Study On The State Compensation Liability For Administrative Omission

China’s Administrative Law system is based on the theory of administrative actsas the center. The administrative act can be divided into administrative behavior andadministrative omission. At present, the administrative act that China’s administrativelaw scholars mainly pay attention to is on administrative level. In contrast,administrative omission is lack of systematic research and shows relatively blankcorresponding to the legal system design.However, a great deal of administrative omission happens in real life. Forexample, industrial and commercial authorities do not issue licenses to eligibleapplicants, quality inspection departments do not do well in the quality supervisory asduties...... administrative omission is the illegal administrative act that publicauthorities who are burdened by administrative Laws as the obligations, do not fulfillthe corresponding obligations on the occasions that they should fulfill. This behavioroften directly or indirectly infringes on the legal rights of the administrativecounterpart and causes damage. According to China’s State Compensation Law,victims have the right to get the state compensation if the administrative authoritiesillegally use administrative powers and infringe upon the legitimate rights andinterests of citizens, legal persons and other organizations, which cause damage. Donot fulfill and illegally use administrative powers generate the same effect as aviolation of the legitimate rights and interests of the administrative counterpart, whichare violations in accordance with the State Compensation System. However, there areno clearly provisions in our law about requesting state compensation when thelegitimate rights and interests of the administrative counterpart are infringed. So it hasbad influence on protection of rights of citizens, legal persons and otherorganizations.It is necessary and of great significance to establish the state compensation foradministrative omission both at the theoretical level and the operational level. First, itis easy to supervise public authorities to behave well, to establish the authority imageof the government, and to speed up the construction of service-oriented government;Second, it helps to protect the legitimate rights and interests of the administrative counterpart more comprehensively and adequately. Third, it reflects the principles andspirit of the Constitution state in respecting and safeguarding human rights, which isin line with the trend of development of the state compensation.After the analysis of the necessity and value of establishing the statecompensation liability for administrative omission, this paper discusses the elementsof the state compensation liability for administrative omission, and the mainconstitutive elements include the following aspects: First, public authorities who areburdened by administrative Laws as the obligations objectively practiceadministrative omission offenses under the premise of that they are capable offulfilling the obligations. The authorities are the subject of violations, includingadministrative authorities and their staff, an organization authorized by the laws andregulations as well as organizations or individuals commissioned by theadministrative authorities; administrative obligations refers to the legal obligations,not including the obligation of the moral level; to be charged with the statecompensation ability is based on that they have the capacity to fulfill but fail to fulfillthe obligations of administrative behavior. Second, administrative omission causesactual damage to the administrative counterpart. Such damage must have beenoccurred, exist actual damage, and the damage is about the legitimate interests of theadministrative counterpart. If the damage is about the public interest and illegalprofits, it will not give rise to state compensation liability. Third, there is a causalrelationship between administrative omission and actual damage. As long as thefailure to fulfill the obligations of the public authorities is to protect the damagedinterests, and the normal obligations can decrease the damage or even preventdamage, there is a causal relationship between the behavior of administrativeomission and the damage result. On this occasion, the public authorities should bearstate liability.At the end of the paper, the author attempts to make a few suggestions forimprovement, including giving clearly state liability of the administrative omission inthe State Compensation Law; stipulating compensation range, principles and methodsof the administrative omission in accordance with constitutive elements of statecompensation liability in sub-rule. As China’s State Compensation Law has not been clearly established the statecompensation liability of administrative omission, the author explains related issuesabout the state compensation liability of administrative omission on theoretical level,which provides a theoretical basis for legislation. With the development of society,the theory, legislation and practice of the state compensation liability foradministrative omission will be maturing, and constantly improve.