State Compensation Obligation Resulting From Negative Administration Act

The negative administration act, which is opposite to administrative behaviour, is one form of illegal administrative act. If the negative administration act invades the legal rights of the citizens, of the legal persons and of other organizations, the nation should undertake the state compenstion duty. The current national compensatory law has not made clear and definite provisions about the state compensation duty on the negative administration act influencing the legal rights of administrative relative person to a certain degree. Combined the theory with practice in our country, the author makes systematic research and statements on State compensation duty resulting from negative administration act. The thesis is divided into 4 parts, having more than 40, 000 words totally. The points are as follows:In the first part, The author starts from making the definition of the negative administration act .The definition of the negative administration act is the premise of the study on the state compensation duty. Basing on comments on implication of the negative administration act from legalists, the author points out there are four characters in the implication of the negative administration act. Then the author induces the definition of the negative administration act. That is, the negative adminstration act is a kind of violation with the present obligation of administrative act, the administrative body should actively perform yet fail to perform in the procedure. Secondly, the author distinguishes the negative administration act with the not proper act, the reticent act and the duty of the negative act. All this can make the negative administration act more clear.Basing on the definition of the negative administration act, the author reviews the history of the state compensation duty on negative administration act and probes legal theory of the state compensation duty on negative administration act. In the end, the author analyze the necessity and important worth of the state compensation for administrative illegal inactivities.The standard of duty and constitutive requirements are discussed in the third part. First, through commenting on the standard of study estabishing by our country, the author points out there are some defects in the standard of duty. The author attributes the standard of the fault theory on the emphasis of analyzing the negative administration act.From the lawmaking and judicatory practice of our country, the author thinks that the negative administration act's constitutive elements include harmful consequences, causalities, subjective faults, right to petition in public law and the principle of compensation coming to an end. Meanwhile every element is analyzed deeply. A negative administration act's infringement is a very special kind of infringement. So a special causality should be applicable. The author thinks only when administrative counterpart satisfies the requirements of right to petition in public law(jus publicum) can the damages to administrative counterpart resulting from violation as administrative omission constitute state compensation obligation.In the fourth part, the author discusses several special problems existing in the state compensation duty on negative administration act. 1 -> when any action neglecting to perform the obligation of discretional act violates the rule of reason, it constitutes violation as administrative omission. 2> the problem of the state compensation for abstract administrative illegal inactivities. From judicatory practice of our country, the infringement of abstract administrative illegal inactiveties is more heavy than that of concrete administrative illegal inactivities. The scope of the state compensation for administrative act should be extended to abstract administrative act. 3^ the problem of infringement of communal interest which cause the state compensation obligation resulting from violation as administrative omission. The author thinks the fringement of communal interest and of prviate interest isunamimous. Anybody who have the communal interest also have the right to petition relief.Finally, the author points out with the change of judicatory practice in our countury, regulating this kind of state compensation by legal provisions would be quite necessary to perfect the state compensation law and our administrative legislation.