Study Of Legislative Inaction

Legislative inaction means such behavior that constitution requests an obligation of legislative subject, that is to legislates for some relevant item, emend or explain laws at proper time, but legislative subject disobeys such an obligation and makes particular damage impersonally.Along with the fast development of modern state economy and science and technology, items which need to be regulated by legislation gradually increase day by day, but due to all kinds of conditions restriction, legislature often cannot work effectively and results in legislative inaction, it not only blocks the normal work of constitutionalism order, but also makes people's constitutional rights to be suffered easily.The legislative inaction structure mainly follows two important aspects, one is that legislator has constitutional legislative responsibility; another is legislator has not executed the legislative responsibility which constitution entrusts. Moreover as a precondition to form legislative inaction, legislative inaction mainly has three sources, the first are responsibilities constitution entrusts, which includes explicit entrust and implied entrust; the second is fundamental rights protect responsibility, which is based on the fundamental rights'request of recovery, payment, procedure functions and lacking protection and legislation dangerous; the third is unconstitutional law's modification obligation.View from extra-territorial theories and practices, both the civil law system and the common law system countries admit the existence of legislative inaction and its remedy. Deutschland constitutes fundamental theory system of legislative inaction by constitutional entrust theory, meanwhile, responding legislative inaction by the following three ways, constitutional law suit of federation constitution court, common court's constitutional interpretation and legislation beyond law, as well as abstract investigation of regulations to protect people's fundamental rights. In America, although federation constitution text never prescribes legislator's active legislative responsibility, every state parliament according to each state's constitution bears vast constitutional active responsibility, and exists many lawsuits of legislative inaction on state legislature.Legislative inaction's remedy mainly through two ways as followed, one is that constitution supervision department put up judgment to legislative inaction by unconstitutional review, if legislative inaction forms unconstitutional acts, then constitution supervision department may require relevant legislature to complete legislation or amend or abolish relevant laws. Another is in such case when legislative inaction tort one may ask for national compensation. Such compensation responsibility's character should be known as nation's own responsibility, and adopts imputation principle of illegal responsibility.The cause of our legislative inaction mainly centralize in two aspects, one is the impracticable constitution supervision mechanisms; another is the lack of legislative ability. Owing to the restrictions on our constitutional system, so as to solve the legislative inaction problem must be based on the actual situation in China. Before the founding of the constitution supervision department, we can endow the the NPC Law Committee with right of unconstitutional review to expand the scope of the constitutional supervision and solve the problem of legislative inaction.