On Study Of The Administrative Omission Litigation

Administrative omission procedural regime is a new hotspot in the theoretical circle of the science of administrative law. It is also a nodule of judicial circles. As the current China does not make a definition of administrative omission and its litigation aid system is over-generalized, lacking of operability, the administration of justice is in disorder. By referring to the relatively mature regime in some foreign countries and analyzing the current situation of trial in China, this paper which targets on administrative omission procedural regime explores administrative omission and its litigation aid system. This paper includes three chapters. Chapter one elaborate the general theory of administrative omission, focusing on giving definition to administrative omission (AO). Through analyzing and generalizing many prevailing views and considering the subsequent establishment and enforcement of AO procedural regime, the author of this paper give a definition to AO. AO refers to the situation in which the subject of administration does not act upon certain procedure when dealing with the administrative issue. In order to get a better understanding of AO, the author deliberately make discrimination between administrative omission and other concepts which include: administrative action and action omission, AO and negative action, AO and action after deadline, AO and wrong action, AO and tacit admission, AO and unfulfilment of legal responsibility. Through such discrimination, the misunderstanding of theory and practice can be removed. The author holds that there are legal and illegal AO. The main element of illegal AO include: 1. having the positive duty to act is the prerequisite of illegal AO; 2. a certain acting duty have probability to practice; 3. administrative omission existing; 4. the employees of the subject of administration make mistake intentiontionally or unintentionally; 5. emergency avoidance of danger should be excluded. Chapter two explores the administrative omission procedural regime. The author firstly introduces and analyzes the AO procedural regime in UK, America which belongs to Anglo-American legal system and Japan, Germany Austria which belong to the continental law legal system. Then, the confusion in AO case is displayed and its cause is analyzed. Chapter three focuses on how to improve the administrative omission procedural regime in China. Tightly following up the problems proposed in chapter two, this chapter discussed how to improve the AO procedural regime from six aspects: 1. clarifying the scope of accepting case and the compensation obligation. 2. standardizing investigation criteria, from of sentence and evidential burden and reinforcing the judge's interpretation duty; 3. setting simple procedure for administrative omission lawsuit and Setting the conciliation proceedings of AO lawsuit.