Research On The Legal Remedy Of Administrative Omission

Administrative omission serves as one of the common interests inthe administrative law theory circle and one demanding issue for lawexecution and juridical circles. In the current academic system of theadministrative law of our country, administrative behavior can benormally used as the basis to discuss the major components that buildadministrative behavior. With the gradual prominence ofadministrative omission, the scholars make endeavors to explain theissues related to administrative omission with current theory ofadministrative behavior. Quite often, they are confused with problemssuch as whether omission belongs to the category of behavior andwhether administrative omission belongs to the category ofadministrative behavior. We suppose that administration omission,which is part of the main body of administration, is not a puretheoretical problem. It generally reflects the puzzlement existed in thefield of administrative law execution and jurisdiction area, concerningthe dimensions of case acceptance of the court and to what extent theright and benefit of the people are protected. Thus I deem it necessaryto reinforce the academic research of the theory of administrativeomission in the field of administrative remedy law so that theresponsibility ascertaining mechanism of administrative omission canbe constructed based on pertinent laws with regard to administrativeresponsibility and criminal responsibility. The thesis adopts thissubject as the research object and dwell on problems such asadministrative omission and its remedy in combination with therelatively mature theories of other countries about administrativeomission. The paper contains four chapters. The first chapter describes the confines and constitution of theconcept of administrative omission. Currently the concept ofadministrative omission hasn't received a widely recognizedconclusion in the administrative law academic circle of our country. Idraw upon various views which are popular at present concerning thisfiled and make a conclusion in terms of the setting and implementationof afterwards administrative omission remedy system thatadministrative omission refers to the failure or incompletion ofbehavior fulfillment of main body of administration in accordancewith legal procedure in legal or reasonable period, which bears thespecific obligation and fulfillment capability regarding its execution ofcorresponding behavior. This definition has two meanings: Firstly, thespecific obligation borne by the main body of administration is seen asthe intrinsic feature of administrative omission. Secondly, the omissionis also presented by relevant procedure. Further conclusion could bemade based on this theory, which distinguishes administrativeomission with relevant concepts, that explicit denial behavior isessentially negative administrative behavior instead of administrativeomission, and the administrative omission can be categorized as illegalbehavior. The major component of administrative omission lies in the factthat the main body of administration is obligated to perform certainadministrative action. The obligation for administration performanceshall be legal, concrete, specific obligation for performance, includingthe performance obligation, pre-behavior obligation, administrativecontracts obligation specified by relevant laws and obligation resultedfrom legal expectation or trust benefit. The second chapter describes the theoretical basis of the legalremedy of administrative omission. The development degree of theremedy theory directly dominates the setting and implementation ofthe remedy system. The theoretical basis of the legal remedy ofadministrative omission is composed of three factors: The first factor refers to the rising of social right theory. Freedomright, as the slogan for the revolution of neoteric bourgeoisie, bearsdual characteristics of advancement and non-practicability. Social right,however, as a mark of modern human right, will surely supersedefreedom right and play a leading role. The social right put moreemphasis on how human in reality achieve various actual rights neededfor living from the country. The evolution of the legal nature of socialright determines the level of practicability with which the citizens urgethe governmental authorities to implement the deliverable. The second factor refers to the change from country governed byfreedom right based laws to that governed by social right based laws.The country governed by freedom right related laws focuses on orderlyadministration, believing that the administrative authorities can onlyexecute their power in a passive way, thus negating the remedy theoryof administrative omission. The country governed by social rightrelated laws, in the meanwhile, believes the administrative authoritiesshould fulfill their administrative functions actively to satisfy theliving requirements of the citizens, which affirms the remedy theory ofadministrative omission. The third factor refers to the extension of civil rights and thereinforcement of civil rights remedy system. The theory of civil rightsevolves from the concept of country governed by freedom right relatedlaws to the concept of country governed by social right related laws,during which the entity content of the civil rights enjoyed by thecitizens expands continuously and represented in the following fields:Firstly, the basic civil rights specified by the constitution of allcountries have grown wider and wider. Secondly, the litigation right ofthe third party has been generally recognized. At the same time, thejuridical assurance procedure has been stricter and the surveillance isgetting stronger for administrative omission. The changes fromlitigation cancellation of administrative omission to litigationconfirmation, and to full and complete obligated litigation provided forthe citizens embodies the enhancement of the civil rights remedysystem. The third chapter deals with the current status of the legal remedyof administrative omission in our country. The Constitution of ourcountry specifies wide civil rights and bears relatively complete basisof civil rights theory. The government has followed the concept ofwelfare country to establish administrative reconsideration system,administrative omission system and state compensation system. At present, the remedy of administrative omission in our countryis limited to concrete administrative omission behavior that violatesprivate benefit, which is not able to guarantee the due remedy towardsthe violated benefit and also against the requirements of administrativelaw. As I see it, to grant efficient legal remedy to administrativeomission, the abstract administrative omission and administrativeomission that violates public benefit should all be incorporated in theremedy system. As far as the remedy method of administrative omission isconcerned, different administrative omission should be dealt withdifferent remedy methods, which include three forms, i.e., illegality,mandatory fulfillment and mandatory compensation. The fourth chapter describes the construction and completion ofthe legal remedy system of administrative omission. The chapter, forthe sake of comparison, discusses in theory the remedy systems ofadministrative omission adopted by the countries of Anglo-AmericanLaw System and Continental Law System, and probes the features,advantages and disadvantages of these legal remedy systems. As far as litigation remedy system is concerned, combing theevaluation on current litigation system of our country and those inother countries and regions, I believe the obligation infliction litigation(delivery litigation) shall be used for most occasions and declaratorylitigation as supporting method to create the frame of the litigationsystem for administrative omission in our country. Obligationinfliction litigation is adopted our country. Delivery litigation anddeclaratory litigation, however, has existed as advanced litigationsystem for administrative omission, and need to be substantiated withconcrete legal basis, procedure and rules after being regulated by theacademic circle and the industrial circle using advanced methods fromother countries for reference. In addition, to reinforce the surveillanceover administrative omission that violates public benefit, it isnecessary to establish public prosecution system for administrativeomission. In the field of the compensation concerning administrativeomission, because modern welfare countries require the administrativeauthorities to assume the responsibility of seeing after the living of thecitizens, the administrative laws sustains the nature of statecompensation caused by administrative omission. At this point, still, awide range of cautiousness is seen from the legal litigation andlitigation cases in many countries (including our country) to avoidpossible negative effect. Three factors are needed for the compensation of administrativeomission, i.e., the actual existence of administrative omission behavior,the legal rights of the citizens have been damaged, and there is arelation of cause and effect between the administrative omissionbehavior and the damage. The major concern of this compensationobligation would be the determination of obligation. According to theregulations of Administrative Litigation Law and State CompensationLaw of our country, I discuss the issues concerning the obligation...