On The Legal Remedy Of Administrative Omission

Administrative omission serves as one of thecommoninterestsintheadministrative law theory circle and one demanding issue for lawexecution and juridical circles.Inthe current academic system of theadministrative law of country,administrativebehavior can benormally used as the basis to discuss the major components buildadministrative behavior.With the gradual prominence of administrative omission,the scholars make endeavors to explain the issues related to administrative omission with current theory of administrative behavior.Quite often,they are confused with problems such whether omission belongs to the category of behavior whether administrative omissionbelongs to the category of administrative behavior.We suppose administrationomission,which is part of the main body of administrationas not a pure theoretical problem.I generally reflects the puzzlement existed in thefield of administrative law execution jurisdiction area,concerningthe dimensions of case acceptance of the court and to what extent the right and benefit of the people are protected.Thus I deem it necessary to reinforce the academic research of the theory of administrative omission in the field administrative remedy law so that responsibility ascertaining mechanism of administrative omission can be constructed based on pertinent laws with regard to administrativeresponsibility and criminal responsibility.The thesis adopts this subject as the research object and dwell on problems such as administrative omission and its remedy in combination with the relatively mature theories of other countries administrativeomission.The paper contains four chapters.The first chapter describes the confines and constitutio theconceptadministrative omission.Currently the concept administrative omission hasn’t received a recognized conclusion administrative law academic circle of our country.Idraw variouswhich are popular at present concerning this filed and make conclusion in terms of the setting implementation of afterwards administrative omission remedy systemadministrative omission refers to the failure or incompletion of behavior fulfillment of main body of administration in accordance with legal procedure in legal or reasonable period,which the specific obligetion and fulfillment ca pability regarding it execution corresponding behavior.This definiti meanings:Firstly,thespecific obligation borne by the main body of administration is seen asthe intrinsicof administrativeomission.Secondly,omissionis also presented by relevant procedure.Further conclusion could bemade based on this theory,which distinguishes administrative omission with relevant concept,that explicit denial behavior is essentially negative administrative behavior instead administrative omission,and the administrative omission can be categorized as illegal behavior.The major component of administrative omission lies in the fact that the main body of administration is obligated to perform certain administrative action.obligation for administration performance shall be mini strati vecontracts obligation specified by relevant laws and obligation resulted from legal expectation or trust benefit.The second chapter describes the theoretical basis of the legal remedy of administrative omission.The development degree of the remedy theory directly dominates the setting and implementation of the remedy system.The theoretical basis of the legal remedy of administrative omission is composed of three factors:The first factor refers to the rising of social right theory.Freedom rightas the slogan for the revolution of neoteric bourgeoisie,bearscharacteristicsadvancementnon-practicability.Socialright,however,as a mark of modern human right,will surely supersede freedom right and play a leading role, social right put more emphasis on how human in reality achieve variousactual rights needed for living from the country.The evolution of the legal nature of social right determines the level of practicability with which the citizens thegovernmental authorities to implement the deliverable.The second factor refers to the change from country governed by freedom right based laws to that governed by social right based laws.The country governed freedom right related laws focuses on orderlyadministration,believing administrativeauthorities can onlyexecute their power in a passive way,thus negating the remedy administrative omission.The country governed by social rightrelated laws.in the meanwhile.believes the administrative authoritiesshould fulfill their administrative functions active satisfy theliving requirements of the citizens,which affirms the remedy theoof.administrative omission.The third factor refers to the extension of civil rights and the reinforcement of civil rights remedy system.The theory of civil rights evolves from the concept of country governed by freedom right related laws to the concept of country governed by social right related laws,during which the entity content of the civil rights enjoyed by the citizens expands continuously represented in the following fields:Firstly,the basic civil rights specified by the constitution of all countries have grown wider and wider.Secondly,the litigation right of the third party has bgenerally recognized.At the same time,the juridical assurance proce dure has been stricter and the surveillance is getting stronger for administrative omission.Thchanges flitigation cancellation of administrative omission to lit confirmation,and to full and complete obligated litigation provided forthe citizens embodies the enhancement of the civil rights remedy system.The third chapter deals with current status of the legal remedyofadministrative omission in our country.The Constitution of ourcountry specifies wide civil rights and bears relatively complete basisof civil rights theory.The government has followed the concept ofwelfare country to administrative reconsideration system, administrative omission system and state compensation system. At present,the remedy administrative omission in our country is limited to concrete administrative omission behavior that violates private benefit,which is not able to guarantee the due remedy towardsthe to violated benefit and also against the requirements of administrativelaw.As I see it,to grant efficient legal remedy to administrativeomission,the abstract administeromission and administrativeomission that violates public benefit should aincorporated in theremedy system.As far as the remedy method of administrative omission isconcerned,different administrative omission should be dealt withdifferent remedy methods,which include three forms,i.e.,illegality,mandatory fulfillment and mandatory compensation.The fourth chapter describes the construction and completion of the legal remedy system of administrative omission.The chapter,for the sake of comparison.discusses in theory the remedy systems of administrative omission adopted by th Anglo-American Law System and Continental Law System,and prob features,advantagesdisadvantages of these legal remedy systems. As far as litigation remedy system is concerned,combing theevaluation on current litigation system of our country and those inother countries and regions,I believe the obligation infliction litigation(delivery litigation)shall be used for most occasions and declaratorylitigation as supporting method to create the frame of the litigation system for administrative omission in our country. Obligation infliction litigation is adopted our country.Delivery litigation declaratorylitigation,however,has existed as advanced litigation system for administrative omission,and need to be substantiated with concrete legal basis,procedure and rules after being regulated by theacademic circle and the industrial circle using advanced methods from other countries for reference.In addition,to reinforce the surveillance over administrative omission that violates public benefit,it is necessary to establish public prosecution system for administrative omission.In the field of the compensation concerning administrative the omission,because modern welfare countries require the administrative authorities to assu responsibility of seeing after the living of the citizens/the administrative laws sustains the nature of statecompensation caused by administrative omission.At this point,still,awide range of cautiousness is seen from the legal litigation and litigation case countries(including our country)to avoid possible negative effect.Three factors are needed for the compensation of administrativeomission,i.e.,the actual existence of administrative omission behavior,the legal rights of the citizens have been damaged,and there is a relation of cause and effect between administrative omission behavior and the damage.The major concern of this compensation obligation would be the determination of obligation. According to the regulationsAdministrative Litigation Law and State CompensationLaw of our countrdiscuss the issues concerning the obligationassumption of three types ofadministratiomission cases and,incombination of the actual legislation circumstance country,raise certain legislation suggestions,hoping that complete state compensation system cestablished in the mainland of ourcountry.