Study On The Administrative Omission And Administrative Omission Procedural Regime

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. With the implementation of Ruling- By-Law Strategy, the Chinese people are gaining a better legal sense, which requires a higher level of administration skill on government authorities. In recent years, number of administrative litigation case is increasing, sharply, where lawsuits against no- feasance take a great portion. 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 beginning the study of historical background, 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 is defined that administrative subject bears both the legislative obligation and possibility to certain deeds, but the subject fails to act in procedure over the duly time.In order to get a better understanding of AO, Administrative omission can be divided into different Kinds such as specific administrative omission and abstract administrative omission; Administrative omission that damages individual interests and administrative omission that damages common interests; Administrative omission through which subject of administration rejects the citizens' application and administrative omission through which the subject refuses to perform his duty ......The abstract administrative omission and final administrative-reconsideration-omission have special harm.The essentials of commit ting administrative nonfeasance. According to the fact that the specific characteristic of administrative nonfeasance is different from administrative act, the constiution of nonfeasance must meet the following three crucial points: the existence of obligation, the possibility to act, late by time.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 is chapter two, this chapter discussed how to improve the AO 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. The abstract administrative omission and the administrative omission which infringes on public benefit should be included in the scope of AO lawsuit; 3. standardizing investigation criteria, from of sentence and evidential burden; 4. setting simple procedure for administrative omission lawsuit. 5. Setting the conciliation proceedings of AO lawsuit; 6. reinforcing the judge's interpretation duty.