On The Law Of Administrative Omission And Its Legal Relief

Administrative inaction not only is a important composed of the theory system of administrative law, but also it is a practice problem to settle eagerly.At present most of scholars regard administrative inaction as illegal administrative inaction.The article reckon that it is not illegal administrative inaction at all ,and many legal administrative inaction will appear with the development of administrative reformation . Administrative inaction is divided into legal administrative inaction and illegal administrative inaction from its character .Try hard to get meaning and class of administrative inaction by analysis of administrative inaction in order to provide theory gist for leagal administrative inaction exist and afford law relief to administrative relative person.The article is divided into three chapters. Chapter I analyses the theory of administrative inaction .Firstly, introduce west nations'law cognizance process to administrative inaction and it come into being at time of active payment of monopoly capitalism. Secondly, discusses study status of administrative inaction. Affirm study achievement ,at one time also point out shortage after analysis five representative viewpoint. Lastly ,point out that administrative inaction shoud be divided into legal administrative inaction and illegal administrative inaction from its character and define its parting through discriminate the concept of law action and action and inaction and administrative inaction and illegal administrative inaction.Chapter II ,discusses legal administrative inaction and illegal administrative inaction. Firstly,mostly expatiate theoretics gist and important significance and development trend. A great deal of legal administrative inaction will appear during the developing of administrative reformance and the foundation of finity government. Secondly,discusses composing element to illegal administrative inaction. There are four elementxonstraint administrative active duty and it is precondition component; main body element ,namely it is administrator ;owener-thought element ,namely administrator has intentional or negligent faults;impersonality element,it includes action and time limit . So it is difficulty to compose illegal administrative inaction if there is a lack of one of these four components . Subsequently,analyse unusual types of illegal administrative inaction and point out it harmfuland it shoud be brought into judicial review scope.Chapter IQ,the remedy system to illegal administrative inaction. The exist of illegaladministrative inaction must violate the public interests and individual interests. There shoudbe remedy if violating had come. So it is necessary to establish relief system in order toremedy rights and interests which is violated. This is requirement of law administration.Thearticle discusses the remedy system of illegal administrative inaction from administrativereconsideration and litigation and compensation, stressing administrative litigation system.The article discusses divergent issue among litigation system from prosecuting element andscope of receiving case and prosecuting time limit and onus probandi and sentence formal. Itpoint out that enlarge plaintiff title and the scope of receiving case, at one time,founding statepublic prosecution and strartup of non-relative person system. All kinds of illegaladministrative inaction which violate rights and interests shoud be brought into litigationsystem. About excludable proceeding whether belong to inaction litigation system or not, itshoud be analysed by different case. Concerning sentence model,the article adopt ignoreclaim and implementation judgement and affirmance judgement by trait of illegaladministrative inaction and judgement formal.