Illegality Of Not Exercising The Standard Setting Power On The State Compensation Law

For administrative officials who do not perform or do not fully discharge their obligations, delay to fulfill its responsibilities, administrative omission should be pursued their legal obligations. The paper mainly starts with administrative preventing dangerous responsibility, proves the administrative organs negatively exercising its regulatory authority, not taking active and effective measures, leading to damage results occurring illegality, in order to determine state compensation responsibility for victims. The following article is divided into five parts.The first part starts from the constituent elements of state compensation responsibility, by comparing the domestic provisions on the scope and responsibility principle for state compensation, sums up the evaluation criteria of illegality on the State Compensation Law. The administrative organs should be deemed relevant administrative authorities having administrative privileges, and specific staff intentionally or fault against their due diligence on the administrative counterpart to damage others’ legitimate interests, their behavior lacks rationality, in violation of laws and regulations and general principles or legal purposes, compromised certain citizens have rights to advocate state compensation.The second part discusses the theory of not exercising regulatory permissions and lead to the state compensation liability, the non-exercising regulatory authority is a kind of administrative omission, which should take the initiative to exercise regulatory authority to prevent the damage occurred but do not take any positive effective measures. According to the popular theories of Contraction zero discretion, the ensuring safety obligations and negatively abuse of Contraction, we are able to identify that national civil servants or public organizations do not exercise its regulatory authority, according to the purpose or the provisions of the Act, in specific cases, when it is not exercised beyond the permitted limits and obviously lack of reasonableness, in the relationship with the authority the harmed victims can apply for state compensation law. The third part is in the support of the above theory, through comparative analysis relevant cases finishing a judge the illegality of non-exercising executive authority. Firstly, the infringed legal interest is life, health and other major legal interests; secondly, there is a hazard or danger, and the executive could foreseen the danger or risk; thirdly, the executive has the possibility of actively taking measures to avoid the danger of results; fourthly, the victims’own can not exclude the damage. These four elements are interrelated and indivisible.The fourth part discusses the illegality of non-exercising standard setting power on the State Compensation Law. The executive civil servants are commissioned by the legislature to make rules, set benchmarks, have the obligation to Formulate and change administrative norms for ensure human life, physical safety. In the exercise of authority, it should be in accordance with the scientific and technological level, timely formulate and change the reference norm compatible with technological level. It also should consider the nature, extent and scale of the damage, the possibility of result to reduce or avoid, appropriately exercise the regulatory authority.The fifth part is the thoughts to improve our national compensation system. Through demonstration of this article, I hope to learn from foreign experience, from three aspects to improve our current system:modify existing legislative models, expanding the scope of administrative litigation; substantively examine of administrative action, considering the legislative intent and purpose; play the beforehand role of the administration, avoiding damage results occur.