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On The Executive Is Not A Monitor

Posted on:2004-04-02Degree:MasterType:Thesis
Country:ChinaCandidate:Y J OuFull Text:PDF
GTID:2206360122460531Subject:Law
Abstract/Summary:PDF Full Text Request
The control over administrative omission is a complicated theoretical and practical problem. Inquiring into this problem must be concerned with what is administrative omission and what are requisites to constitute administrative omission and how we can supervise administrative omission. This article gives a deeper argument about the above-listed problems.Firstly, it discusses about how to bound administrative omission. Although in civil law system countries have perfect concept about administrative act, they have not defined administrative omission. The countries in common law system have not given a definition to administrative act, but they put forward the concept of administrative omission definitely. Administrative omission is bounded by two important conditions, which are administrative conduct and legal obligation of conduct. There are many theoretical opinions about how to define administrative omission in Chinese administrative community, but we can define administrative omission from two points of view: one is legal duty or special legal obligation; the other is administrative procedure or the content of obligation of conduct. By the analyses of legislation and practice of some concerned countries and areas and the understanding of Chinese learners, the writer considers that to define administrative omission should be in terms of legal obligation of conduct. If the administrative subject does not perform its legal obligation, the administrative is constituted, no matter this legal obligation of conduct is form the administrative procedure or content.Secondly, this article states the important conditions to constitute administrative omission. The writer thinks that conditions are there, one is that the administrative subject has the obligation of administrative conduct according to law, other is that the administrative subject does not perform its obligation of administrative conduct, the third is that the administrative subject has the probability of making its administrative conduct. Among them the argued more is how to maintain that the administrative subject has the obligation of administrative conduct, that, how the obligation arises. The writer thinks that the obligations of administrative conduct are provided by legal norms , norms of administrative document and legal doctrine and public moral.Thirdly, the articles discusses about how to supervise administrative omission. The writer thinks that to do this we should begin with the concept of administrative omission from its constituting conditions and the cause for its emergence, we should supervise administrative omission beforehand and afterwards. To establish and consummate the system to supervise administrative omission beforehand, we should achieve this supervision from three aspects: the first is from the principles of administrative law , the second is substantive legal system in administrative law , the last is the legal system of administrative procedure. From the aspect of administrative principles, we should carry out these views "authority is duty ", "serving administration'' in legislation and provide for administrative omission in the form of legal principles. We should state clearly that administrative omission is violation of law and supervise administrative omission from the aspect of principles on purpose todecrease the probability of administrative arising. These principle are :the administrative legality principle . the administrative kindness principle , the efficiency principle and the remedy principle. From the aspect of legal systems of procedure, to establish and consummate administrative systems of procedure can supervise administrative omission to some extent. These legal systems are: information system, application and acceptance system . the deciding date system and the hearing system. The interlocking of administrative authorities, unscientific disposal of administrative authorities and the administrative subject and the legal obligation of official not being clear are one of the root of administrative o...
Keywords/Search Tags:administrative omission, supervise beforehand, supervise afterwards
PDF Full Text Request
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