A Study On The Duty Of Care Of Adm Inistrstive Law

In this paper, The author uses the idea of finding a " legal precedent " to start studying on the duty of care of administrative law. After analyzing the judgment reasoning of the typical case ruling, this article tries to explain the necessity of introducing the duty of care into the field of administrative law from the view of methodology, and by clarifying the academic misunderstanding of "fault", this article comes to the conclusion that there is no theoretical obstacle of taking'fault'(breach of duty of care) as an element of administrative violations, then based on the interaction of theory and practice, abstracts the general theory of the duty of care of administrative law and presents the movements of judicial practice.In Chapter One, the author firstly analyzes the ruling of "Bank of China, Nanchang, Jiangxi Branch v. Housing Authority of the mortgage registration law case" which was published on Gazette of The Supreme People's Court. There is essential difference between the rulings of the people's court of the first-instancet and and the second-instance. By introducing the concept of "duty of care", the people's court of the second-instancetakes the core argument tha the administrative act itself should be held responsible. Accordingly, this article raises a number of issues to be studied:the necessity and feasibility of the research on the duty of care of administrative law, the nature of the duty of care, the sources and scope of the duty of care and related judicial rules.In Chapter Two, it firstly explains the shortcomings of the traditional research methodology of administrative law, and concludes that its direction of change is to move from referee standard to conduct standard. Then this paper's argument focuses on the methodology which based on the development of administrative law at the present stage our country should choose, and the duty of care based on their characteristics precisely to meet this changing demand.In Chapter Three, by combing various misunderstandings of "fault" in academic circles, it firstly concludes that taking'fault'(breach of duty of care) as the constituent elements of administrative violations has no barriers in theory, makes the theory of administrative violations usher the "people's return", and also realizes the change from the results worthless to the behavior worthless. Subsequently, this paper also gives a new explanation for imputation principle of administrative compensation.In Chapter Four, it combines with the duty of care of tort law, the principles and rules of administrative law, the analysis of "Bank of China, Nanchang, Jiangxi Branch v. Housing Authority of illegal mortgage registration case" and the related referees that have emerged in the judicial practice, etc., to give a discussion on the theory of duty of care of the administrative law.