行政赔偿制度中违法性界定之建构

On the Illegality of Administrative Compensation

违法性的界定是行政赔偿制度中的一个难点问题。国家承担行政赔偿责任与国家机关及其工作人员不履行法定义务形成客观上的违法性有关。行政赔偿中违法性的标准主要涉及行为自身的违法性与行为的职务性。在行政赔偿中,对"违法"的内涵可以从三个面向进行探讨:"违法"与"不法"的含义分析、"违法"应当从广义的理解、"违法"应当从行为违法说与形式论明确标准。通过借鉴民法中侵权行为的行为类型,行政赔偿中行政行为的违法性也可以分为行政作为违法与行政不作为违法。在我国行政赔偿的司法实践中,行政作为违法以结合说为认定标准,行政不作为违法则以具体活动引起说为认定标准,两者相同点都是以违反对第三人利益保护的职务义务作为判断的依据。

The definition of illegality is a difficult problem in administrative compensation system. The state undertakes administrative compensation liability, which is related to the formed objective illegality of violation of the statutory obligations by the state organs and their staff members. The standard of illegality in administrative compensation mainly involves the illegality of behavior and the duty of behavior. In the administrative compensation, the content of "illegal"are discussed from three aspects:analysis of the meaning of "illegal" and "not lawful"; "illegal" should be understood from the broad sense; "illegal" standard should be understood from the illegality of behavior illegality and the specific activities. By referring to the types of torts in civil law, the illegality of administrative compensation can be divided into administration as illegal and administrative omission. In the judicial practice of administrative compensation in our country, the definition of the illegality of administration as illegal should be understood from the combination theory; and the definition of the illegality of administrative omission should be understood from the caused by the specific activities. Both of them are based on the violation of the duty of protection of the interests of the third party.