A Study On Distribution Standard Of Administrative Inaction's Compensation Liability

On the issue of administrative inaction's compensation liability,China has only generally stipulated in the Supreme People's Court's judicial interpretation,the reply in 2013 and the reply in 2001.Such provision lacks the objectivity of liability distribution standard,making the distribution of administrative liability completely dependent on the discretion of the judge.As a result,even in the same cases,there will be huge differences in judgments in different courts.Therefore,in order to regulate the discretion of judges in such cases as much as possible,it is necessary to study the distribution standard of administrative inaction's compensation liability.As the necessary condition for the result of administrative inaction damage,administrative inaction infringement has the characteristics of negligence and concealment,and its causality of liability has legal fiction,which makes it difficult to determine the inaction infringement liability.The Administrative Litigation Law clearly stipulates that the main manifestations of administrative inaction are refusal to perform,non-response and delay in performance.The manifestations of these three types of administrative inaction are more apparent,but other forms of administrative inaction that are not obvious in themselves but can cause adverse consequences should also be regulated.The manifestations of administrative inaction play an important role in determining the degree of fault of the inaction and the liability share.Specifically,the degree of refusal to perform is the most serious,followed by non-response and nonperformance,and delaying performance and weak actions are weakest.The liability share shall also be decremented accordingly where the other conditions are the same.In addition,the intervention factor is an important feature of administrative inaction infringement from administrative infringement.In the case of administrative inaction liability distribution,intervention factors' degree of fault should also be fully considered.The principle of illegal liability can't satisfy the demand for inaction liability distribution.Although the system of administrative inactions' compensation liability principles varies from country to country,the system based on the principle of fault liability is the institutional choice that best suits the rule of law environment in China.The construction of administrative inactions' compensation liability system must be guided not only by the principle of imputation but also by its constituent elements,especially the causal relationship.According to different inactions' damage situations,distinguishing single legal relationship situation with complex legal relationship situation,establishing a diversified causal relationship identification standard is conductive to analyzing and determining the relationship between administrative inaction and damage result.Regarding the issue of administrative inactions' liability distribution,the share of compensation between administrative agencies,relative people and third parties under the multi-cause phenomenon should be reasonably distributed.Through the complete separation of civil and administrative procedures,the standard model of inaction liability distribution under this circumstance is constructed.This article combines theoretical research and practical cases centering with the center of administrative inactions' distribution standard.On the one hand,carefully studying the literature theories of past scholars,and striving to provide theoretical support for this study through a large number of documents.On the other hand,combined with the practical case analysis,574 related practical cases were retrieved and reviewed,and 31 most representative cases were collated and analyzed.Through the analysis of the cases,trying to find out the dilemma of inaction liability distribution standard in judicial practice and getting the enlightenment from it.Finally,through the combination of theory and practice,theoretical insights and solutions are formed,which provide theoretical guidance and reference for establishing a unified standard of administrative inactions' compensation liability.In cases of administrative inaction damage,the court currently uses the following five distribution standards to determine the liability of the administrative entity.The first is the cause-oriented distribution standard.Cause-oriented distribution standard determines the share of administrative compensation based on the effect of administrative inaction on the outcome of damage.The second is the fault-oriented distribution standard.Fault-oriented distribution standard determines the share of administrative compensation based on the degree of fault of the administrative entity.The third is the damage-oriented distribution standard.Damage-oriented distribution standard determines the share of administrative compensation based on relative people's degree of damage.The fourth is the indemnified-oriented distribution standard.Indemnified-oriented distribution standard determines the share of administrative compensation based on the compensation and assistance obtained by relative people from other sources.The fifth is the mixedoriented distribution standard.Mixed-oriented distribution standard uses a combination of two or more distribution standards to determine the share of administrative compensation,which mainly includes the “cause + fault” standard,the “cause + damage” standard and the “cause + indemnified” standard.The five distribution standards above have their own realistic basis and theoretical basis,but lack of necessary logical explanations and theoretical explanations.Single application above is also flawed.Therefore,it is necessary to study how to apply these standards to the practice of administrative inaction compensation,that is,how to identify the relationship between the standards above and administrative inaction compensation in practice.At the same time,giving logical explanation and theoretical explanation.Therefore,this article presents new insights and demonstrates the theoretical basis for these insights.First of all,in view of the fact that the causal relationship between the administrative inaction and the damage result is a necessary condition for administrative compensation,the cause of the damage should be clarified on the macro level by the cause-oriented standard,and the administrative inaction liability and its general scope should be determined.Secondly,on the basis of the primary or secondary liability,the liability share is determined according to the degree of fault of the administrative entity,and it is allowed to flexibly float 30% with the general standard.Finally,under the guidance of the mixed standards of cause and fault,for the case of significant property loss and major casualties,when the specific conditions are met,the damage-oriented standard and the indemnified-oriented standard can be appropriately considered to assist in determining the specific share of administrative compensation.If the relative person has sufficient evidence to prove that the third party has insufficient civil compensation,is unable to bear the liability or is unaccounted for,the relative person may be allowed to directly request the administrative entity to bear the corresponding share of the liability for the act of inaction,without first requesting compensation from the third party.In this article,claims above are simulated applied to cases where the compensation judgment is not satisfactory,and satisfactory simulation results are obtained.