The Study Of State Liability Of Administrative Inaction

A large number of administrative inaction which have seriously harmed government's image has take in our country, and it has violated the public interests of society and the lawful rights of the person who is subject to the administrative illegal condition. Administrative inaction is one of authority and the responsibility seriously come apart condition. This article embarks from the fundamental theory of administrative inaction, based on our country reality and profits from relatively mature theories of other countries in the world, not only to confirm the State liability for administrative inaction, and explore the improvement of relevant systems.This article is divided into four parts.Part one: fundamental theory of administrative inaction .The concept of administrative inaction formed in the active period of capitalist countries and its theoretical foundation is responsible government theory. Administrative inaction means that administrative staff has statutory obligations to perform and with the possibility, but in the form of negative act or only preparatory procedures, and has made its intentions expressed according to the law or the legal presumption. The components of administrative inaction have four characters: First, the prerequisite of administrative inaction is that the legal duty must have realistic conditions. Second, it must be likely that administrator must have the possibility to fulfill the statutory obligation. Third, administrator doesn't fulfill its duties or only prepare for it. Fourth, the legal effect of administrative inaction needs the help of legal fiction or legal presumption. Administration inaction is the illegal act, which is negative and invisible. According to different standards, Administrative inaction can be divided into the following types: Administrative inaction caused by the application and the administrative inaction caused by the administrative power; Abstract administrative inaction and concrete administrative inaction; Administrative inaction violating the public interests and administrative inaction violating individual interests; Delay, administrative inaction which caused danger first and failed to prevent the damage occurs, pure administrative inaction.Part two: State liability necessity for administrative inaction State liability for administrative inaction isn't being explicitly included in "Chinese Compensation Law". State liability for administrative inaction of Public security organs is established only in the judicial interpretation. The administrative inaction should be included in the scope of the State Compensation, in order to the country of law, and to establish the image of the government, to improve Chinese legal system and the socialist market economic system, to implement constitutional principles, to improve administrative legislature. On abroad, many state compensation cases of administrative inaction can help us build our national compensation system of administrative inaction.Part three: the constituent elements of state liability of administrative inaction. The constituent of state liability of administrative inaction include five elements: First, administrative agency is who harmed the legitimate rights and interests of the people relative to administration organs not who has the state liability, including administrative organs and their staff and Organizations authorized by law and regulations mandated by organizations. Second, act elements. External manifestations of administrative inaction is that administrative staff has statutory obligations to perform and with the possibility, but in the form of negative act or only preparatory procedures. Third, the damage element is that legitimate rights and interests of the people who are relative to administration organs have been harmed. Fourth, causal relationship elements, legally speaking, the cause of damage is administrative inaction. Fifth, the legal basis, that is, there must be supporting the administrative body in charge of the administrative inaction of State liability laws and regulations, and other legal documents.Part four: the improvement and implementation of national compensation system of administrative inaction. Measures to achieve national liability of administrative inaction include: First, through the improvement of China's administrative organic law to set reasonable administrative authority, to clear statutory obligations of administrative inaction, and to set reasonable legal responsibility of administrative inaction. Second, improve the system of administrative reconsideration. Expand the scope of administrative reconsideration of administrative inaction and Set up independent administrative review body. Third, improve the system of administrative lawsuits. Expand the scope of the administrative cases of administrative inaction, and put the administrative inaction caused by the management or arrangements flaws of public facilities into the scope of State Compensation. Fourth, improve the system of the State Compensation Law. General terms of "State Compensation Law" should clearly stipulate the State compensation responsibility of administrative inaction and sub-clauses clearly stipulate the scope of State compensation of administration inaction. Procedural measures to achieve national liability of administrative inaction include: Establish and improve our system of public administration and the time effect system and improve our system of "State Compensation Law".