or any party that is liable or can not receive full compensation from a third party or any party that is liable.A...