Administrative Tort Liability

In modern society, the administrative power shows an gradual trend of expansion and gets constantly involved in all aspects of our lives, the shadow of the administrative power appears from "cradle to grave". As the administrative power intervenes in economic life widely and penetrates to the traditional legislative and judicial power, the administrative legislation and justice emerges, the government playing an increasingly prominent role. At the same time, the risk of infringing upon private rights by the administrative power accordingly increases continuously.In China’s long feudal society, imperial authorities and official power were highly valued all the time, assessing blame for the government and its officials was very random. The emperor punished the officials just for showing the "Holy Spirit","compassionate" or in order to maintain political order. Even in today’s socialist law society, the governmental services awareness is still not high. For the sake of creating excellent record of governance and promoting economic growth, some local governments and its officials force to dismantle and intervene in economic activity among the private subject, the infringements to the interests of citizens, legal persons and social organizations often occur. The legislative sense of some public servants is weak, as the official standard thought formated for thousands of years, the potential threats and infringement to the individual rights and freedoms caused by bureaucracy is real, but this phenomenon does not comply with the target of building law-based government and service-oriented government. The author believes that, even the most craziest personal illegal behavior is far less than the infringement of private rights by a bad government. Therefore, to probe the related legal accountability for the administrative violations is necessary and meaningful.In civil activities, the party who infringes against the other’s interests should bear the corresponding legal responsibility according to the law. According to China’s national character and constitutional provisions, all the powers of the country belongs to the people, the administrative subject and its public servants taking the implementation of the will of the people and serving the people as purpose. The administrative counterpart definitely has the right to require the administrative subject and its public servants whoever commits a tortious act to bear the corresponding responsibility in according with law, and the competent authority also can certainly investigate the legal responsibility of the administrative subject and its public servants according to the law. Therefore, the purpose of the administrative tort liability is the protection of private interests and to limit and standardize the administrative power.The research on the related problem of tort is already systematic and rather thorough wherever in domestic or foreign countries, such as the constituent elements of the tort responsibility, the attributable subject, the form of the responsibility, the imputation principle, and so on. These results of research lay a good foundation and provide a reference for the study of the administrative tort liability, but the construction of China’s administrative legal system starts late and the theoretical basis is relatively weak, the studies of the administrative tort liability is lagging behind compared with the research achievements of tort liability. As far as the accumulation of the author’s reading and knowledge, the discusses of scholars about the administrative tort liability are scarce and fragmentary as well immethodical.This article begins with discussing the concept and characteristics of the administrative infringement, and gradually exploring the constituent elements of the administrative tort liability and the theoretical and legal basis of bearing legal responsibility, further clearing the form of liability and the implementation mechanism. In the course of writing this article, the author uses the research methods of comparison, induction, analysis, literature, and so on. The discourses of domestic and foreign scholars as well as the actual legislation of various countries have become a useful reference.The writer expects to outline the clear framework of the administrative tort liability and provide a useful reference for regularizing and restraining the administrative power in order to contribute to the construction of socialist law society in theory. The writing of this article is based on the above purposes.