论文标题:论公安机关行政不作为的法律救济
On the Legal Remedy for Administrative Inaction in Public Security Organs
论文作者
论文导师 彭贵才,论文学位 硕士,论文专业 法律
论文单位 吉林大学,点击次数 16,论文页数 65页File Size3051K
2007-09-20论文免费下载 http://paper.dic123.com/lunwen_106413792/
在我国,公安机关担负的社会管理职能多,执法力度大,强制程度高,且多数与群众生活直接相关。公安机关行政不作为既侵害了公民、法人或其他组织的权益,也严重危害了政府和公安机关威信和声誉。如何对公安机关行政不作为定性,如何施以法律救济,是当前公安机关坚持执法为民必须切实解决的重点问题,直接关系到我国公民权益受保护的程度,也直接体现着我国行政法理论成熟的程度。文章首先介绍了公安机关行政不作为的概念、特征、构成要件等基本理论,概括了公安机关行政不作为的表现形式,并对其原因进行了分析。接着,探讨了公安机关行政不作为的诉讼救济。在考察国外行政不作为诉讼制度的基础上,介绍了公安机关行政不作为诉讼救济的理论基础,对课以义务诉讼进行了探讨,并对我国公安机关行政不作为诉讼救济制度的完善提出了几点建议。最后,就公安机关行政不作为的赔偿救济进行了论述。介绍了行政不作为国家赔偿的各国实践,分析了我国公安机关行政不作为国家赔偿的必要性,探讨了公安机关行政不作为国家赔偿的归责原则及构成要件,对公安机关行政不作为国家赔偿的责任承担进行了说明。
In China, the public security organs are different from ordinary administrative originations. They combine two powers together, the power of public security administrative management and that of criminal investigation. They have a great many of social management functions, strong law enforcement, high degree of imposition and most of them directly are connected with people’s life. Serve the people wholeheartedly is the basic aim of the police, and law enforcement for the people is the lifeline of police work. To insist on law enforcement for the people if to require the public security organs to implement every power and obligation rendered by law and improve the level of law enforcement gradually. However, in the administrative management of public security, some public security organs and their police do not actively perform the responsibility and use the right, inact, violent enforce law and other problems. The administrative inaction does harm not only to the people, legal person and other organizations, but also to the reputation of government and public security organs. How to define the administrative inaction in public security organs, and how to implement legal remedy are the crucial problem of insisting on law enforcement for the people for the current public security organs, and directly related to the right and benefit of the people and maturity of administrative law theory in China. The article stresses on the implement legal remedy for administrative inaction in public security organs and elaborates it in three parts. Chapter One introduces the concept, features, components and other theories, generates the forms of administrative inaction in public security organs and analyzes its reasons. The administrative inaction in public security organs refers to an administrative action that harms the citizen, legal person and other organizations due to the failure of fulfilling the obligations, possessing the feature of specificity, illegalness, negation and complicatedness. The components of administrative inaction in public security includes: the subject is pubic security organ, the precondition is the public security organs shall have the legal obligations and the content is that pubic security organ does not fulfill administrative actions. The administrative inaction has various forms. With the analysis, the common forms of administrative inaction are: inactively dealing with police affairs, rescue people who are in danger and investigate cases; the police do not fulfill or send licenses, do not supervise and do not hold the hearing and so on. The reasons are that as the subject, the police are tired of the job, besides, certain policemen have low quality; the administrative law and regulation lack of feasibility; the fuzziness of service function; there lacks of legal protection of enforcement and lacks of supervision. Chapter Two expounds the litigious remedy of administrative inaction. Where there is right, there is remedy, otherwise, rights will disappear. The legal remedy for citizens, legal person and other organization is the most powerful and the last way of right remedy. Legal remedy includes two aspects. This chapter focuses on the litigious remedy and compensation remedy. The litigious remedy part introduces the theoretical base of litigious remedy of administrative inaction, discusses the obligatory sues and proposes several suggestions on the improvements of the administration of public security organs as a litigious remedy system. Reviewing the development of administrative law in the countries all over the world, most of the countries have included the offences of administrative inaction to the citizen into administrative sues to ensure the citizen enjoys the right of final legal remedy. These countries have different features from others. Countries like Germany, have obligatory sues and the court has the right to investigate those with administrative inaction, and at the same time following the principle of mutual respect of legislation and administration, so it is better protect the rights of people. After many years development of administrative legislative theory, the improvement of people’s rights and of sue system is the theory base of the establishment of legal remedy for administrative inaction in public security organs with socialist features. The improvements of legal remedy for administrative inaction in public security organs should include administrative inaction in public security organs which offends public benefits into sue system. The final decision of the second discussion shall be included into sue system, bringing into obligatory sue, and it should attach importance on the legislative nature of investigating administrative laws and investigate applicability of the application and the situation of offence. Chapter Three discusses the compensation remedy which is another important remedy means. This chapter introduces the practices of compensation for administrative inaction in every country, analyzes the necessity of the compensation for administrative inaction in our public security organs, discusses the imputation principle and the components of state compensation for administrative inaction in our public security organs and expounds the responsibilities of the components of state compensation for administrative inaction in our public security organs. Many countries and areas establish the responsibility of state compensation either through legislation or through previous cases. However, they possess different features in terms of theory and practice. Law of the People"s Republic of China on State Compensation holds a positive attitude to the compensation responsibility of administrative inaction. In legal practice, our country has begun to establish state compensation system for administrative inaction with Chinese features. Through the legal interpretation from Supreme Court, it has been acknowledged the state compensation of administrative inaction. This has a great influence on the legislative rights of administrative relative people. In China, administrative inaction in public security organs should be given state compensation due to its features. Administration according to law, full and effective protection of the rights and benefits of citizens, legal person and other organizations, the realization of balance of administrative right and obligation, and social fairness and justice all require administrative inaction in public security organs should be given state compensation. The administrative inaction in public security organs should be given state compensation shall follow the imputation principle. The imputation principle could father carry out the implement of compensating which could reduce the state financial burden and require the public security staff to administrate according to law. The state compensation on the administrative inaction in public security organs requires some conditions, that is the constructing components, including: public security organs do not protect the existence of citizen’s right of person and legal obligation of property rights; they do not fulfill the obligation of protecting citizen’s right of life, health and property, and the property right of legal person and other organizations. When the administrative inaction in public security organs, which is otherwise to fulfill the action obligation of not protecting right of person and property, offends the legislative right and benefits of citizens, legal person and other organizations, the state is only responsible for the administrative inaction which produces damage. It should follow the principle of compensating by individual first and state followed; as to non-manmade-damage inaction, the victim compensates some parts and the state compensates some parts and all of these should follow the correspondent principles. Force majeure, emergency avoidance of danger and the intend that the victim volunteer to take the responsibility of a certain damage all belong to the situation of exempt (reducing) responsibility of state compensation for administrative inaction in public security organs.
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