Research On The Issue Of Compensation For Illegal Administrative Omission

Although Administrative omission is a special type of administrative activity patterns, itis common to meet the phenomenon of illegal infringement of administrative omission in thereal life. Due to the" State Compensation Law" and the relevant judicial interpretation do notmake clear its provisions, coupled with legal expert’s point of view on this concept varies, thiscurrent situation leads to a lot of controversy on the handling of the case about administrativeomission in the judicial practice. This paper,based on different points of view, through theanalysis of a real case in point of controversy, analyzes the problems exist in thecompensation for the illegal administrative inaction.The first part, through the introduction and analysis of a case about a Plant limitedliability company VS a Water Conservancy Bureau in a county for administrative omissionand administrative compensation, talks about four main points in the case of compensation forthe illegal administrative omission. The four main points are the establishing elements for theillegal administrative omission, the constitution of the illegal administrative omission and theburden of proof for compensation, the processing of the concurrence of illegal administrativeinaction compensation liability and civil compensation liability as well as the allocation ofresponsibilities.The second part defines the definition of administrative omission. On this basis, thesecond part also talks about the establishing elements for the illegal administrative omission.The third part analyzes the elements of compensation for illegal administrative omissionand focuses on the constitution of causality. On this basis, this part discusses about theallocation of the burden of proof. The author analyzes the existing laws and judicialinterpretations, figuring out the documents’ provisions for the allocation of the burden ofproof on illegal administrative omission as well as the problems exist. Combined with caseanalysis, the author proposes to establish a causation presumption system in the distribution ofthe burden of proof.The fourth part studies the concurrence of the illegal administrative inactioncompensation liability and the civil compensation liability. In this part, the author conducts acomparative analysis on the administrative liability and the civil liability, analyzing theprocessing of the concurrence of Article121in "Civil Law" with "State Compensation Law ".The fifth part talks about the distribution of responsibilities when the illegal administrative inaction compensation liability and the civil compensation liability are mixed.The author analyzes different theories about the distribution of responsibility and explains thereason why he supports the theory of Share Responsibility. Based on the theory of ShareResponsibility, the author put forward to use the procedure of administrative incidental civilaction for damages for trial when the responsibilities are mixed.