行政赔偿原则新论——以行政不作为归责之漏洞为视角

New View on the Principle of Administrative Reparation——the Perspective of Administrative Omission’ loophole

行政行为包含作为和不作为之双重形态,中国行政赔偿制度确立的违法责任原则以作为的违法为归责核心,漠视了对不作为违法的责任追究,导致不作为形态的归责游离于赔偿制度之外。由于行政不作为的违法属性难以认定,其赔偿范围以及赔偿标准都存在较大争议,建议架构以违法责任原则为排除性原则、实际损害原则为请求性原则、过错责任原则为补充性原则的原则体系,统领行政行为的双重责任制度。

Administrative act contains double forms of accomplishment and omission. In China, the principle of administrative reparation is on breaking the law which is established the core of administrative accomplishment.It has not been treated administrative omission ,leading the result of omission dissociating from system of administrative reparation.Compared with accomplishment,omission is very difficult judged in breaking the law or not , in paying for range and standard . So,In China,we suggest that the principle of breaking the law as excluded principle, of actual damage as requested principle and of fault as complemented principle should be brought into the system of administrative reparation simultaneously.