怠于履行公共职能的国家赔偿责任
林卉怠于履行公共职能的国家赔偿责任
State Compensation Responsibility for Failure to Fulfill Public Function
期刊名称：《法学研究》
期刊年份：
作者：林卉
单位：浙江大学光华法学院
中文关键词：怠于履行公共职能;行政不作为违法;怠于履行行政义务;国家赔偿责任
英文关键词：failure to fulfill public function;state compensation responsibility;State Compensation Law
中文摘要：
怠于履行公共职能是指行政主体行使职权时，未尽合理的注意义务，产生行为之懈怠，导致法律期待的公共职能实现不能或不充分的公务过失行为。为使裁量性行政导致的公民权益受损得到有效的救济，督促行政主体在行使职权时竭心尽力追求公共职能的充分实现，需要将怠于履行公共职能纳入行政赔偿范围。这种公务过失在赔偿责任上适用过错责任原则，对其损害的认定应包括现实利益、精神利益和正当预期利益，在因果关系判断方面，除了要考虑行政主体拥有比一般社会理性更高的公务理性之外，还应该考虑其裁量性选择的正当性理由。
英文摘要：
The research of unlawfulness of administrative nonfeasance and its criterion based on traditional doctrine of liability can not meet the development of State Compensation Law in the background of welfare administration. To make correspondence between administrative duties and public welfare, and to fulfill the executive power’s public functions in terms of value level, it is necessary to make an intensive study on failure to fulfill public functions as an independent form of administrative negligence in public duty. Failure to fulfill public functions means that, as the representative of the state, the administrative subject violates its duty of care when exercises its administrative discretion and is slack in its functions, which results in the failure to fulfill public functions expected by law.In consideration of cost effectiveness or other conveniences, executive officials often choose to perform their statutory duties literally, rather than actively achieve their public functions in terms of value level. Although the Supreme People’s Court has tried to remedy the defect of State Compensation Law by judicial interpretation, the executive officials may still evade state compensation responsibility through the defect of criterion of administrative nonfeasance itself. Fortunately, the amended State Compensation Law, which will come into effect in December 1st, 2010, has recognized diversified doctrine of liability instead of traditional unlawfulness only.As an independent form of administrative negligence, failure to fulfill public functions can be both unlawful administrative action and nonfeasance, so the judgment of negligence should not rigidly adhere to the traditional classification of action and omission, but should adopt an independent criterion. The negligence can be determined by three essential factors, that is, to violate the reasonable duty of care, to be slack in behavior, and failure to achieve the public functions expected by law. Meanwhile, the judgment of damage depends on the recognition of the reasonable anticipative benefit of the counterpart, and the judgment of causation should correspond to reasonability and rationality.
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