Administrative Omission Of State Liability Study

This essay systematically studies the basis of state indemnity from administrative omission (AO), the imputation principle from state indemnity of AO, The constitutive requirement of state indemnity from AO and procedure of state indemnity from AO. it is divided five part and consists of 32000 words .Part I Administrative omission and the damage caused by it. After analyzing its concept, the conclusion is obtained that administrative omission refers to illegal fact that administrative objects which are endowed certain obligation fail to conduct procedural action to fulfill the obligation, though they are able to fulfill it within reasonable deadline. It is one kind of illegal administrative acts. AO is different from negative administrative action. AO not only exists in administrative act based on application but also exits in act based on authority. Uncorrect administrative act is administrative act but not belongs to AO. AO should be confirmed according to process not according to substance. Substantive rejection also is administrative act. If administrative objects are unable to act because of unrebutive power. It should not take as AO.AO results into strict damage. At first, it lead to huge casualty and loss in physical and matteral property and public benefit and state property as well. Secondly, it challenge the seriousness of law. decreases the credit of government and hurt the government image in the people. Thirdly ,it breads the bureaucracy, stimulates the contradicts between government and people and deteriorate investment environment.Part II the basis that AO under take state indemnity responsibility. For the reasons listed bellow, nation should undertake state indemnity responsibility if AO causes damage to administrative party .(1) the trend of administrative law and administrative liability. Administrative liability tends from nough to existence and turns to be wider and wider in scope. China can not be excluded (2) prescription in foreign law. Many countries have confirmed by statute or case law the compensation responsibility (3) The necessity of administration by law. For administrative objects it is necessary to execute administrative power by law and fulfill administrative duty by law. Part III Imputation principle when responsibility tries to be posed on AO .There are three kinds of imputation principles: liability for wrongs, liability for rask and liability for violation of law. Liability for violation of law is unsuitable for AO to undertake state indemnity. Liability for wrongs should be applied .Liability for wrongs contains violation of law. In theory, liability for wrongs can resolve the problem how to share the compensation responsibility in contributive tort and mingled fault. The recoupment procedure can also be impletemented.Part IV Constitutive requirements on which AO undertake state indemnity. In the guide of liability for wrongs. If four constitutive requirements exist, the state indemnity responsibility can be assumed. They are subject requirement, action requirement, the fact of damage requirement and the causual relationship requirement. Administrative subject is the subject responsible for state indemnity but officials in administrative subject should be excluded. The action requirement should hold three elements simultaneously: the existence of obligation to act, the possibility of commission and taking no act during the deadline in procedure .The fact of damage refers to that AO leads to realistic and specific damage to administrative party. Causal relationship should be judged by criterion of necessary condition. If AO is the necessary condition in which damage occurs there exists causual relationship between damage and AO.Part V The procedure with which state indemnity is undertaken .In accordance with the difference of organs that identify state indemnity, the compensation can be classified three kinds: the procedure with which respondent organs identify the indemnity, the procedure with which administrative review organs confirm the indemnity and the procedu...