State Compensation System Of The Administrative Omission

With the gradual complication of the operation of social mechanism, administration range of the government is wider and wider and the administrative omission also appears more and more frequently. Administrative omission which is the subject of administration doesn't perform its legal obligation of administrative in form, and in the nature it violates administrative counterparts' lawful rights and interests .It leads to their lawful rights and interests cannot get corresponding legal protection in substance. At present ,the basic paradigms of punishing administrative omission is the administrative reconsideration or the administrative lawsuit in our country ,that exhorts subject of administrative to perform the legal obligation of administrative subjects. However, we are short of corresponding rules about government's paying the damages to the administrative counterparts by means of State Compensation and how to compensate. The western developed countries and some developed countries of Asia have reached consensus on the duty of administrative omission. They have resolved this problem in legislation. As a socialist country, subjects of administration ought to perform their duty actively. As we are in the primary stage of socialism, all social activities are subject to this fundamental reality of our country, and the administrative organs have no exception. Administrative omission has its historical inevitability and will last for a long time .According to the practice in the foreign legislation, the mode of country assuming the duty of compensation has become the main trend. Now the domestic research on administrative omission has been developing actively, which has already played an important part in the actual judicial practice. Though legislation administration has no definite duty of state compensation of administrative omission, practical example has appeared in the Supreme People's Court's judicial interpretation and some cases in judicial practice. There is no doubt that legislation and judicature can't ignore this problem, because it means the balance of public interests and private interests. If the government starts the state compensation of administrative omission legislatively, that would be a rigorous test for the members' quality of law enforcement agencies and national financial strength. So in the light of fundamental realities of our country, we must study the range and the principle of compensation of state compensation of administrative omission, and then draw up the system which fits to the fundamental reality of our country. This system should both comply with the state's ability to bear the financial burden and be accepted by citizens. The duty of compensation ought to be excecuted in a full compensation principle,with the compensation range dealt with strictly. Certainly, that also should be perfected gradually with development of the situation of judicial practice.