Research On The Scope Of Administrative Indemnity

Scope of the administrative compensation is an important problem of administrative law. On the foundation of exploring the theoretical basis, the writer discusses the expansion of the scope of the administrative compensation. Firstly, based on defining the concept of the administrative compensation, the writer inquires into the developmental process and restricting factors of the scope of the administrative compensation. Then, in the light of studying and analyzing the present condition of the scope of the administrative compensation in our country, in addition to drawing lessons from the foreign experience, the writer puts forward the idea that how to expand this scope. This article includes three parts. The first one is a brief introduction of the scope of the administrative compensation. It is composed of three problems. First of all, the writer thinks that the scope of the administrative compensation ought to include the scope of administrative infringement and the scope of the damages that can be compensated. Only knowing it, we could get an opportunity to define to the scope of victims'rights of claiming for compensation and the scope of the obligations that administrative organ shall be performed to compensate, also be explicit further of the scope of judicature that Court of the people has it for those cases. The next, the writer inquiries into the developmental process of the scope of the administrative compensation .The process is made up of three periods: the first stage is the negative stage (before 70's in 19 centuries). During that time, the system of administrative compensation had not yet been born; The second one is the relatively affirmative one(from 70's in 19 centuries to World War I).The responsibility of the administrative compensation had be built up in several nations; The third one is the affirmative stage(after World War I up to now). As a principle, the responsibility of the administrative compensation had already been established in the world, and to aggravate this kind of responsibility is its developmental direction. The next problem is the restricting factors of the scope of administrative compensation. These factors mainly are: first, the influence of the theoretical viewpoints of jurisprudence; second, the limitation of Realistic foundation; third, the restriction of Economic condition; fourth, the influence of the political condition. The second part is the history together with current circumstance of the scope of the administrative compensation and the necessity of expanding it in our country. That part is composed of three problems. First of all, the writer inquiries into the history of the administrative compensation of our country, and deduce such a conclusion that the progress of the administrative compensation of our country is from inexistence to existence, from imperfection to perfection. The next , "Law of the People's Republic of China on State Compensation "defines the scope of the administrative compensation with the ways of generalization and enumeration, but dose not give an explicit provision to some acts and damages. It causes that there are not provisions for compensation based on those reasons to apply to, but if citizens are not compensated, they would have to accept the actual damage, such as the abstract administrative act, the administrative directional act, the administrative act of omission, internal administrative act, indirectly damage and the spirit damage etc. Again, it doubtless seems to be so narrow to the current scope of the administrative compensation ruled by "Law of the People's Republic of Chinaon State Compensation"that it falls behind the progress of the ages and the exaltation of law consciousness of crowd. Expansion of the scope of the administrative compensation is the requirement for bettering of the rule of law construction increasingly and urging the administrative organ administrate by law and protecting the legal rights of opposite person. The third part is the expansion of scope of the administrative compensation. That part is constitutive by two problems, too. First of all, the expansion of the compensatory scope on the acts of the administrative infringement. Firstly, the abstract administrative acts. The writer thinks that it should bracket the standard documents under the administrative regulation into the scope of the administrative compensation. The reasons are: The damage caused by this kind of act is not particular, and is hard to quantify, derivative and not is easy to discriminate. Its necessity embodies: First, the request of the principle of the government responsibility; Second, the request of the nature of the abstract administrative act; Third, the request of the purpose of the administrative compensation; Fourth, the request of the government function under the market economy; Fifth, the request of the fulfillment the administrative management. Its conditions shows: first, the act has already been confirmed unconstitutional or against the law; second, this act causes realistic damage; third, there is inevitable relation between the unconstitutional or illegal act and the damage. Secondly, the administrative directional acts. First, by analyzing all kinds of standpoints about this issue from the theories field of our country, in addition to drawing lessons from the experience of the other nations in the world, the writer adopts a standpoint --relative immunity, namely freedom is not absolute freedom without limitation. Acting outside the reasonable limitation or disobeying the legislative purpose, would have made obvious injustice betweenadministrative organs and the opposite persons of administration. State should undertake a responsibility of administrative compensation, because citizens would receive harm obviously as a result of this kind of illegal conduct. Second, the writer thinks the necessity that the act should be brought into the scope of the administrative compensation is: first, the request of the principle of breaking the law; second, the request of administrating according to law; third, the request of perfecting the legal system of responsibility. Thirdly, the administrative act of omission. First, the writer studies the attitudes of other nations to this kind of act and deduce such a resultant that if the legislation of this nation were more sound, the regulation of its law on it would be more explicit, in spite of this nation belongs to Continental law system or Anglo-American law system. Second, the writer thinks the necessity of bringing this act into the compensative scope is: First, the request of implementing completely the principle of constitution; Second, the request of establishing the mechanism of restricted administration; Third, the request of perfecting administrative legislation. Third, the writer thinks we can do like this on conditions that: firstly, the objective existence of this kind of illegal conduct; secondly, the illegal conduct has resulted in the damage to common citizens, fourthly, internal administrative act. First, the writer analyses the standpoint of our country's theories field--theory of relationship about special power, which state needn't undertake this responsibility because of this kind of act. Up to now, the foundation of this view had changed greatly. Civil servants are objects to be guaranteed by the basic human rights as well, and state shouldn't deprive their rights arbitrarily. Second, the writer thinks the necessity of bringing this act into the compensative scope is: first, "Tentative Ordinance of Civil Service"has confirmed this compensative responsibility; second, with respect to the internal administrative legal relationship, the staffs of the...