On The Judicial Remedy Of Administrative Omission

Administrative nonfeasance is one kind of basic formation of administrative behavior. The problem of administrative nonfeasance is not only a problem which is needed to discuss by the administrative law theory circles, but also one demanding issue for the law execution and juridical circles. Because of the construction of our administrative legal institutions start later, in theory, the research of administrative nonfeasance hasn't formed perfect academic system, in juridical fields, court meet many controversing problems in trying cases of administrative nonfeasance. This article adopts the method analyzed in comparative and real example mainly, discussing the problems such as the confines and constitutions of the concept of administrative nonfeasance, the scope of accepting, timing of suing, responsibilities of plaintiff to testify and so on. The thesis is composed of three parts.The first part focuses on the basic conception of administrative nonfeasance. Currently the conception of administrative nonfeasance hasn't received a widely recognized conclusion in the administrative law academic circle of our country, the thesis draw upon some representative viewpoints in the field and make a conclusion in term of the theory of legal activities that administrative nonfeasance refers to the failure, refusing or incompletion of behavior fulfillment of main body of administration in legal or reasonable period, which bears the specific obligation and fulfillment capability regarding its execution of corresponding behavior. Based upon this definition, the administrative nonfeasance can be categorized as illegal behavior, and explicit denial behavior is essentially one kind of administrative nonfeasance. It can make different classifications according to different standard, the thesis mainly discuss four typical classifications of administrative nonfeasance. Explaining the characteristics of different classifications, and analyze the theories or practice meaning of different classification emphatically. At last of this part, this thesis analyzed the origins of the administrative nonfeasance.The second part is the litigation system of the administrative nonfeasance . by analyzing some typical cases, the thesis gives some advice on the scope of accepting cases , timing of suing, responsibilities of plaintiff to testify and pronouncing form. At present, the remedy of administrative nonfeasance in our country is limited to concrete administrative nonfeasance behavior that violates private benefit, which is not able to guarantee the due remedy towards the violated benefit and also against the requirement of administrative law. As I see it, to grant efficient legal remedy to administrative nonfeasance, the abstract administrative nonfeasance and administrative nonfeasance that violates public benefit should all be incorporated in the remedy system. As far as the remedy methods of the administrative nonfeasance, different administrative nonfeasance should be dealt with different remedy methods, which include four forms, i.e., illegality, mandatory fulfillment, mandatory compensation and rejection of claim. At last, the discussions focused on the issues that whether the court can order the body of administration to fulfil its duties exactly and concretely.The third part focuses on the state compensation for administrative nonfeasance. First, this part discusses the necessary to establish the state compensation for administrative nonfeasance , which has not been set up in our country by now. because modern welfare countries require the administrative authorities to assume the responsibility of seeing after the living of the citizens, the administrative laws sustains the nature of state compensation caused by administrative nonfeasance. Three factors are needed for the compensation of administrative nonfeasance, i.e., the actual existence of administrative nonfeasance behavior , the legal rights of the citizens have been damaged , and there is a relation of cause and effect between the administrative nonfeasance behavior and the damage. The major concern of the compensation obligation would be the relation of cause and effect between administrative behavior and the damage. At last, this thesis discussed the issues concerning the obligation assumption of the administrative nonfeasance cases and put forward my own opinion.