The meaning of administrative omission remedy, how to understand administrative remedy

Depending on the specific situation of the administrative inaction, the following remedies should be adopted, either separately or in combination:

1. Confirm the violation. In cases where administrative omission violates the law, if it is not necessary or possible to order the administrative entity to continue to perform, or if the administrative entity is unable to perform its obligations due to the immaturity of the time and is understood by the administrative counterpart, it can only be confirmed that its omission is illegal. If it is only related to public interests, there is no question of compensation for losses after the violation is confirmed.

In the case of personal interests, compensation shall be made for the losses caused.

2. Order performance. Where it is necessary or possible to perform, the administrative entity may be ordered to perform its statutory obligations within a certain period of time. However, there is some controversy as to what kind of obligations should be ordered.

Some scholars believe that the administrative entity should be ordered to perform both procedural and substantive obligations, and if it is only allowed to perform procedural obligations, if the administrative entity still fails to perform its substantive obligations, it may cause the parties to be burdened with repeated litigation. The author disagrees with this view, because how an administrative subject acts belongs to its due power, and the review of administrative omission in administrative litigation should be more of a procedural review, and generally does not involve substantive review. If the counterpart applies for the issuance of a certificate, but the administrative entity does not reply.

If not, and it is its legal obligation to give a reply, and the failure to reply exceeds the statutory time limit, the court may directly order a reply within a certain period of time.

3. Compensation for losses. If the administrative omission has indeed caused losses to the counterparty, the administrative entity shall be ordered to compensate regardless of whether it is ordered to perform or not. This is because "the obligation to perform the statutory obligations that must be carried out by the administrative authorities is only to prevent the continuation of the violation of the law, and the victim is not remedied if he or she has suffered losses in the past,......This is where the question arises of ** and ** compensation for the legal act".

11] For administrative omissions that cannot be ordered to perform without the need or possibility of performance, but which do cause losses to the counterparty, compensation on the basis of confirming the illegality is undoubtedly the best remedy.

III. Conclusion. A large number of administrative inactions lead to the loss of public interests and individual interests, and remedies alone cannot fundamentally reduce administrative inaction. The implementation of the legalization of administrative duties, the codification of administrative procedures, and the expansion of the scope of litigation should be the work that needs to be further carried out to reduce administrative inaction.

Hope it helps you understand!

Legal analysis: Administrative remedies refer to the remedial system chain constituted by various ex-post legal means and measures adopted by the state to eliminate the infringement of the legitimate rights and interests of citizens, legal persons and other organizations by administrative acts. Such as administrative reconsideration, administrative litigation, administrative compensation, letters and visits, etc.

Legal basis: Article 9 of the Administrative Reconsideration Law of the People's Republic of China Where a citizen, legal person or other organization believes that a specific administrative act infringes upon its lawful rights and interests, it may submit an application for administrative reconsideration within 60 days from the date on which it becomes aware of the specific administrative act; However, the application period stipulated by law exceeds 60 days.

If the statutory application period is delayed due to force majeure or other legitimate reasons, the application period shall continue to be calculated from the date on which the obstacle is removed.

Judicial remedies for administrative inaction.

1) Administrative reconsideration.

2) Administrative Litigation.

A form of judicial remedy for administrative inaction.

1. Confirm the violation.

2. Order performance.

3) Order compensation.

The Administrative Reconsideration Law, the Administrative Litigation Law, and the State Compensation Law can be consulted

Administrative inaction refers to the state in which administrative entities and their staff have the duties and obligations to actively carry out administrative acts, and should perform but fail to perform or delay the performance of their statutory duties. It is considered that administrative omission refers to an administrative act in which an administrative entity fails to perform a specific statutory obligation and does not have a clear expression of intent in procedure. The so-called "omission" in administration is an administrative violation based on the qualified application of a citizen, legal person or other organization, and the administrative organ should carry out a certain act or perform a certain legal duty in accordance with the law, but the administrative organ refuses to act without a legitimate reason, also known as "omission to violate the law" or "passive violation".

The Administrative Law has provisions in conjunction with the Administrative Litigation Law and the Administrative Reconsideration Law.

You can reconsider an administrative complaint or appeal.

It is possible to demand continued performance of compensation for damages confirming the violation.

Yes, there is the Administrative Review Law and the Administrative Litigation Law.

There are many manifestations of administrative inaction, and different remedies should be adopted for different administrative inaction, specifically as follows:

1. Confirm the violation. This form of remedy is applicable to situations where it is no longer necessary or possible for the administrative entity and the administrative public servant to perform the obligations of the act. When the performance of an obligation has lost the specific circumstances in which it is realized, making the performance of the obligation unnecessary or impossible, ordering the performance of the obligation again will be meaningless, and may even bring greater losses to the counterparty.

Therefore, at this time, it can only be confirmed that if the administrative omission is illegal and causes damage to the legitimate rights and interests of the counterpart, compensation should be given, and the relevant departments and directly responsible persons should be investigated for legal responsibility in accordance with the law.

2. Order performance. It refers to a form of relief where, upon review by the relevant state organs, orders administrative entities and administrative and public servants to perform their obligations within a certain period of time when it is determined that they have not performed their legally-prescribed obligations but that they are still likely and necessary to do so. Its selection is subject to two conditions:

First, administrative inaction is a fait accompli; Second, it is possible and necessary for the obligation to be performed.

3) Order compensation. In addition to the objective existence of administrative omission, the application of ordering compensation must also meet the following three conditions: first, it must cause actual damage to the administrative counterpart, and this damage is objective, not imaginary, and direct rather than indirect; Second, there is a causal relationship between administrative omission and the damage to the administrative counterpart, with some scholars pointing out that "as long as the statutory obligation of the administrative subject is set up to protect the legitimate rights and interests of citizens, legal persons and other organizations, and the administrative subject's failure to actively implement the statutory obligation causes damage to citizens, legal persons and other organizations, there is a causal relationship between the two."

The author agrees; Third, the damage caused by the administrative counterpart cannot be compensated through other means. If compensation has already been received, the State is no longer obliged to make reparations.

It is also possible to have the authorization of laws and regulations without the qualifications of an administrative entity.