Definition And Judicial Ascertaining Of Administrative Failure To Act

The"responsible administration"is not only the basic concept in the modern administrative law but also the basic principle the modern government must adhere to. According to the basic principle of equality between the power and responsibility, the administrative organs should be liable for their own acts, and the operation of administrative powers must be limited in the boundary of statutory liabilities. Failure to act refers to the illegal act taken by those administrative organs or their administrative staff who are obligated to take proactive actions within the statutory or reasonable limit and are not refrained from acting but do not take any actions. Under administrative law, failure to act is a phenomenon in which the power and responsibility mismatches. It is an equivalent to the abuse of administrative power and circumvention of liability. Thus, it constitutes a basic form of an illegal administrative act. In reality, failure to act has not drawn sufficient attention even though it may has more potential harm. The administrative power and enforcing power are part of the public power, and originate from the people and should be used to protect lawful interests of the people. Nevertheless, failure to act may cause severe damages to the interests of the people due to its failure to respond to the claims of the people. In an extreme scenario, people may have no way to bring the administrative case to the court. Therefore, the regulation on the administrative failure to act is an important aspect of building up a rule of law government. More and more administrative dispute arise nowadays."The PRC Administrative Law"includes the administration behavior of the nonperformance legal job of the administrative organs in the cases of action, it is the important development of administration judgment. Along with the fast development of the rule of law in China, the administrative law and its system have played an important role and have brought out more and more administrative cases. However, the administrative legal system has not been perfect our country. The study on the administrative failure to act has just started and the experience on this topic is still very limited, which will cause many problems and confusions. There have been little theoretical philosophies which can be used or can provide guidance in practice. Likely, the courts may have different judicial opinions on identical cases, which no doubt underpin the judicial authority. This paper has been trying to study the theory of those administrative cases on the failure to act. The paper will have three parts. The first part provides a theoretical overview on the concept, characteristics and basic components of the administrative failure to act. The second part is to summarize the general judicial opinions on the administrative failure to act in practice. The emphasis is placed on the judicial practice in determining the existence of the failure and the difficult part of the judicial review. Also this part will make necessary analysis and comparison on the scope of statutory liabilities, judicial criteria, proof of evidence. The last part makes some proposals to perfect and improve the current judicial system and administrative law in this regard.