Study On The State Compensation Liability For Administrative Omission

Administrative omission refers to the administrative act that the administrative subject has both the obligation and the ability to perform,but does not perform.In practice the administrative omission of the administrative organ usually causes different degrees of damage to the administrative counterpart or the public interest of the society.According to the law of compensation,the damage caused by the administrative omission should be compensated.Due to the fact that the current state compensation law does not specify the compensation liability for administrative omission and the state compensation liability for administrative omission was first clarified in the applicable interpretation in 2018,the research and practice in the field of administrative omission compensation in China is not rich.The first part is the theory of state compensation for administrative omission.The concept of administrative nonfeasance is defined in terms of distinguishing non-feasance by injunction,non-performance of legal obligation,administrative refusal and other issues.From the principle of people’s sovereignty,the principle of rule of law,the principle of human rights protection and the principle of state responsibility,this paper expounds the theoretical basis of administrative omission as state compensation.This paper analyzes the constitutive elements of the state compensation of administrative omission from the aspects of the act of administrative omission,the damage of citizens’ legitimate interests and the causal relationship between the two.The second part is the present situation and existing problems of the state compensation of administrative omission.From the constitution,administrative procedure law,state compensation law,judicial interpretation and relevant official reply,this paper explains that administrative omission is not the standard basis of state compensation.From the narrow scope of accepting cases,the unreasonable principle of imputation,the insufficient procedure of first handling and the unclear standard of responsibility distribution,this paper summarizes the existing problems of the state compensation of administrative omission.The third part is the practice of non-territorial administrative omission as state compensation.This paper introduces the practice of administrative omission state compensation in France,Germany,Japan,Britain and the United States.The fourth part is the perfection of the state compensation system of administrative omission.Include abstract administrative omission into the scope of accepting cases,including judicial review of administrative rules.After analyzing the traditional principle of imputation,we should establish the principle of presumption of fault in administrative omission compensation.Explain the reason by making the compensation decision,stipulate the negotiation procedure as the necessary procedure,restipulate the time limit for making the decision not to compensate,forbid not to reply to the compensation claim and improve the advance processing procedure.From establishing the mixed orientation of cause and fault and the appropriate reference damage and compensation orientation,this paper expounds the allocation standard of the share of non-liability for compensation.