The Study On The State Compensation System Of Chinese Administrative Non Act

Administrative act is commonly divided into two kinds: administrative act and administrative non act.The current academics mainly focus on the study of administrative act and there seems to be some shortcomings on the study of administrative non act.Besides,the legal system that can offer support for administrative non act also presents a relatively blank state,especially the state compensation system for administrative non act,which is studied in this paper.In recent years,the infringement of the legal rights of administrative object,caused by the administrative non act,happens a lot,which has seriously undermined the citizens' trust in the government.However,there is no specific rules to regulate it in our current basic laws;especially after 2010 and 2012 when the "state compensation law" has been revised twice,it is still not included,which makes it urgent to make a research on the state compensation system for administrative non act.This thesis,from the concept of administrative non act and the state compensation for administrative non act,based on the present situation of state compensation system for administrative non act in China,and combined with the traditional experience and advanced theories from other countries,makes some suggestions for the improvement of our state compensation system for administrative non act.It is divided into five parts:In the first part,this thesis makes an overview of the connotation of state compensation for administrative non act.It elaborates on the development of the concept of administrative non act and state compensation system in China and other foreign countries.Besides,it also defines them respectively.Consequently,it comes to the conclusion that administrative subject and their staff have certain obligation to act.When they should perform it without legalobstacles,yet they do not implement their duties and obligations,with the result that the legal obligations of the relative party and subject of administration are infringed.Under this situation,the state should compensate for the loss of them,which is called the state compensation for administrative non act.In the second part,this thesis elaborates the transition of the state compensation system for administrative non act,respectively from the two points: the negative period under the era of discipline administration and the positive period under the era of welfare administration,and based on the reflection of the interests theory,discretion theory,two-sided relationship theory and private law relationship theory and other main theories.In the third part,this thesis makes a study of the present situation of the state compensation system for Chinese administrative non act.Based on the Constitution,Administrative Procedure Law,Administrative Reconsideration Law,State Compensation Law and relevant interpretations,it analyzes the current development of the state compensation for administrative non act in China,respectively from the aspects of legislation and judicial interpretation.At last,it points out the problems of China's state administrative non act,such as the case acceptance is difficult,the scope of the case admissibility is too narrow,the standard of compensation is not uniform,the compensation is too little,etc,giving directions for further studies.In the fourth part,this thesis makes an overview of the state compensation system for foreign countries.First,it introduces the Continental Law system and Common Law system countries' experience in the construction and development of the state compensation system,including Britain,the United States,France,Germany and Japan.Second,by this study,it finds out their advantages and disadvantages which can providea reference for China.In the fiveth part,this thesis gives some proposals for the perfection of China's state compensation system from both legislation and justice.In the aspect of justice,based on the four points of administrative organization,administrative reconsideration,administrative procedure and state compensation,it puts forward some relative suggestions on legislation.In the aspect of legislation,around the perfection of the state compensation procedure system,it proposes four opinions,such as rationalizing the juridical review,defining the responsibility of the state compensation for administrative non act,perfecting the burden of proof of the state compensation for administrative non act and perfecting the scope of the moral damage compensation for administrative non act.