On Fails To Perform The Statutory Duties

The numbers and types of unfulfilled administration cases are growing, which make Legitimacy examination become hot and difficult problem in administrative litigation. Unfulfilled administration act has some concealment, and its consequences is not clearly and directly, but its harmfulness is real, even more than administrative chaos. Supervise the administrative organs fully fulfill their legal duties become important driving force for the construction of government under the rule of law, which makes the research on unfulfilled administration problem becomes more and more urgent.Fails to perform the statutory duties is a concept which commonly used in judicial practice. This concept is not equivalent to administrative inaction. Fails to perform the statutory duties has three stages:express Refused to perform, implied Refused to perform and perform incompletely. Incomplete perform legal duties with concealment, which mainly displays in the judicial practice for the program is not final, entity without end, light treatment, delay in performance. Fails to perform the statutory duties is made up of the application factor, power factor, time factor and nature factor.Fails to perform the statutory duties case’s judicial review can be divided into two phases:procedural examination and substantive examination. The procedural examination focuses on Whether the plaintiffs prosecution in accordance with the administrative litigation case condition specific include:Whether the administrative counterpart submitted the application to the administrative organs,when to start counting the starting point of prosecution deadline and how to examinate that the plaintiffs has the interest with the the alleged administrative organ. The substantive examination focuses on whether the plaintiffs claims can set up. Mainly reflected in whether the defendant has the legal authority, whether the defendant exist the abuse of discretion. The substantive examination based on the request of the applicant’s meet and eliminate the program does not come to an end.Does not perform the statutory duties of administrative compensation responsibility share of quantization is solve with judgment, limiting right of discretion of judges is an important way. Through the proportion of introduced with an arithmetic method to quantify the reason and fault compared quantitative method, the administrative organ in the failure to perform the statutory duties of fault presumption of program, using a probabilistic approach to determine share responsibility for administrative compensation, finally unified standards and discretionary right combination of Hybrid Quantization "mode of operation.Fails to perform the statutory duties cases’s judicial review ultimately comes down to handling of the case. This paper will study on the judicial methods such as reject an action, term performance duty and Confirm the illegal act in order to acquire systematic understanding on fails to perform the statutory duties cases’s judicial review.