On The Orientation Of Administrative Omission And Its Liability System

According to the principle of administrative law,every administrative act prescribed by law has its specific obligation.Administrative subjects and their public servant should follow the law fulfill their legal obligations.On the basis of the different forms of behavior,administrative omission is a legal category corresponding to administrative action,which has an increasing important theoretical overall significance.However,it is difficult to reach a academic consensus on the basic concepts,constitutive requirements and responsibility governance of our domestic scholars.The strongly contrast is that the administrative practice of administrative omission in violation of law and discipline phenomenon is endless,and the lack of appropriate regulatory law mechanisms to effectively settle.Therefore,China's administrative law needs to focus on the definition of the basic concept of administrative omission,the analysis of constitutive elements,the investigation of the principle of liability fixation,the construction of responsibility genealogy and so on.The research and discussion of the above problems will help to solve the system problems of administrative omission properly,and urge the legal and reasonable exercise of administrative power,and has great realistic significance in promoting the realization of the public well-being.Around the concept of administrative omission,constitutive requirements,imputation principle and responsibility pedigree,under this logic of argument,this paper can be divided into four parts to study administrative omission and its liability system.In the introduction part,firstly it expounds the significance of the research on administrative omission and its liability system,Then it summarizes the current research orientation of administrative omission and liability system at home and abroad.Finally,accounting for the concrete method given with the research on this topic.The first part defines the connotation of administrative omission with the aid of Songhua River pollution and three typical events,to summarize the main manifestations of administrative omission,and the actual problems are examined on the whole.Through the theoretical backtracking of the concept of administrative omission,the evolution of the theory of science is grasped from the source.To clear theboundary of the concept of similar science and eliminate the blind spots and errors in the cognitive horizon.From the three dimensions of reality inspection,theoretical backtracking and academic comparison,try to specifically define the basic concept and connotation of the administrative omission that the article has referred to.The second part is the restatement of the elements of administrative omission.In particular,the obligation of the administrative subject must be legal and realistic,which as the prerequisite condition.A clear will to do and can do,The subjective choice,which should be and can be made,are subjective conditions.The administrative procedure has not yet been launched,and it has obviously exceeded the required deadline.It is for objective condition.The actions that have the above elements can be identified as administrative omission.which must bear the negative evaluation of the law.The third part is the principle of imputation of administrative omission.Administrative omission will inevitably lead to the corresponding liability.Investigating the law application effect of traditional fault principle,no fault principle and illegality principle concretely.It is clear that the above attribution principle can not comprehensively judge the subjective fault and objective violation of administrative omission.By referring to the relevant legislation and practice of France's official fault principle,the German public duty standard and the English-American mixed fault principle,we can selectively learn and absorb the fault objectification criterion and establish the presumption of fault as a general liability principle of administrative omission.The fourth part is the liability system of administrative omission.As the administrative omission has both subjective fault and objective illegality,the law liability is its inevitable result,and it is also an important means of supervision and remedial methods after the event.However,only a single type of legal liability is not enough to overview the responsibility system of administrative omission,which should according to the actual need to pay attention to the different nature of the responsibility for the consequences.Firstly,on the basis of distinguishing between administrative omission and dereliction of duty,we should clarify the liability consequences of administrative illegalities and criminal offenses,and facilitate the timely transformation of the two aspects,so as to avoid unfair injustice existing in felony light punishment or grueling phenomenon.Facing the concurrence of administrative violation and civil tort,we should combine the state compensation andtort liability,and take into account the dual objectives of compensation,rehabilitation and disciplinary education.When we are dealing with the overlap of administrative punishment and administrative accountability,we should connect the administrative contents about the internal disposition of the administrative system and the normative contents of the democratic accountability of the political system,so as to overcome the generalization of the administrative legal liability and the waste of legal resources.